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HomeMy WebLinkAboutATLANTA GAS LIGHT COMPANY PURCHASE SALE AGREEMENT PURCHASE AND SALE AGREEMENT THIS PURCHASE AND SALE AGREEMENT (this "Agreement"), dated as of October _, 2007, by and among CITY OF AUGUSTA, GEORGIA ("Purchaser"), ATLANTA GAS LIGHT COMPANY, a Georgia corporation {"Seller"), and NICHOLS LAND & INVESTMENT COMPANY. a Georgia corporation ("Broker"). RECITALS WHEREAS, Seller is desirous of selling and leasing back certain Property (as hereinafter . defmed) and Purchaser is desirous of purchasing and leasing said Property all upon the terms and conditions hereinafter set forth; and WHEREAS, Broker is a party to this Agreement for the purpose of agreeing to the provisions of paragraph 11 of this Agreement. NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00) and other good and valuable consideration in hand paid by Purchaser to Seller upon the execution of this Agreement, I the receipt, adequacy and sufficiency of which are hereby acknowledged by Seller, Purchaser and Broker hereby covenant and agree as follows: 1. Property. Seller agrees to sell and Purchaser agrees. to buy that certain real property which is located at 1840 Wylds Road, Augusta, GA and further identified as shown on Exhibit A attached hereto and expressly made a part hereof (the "Land") and all improvements located on the Land together with the easements, rights and benefits appertaining thereto (collectively, the_ "Property"). The Property excludes all fixtures, trade fixtures, equipment and other items of personal property (whether or not attached to the improvements on the Property) that are owned by Tenant and used in the operation of the business conducted on the Premises, including, without limitation, signage, exterior gas lights and telecommunications equipment of Tenant. r . 2. Purchase Price. The purchase price (the "Purchase Price") of the Property shall be One Million Seven Hundred Thousand and No/100 Dollars ($1,700,000.00) payable via delivery of funds through the Federal Reserve System to an account designated in writing by Seller at Closing (as hereinafter defined). 3. Earnest Money. As security for Purchaser's performance of its obligations hereunder, Purchaser shall deposit, in cash, with Broker, simultaneously with Purchaser's execution and delivery of this Agreement, the sum of Twenty Thousand and No/100 Dollars ($20,000.00) as earnest money (the "Earnest Money"). In the event this transaction is closed pursuant to the terms hereof, the Earnest Money shall be delivered to Seller at Closing and Purchaser shall receive a credit against the Purchase Price in the amount of the Earnest Money; if the transaction does not close pursuant to the terms hereof, then the Earnest Money shall be disbursed pursuant to the provisions hereof. Throughout the term of this Agreement, Broker shall hold and disburse the Earnest Money in accordance with the terms and conditions of this Agreement, and the terms and conditions of the Earnest Money Escrow Agreement attached hereto as Exhibit B. 1 A1ll1BOl 1611170.7 4. Closing. The consummation and closing (herein defined as the "Closing") of the purchase and sale contemplated in this Agreement shall be held during regular business hours on December 14, 2007, at the offices of Shepard, Plunkett, Hamilton, Boudreaux & Tisdale LLP, 701 Greene Street, Augusta, Georgia. In connection with the preparation of the documentation for Closing, Purchaser shall be responsible for such preparation, and shall cause Purchaser's counsel and the closing agent to prepare such documents sufficiently in advance so that all closing documents may be executed by the authorized representatives of Seller at Seller's offices in advance of Closing, and attendance by the authorized representatives of Seller at Closing will not be necessary. A. Possession. At Closing, Seller shall deliver possession of the Property subject to the Lease Agreement (as hereinafter defmed). B. Seller's Closing Costs. Seller shall pay any transfer tax due on the transfer of the Property, the costs (including recording costs) of any cure of title defects required of Seller hereunder and the fees and expenses of Seller's own attorneys. C. Purchaser's Closing Costs. Purchaser shall pay the costs of all of Purchaser's title examinations, the costs of any surveys obtained by Purchaser, the costs and premiums of owner's title insurance and all recording charges due on recordation of any documents executed in connection with this Agreement. Purchaser shall pay for all fees and expenses of Purchasers own attorneys. 