HomeMy WebLinkAboutANDERSON EQUIPMENT RENTAL COMANY FOR EXCHANGE OF REAL PROPERTY ►a . .
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AGREEMENT FOR THE EXCHANGE OF REAL PROPERTY
THIS AGREEMENT FOR THE EXC GE OF REAL
PROPERTY is made and entered into as of the day of - r eh�� , 2001,
by and between AUGUSTA, GEORGIA, a political subdivision of the State of
Georgia, party of the first part ( "City "), and ANDERSON EQUIPMENT RENTAL
COMPANY, L.L.C., a limited liability company organized and existing under the
Laws of the State of Georgia, party of the second part ( "AEC ").
IT IS RECITED:
A. City is the Lessor and RBW Logistics Corporation ( "Logistics
Corp ") is the Lessee under a lease on Property A, the term of which is to expire on
August 31, 2019 (the "Lease ").
B. AEC desires to acquire fee simple title to Property A from the
City and assume the City's obligations and liabilities under the Lease.
C. City desires to acquire fee simple title to Property B and is
willing to exchange its estate in Property A for fee simple title to Property B.
D. AEC has agreed to use its best efforts to acquire fee simple title
to Property B and convey it to City in exchange for City's estate in Property A.
WITNESSETH:
NOW, THEREFORE, FOR AND IN CONSIDERATION of One
Hundred and no/100 ($100.00) Dollars in hand paid by AEC to City and in hand paid
by City to AEC (in each case, the "Earnest Money') and in consideration of the
covenants and agreements hereinafter set forth, the receipt and sufficiency whereof
are hereby mutually acknowledged, the parties hereto covenant and agree as follows:
1. Definitions. In addition to the other terms defined in this
Agreement, the following terms shall have the meanings ascribed thereto in this
Section 1.
1.01 "Agreement" means this Agreement for the Exchange of Real
Properties entered into between City and AEC as of the date first set forth above.
Exchange Agreement (6)
November 5, 2001
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1.02 "Closing" means the act of consummating on the Closing Date
the exchange of the Properties as contemplated by this Agreement.
1.03 "Closing Date" means the date whereon the Closing occurs or is
scheduled to occur pursuant to the terms of this Agreement.
1.04 "Closing Documents" means the documentation to be executed
and delivered, or caused to be executed and delivered, by City, AEC and/or Logistics
Corp at the Closing as more particularly provided in Section 10.
1.05 "Exchange Value" means the value of City's estate in Property A
as more fully specified in Section 3.
1.06 "Notice" means a written advice, demand, request or notification
required or permitted by this Agreement, as more particularly provided in Section 15.
1.07 "Permitted Title Exceptions" means certain matters affecting or
encumbering City's title to Property A, as more fully set forth on Exhibit `B"
attached hereto and by this reference made a part hereof, subject to all of which
matters, AEC has agreed to accept title to Property A at Closing.
1.08 "Property A" means land and improvements located on Prep
Phillips Drive in Augusta, Georgia, which is the subject of the Lease and which is
more particularly described on Exhibit "A" attached hereto.
1.09 "Property B" means the 4 parcels of property and improvements
thereon located at or near the southeasternmost corner of the intersection of Telfair
Street and Ninth Street in Augusta, Georgia, which is more particularly described on
Exhibit "C" attached hereto.
1.10 "AEC" means Anderson Equipment Rental Company, L.L.C., a
limited liability company organized and existing under the Laws of the State of
Georgia.
1.11 "City" means Augusta, Georgia, a political subdivision of the
State of Georgia.
1.12 "Surveys" means the updated plats of survey of the Property
which may be obtained by AEC and City pursuant to Section 8.
Exchange Agreement (6) 2
November 5, 2001
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2. Exchange of Property; As Is. Subject to and in accordance with
the terms and conditions of this Agreement, on the Closing Date City will exchange
and convey fee simple title to Property A to AEC and AEC will exchange and
convey fee simple title to Property B to City. City and AEC agree and understand and
each, by its execution hereof, acknowledge that the exchange of Property A and
Property B by City and AEC shall be on an "AS IS/WHERE IS" basis without any
warranties from City to AEC or AEC to City whatsoever except as may be otherwise
expressly provided herein. City and AEC each acknowledge and agree that neither
has heretofore made representations or warranties whatsoever regarding either
Property and that EACH SHALL EXPRESSLY DISCLAIM IN THE CLOSING
DOCUMENTS, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, ANY WARRANTY OF FITNESS FOR A PARTICULAR
USE OR PURPOSE OR ANY WARRANTY OF HABITABILITY.
3. Exchange Value and Method of Adjustment. The Exchange
Value of the subject properties is and shall be Four Hundred Fifty -Nine Thousand
and no /100 ($459,000.00) Dollars. The fair market value of Property A is equal to
the Exchange Value.
4. Representations and Warranties of City. City represents and
warrants to AEC and agrees with AEC (and as of the Closing Date, City will again
represent and warrant to AEC):
4.01 That all necessary municipal action has been taken by City
authorizing and approving (i) the execution of and entry into this Agreement, (ii) the
execution and delivery by City of the Closing Documents, and (iii) the performance
by City of City's duties and obligations under this Agreement and all other acts
necessary and appropriate for the consummation of the exchange and conveyance of
Property A as contemplated by and provided for in this Agreement.
5. Representations and Warranties of AEC. AEC represents and
warrants to City and agrees with City (and as of the Closing Date, AEC will again
represent and warrant to City):
5.01 That all necessary corporate action has been taken by AEC
authorizing and approving (i) the execution of and entry into this Agreement, (ii) the
execution and delivery by AEC of the Closing Documents, and (iii) the performance
by AEC of AEC's duties and obligations under this Agreement and all other acts
necessary and appropriate to use its best efforts to acquire title to Property B and for
Exchange Agreement (6) 3
November 5, 2001
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the consummation of the exchange and conveyance thereof as contemplated by and
provided for in this Agreement.
6. Examination of Title of Property A. AEC shall examine title to
Property A and satisfy itself regarding City's title to Property A prior to Closing. City
shall convey Property A on the Closing Date subject only to the Permitted Title
Exceptions and matters provided by the following sentence. If AEC's title
examination should disclose a defect in title to Property A which affects the
marketability thereof other than the Permitted Title Exceptions, AEC shall have the
option (i) of waiving such defect and proceeding with the Closing with Property A to
be conveyed subject to such defect and without any reduction in the Exchange Value,
or (ii) of terminating this Agreement by Notice to City, whereupon this Agreement
shall become null and void and no party shall have any further liability, right or
obligation hereunder (except for Brokerage Indemnities and Inspection Indemnity).
