Purchase and Sale Agreement (2003)Full Document 

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PURCHASE AND SALE AGREEMENT

 

AMONG

 

FUND I AND FUND II TUCKER, a Georgia General Partnership

 

AND

 

EDWARD P. LARKIN FIRST RESIDUARY TRUST

 

d/b/a LARAYNE ENTERPRISES

 

HERITAGE PLACE SHOPPING CENTER

 

January 23, 2003

 

 


TABLE OF CONTENTS

 

          Page

ARTICLE 1 DEFINITIONS

   1

ARTICLE 2 PURCHASE AND SALE

   6

2.1

   Agreement to Sell and Purchase    6

2.2

   Permitted Exceptions; Declaration    6

2.3

   Earnest Money    6

2.4

   Purchase Price    6

2.5

   Independent Contract Consideration    7

2.6

   Closing    7

ARTICLE 3 PURCHASER’S INSPECTION AND REVIEW RIGHTS

   7

3.1

   Due Diligence Inspections    7

3.2

   Seller’s Deliveries to Purchaser; Purchaser’s Access to Seller’s Property Records    8

3.3

   Condition of the Property    10

3.4

   Title and Survey    11

3.5

   Operating Agreements    12

3.6

   Termination of Agreement    12

3.7

   Confidentiality    12

ARTICLE 4 REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS

   13

4.1

   Representations and Warranties of Seller    13

4.2

   Knowledge Defined    16

4.3

   Covenants and Agreements of Seller    17

4.4

   Representations and Warranties of Purchaser    18

ARTICLE 5 CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS

   18

5.1

   Seller’s Closing Deliveries    18

5.2

   Purchaser’s Closing Deliveries    21

5.3

   Closing Costs    22

5.4

   Prorations and Credits    22

ARTICLE 6 CONDITIONS TO CLOSING

   25

6.1

   Conditions Precedent to Purchaser’s Obligations    25

6.2

   Conditions Precedent to Seller’s Obligations    26

ARTICLE 7 CASUALTY AND CONDEMNATION

   26

7.1

   Casualty    26

7.2

   Condemnation    27

ARTICLE 8 DEFAULT AND REMEDIES

   28

8.1

   Purchaser’s Default    28

8.2

   Seller’s Default    28

ARTICLE 9 ASSIGNMENT

   28

ARTICLE 10 BROKERAGE COMMISSIONS

   29

ARTICLE 11 MISCELLANEOUS

   30

11.1

   Notices    30

11.2

   Possession    30

11.3

   Time Periods    31

11.4

   Publicity    31

11.5

   Discharge of Obligations    31

 

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          Page

11.6

   Severability    31

11.7

   Construction    31

11.8

   Sale Notification Letters    31

11.9

   Access to Records Following Closing    31

11.10

   Survival    32

11.11

   General Provisions    32

11.12

   Attorney’s Fees    32

11.13

   Counterparts    32

 

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PURCHASE AND SALE AGREEMENT

 

HERITAGE PLACE SHOPPING CENTER

 

THIS PURCHASE AND SALE AGREEMENT (the “Agreement”), made and entered into this              day of January, 2003, by and between Fund I and Fund II Tucker, a Georgia general partnership (“Seller”) and Edward P. Larkin First Residuary Trust d/b/a Larayne Enterprises (“Purchaser”).

 

WITNESSETH:

 

WHEREAS, Seller desires to sell certain improved real property commonly known as “Heritage Place Shopping Center” located at 4450 Hugh Howell Road in Tucker, Dekalb County, Georgia, together with certain related personal and intangible property, and Purchaser desires to purchase such real, personal and intangible property; and

 

WHEREAS, the parties hereto desire to provide for said sale and purchase on the terms and conditions set forth in this Agreement;

 

NOW, THEREFORE, for and in consideration of the premises, the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby covenant and agree as follows:

 

ARTICLE 1

DEFINITIONS

 

For purposes of this Agreement, each of the following capitalized terms shall have the meaning ascribed to such terms as set forth below:

 

Ancillary Closing Documents” shall mean, collectively, the Assignment and Assumption of Leases, the Assignment and Assumption of Operating Agreements, the General Assignment, and the Seller’s Certificate.

 

Assignment and Assumption of Leases” shall mean the form of assignment and assumption of Leases and Security Deposits and obligations under the Commission Agreements to be executed and delivered by Seller and Purchaser at the Closing in the form attached hereto as SCHEDULE 2.

 

Assignment and Assumption of Operating Agreements” shall mean the form of assignment and assumption of the Operating Contracts to be executed and delivered by Seller and Purchaser at the Closing in the form attached hereto as SCHEDULE 4.

 

Bill of Sale” shall mean the form of bill of sale to the Personal Property to be executed and delivered by Seller to Purchaser at the Closing in the form attached hereto as SCHEDULE 3.

 

Broker” shall have the meaning ascribed thereto in Section 10.1 hereof.

 

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Business Day” shall mean any day other than a Saturday, Sunday or other day on which banking institutions in the State of Georgia are authorized by law or executive action to close.

 

Closing” shall mean the consummation of the purchase and sale of the Property pursuant to the terms of this Agreement.

 

Closing Date” shall have the meaning ascribed thereto in Section 2.6 hereof.

 

Commission Agreements” shall have the meaning ascribed thereto in Section 4.1(f) hereof, and such agreements are more particularly described on EXHIBIT “C” attached hereto and made a part hereof.

 

Declaration” shall have the meaning ascribed thereto in Section 2.2 hereof.

 

Due Diligence Material” shall have the meaning ascribed thereto in Section 3.7 hereof.

 

Earnest Money” shall mean the sum of Twenty-Five Thousand and No/100 Dollars ($25,000.00 U.S.), together with all interest which accrues thereon as provided in Section 2.3(c) hereof and in the Escrow Agreement.

 

Effective Date” shall mean the last date upon which the following shall have occurred: (a) Purchaser and Seller shall have delivered at least two (2) fully executed counterparts of this Agreement to the other, (b) Purchaser, Seller and Escrow Agent shall have executed and delivered at least one (1) fully executed counterpart of the Escrow Agreement to each other party, and (c) Purchaser shall have delivered the Earnest Money (by federal wire transfer or delivery of Purchaser’s check made payable to Escrow Agent) to Escrow Agent.

 

Environmental Law” shall mean any law, ordinance, rule, regulation, order, judgment, injunction or decree relating to pollution or substances or materials which are considered to be hazardous or toxic, including, without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Materials Transportation Act, the Clean Water Act, the Toxic Substances Control Act, the Emergency Planning and Community Right to Know Act, any state and local environmental law including, without limitation, the Georgia Hazardous Site Response Act (“HSRA”), all amendments and supplements to any of the foregoing and all regulations and publications promulgated or issued pursuant thereto.

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