5. Title. Seller shall convey to Purchaser such good, indefeasible and marketable title to the Property as will enable Purchaser's title insurance company (the "Title Company") to issue its full-coverage, standard, revised ALTA Owner's Policy of Title Insurance, Form B ("Title Policy") in the amount of the Purchase Price, subject, however, to (i) the lien for taxes not due and payable at or before Closing, (ii) zoning ordinances affecting the Property, (iii) all matters, if any, waived or deemed to have been waived by Buyer pursuant to this paragraph 5, all matters arising under, or created by, Purchaser, (iv) thestate offacts disclosed by or that could have been disclosed by a survey and inspection of the Property as of the Date of this Agreement, (v) the Reserved Easements (as hereinafter defmed) and (vi) all matters of record affecting the Property, except for mortgages, deeds of trust, deeds to secure debt and monetary liens entered into by Seller which shall be paid in full by a specified sum according to the terms thereof (the "Permitted Title Exceptions"). A. Examination of Title. Purchaser shall have forty five (45) days after the Date of this Agreement to examine title to the Property and notify Seller in writing of any defects in title or survey (the "Title Objection Notice"). In the event Purchaser fails to deliver Seller the Title Objection Notice within the forty five (45) day examination period, Purchaser will be deemed to have waived such objections. B. Survey Matters. The legal description for the limited warranty deed executed by Seller shall be the legal description contained in Exhibit A attached hereto and incorporated herein by reference. At Purchaser's option, Purchaser may obtain a current survey of the Property (the "Survey"). If requested by Purchaser, Seller shall further execute a quitclaim deed 2 ATLLIBOI1611170.7 to Purchaser using a metes and bounds description of the Property prepared from the Survey should there be any discrepancy between the Survey and the legal description in Exhibit A attached hereto. C. Cure of Title Matters. If Purchaser has notified Seller of any defects in title as set forth in subparagraph 5A above, S~ller shall have until ten (10) days after receipt of the Title Objection Notice in which to review the Title Objection Notice, and, if Seller elects, ill which to give Purchaser written notice of any valid objections specified therein which Seller intends to attempt to satisfy (the "Cure Notice"). If Seller fails to give the Cure Notice with respect to any objection specified in the Title Objection Notice, and if Purchaser thereafter does not elect to terminate this Agreement pursuant to subparagraph 5D hereof, Purchaser shall be deemed to have waived any objection specified in the Title Objection Notice as to which Seller has failed to give the Cure Notice, and any such objection shall thereafter constitute a Permitted Title Exception under this Agreement. D. Purchaser's Right to Terminate. Seller shall have until Closing to satisfy all valid obj ections other than those waived or deemed to have been waived by Purchaser pursuant to this paragraph 5, and, if Seller fails to so satisfy any such valid objections, then, at the option of Purchaser, and as its sole and exclusive alternatives and remedies, Purchaser may: (i) terminate this Agreement, in which event the Earnest Money shall be refunded to Purchaser promptly upon request, all rights and obligations of the parties under this Agreement shall expire, and this Agreement shall become null and void except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement; or (ii) waive such satisfaction and performance and elect to consummate the purchase and sale of the Property, in which event all unsatisfied objections shall constitute Permitted Title Exceptions under this Agreement. The remedies of Purchaser as set forth in clauses (i) and (ii) of this subparagraph 5D shall be Purchaser's sole and exclusive remedies in the event Seller fails to satisfy any valid objections, notwithstanding anything to the contrary contained herein. If Seller elects option (ii), any deed to secure debt, lien or similar encumbrance encumbering the Property and created by Seller which can be satisfied by payment of a specified sum of money shall be paid and discharged out of the purchase price otherwise payable to Seller at Closing. E. Additional Right to Terminate. In the event that the parties have not agreed to the form of the Lease (as hereinafter defmed) within thirty (30) days after the Date of this Agreement, Seller may terminate this Agreement at any time on or before forty five (45) days after the Date of this Agreement by written notice to Purchaser, in which event Broker shall return the Earnest Money to Purchaser. Thereafter neither party hereto shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. 6. Prorations and Credits at Closing. All ad valorem real estate taxes with respect to the Property for the current year shall be prorated as of the Closing Date and the portion thereof allocable to periods up to and through the Closing Date shall be charged to Seller at Closing as a credit against the Purchase Price if such taxes are not paid at or prior to Closing. Such proration shall be based upon the latest ad valorem property tax bills available; and if such bills cover 3 A1ll1B011611170.7 other property in addition to the Property, then such proration shall also be based on the fraction obtained when the number of acres of Property is divided by the number of acres of property so covered by such bills. In.the event that tax bills for the current year taxes are not available on the Closing Date, taxes shall be prorated based upon the tax rate for the preceding tax year applied to the latest assessed valuation of the Property. All unpaid assessments applicable to the Property shall be paid in full by Seller or applied as a credit to Purchaser against the Purchase Price. 