City warrants, represents and agrees that City has not entered into, nor to the best
knowledge of City is Property A subject to any other enforceable purchase
agreement, option or lease, or the claim of any tenant in possession (other than the
Lease and as set forth in the Permitted Title Exceptions); and so long as this
Agreement remains in effect, City will not lease, market, negotiate for the sale of, or
convey or encumber any portion of Property A or any right therein, nor enter into any
agreement granting to any person or entity any right with respect to Property A or
any portion thereof.
7. ' Acquisition and Value of Property B. AEC shall use its best
efforts to acquire Property B and each parcel of which it is constituted as follows:
7.01 AEC shall proceed with reasonable diligence to examine title to
each parcel of Property B and deliver a report of title to City setting out all exceptions
to marketability and copies of all record documents which affect marketability.
Within fifteen (15) days of receipt of such report, City shall give AEC Notice of
whether it is willing to accept title to Property B subject to the identified exceptions
to marketability. If City is unwilling to accept title subject to such exceptions, it may
either (i) terminate this Agreement, or (ii) for a period of sixty (60) days use its
efforts to remove or satisfy such objections. If City is willing to accept title to
Property B subject to the identified exceptions to marketability, it shall notify AEC of
such willingness and AEC shall commence its efforts to negotiate for the purchase of
Property B.
7.02 For the purpose of comparison with the Exchange Value, the
value of Property B shall be the sum of:
Exchange, Agreement (6) 4
November 5, 2001
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(a) the purchase price paid for each parcel of Property B; and
(b) the reasonable cost incurred by AEC in its acquisition of Property
B. For the purposes of this Section 7.02 and Section 17.03,
"reasonable cost" shall include but shall not be limited to:
(i) legal expenses incurred and paid by AEC subsequent to
August 3, 2001, in connection with the preparation of this
Agreement and the acquisition of Property B; and
(ii) compensation paid to Sherman & Hemstreet, Inc. for its
efforts to obtain purchase contracts on the several parcels
of Property B. This compensation shall not exceed ten
(10 %) percent of the cumulative Property B purchase
prices if purchase contracts are obtained on every parcel of
Property B and shall not exceed three (3 %) percent of the
cumulative Property B purchase prices if purchase
contracts are obtained on every parcel of Property B but
closings thereon do not occur because of title defects,
environmental conditions or other factors outside the
control of Sherman & Hemstreet, Inc.
7.03 AEC shall purchase Property B pursuant to a Real Estate Puchase
Contract substantially in the form of Exhibit "J ".
8. Surveys. City and AEC have contemporaneously herewith or
previously delivered to each other copies of the most recent surveys and drawings of
the subject properties which are available. Each acknowledges that Property A and
Property B will be exchanged subject to all matters shown on the surveys and
drawings heretofore or contemporaneously delivered and all matters which might be
revealed by a survey current at the time of Closing. Either party shall be entitled, at
its expense, to obtain any additional surveys or updated surveys (the "Surveys ") at
any time prior to Closing.
9. Equalization of Exchange Value and the Cost of Property B.
9.01 If the sum of the costs identified in Section 7.02 is greater than
the Exchange Value, City shall pay AEC the difference at the Closing.
Exchange Agreement (6) 5
November 5, 2001
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9.02 If the sum of the costs identified in Section 7.02 is less than the
Exchange Value, AEC shall pay City the difference at the Closing.
10. Closing. The Closing of the purchase and sale contemplated
hereby shall be, as appropriate, on the latter to occur of (i) April 1, 2002, or (ii)
forty-five (45) days following the acquisition of the last parcel of Property B by
AEC, or at such earlier time as may be mutually agreeable to the parties. Closing
shall be held at 453 Greene Street, Augusta, Georgia. At the Closing, the parties will
execute and deliver, or cause to be executed and delivered, all documents (the
"Closing Documents "), duly witnessed and acknowledged where appropriate or
required, necessary to consummate the transaction contemplated by this Agreement
pursuant to the terms of this Agreement, including, without limitation, the following
(with the parties designated in the forms attached hereto modified as may be
necessary).
10.01 Closing Statement.
10.02 Limited Warranty Deed from City to AEC in the form attached
hereto as Exhibit "D" conveying fee simple title to Property A subject only to the
Permitted Title Exceptions and other matters subject to which AEC shall accept title
to Property A in accordance with Section 6.
10.03 Limited Warranty Deed from AEC to City in the form attached
hereto as Exhibit "E" conveying fee simple title to Property B subject only to
exceptions to marketability of title as have been identified and accepted pursuant to
Section 7.01.
10.04 Real Estate Transfer Tax Declarations in the customary form
with respect to both the Limited Warranty Deeds.
10.05 Mutual Termination and Satisfaction of the Lease executed by
City and Logistics Corp in recordable form.
10.06 .Affidavits of Ownership in the form attached hereto as Exhibit
10.07 Evidence of City's authority to consummate the transactions
contemplated in this Agreement, as reasonably required by AEC's title insurer.
Exchange Agreement (6) 6
November 5, 2001
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10.08 Evidence of AEC's authority to consummate the transactions
contemplated in this Agreement, as reasonably required by City's title insurer.
- 10.09. Opinion of the attorney for City in the form attached hereto as
Exhibit "G ".
10.10 Affidavits regarding IRC § 1445 Withholding Tax in the form
attached as Exhibit "H" and all other documentation necessary for compliance with
the Internal Revenue Code, including, without limitation, form 1099 and form W -4.
10.11 Affidavit of Seller's Residence or Form G -2 -RP Withholding on
Sales or Transfers of Real Property and Associated Tangible Property by
Nonresidents in the forms attached hereto as Exhibits "I -A" and "I -B ", whichever is
appropriate, as required by O.C.G.A. §48 -7 -128.
10.12 A lease in the form attached hereto as Exhibit "K" from City to
AEC on a parcel of land on the north side of Prep Phillips Drive which is designated
as Parcel 1.4 on Map 48 -4 in the Office of the Tax Assessor of Augusta, Georgia.