7. Conveyances and Deliveries at Closing. At Closing, the following items shall be executed and delivered: A. Limited Warranty Deed. Seller shall convey the Property, together with any easements appurtenant thereto or otherwise described as a portion of the Property, to Purchaser by Limited Warranty Deed in the form of, and on the terms and conditions set forth in, that attached hereto as Exhibit C, subject to the Permitted Title Exceptions. B. Section 1445 Certificate. Seller shall also execute and deliver to Purchaser a certificate with respect to Section 1445 of the Internal Revenue Code in the form of, and on the terms and conditions set forth in, that attached hereto as Exhibit D. C. Seller's Affidavit. Seller shall also execute and deliver to Purchaser an Affidavit with respect to liens and title matters in the form of, and on the terms and conditions set forth in, that attached hereto as Exhibit E. D. Affidavit of Seller's Residence. Seller shall execute and deliver a Certificate and Affidavit as to whether (A) Seller is a resident of the State of Georgia (as defmed in O.C.G.A. 948-7-128(a)), or (B) Seller is deemed to be a resident of the State of Georgia pursuant to O.C.G.A. 948-7-128, or (C) the sale of the Property by Seller is otherwise exempt from the withholding requirements of O.C.G.A. 948-7-128, in the form of, and on the terms and conditions set forth in, that attached hereto as Exhibit F. E. Closing Statement. Seller and Purchaser shall execute and deliver a Closing Statement which shall set forth the Purchase Price, all credits against the Purchase Price, the amounts of all prorations and other adjustments to the Purchase Price and all disbursements made at Closing on behalf of Purchaser. F. Delivery of Purchase Price. Purchaser shall cause the Purchase Price to be wire transferred to Seller as herein provided. G. 1099-S Request. Purchaser shall execute and deliver a completed 1099-8 request for taxpayer identification number and certification, and acknowledgment, in the form of, and on the terms and conditions set forth in, that attached hereto as Exhibit G. H. Lease. Seller and Purchaser shall execute and deliver a lease agreement in the form agreed to by Seller and Purchaser (the "Lease"). 8. Inspection of Property: Soils Tests. 4 ATLLIBOI 1611170.7 A. Right to Inspect. Purchaser shall, at all reasonable times prior to the Closing Date or earlier termination of this Agreement (but subject to subparagraph 8D below), have the privilege of going upon the Property with its agents, representatives and contractually retained independent contractors as needed to inspect, examine, test, appraise and survey the Property (collectively, "Purchaser's Activities"). This privilege shall include the right to make surveys, examinations, appraisals, soils tests, and other tests to obtain any relevant information reasonably necessary to Purchaser, all of which tests, studies and reviews shall be performed at Purchaser's sole cost and expense. In the event Purchaser determines that conditions make the site unacceptable for Purchaser's intended use, for any reason whatsoever, Purchaser may terminate this Agreement at any time on or before forty five (45) days after the Date of this Agreement by written notice to Seller, in which event Broker shall return the Earnest Money to Purchaser and Purchaser shall provide Seller with copies of all studies performed by Purchaser or on PUrchaser's behalf under this paragraph 8, if Seller so requests. Thereafter neither party hereto shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. Provided, however, that in the event that the Purchaser fails within such forty five (45) day period to notify Seller of Purchaser's intent to terminate this Agreement in accordance with this paragraph 8, and if, through no fault of the Seller, the sale of the Property does not close in accordance with the terms of the Agreement, Seller shall retain the Earnest Money. B. Environmental Site Assessment. Purchaser shall have forty five (45) days after the Date of this Agreement to complete an Environmental Site Assessment (the "Report") on the Property. Should the Report indicate that conditions on the Property make the Property unacceptable for Purchaser's intended use, then Purchaser shall notify Seller of such within this time frame. Seller shall have the right upon such notification of either correcting the conditions or terminating this Agreement. If Seller falls to correct on or before the Closing Date such conditions on the Property that make the Property unacceptable for Purchaser's intended use, then Purchaser may terminate this Agreement. If this Agreement is terminated pursuant to this subparagraph 8B, then neither party shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. C. Restoration and Indemnity. After all such tests and inspections, Purchaser shall promptly restore the Property to substantially the same condition that the surface is in on the Date of this Agreement. Purchaser shall defend, indemnify and hold Seller harmless from and against any and all liens which may arise as a result of the activity of Purchaser or of Purchaser's agents, representatives or designees, or contractually retained independent contractors, and further, Purchaser shall defend, indemnify and hold Seller harmless from and against any claims, costs or expenses, including, but not limited to, attorneys' fees incurred by Seller as a result of Purchaser's activities or the activities of Purchaser's agents, representatives or designees, or contractually retained independent contractors, going on the property or investigating the Property, resulting from damage to property or injury to any party resulting from the activity of Purchaser and/or Purchaser's agents, representatives or designees, or contractually retained independent contractors. Purchaser's foregoing indemnities of Seller shall survive the Closing or 5 ATLLIBOI 1611170.7 any termination of this Agreement. Such indemnities by Purchaser shall be only as allowed by law. D. Insurance. Seller acknowledges that Purchaser is self insured for all risks under this Agreement. 9. AS IS CONDITION. A. PURCHASER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND PURCHASER IS PURCHASING THE PROPERTY ON AN "AS IS" BASIS AND THAT PURCHASER IS NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, FROM SELLER OR ITS AGENTS AS TO ANY MATTERS CONCERNING THE PROPERTY, EXCEPT AS EXPRESSLY SET FORTH HEREIN, INCLUDING, WITHOUT LIMITATION: (1) THE QUALITY, NATURE, ADEQUACY, AND PHYSICAL CONDITION OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE. STRUCTURAL ELEMENTS, FOUNDATION, ROOF, APPURTENANCES, ACCESS, LANDSCAPING, PARKING FACILITIES AND THE ELECTRICAL, MECHANICAL, HV AC, PLUMBING, SEWAGE, AND UTILITY SYSTEMS, FACILITIES AND APPLIANCES; (II) THE QUALITY, NATURE, ADEQUACY AND PHYSICAL CONDITION OF SOILS, GEOLOGY, AND ANY . GROUNDWATER; (III) THE EXISTENCE, QUALITY, NATURE, ADEQUACY AND PHYSICAL CONDITION OF UTILITIES SERVING THE PROPERTY; (IV) THE DEVELOPMENT POTENTIAL OF THE PROPERTY, AS WELL AS THE USE, HABITABILITY, MERCHANTABILITY, OR FITNESS, SUITABILITY, VALUE OR ADEQUACY OF THE PROPERTY FOR ANY PARTICULAR PURPOSE; (V) THE ZONING OR OTHER LEGAL STATUS OF THE PROPERTY OR ANY OTHER PUBLIC OR PRIVATE RESTRICTIONS ON THE USE OF THE PROPERTY; (VI) THE COMPLIANCE OF THE PROPERTY OR ITS OPERATION WITH ANY APPLICABLE CODES, LAWS, REGULATIONS, STATUES, ORDINANCES, COVENANTS, CONDITIONS AND RESTRICTIONS OF ANY GOVERNMENTAL, OR QUASI-GOVERNMENTAL ENTITY OR OF ANY OTHER PERSON OR ENTITY; (VII) THE QUALITY OF ANY LABOR AND MATERIALS USED IN ANY IMPROVEMENTS ON THE PROPERTY; (VIII) THE CONDITION OF TITLE TO THE PROPERTY (EXCEPT TO THE EXTENT CONTAINED IN THE LIMITED WARRANTY DEED DELIVERED BY SELLER AT CLOSING), AND (IX) THE ECONOMICS OF THE OPERATION OF THE PROPERTY. B. Purchaser's Independent Investigation. Purchaser acknowledges that it will have inspected the Property prior to Closing, observed its physical characteristics and existing conditions, and has been afforded the opportunity to conduct such investigation and study on and of the Property as it deems necessary for the purpose of acquiring the Property for Purchaser's intended use. Purchaser hereby waives any and all objections to or claims with respect to any and all physical characteristics and existing conditions of the Property. C. Release. Purchaser, on behalf of itself and its heirs, successors and assigns hereby unconditionally waives, releases, acquits, and forever discharges Seller, its officers, directors, partners, shareholders, employees, agents, representatives, and any other person acting on behalf 6 ATLLlBOl 1611170.7 of the Seller, and the successors and assigns of any of the preceding, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, expenses, or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which Purchaser or any of its heirs, successors or assigns now has or which may arise in the future on account of or in any way related to or in connection with any past, present or future physical characteristic or conditions of the Property, including, without limitation, any Hazardous Materials (as hereinafter defined), in, at, on, under or related to the Property, or any violation or potential violation of any laws applicable thereto. D. Intentionally Omitted. E. Hazardous Material. "Hazardous Materials" means and includes petroleum products, flammable explosives, radioactive materials, asbestos or any material containing asbestos, polychlorinated biphenyls, or any hazardous, toxic or dangerous waste, substance or material defmed as such or defined as a hazardous substance or any similar term, by, in or for the purposes of the Environmental Laws, including, without limitation Section 101 (14) of CERCLA. "Environmental Laws" shall mean any federal, state or local statute, law, ordinance, code, rule, regulation, order or decree, regulating, relating to or imposing liability or standards of conduct concerning any Hazardous Materials as may now or at any time hereafter be in effect, including, without limitation, the following, as the same may be amended or replaced from time to time, and all regulations promulgated thereunder or in connection therewith: the Super Fund Amendments and Reauthorization Act of 1986 ("SARA"); the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"); the Clean Air Act ("CAA"); the Clean Water Act ("CWA"); the Toxic Substances Control Act ("TSCA"); the Solid Waste Disposal Act ("SWDA"), as amended by the Resource Conversation and Recovery Act ("RCRA"); the Hazardous Waste Management System; and the Occupational Safety and Health Act of 1970 ("OSHA"); the Georgia Hazardous Site Response Act ("HSRA"); the Georgia Underground Storage Tank Act; the Georgia Comprehensive Solid Waste Management Act; and the Georgia Hazardous Waste Management Act. F. Survival. The provisions of this paragraph 9 shall. survive Closing and any termination of this Agreement. 