10.13 A bill of sale in the form attached hereto as Exhibit "L."
AEC and City shall receive possession of the respective property on the
Closing Date.
11. Prorations, Adjustments and Expenses. All matters involving
prorations, adjustments or expenses to be made or incurred in connection with the
Closing and not specifically provided for in another provision of this Agreement shall
be disposed of pursuant to the terms of this Section 11. This Section 11 shall survive
Closing or termination of this Agreement.
11.01 Ad Valorem Taxes and Other Prorated Items. Ad valorem taxes
on the Property for the year of Closing shall be prorated between City and AEC as of
the Closing Date. AEC and City agree that the party receiving title shall be
responsible for payment of any ad valorem taxes still owing on the Property but for
which bills have not yet been received.
11.02 Closing Costs and Expenses. Each party shall pay its own legal
fees and title insurance premiums incurred in connection with the transaction
contemplated by this Agreement. All other costs shall be paid as required by law, as
provided elsewhere herein, or as is the custom in Augusta, Georgia.
Exchange Agreement (6) 7
November 5 , 2001
12. Broker. City represents to AEC that City has not engaged any
broker or agent in regard hereto or to the exchange of Property A, and City hereby
agrees to hold AEC harmless against all liability, loss, cost, damage and expense
(including, without limitation, attorney's fees and cost of litigation) AEC shall ever
suffer or incur because of any claim by any broker or agent claiming by, through or
under City, whether or not meritorious, for any said fee, commission or other
compensation with respect hereto or to the exchange of Property A as provided
herein.
AEC represents t
o City that AEC has not engaged a
P y any broker or agent in
regard hereto or to the exchange of Property B, and AEC hereby agrees to indemnify
City and hold City harmless against all liability, loss, cost, damage and expense
(including, without limitation, attorney's fees and cost of litigation) City shall ever
suffer or incur because of any claim by any broker or agent claiming by, through or
under AEC, whether or not meritorious, for any said fee, commission or other
compensation with respect hereto or to the exchange of Property B provided herein
(herein, the "Brokerage Indemnities "). The Brokerage Indemnities shall survive
Closing or the termination of this Agreement.
13. Condemnation. The respective rights of the parties upon the
occurrence of a taking through the power of eminent domain shall be as provided in
this Section 13.
13.01 City represents and warrants that City has no knowledge of any
action or proceeding, pending or contemplated, which may result in condemnation of
all or any part of Property A by statutory proceeding or by conveyance in lieu
thereof. City shall give AEC immediate Notice of any action or proceeding which
may result in the condemnation of all or any substantial portion of Property A. If
prior to the Closing Date all or any part of Property A is taken or threatened by
eminent domain, AEC may, by Notice to City within thirty (30) days after AEC shall
receive from City Notice of the taking or threatened taking or prior to Closing,
whichever first occurs, elect to cancel this Agreement. If AEC shall cancel this
Agreement pursuant to the foregoing, all parties shall be relieved and released of and
from any further liability hereunder (except for the Brokerage Indemnities and
Inspection Indemnity). If a part of Property A is taken by eminent domain but this
Agreement is not so cancelled with respect thereto because either the taking is not
substantial (in which event AEC is not entitled to cancel this Agreement) or AEC
does not elect to cancel (even if the taking is substantial), then AEC shall be entitled
to receive all condemnation proceeds.
Exchange Agreement (6) 8
November 5, 2001
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13.02 AEC represents and warrants that AEC has no knowledge of any
action or proceeding, pending or contemplated, which may result in condemnation of
all or any part of Property B by statutory proceeding or by conveyance in lieu
thereof. AEC shall give City immediate Notice of any action or proceeding which
may result in the condemnation of all or any substantial portion of Property B. If
prior to the Closing Date all or any part of Property B is taken or threatened by
eminent domain, City may, by Notice to AEC within thirty (30) days after City shall
receive from AEC Notice of the taking or threatened taking or prior to Closing,
whichever first occurs, elect to cancel this Agreement. If City shall cancel this
Agreement pursuant to the foregoing, all parties shall be relieved and released of and
from any further liability hereunder (except for the Brokerage Indemnities and
Inspection Indemnity). If a part of Property B is taken by eminent domain but this
Agreement is not so cancelled with respect thereto because either the taking is not
substantial (in which event City is not entitled to cancel this Agreement) or City does
not elect to cancel (even if the taking is substantial), then City shall be entitled to
receive all condemnation proceeds.
14. Casualty. Neither party shall be entitled to cancel this Agreement
as a result of damage to or destruction of Property A and/or Property B. Property A
is presently insured by coverages obtained by AEC and payable solely to AEC. The
improvements on Property B are contemplated to be razed by City and, therefore,
have no economic value to City.
15. Notices. All Notices must be in writing and shall be deemed to
have been properly given or served by being hand delivered to the addresses set forth
below or by deposit in the United States Mail, postpaid and registered or certified,
return receipt requested, and addressed to the addresses set forth below. All Notices
shall be effective upon being hand delivered or deposited in the United States Mail in
the manner aforesaid; however, the time period in which a response to any Notice
must be given, if any, shall commence to run, with respect to hand - delivered Notices, •
from the date of delivery or, with respect to Notices mailed in accordance herewith,
from the date of receipt of the Notice by the addressee thereof as shown on the return
receipt. Rejection or other refusal to accept or the inability to deliver because of
changed address of which no Notice was given shall be deemed to be received on the
date the Notice was sent. By giving at least ten (10) days Notice thereof, either party
shall have the right from time to time and at any time during the term of this
Agreement to change their respective addresses and each shall have the right to
specify as its address any other address within the United States of America. The
initial addresses of the parties are as follows.
Exchange Agreement (6) 9
November 5, 2001
City: 530 Greene Street
Augusta, Georgia 30901
Attention: Bob Young, Mayor
With a copy to: James B. Wall
Burnside, Wall, Daniel, Ellison & Revell
P. O. Box 2125
Augusta, Georgia 30903
AEC: P. O. Box 10027
Augusta, Georgia 30903
Attention: Charles J. Anderson, Operating Manager
With a copy to: A. Zachry Everitt
Tucker, Everitt, Long, Brewton & Lanier, PA.
P. O. Box 2426
Augusta, Georgia 30903
16. Defaults. In the event either party fails or refuses to convey title
in accordance with the terms and conditions of this Agreement, the non - defaulting
party shall be entitled, upon giving Notice to the other party, to terminate this
Agreement. Neither party shall be entitled to bring an action for specific performance
or be entitled to file a lis pendens, or be entitled to bring an action for damages of any
type against the other party, unless the non - defaulting party shall have first
unconditionally tendered the Closing Documents required of it pursuant to this
Agreement and the defaulting party has refused to tender the Closing Documents
required of it in exchange therefor, whereupon the non - defaulting party shall have the
right to pursue all remedies at law or equity including, without limitation, an action
for damages and/or specific performance. The specific enumeration of remedies
herein shall be deemed to exclude all other remedies.
17. Termination of Agreement. In addition to the other rights of
termination set out elsewhere herein, City and AEC shall have the rights to cancel
and tenninate this Agreement as set out in this Section 17.
17.01 City shall have the right to cancel and terminate if:
(a) it elects to do so under the provisions of Section 7.01, Section 13,
Section 16 or Section 19;
Exchange Agreement (6) 10
November 5, 2001
(b) the cumulative cost of Property B exceeds the Exchange Value
by One Hundred Thousand ($100,000.00) Dollars or more;
(c) AEC is unable to purchase one or more parcels of Property B
prior to April 1, 2002; or
(d) environmental conditions of Property B result in the development
thereof not being feasible.
17.02 AEC shall have the right to cancel and terminate if:
(a) it is unable to purchase one or more of the parcels of Property B
prior to April 1, 2002; or
(b) if it elects to do so pursuant to the provisions of Section 6.
17.03 Within thirty (30) days of a cancellation, other than a cancellation
as a result of AEC's default, or termination of this Agreement, City shall reimburse
AEC with all costs and expenses it has reasonably incurred in its efforts to purchase
the several parcels which constitute Property B. Upon such cancellation or
termination, this Agreement shall become null and void and no party shall have any
further liability, right or obligation hereunder (except for Brokerage Indemnities).
18. Miscellaneous.
18.01 Successors and Assigns. This Agreement shall apply to, inure to
the benefit of and be binding upon and enforceable against the parties hereto and
their respective heirs, legal representatives, successors and permitted assigns, to the
same extent as if specified at length throughout this Agreement.
18.02 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which counterparts
together shall constitute one and the same instrument.
18.03 Time of the Essence. Time is of the essence of this Agreement.
Whenever the last day for the exercise of any privilege or the discharge of any duty
hereunder shall fall upon a Saturday, Sunday or any public or legal holiday, the party
having such privilege or duty shall have until 5:00 P.M. Eastern Standard or Daylight
Time, as appropriate, on the next succeeding business day to exercise such privilege
or to discharge such duty.
Exchange Agreement (6) 11
November 5, 2001
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18.04 Governing Law. This Agreement shall be governed by and
construed in accordance the laws of the State of Georgia.
18.05 Prior Discussions and Amendments. This Agreement supersedes
all prior discussions and agreements between City and AEC with respect to the
conveyance of the Property and all other matters contained herein and constitutes the
sole and entire agreement between City and AEC with respect hereto. This
Agreement may not be modified or amended unless such amendment is set forth in
writing and signed by both City and AEC.
18.06 Judicial Interpretation. Should any provision of this Agreement
require judicial interpretation, it is agreed that the court interpreting or construing the
same shall not apply a presumption that the terms hereof shall be more strictly
construed against one party by reason of the rule of construction that a document is to
be construed more strictly against the party who itself or through its agent prepared
the same, it being agreed that the agents of all parties have participated in the
preparation hereof.
18.07 Survival. The only representations, warranties and agreements of
City and AEC that shall survive Closing are those representations, warranties and
agreements herein which are specifically stated to survive. No other representations,
warranties or agreements of City or AEC shall survive Closing.
19. Tests, Borings and Examinations. AEC will cause a provision
to be inserted in each contract for its acquisition of the several parcels of Property B,
a provision which will permit representatives of City to enter upon such parcels for
the purpose of conducting soil tests, borings, percolation tests, an any other tests,
inspections, or examinations that City desires in regard to the engineering and
planning for development of Property B including (but not by way of limitation) such
other tests, inspections or examinations as City may request to determine subsurface
or topographic conditions of Property B. City shall hold the sellers of such parcels
and AEC harmless for any damages resulting from the failure by City or the
representatives of City to exercise reasonable care in the conduct of such tests,
inspections or examinations. City shall cause such tests as it wishes to be conducted
during the time periods allowed in such contracts. If City shall reasonably conclude
from the results of such tests that the development of Property B is not feasible, and
shall so notify AEC in writing of its conclusion on or before that date which is the
last date for such notice under such acquisition contract, this Agreement may be
terminated in accordance with the provisions of Section 17 hereinabove.
Exchange Agreement (6) 12
November 5, 2001
IN WITNESS WHEREOF, the parties have executed this Agreement
under seal as of the day, month and year first set forth above.
CITY:
AU,' ST: ,G:•• IA
y: Mayor
As its
ATTEST:
By: h J /0/
• s Cler /of Commission
(SEAL)
AEC:
ANDERSON EQUIPMENT RENTAL
COMPANY, L.L.
/
By : /,, .. .S.)
As ',1 perating Manager
Exchange Agreement (6) 13
November 5, 2001
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LIST OF EXHIBITS
Exhibit "A" - Legal Description of Property A
Exhibit "B" - Permitted Title Exceptions affecting Property A
Exhibit "C" - Legal Description of Property B
Exhibit "D" - Limited Warranty Deed from City to AEC
Exhibit "E" - Limited Warranty Deed from AEC to City
Exhibit "F" - Affidavits of Ownership
Exhibit "G" - Opinion of Counsel for City
Exhibit "H" IRC § 1445 Withholding Tax Affidavits
Exhibit "I -A" - Seller's Residency Affidavit
Exhibit "I -B" - Form G -2 -RP Withholding on Sales or Transfers of Real
Property and Associated Tangible Property by Nonresidents
Exhibit "J" - Real Estate Purchase Contract
Exhibit "K" - Lease of Water Pump Facility
Exhibit "L" - Bill of Sale on Water Pump Equipment
Exchange Agreement (6) 14
November 5, 2001
EXHIBIT "A"
LEGAL DESRIPTION OF PROPERTY "A"
ALL that tract or parcel of land, with improvements thereon, situate, lying and being
in Augusta, Richmond County, Georgia, on the northeastern side of Prep Phillips
Drive containing 6.50 acres and being shown on a plat prepared by George L.