10. Notices. All notices, consents, approvals and other communications which may be or are required to be given by either Seller or Purchaser under this Agreement shall be properly given only if made in writing and delivered by hand, sent by registered or certified mail, postage prepaid, return receipt requested, or sent by nationally recognized commercial courier for next business day delivery, to the addresses set forth below, or to such other addresses as are specified by written notice given in accordance herewith, or transmitted. by telecopier to the number for each party set forth below their respective addresses, or to such other numbers as are specified by notice given in accordance herewith. All notices, consents, approvals and other communications delivered by hand shall be deemed given upon the date so delivered; those given by mailing as hereinabove provided shall be deemed given on the date of deposit in the United States Mail; those given by commercial courier as hereinabove provided shall be deemed given on the date immediately following the date of deposit with the commercial courier; and those given by telecopier as hereinabove provided shall be deemed given once such notice or other 7 ATLLIB011611170.7 communication is transmitted to the telecopier number for each party set forth below their respective addresses, provided that the sending telecopier generates a transmission report showing the successful completion of such transaction. Nonetheless, the time period, if any, in which a response to any notice, demand or request must be given shall commence to run from the date of receipt of the notice, demand or request by the addressee thereof, provided that with respect to a notice, demand or request sent by telecopy, if such telecopy is sent after 5 :00 p.m. local time at the location of the receiving telecopier, or is sent on a day other than a business day, such notice, demand or request shall be deemed received as of 9:00 a.m. local time at such location on the next succeeding business day. Any notice, demand or request not received because of changed address or telecopy number of which no notice was given as hereinabove provided or because of refusal to accept delivery shall be deemed received by the party to whom addressed on the date of hand delivery, on the date oftelecopier transmittal (subject, however, to the provisos above with respect to the confIrmation, date and time of the telecopier transmittal), on the first calendar day after deposit with commercial courier, or on the third calendar day following deposit in the United States Mail, as the case may be. Addresses and telecopier numbers for notices: Seller: c/o AGL Resources Inc. Ten Peachtree Place Atlanta, Georgia 30309 Attention: General Counsel Telephone Number: (404) 584-3430 Telecopy Number: (404) 584-3419 With a copy to: AGL Resources Inc. Ten Peachtree Place Location 1391 Atlanta, Georgia 30309 Attention: Facilities Manager Telephone Number: (404) 584-4449 TelecopyNumber: (404) 584-3817 Purchaser: Purchaser: Augusta, GA Utilities Department Attention: Max Hicks 360 Bay Street Augusta, Georgia 30901 8 ATLLIB011611170.7 Telephone Number: (706) 312-4121 Telecopy Number: ( ) 11. Broker. A. No Other Brokers. Seller and Purchaser represent and warrant each to the other that they have not discussed this Agreement or this sale of the Property, and have not engaged in any fashion in connection with this transaction, the services of any real estate or other broker, agent or salesperson so as to create any legal right in any broker, agent or salesperson to claim a commission or similar fee with respect to the purchase and sale of the Property contemplated by this Agreement, other than Broker. B. Payment of Commission. Upon Closing, any payment owed by Seller to Broker will be paid by Seller pursuant to a separate agreement. Upon receipt of such commission, Broker shall provide Seller and Purchaser with Broker's affidavits releasing the Property from any claim by Broker or other brokers with whom Broker or its agents have been affiliated that may make any claim for commissions with respect to this transaction. It is understood and agreed that no commission shall be due hereunder in the event that the Closing does not occur for any reason whatsoever. C. Indemnity. Purchaser, Seller and Broker agree to indemnify and hold harmless each other for any commissions or obligations owed or claiming to be owed to any other broker or agent claiming by, through or under such indemnifying party related to this transaction. D. Survival. The provisions of this paragraph 11 shall survive Closing and any termination of this Agreement. 