Godman, R.L.S. dated June 19, 1985, a copy of which is recorded in the Office of
the Clerk of the Superior Court of Richmond County, Georgia, in Realty Book 34 -E,
at Page 188. Reference is hereby made to said plat and it incorporated herein for a
more complete and accurate description of the metes, bounds and location of said
property.
Exhibits (6)
11/5/01
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EXHIBIT `B"
PERMITTED TITLE EXCEPTIONS AFFECTING PROPERTY A
1. Lease Agreement between Georgia Ports Authority and Richmond Bonded
Warehouse Corporation dated June 30, 1969, as amended on August 15, 1969.
Exhibits (6)
11/5/0 l
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EXHIBIT "C"
LEGAL DESCRIPTION OF PROPERTY B
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta- Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 283. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 502 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 284. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 506 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 285. Said property is known under the present
system of street numbering in Augusta- Richmond County, Georgia, as 524 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -2, Parcel 286. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 855 Walker
Street.
Exhibits (6)
11 /5/01
EXHIBIT "D"
Please retum to:
A. Zachry Everitt
Dye, Tucker, Everitt, Long & Brewton, P.A.
P. 0. Box 2426
Augusta, Georgia 30903
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STATE OF GEORGIA )
LIMITED WARRANTY DEED
COUNTY OF RICHMOND )
THIS INDENTURE, made this the day of
, 2001, between AUGUSTA, GEORGIA, a political
subdivision of the State of Georgia, of the first part and ANDERSON
EQUIPMENT RENTAL COMPANY, L.L.C., a Georgia limited liability
company, of the second part.
WITNESSETH:
That the said party of the first part, for and in consideration of Ten and
no /100 ($10.00) Dollars and other good and valuable consideration in hand paid, at
and before the sealing of these presents, the receipt of which is hereby acknowledged,
has granted, bargained, sold and conveyed, and by these presents does hereby grant,
bargain, sell and convey unto the said party of the second part, its successors and
assigns, all of its right, title and interest in and to the real property described on
Exhibit "A" attached hereto.
TO HAVE TO HOLD the said tract or parcel of land, with all and
singular the rights, members and appurtenances, thereof, to the same being,
belonging, or in anywise appertaining, to the only proper use, benefit and behoof of
the party of the second part, its successors and assigns, forever in Fee Simple.
And the said party of the first part, for its successors and assigns, will
warrant and forever defend the right and title to the above described property unto the
said party of the second part, its successors and assigns, against the claims of all
Exhibits (6)
11/5/01
J
persons claiming under or through the party of the first part, subject only to the
Permitted Title Exceptions listed on Exhibit "B" attached hereto.
IN WITNESS WHEREOF, the said party of the first part has caused
these presents to be executed by its duly authorized officers and its seal to be affixed
hereto the day and year first above written.
Signed, sealed and delivered AUGUSTA, GEORGIA
before us this day of
, 2001.
By:
As its Mayor
Witness
ATTEST:
Notary Public, Richmond County,
State of Georgia By:
My Commission Expires: As its Clerk of Commission
(NOTARY SEAL) (SEAL)
Exhibits (6)
11/5/01
Y
EXHIBIT "A"
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 283. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 502 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta- Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 284. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 506 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta- Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 285. Said property is known under the present
system of street numbering in Augusta- Richmond County, Georgia, as 524 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -2, Parcel 286. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 855 Walker
Street.
Exhibits (6)
1 1/5/01
EXCHIBIT "B"
PERMITTED TITLE EXCEPTIONS
i
II I
Exhibits (6)
11/5/01
EXHIBIT "E"
Please return to:
A. Zachry Everitt
Dye, Tucker, Everitt, Long & Brewton, P.A.
P. 0. Box 2426
Augusta, Georgia 30903
************************************ * * * * * * * * * * * * * * * * * * * * * * * * * * * * * **
STATE OF GEORGIA )
LIMITED WARRANTY DEED
COUNTY OF RICHMOND )
THIS INDENTURE, made this the day of
, 2001, between ANDERSON EQUIPMENT RENTAL
COMPANY, L.L.C., a Georgia limited liability company, of the first part, and
AUGUSTA, GEORGIA, a political subdivision of the State of Georgia, of the
second part.
WITNESSETH:
That the said party of the first part, for and in consideration of Ten and
no /100 ($10.00) Dollars and other good and valuable consideration in hand paid, at
and before the sealing of these presents, the receipt of which is hereby acknowledged,
has granted, bargained, sold and conveyed, and by these presents does hereby grant,
bargain, sell and convey unto the said party of the second part, its successors and
assigns, the real property described on Exhibit "A" attached hereto.
TO HAVE TO HOLD the said tract or parcel of land, with all and
singular the rights, members and appurtenances, thereof, to the same being,
belonging, or in anywise appertaining, to the only proper use, benefit and behoof of
the party of the second part, its successors and assigns, forever in Fee Simple.
And the said party of the first part, for its successors and assigns, will
warrant and forever defend the right and title to the above described property unto the
said party of the second part, its successors and assigns, against the claims of all
persons claiming under or through the party of the first part.
Exhibits (6)
11/5/01
d
IN WITNESS WHEREOF, the said party of the first part has caused
these presents to be executed by its duly authorized officers and its seal to be affixed
hereto the day and year first above written.
Signed, sealed and delivered ANDERSON EQUIPMENT RENTAL
before us this day of COMPANY, L.L.C.
, 2001.
By: (L.S.)
As its Operating Manager
Witness
(COMPANY SEAL)
Notary Public, Richmond County,
State of Georgia
My Commission Expires:
(NOTARY SEAL)
Exhibits (6)
11 /5/01
EXHIBIT "A"
ALL that tract or parcel of land, with improvements thereon, situate, lying and being
in Augusta, Richmond County, Georgia, on the northeastern side of Prep Phillips
Drive containing 6.50 acres and being shown on a plat prepared by George L.
Godman, R.L.S. dated June 19, 1985, a copy of which is recorded in the Office of
the Clerk of the Superior Court of Richmond County, Georgia, in Realty Book 34 -E,
at Page 188. Reference is hereby made to said plat and it incorporated herein for a
more complete and accurate description of the metes, bounds and location of said
property.
Exhibits (6)
11/5/01
EXHIBIT "B"
PERMITTED TITLE EXCEPTIONS
1. Lease Agreement between Georgia Ports Authority and Richmond Bonded
Warehouse Corporation dated June 30, 1969, as amended on August 15, 1969.
Exhibits (6)
11/5/01
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•
EXHIBIT "F"
STATE OF GEORGIA )
OWNER'S AFFIDAVIT
COUNTY OF RICHMOND )
BEFORE ME came in person
(hereinafter referred to as "Deponent "), who, having being duly swom and on oath,
deposed and said as follows:
1. That Deponent is personally familiar with the matters set forth
herein.
2. That AUGUSTA, GEORGIA (hereinafter referred to as
"Owner "), is /are the owner(s) of the real property (hereinafter referred to as the
"Property ") located in Richmond County, Georgia, more particularly described in
Exhibit "A" attached hereto and by this reference made a part hereof.
3. That except asset forth in Exhibit "B" attached hereto and by this
reference made a part hereof, .. there are no :unpaid or unsatisfied . security deeds,
mortgages, claims of lien, special:: assessments for sewage or streets or ad valorem
A<taxes : which constitute or could constitute .a lien against the Property or any part
thereof.
4. That there is no outstanding indebtedness for equipment,
appliances or other fixtures owned by Owner attached to or located in or on the
Property.
5. There are no disputes concerning the location of the lines and
corners of the Property.
6. That except as set forth in said Exhibit "B" attached hereto,
Owner is the owner of the unencumbered fee simple title to the Property and there
are no pending suits, proceedings, judgments, bankruptcies, liens or executions
against Owner in either Richmond County or any other county of the State of
• Georgia which do or could adversely affect title to the Property.
7. That no work, improvements or repairs have been undertaken by
or at the instance of Owner (or any agents or representatives of Owner) on the
Property or any part thereof during the ninety -five (95) days immediately preceding
Exhibits (6)
11 /5/01
•
the date of the making of this Affidavit for which payment has not been made; and
there are no outstanding bills for labor or materials used in making improvements or
repairs upon the Property at the instance of Owner (or any agents or representatives
of Owner) or for the services of architects, surveyors or engineers incurred in
connection therewith.
8. That Owner has made no agreements with any real estate broker
for the management, sale, lease or other services with respect to the Property.
9. That this Affidavit is made for the purposes of inducing RBW
Logistics Corporation to purchase the Property and Lawyers Title Insurance
Corporation to insure title to the Property.
This day of , 20
Sworn to and subscribed before me, a Notary Public in and for the State
of Georgia by known personally to me, who, being
first duly sworn and on oath, deposed and said that, to the best of his/her knowledge
and belief, the within and foregoing statements are true and correct this day of
,20
Notary Public, Richmond County,
State of Georgia
My Commission Expires:
(NOTARY SEAL)
Exhibits (6)
11/5/0 1
EXHIBIT "A"
ALL that tract or parcel of land, with improvements thereon, situate, lying and being
in Augusta, Richmond County, Georgia, on the northeastern side of Prep Phillips
Drive containing 6.50 acres and being shown on a plat prepared by George L.
Godman, R.L.S. dated June 19, 1985, a copy of which is recorded in the Office of
the Clerk of the Superior Court of Richmond County, Georgia, in Realty Book 34 -E,
at Page 188. Reference is hereby made to said plat and it incorporated herein for a
more complete and accurate description of the metes, bounds and location of said
property.
Exhibits (6)
11 /5/01
EXIIIBIT "B"
Exhibits (6)
1 1 /5/01
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•
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EXHIBIT "C"
Exhibits (6)
1 1 /5/0 1
STATE OF GEORGIA )
OWNER'S AFFIDAVIT
COUNTY OF RICHMOND )
BEFORE ME came in person Charles J. Anderson (hereinafter referred
to as "Deponent "), who, having being duly sworn and on oath, deposed and said as
follows:
1. That Deponent is personally familiar with the matters set forth
herein.
2. That ANDERSON EQUIPMENT RENTAL COMPANY,
L.L.C. (hereinafter referred to as "Owner "), is /are the owner(s) of the real property
(hereinafter referred to as the "Property") located in Richmond County, Georgia,
more particularly described in Exhibit "A" attached hereto and by this reference
made a part hereof.
3. That except as set forth in Exhibit "B" attached hereto and by this
reference made a part hereof, there are no unpaid or unsatisfied security deeds,
mortgages, claims of lien,. special assessments; for sewage or streets or ad valorem
taxes which constitute or could constitute..:a lien against the Property or any part
thereof
4. That there is no outstanding indebtedness for equipment,
appliances or other fixtures owned by Owner attached to or located in or on the
Property.
5. There are no disputes concerning the location of the lines and
comers of the Property.
6. That except as set forth in said Exhibit "B" attached hereto,
Owner is the owner of the unencumbered fee simple title to the Property and there
are no pending suits, proceedings, judgments, bankruptcies, liens or executions
against Owner in either Richmond County or any other county of the State of
Georgia which do or could adversely affect title to the Property.
7. That no work, improvements or repairs have been undertaken by
or at the instance of Owner (or any agents or representatives of Owner) on the
Property or any part thereof during the ninety -five (95) days immediately preceding
the date of the making of this Affidavit for which payment has not been made; and
Exhibits (6)
1 1/5/01
there are no outstanding bills for labor or materials used in making improvements or
repairs upon the Property at the instance of Owner (or any agents or representatives
of Owner) or for the services of architects, surveyors or engineers incurred in
connection therewith.
8. That Owner is in exclusive possession of the Property and that no
other parties have any claim to possession of the Property, except as set forth in said
Exhibit "C" attached hereto.
9. That Owner has made no agreements with any real estate broker
for the management, sale, lease or other services with respect to the Property.
10. That this Affidavit is made for the purposes of inducing Augusta,
Georgia to purchase the Property and Lawyers Title Insurance Corporation to insure
title to the Property.
This day of , 20 .