12. Default. A. Purchaser's Default. In the event that Purchaser defaults in the observance or performance of its covenants and obligations hereunder, and such default continues for five (5) consecutive days after the date of written notice from Seller demanding cure of such default, Seller shall be entitled to terminate this Agreement (except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement) by written notice to Purchaser of such termination and shall also be entitled, as its sole and exclusive additional remedy hereunder, to retain the Earnest Money as full liquidated damages for such default of Purchaser; provided, however, that the foregoing liquidated damages shall not apply to any duty, obligation, liability or responsibility which Purchaser may have pursuant to the indemnification provisions of this Agreement, as to which Seller shall have all rights and remedies provided for or allowed by law or in equity. It is hereby agreed that, without resale, Seller's damages may be difficult to ascertain and that the earnest money constitutes a reasonable liquidation thereof and is intended not as a penalty, but as liquidated damages. B. Seller's Default. In the event that Seller defaults in the observance or performance of its covenants and obligations hereunder, and such default continues for five (5) consecutive days 9 ATLLffiOI1611170.7 after the date of written notice from Purchaser demanding cure of such default, Purchaser shall be entitled to terminate this Agreement (except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement) by the delivery to Seller of notice of such termination, in which event Purchaser shall be entitled to receive a refund of the Earnest Money and to the right to sue Seller to collect actual monetary damages; provided, however, that in the event that Purchaser elects to seek to recover damages from Seller on account of any default by Seller under this Agreement, Seller's liability to Purchaser for all damages~ of any nature whatsoever, shall not exceed Twenty Thousand and No/100 Dollars ($20,000), and Purchaser shall not claim, sue for or accept an award for more than the maximum amount of damages hereinabove set forth on account of or in connection with this Agreement or any default by Seller under this Agreement. In no event shall Purchaser have the right to seek specific performance or to recover from Seller any special or consequential damages. The ( inability of Seller to convey good and marketable fee simple title to the Property on the Closing Date shall not constitute a default by Seller under this Agreement unless such inability is caused by a defect in Seller's title to the Property which is not a Permitted Exception under this Agreement, which arises subsequent to the date of Seller's execution of this Agreement, and which arises solely by reason of an affirmative act of Seller. Seller shall have no other liability to Purchaser under this Agreement. 13. Damage or Destruction. A. If any portion of the Property is damaged or destroyed by. casualty prior to Closing, Seller shall give Purchaser prompt written notice thereof. If notice is provided to Purchaser that the Property is damaged or destroyed by casualty on or before the Inspection Date, and Purchaser shall not elect to terminate this Agreement pursuant to paragraph 8 hereof, then Purchaser shall have no right to terminate this Agreement by reason of such damage or destruction. B. If any portion of the Property is damaged or destroyed by casualty prior to Closing and the purchase and sale of the Property contemplated by this Agreement is thereafter actually consummated: (i) the Purchase Price shall be reduced by the total of any insurance proceeds actually received by Seller on or before Closing with respect to such casualty and not expended by Seller prior to Closing for the repair or restoration of the Property and (ii) at Closing, Seller shall assign to Purchaser all rights of Seller in and to any insurance proceeds payable thereafter by reason of such casualty. 14. Condemnation. A. In the event of commencement of eminent domain proceedings respecting any portion of the Property prior to Closing, Seller shall give Purchaser prompt written notice thereof. If all or any part of the Property is taken by eminent domain proceedings, or if there is the commencement or bona fide threat of the commencement of any such proceedings, on or before the Inspection Date, and Purchaser shall not elect to terminate this Agreement pursuant to paragraph 8 hereof, Purchaser shall have no right to terminate this Agreement by reason of such taking. If all or any material (as hereinafter defmed) part of the Property is taken by eminent domain proceedings after the Inspection Date, and prior to Closing, Purchaser may terminate this 10 ATLLffiOl1611170.7 Agreement by giving written notice to Seller, whereupon the Earnest Money shall be refunded to Purchaser upon request, and thereafter neither party hereto shall have any further rights, obligations or liabilities hereunder except to the extent that any right, obligation or liability set forth herein expressly survives termination of this Agreement. In the event of a taking of less than all or a material part of the Property after the Inspection Date, Purchaser shall have no right to terminate this Agreement by reason of such taking. B. If all