CHARLES T. ANDERSON
Sworn to and subscribed before me, a Notary Public in and for the State
of Georgia by CHARLES J. ANDERSON known personally to me, who, being first
duly sworn and on oath, deposed and said that, to the best of his/her knowledge and
belief, the within and foregoing statements are true and correct this day of
, 20
Notary Public, Richmond County,
State of Georgia
My Commission Expires:
(NOTARY SEAL)
Exhibits (6)
11 /5/01
EXfIIBIT "A"
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 283. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 502 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 284. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 506 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta- Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 285. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 524 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -2, Parcel 286. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 855 Walker
Street.
Exhibits (6)
1 1/5/01
EXHIBIT `B"
Exhibits (6)
1 1 /5/0 1
4 4 4
EDIT "C"
Exhibits (6)
1 I /5/01
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EXHIBIT "G"
OPINION OF COUNSEL FOR THE CITY
Exhibits (6)
11 /5/0 I
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' GUST
AUGUSTA- RICHMOND COUNTY COMMISSION
„. v " LEE BEARD
JA:IIES B. W ALL ULMER BwucES
1736
G FO R GZ N CITY ATTORNEY HENRY H s 1 HAM
ANDY CHEEK
P.O. BOX 2125 RICHARD L. COLCLOUGH
BOB YOUNG 454 GREENE STREET wituA+t B. KCHLKE, JR.
Mayor AUGUSTA, GA 30903 STEPHLN E. S HE P R D
Bus. (706) 821 -2488 •
WM. "WILLIE" H. MAYS, III FAx No: (706) 722-5984 GEORGE R. KOLB
Mayor Pro Tem SWALLt@CO.RlCHMO`1D.GA.US Administrator
[Date]
Anderson Equipment Rental Company, L.L.C.
c/o A. Zachary Everitt
P. O. Box 2426
Augusta. Georgia 30903
RE: Exchange of Properties Between Anderson Equipment
Rental Company, L.L.C. and Augusta
Dear Sirs:
As City Attorney for Augusta, Georgia. I have served as counsel in connection
with the property exchange pursuant to the Agreement for the Exchange of Real Property entered
into between Anderson Equipment Rental Company, L.L.C. and Augusta, Georgia, dated
(Exchange Agreement). In such capacity, I have examined such documents,
instruments and proceedings of Augusta, Georgia as I have considered necessary or appropriate
to render the opinion set forth below, including, but not limited to, the following:
(a) The Lease Agreement between the Georgia Ports Authority (assigned to
Augusta, Georgia) and Richmond Bonded Warehouse Corporation dated
June 10, 1969;
(b) Appraisals of the respective properties to be exchanged pursuant to the
Exchange Agreement;
(c) The advertisement of the proposed exchange as published in the Augusta
Chronicle; and
(d) The minutes of the Augusta - Richmond County Commission approving the
exchange and the value determined by the Augusta - Richmond County
Commission.
•
Based upon my review of the foregoing. it is my opinion that Augusta. Georgia
complied with the provisions of O.C.G.A. § 36- 37 -6(c), and therefore has the authority to
Page 2
transfer title to Anderson Equipment Rental Company, L.L.C. as provided in the Exchange
Agreement.
Yours very truly,
James B. Wall
JBW/sjp
• 1 3
EXHIBIT "H"
STATE OF GEORGIA
NON - FOREIGN AFFIDAVIT
COUNTY OF )
Section 1445 of the Internal Revenue code provides that a transferee of a U. S. real
property interest must withhold tax if the transferor is a foreign person. To inform the transferee
that withholding of tax is not required upon the disposition of a U. S. real property interest, I,
, the undersigned hereby certify the following:
1. I am not a nonresident alien for purposes of U. S. Income taxation.
2. My federal identification number (Social Security number) is
•
3. My home address is:
I understand that this certification may be disclosed to the Internal Revenue Service
by the transferee and that any false statement I have made here could be punished by fine,
imprisonment, or both.
Under penalties of perjury I declare that I have examined this certification and, to the
best of my knowledge and belief, it is true, correct and complete.
WITNESS my hand and seal this day of , 20_.
Sworn to and subscribed before
me, this day of , 20_
Notary Public, County,
State of Georgia
My Commission Expires:
(NOTARY SEAL)
Exhibits (6)
11 /5/0 I
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EXHIBIT "I -A"
AFFIDAVIT OF SELLER'S RESIDENCE
Seller's Name Seller's SSN or FEI
Spouse's SSN or FEI (if owned jointly)
Street Address
INSTRUCTIONS
This form is provided to be executed by the seller and furnished to buyer to establish Georgia residency, such
that withholding from the proceeds of the sale of property are not subject to the withholding laws of this State.
(See O.C.G.A. §48 -7 -128.)
Sellers are not subject to withholding from the proceeds of sale if either they reside in Georgia, or they are
deemed to be a Georgia resident by virtue of the fact that they have filed Georgia tax returns in the preceding .
two years, do business or own property in Georgia, intend to file a Georgia tax return for the current year, and
if a corporation or limited partnership, are registered to do business in this State.
Buyer is not required to withhold if this affidavit (or one in substantially the same form) is submitted to the
Department in lieu of a withholding tax return.
The seller is to execute this affidavit by placing an initial in the blanket preceding statements which apply.
Seller is exempt from withholding on the sale of property . because: .
Seller is a resident of Georgia.
Seller is not a resident of Georgia, but is deemed a resident for purposes of withholding by virtue of the following:
Seller is a nonresident who has filed Georgia tax returns for the preceding two years; and
Seller is an established business in Georgia and will continue substantially the same business in Georgia after
the sale OR the seller has real property in the State at the time of closing of equal or greater value than the
withholding tax liability as measured by the 100% property tax assessment of such remaining property; and
Seller will report the sale on a Georgia Income Tax Return for the current year and file by its due date; and
If seller is a corporation or limited partnership, seller is registered to do business in Georgia.
Under penalty or perjury, I swear that the above information is, to the best of my knowledge and belief, true, correct
and complete.