or any part of the Property is taken by eminent domain proceedings prior to Closing and the purchase and sale of the Property is thereafter actually consummated: (i) the Purchase Price shall be reduced by the total of any awards or other proceeds actually received by Seller on or before Closing with respect to any taking and not expended by Seller prior to Closing for the repair or restoration of the Property or in obtaining such awards; and (ii) at Closing, Seller shall assign to Purchaser all rights of Seller in and to any awards or other proceeds payable thereafter by reason of such taking. C. For the purposes of this paragraph 14, a taking shall be deemed to be of a "material" part of the Property only if such taking involves either: (i) the taking of more than twenty percent (20%) of the existing parking spaces on the Property; or (ll) the condemnation award exceeds twenty percent (20%) of the Purchase Price. 15. Seller Representations. Seller covenants, represents and warrants to Purchaser that to the actual knowledge of Seller: A. Seller has the right, power and authority to enter into this Agreement and to sell the Property in accordance with the terms and conditions hereof. The persons executing this Agreement on behalf of Seller warrant their authority to do so and to bind Seller to this Agreement. B. Seller has received not written notice of any pending or contemplated condemnation proceedings affecting the Property or any part thereof. C. Seller has the exclusive right of possession of the Property except for tenants and occupants whose rights will be terminated at or before Closing. D. There are no leases, management agreements or service contracts which affect or bind the property and which will survive closing, except for the Lease Agreement. 16. General Provision. A. Agreement Binding. This Agreement shall be binding upon each party hereto and such party's successors and assigns, and shall inure to the benefit of each party hereto and such party's successors and permitted assigns. B. Entire Agreement. This Agreement and all the exhibits referenced herein and annexed hereto contain the entire agreement of the parties hereto with respect to the matters contained herein, and no prior . agreement or understanding pertaining to any of the matters 11 ATLLIB011611170.7 connected with this transaction shall be effective for any purpose. Except as may be otherwise provided herein, the agreements embodied herein may not be amended except by an agreement in writing signed by Purchaser and Seller. C. Time is of the Essence. TIME IS OF THE ESSENCE of the transaction contemplated by the Agreement. If any date set forth in this Agreement shall fallon, or any time period set forth in this Agreement shall expire on a day which is a Saturday, Sunday, federal or state holiday, or other non-business day, such date shall automatically be extended to, and the expiration of such time period shall automatically be extended to, the next day which is not a Saturday, Sunday, federal or state holiday or other non-business day. D. Merger. All covenants, agreements, indemnities, representations and warranties contained herein shall be merged into the deed and other documents delivered at Closing except to the extent otherwise specifically provided in this Agreement. E. Date of this Agreement. All references in this Agreement to "the Date of this Agreement" shall be deemed to refer to the date the last of Purchaser and Seller execute this Agreement, as indicated on the signature pages of this Agreement. F. Assignment. This Agreement may not be assigned by Purchaser, in whole or in part, without the prior written consent of Seller, and any such assignment without the consent of Seller shall be null and void and of no force or effect. G. Governing Law. This Agreement is made and entered into in the State of Georgia and shall be governed by, construed under, interpreted and enforced in accordance with laws of the State of Georgia, without regard to its rules regarding conflicts of law. H. Non- Waiver. No failure on the part of either party to exercise, and no delay in exercising any right, power or remedy under this Agreement and no custom or practice of the parties at variance with the terms of this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy by either party preclude any other or further exercise thereof or the exercise of any other right, power or remedy~ No express waiver or assent by either party to any breach of or default in any term or condition of this Agreement shall constitute a waiver of or an assent to any succeeding breach of or default in the same or any other term or condition. 1. Severability. All rights and restrictions contained herein may be exercised and shall be applicable and binding only to . the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary to render this Agreement legal, valid and enforceable. If any term of this Agreement, or part thereof, shall be held illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the parties that the remaining terms hereof and all such remaining terms, or part thereof, shall remain in full force and effect. To the extent legally permissible, any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision, which will implement the purpose of the illegal, invalid or unenforceable provision. 12 ATLLIBOlI611170.7 J. Headings. The use of headings herein are inserted for convenience only and shall not be construed as a part of this Agreement or as a limitation on the scope of any of the terms or provisions of this Agreement. K. Counterparts. This Agreement may be executed in several counterparts, each of which shall be deemed an original, and all of such counterparts together shall constitute one and the same instrument. L. Facsimile as Writing. The parties expressly acknowledge and agree that, notwithstanding any statutory or decisional law to the contrary, the printed product of a facsimile transmittal shall be deemed to be "written" and a "writing" for all purposes of this Agreement, including without limitation any signature. [Remainder of page intentionally left blank] 13 A1ll1BOl 1611170.7 IN WITNESS WHEREOF, Seller and Purchaser have caused this instrument to be executed under seal as of the day and year fIrst above written. SELLER: ATLANTA GAS LIGHT COMPANY, a Georgia corporation vJ'!,\.,~ ,\' (CORPORATE SEAL) \ ~oluY ,of' Date executed by Seller: [Signatures continued on the following page] 14 ATLLIBOI1611170.7 [Signatures continued from the previous page] PURCHASER: f,J AUGUS~A, GEORGIA ~I By: ({)rId ~ (SEAL) Its: Mayor Attest~ Its: Clerk of 0 Ission Date executed by Purchaser: I o/v 107 / / 15 ATLLIB011611170.7 BROKER SIGNATURE PAGE Broker is executing this Agreement for the purpose of Agreeing to the terms of paragraph 11 of this Agreement. No amendment or modification of this Agreement, except to said paragraph 11, shall require the consent or signature of Broker. IN WITNESS WHEREOF, Broker has caused this instrument to be executed under seal as of the day and year fIrst above written. BROKER: NICHOLS LAND & INVESTMENT CO., a Georgia corporation 1. Notice address for Broker: P-i,)~ r;...-ereVlc. )-/. 4~~t, ~ ,CClo/ Telephone No. Telecopier No. ? Vt I )Lfr- A;,-&h. I b.+ )D~ Date executed by Broker: 70&. ?6Lf, 3yIJ! /lore :?t~. :19/0 I D J e-G j.'Zoe 1 ! / 16 A1ll1BOI1611170.7 Exhibit A - Exhibit B - Exhibit C - Exhibit D Exhibit E - Exhibit F - Exhibit G - ATLLlB011611170.7 List of Exhibits Legal Description of Property Escrow Agreement Form of Limited Warranty Deed Form of Section 1445 Certificate Form of Seller's Affidavit Form of Mfidavit of Seller's Residence Form of 1099-S Request Exhibit A Legal Description of Property 1 A1ll1B011611170.7 EXHIBITB EARNEST MONEY ESCROW AGREEMENT 1. Purchaser and Seller hereby appoint Broker as escrow agent hereunder; and the Earnest Money is hereby delivered to Broker, who by signing this Agreement acknowledges its receipt, in the form of a check payable to Broker, or wire transfer, in the amount of $25,000.00. Broker shall not receive any fee for holding the Earnest Money under this Agreement. 2. Broker shall hold the Earnest Money until written release disbursement instructions are received from Buyer and Seller. 3. Broker is hereby authorized to and directed to deposit the Earnest Money in an account insured by the FDIC. 4. Broker shall not be liable for any loss caused by the failure, suspension, bankruptcy or dissolution of the depository provided such the account is insured as provided above: 5. Broker shall not be liable for loss or damage resulting from: (a) any good faith act or forbearance of Broker; (b) any default, error, action or omission of any party, other than Broker; (c) the expiration of any time limit or other delay which is not solely caused by the failure of Broker to proceed in its ordinary course of business, and in no event where such time lime is not disclosed in writing to the Broker; (d) the lack of authenticity of any writing delivered to Broker or of any signature thereto, or the lack of authority of the signatory to sign such writing; (e) Broker's compliance with all attachments, writs, orders, judgments, or other legal process issued out of any court; (f) Broker's assertion or failure to assert any cause of action or defense in any judicial or administrative proceeding; or (g) any loss or damage which arises after the Earnest Money has been disbursed in accordance with the terms ofthis Agreement. 1 A1ll1B011611170.7 6. Broker shall be fully indemnified by the parties hereto for all its expenses, costs, and reasonable attorney's fees incurred in connection with any interpleader action which Broker may file, in its sole discretion, to resolve any dispute as to the Earnest Money, or which may be filed against the Broker. Such costs, expenses or attorney's fees, as well as the fees of Broker described below, may be deducted from the Earnest Money. 7. If Broker is made a party to any judicial, non-judicial or administrative action, hearing or process based on acts of any of the other parties hereto and not on the malfeasance and/or negligence of .Broker in performing its duties hereunder, the expenses, costs and reasonable attorney fees incurred by Broker in responding to such action, hearing or process may be deducted from the funds held hereunder and the party/parties whose alleged acts are a basis for such proceedings shall indemnify, save arid hold Broker harmless from said expenses, costs and fees so incurred. 2 ATLLlBOI1611170.7