Seller's Signature (and Title,if applicable) Date
Swom to and subscribed before me this
day of , 20
Notary Public, County,
My Commission Expires:
(NOTARY SEAL)
Exhibits (6)
11 /5/0
EXHIBIT "I —B" •
Form G•2 - RP Withholding on Sales or Transfers of Real Property and
(See Instructions on Reverse) Associated Tangible Property by Nonresidents
1. Seller's Name 2. Seder's Social Security or FEI Number
Address 5. Year of sale or transfer
6. Total sale price 3
7. Taxable amount or gain $
(optional)
3. Buyer's Name 4. Buyers Social Security or FEI Number 8. Amount withheld or $ i
remitted to State
Address
Remit to:
Georgia Department of Revenue
P. O. Box 740387
COPY 1 - STATE COPY Atlanta, Georgia 30374 -0387
1. If mailing address is a Post Office Box, also state street address.
•
2. Social Security number if an individual; FEI number if a corporation or other organization with an FEI number.
3. If mailing address is a Post Office Box, also state street address.
4. Social Security number if an individual; FEI number if a corporation or other organization with a FEI number.
5. Year in which the sale or transfer of real property and associated tangible property took place.
6. Total arnount paid for the real property and associated tangible property, including the value of any real, personal, tangible or Intangible property giverrin
consideration of the sale or transfer.
7. If the taxable sale or gain from the sale or transfer Is known, and the taxable amount or gain is less than the sale price, Seller may execute an affidavit to the
Buyer (Form IT- AFF2), swearing to the taxable amount or gain, and the amount to be withheld (Line 8) may be computed using this amount; otherwise, the
amount to be withheld and remitted (Line 8) is to be calculated based on the total sale price (Une 6).
8. Amount withheld and remitted to the state is 3% of the total sale price (Une 6), unless the Seller has supplied an affidavit to the Buyer (Form IT- AFF2), swearing
to the taxable amount or gain, In which case, the amount withheld and remitted to the state shall be computed as 3% of the taxable arnount or gain (Line 7).
9. Remit by mailing this form with check for amount on Une 8 by the 30th of the month following the closing.
EXHIBIT "J"
CONTRACT FOR THE SALE AND PURCHASE OF REAL PROPERTY
THIS CONTRACT, made as of this day of
20 , by and among (hereinafter referred to as
"Seller "), ANDERSON EQUIPMENT RENTAL COMPANY, L.L.C., a Georgia
limited liability company (hereinafter referred to as "Purchaser "), and SHERMAN
& HEMSTREET, INC., a real estate broker licensed in the State of Georgia
(hereinafter referred to as "Broker "),
WITNESSETH:
WHEREAS, Seller wishes to sell to Purchaser, and Purchaser wishes to
purchase from Seller, certain real property more particularly hereinafter described
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, for and in consideration of the premises, the
sum of ($ ) Dollars (the
"Earnest Money ") deposited contemporaneously with Broker and for other valuable
considerations, in hand paid by Purchaser to Seller, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser hereby covenant and agree as
follows:
1. Sale of Property. Seller agrees to sell to Purchaser, and
Purchaser agrees to purchase from Seller, upon the terms and conditions hereinafter
provided, that certain real property in Augusta, Georgia, commonly known as
, Augusta, Georgia, and being more particularly described
in Exhibit "A" attached hereto and by reference made a part hereof, together with any
improvements located thereon, any fixtures affixed thereto, all right, title and interest
of Seller in and to any public rights -of -way or private drives adjacent thereto (all of
which property is collectively hereinafter referred to as the "Property ").
2. Purchase Price and Time of Payment. The purchase price to be
paid by Purchaser to Seller for the Property shall be
($ ) Dollars (hereinafter referred
to as the "Purchase Price "), which Purchase Price shall be payable in cash, certified
or cashier's check or the trust account check of Tucker, Everitt, Long, Brewton &
Lanier, P.A. at the closing of the transaction contemplated by this Contract
(hereinafter referred to as the "Closing ").
Exhibits (6) 1
1 1/5/01
•
3. Survey. Purchaser may obtain, at Purchaser's expense prior to
Closing, a survey of the Property certified by a Georgia Registered Land Surveyor
(herein throughout referred to as the "Survey "). If the metes and bounds legal
description prepared from the data reflected on the Survey differs from the legal
description contained in the deed conveying title to the Property to Seller, Seller
agrees to grant Purchaser a quit -claim deed, in addition to the general warranty deed
and general quit -claim deed required by Paragraph 7, which quit -claim deed shall
utilize the metes and bounds legal description drawn from the Survey. Seller will
permit representatives of Purchaser to enter upon the Property . for the purpose of
preparing the Survey and shall otherwise reasonably cooperate with Purchaser in the
preparation of the Survey. The Survey shall show and locate all improvements (if
any) upon the Property and all easements affecting the Property and shall indicate the
number of acres comprising the Property.
4. Completion of Assemblage. Purchaser's obligations hereunder
are conditioned upon its ability to execute contracts substantially in the form hereof
to purchase the properties identified on Exhibit "B" attached hereto (the "Area
Property") which contracts shall provide for the acquisition by Purchaser of such real
property and the improvements located thereon. The execution by Purchaser of
contracts (the "Assembled. Contracts") substantially in the form hereof, for the
acquisition by Purchaser of the Area Property shall for purposes of this Contract be
defined as "Completion of Assemblage." The obligations of Purchaser hereunder are
expressly conditioned upon. Completion of Assemblage by Purchaser on or before
April 1, 2002. However, if Completion of Assemblage has not been accomplished on
April 1, 2002, and Purchaser has not, notwithstanding such fact, notified Broker of
(a) its willingness to proceed to Closing, or (b) an agreement between Purchaser and
Seller to extend the time for Completion of Assemblage to another date certain, this
Contract shall become null and void, the Earnest Money shall be returned to
Purchaser, and no party hereto shall have any further rights, obligations or remedies
hereunder.
5. Tests, Borings and Examinations. Seller will permit
representatives of Purchaser to enter upon the Property for the purposes of
conducting soil tests, borings, percolation tests, and any other tests, inspections, or
examinations that Purchaser desires in regard to the engineering and planning for
development of the Property, including (but not by way of limitation) such other
tests, inspections, or examinations that Purchaser may desire to determine subsurface
or topographic conditions of the Property. Purchaser shall hold Seller harmless for
any and all costs, expenses, liabilities and damages resulting from the performance
by Purchaser or Purchaser's representatives of such tests, inspections, or
Exhibits (6) 2
1 1/5/01
examinations. Purchaser shall use due care not to disrupt Seller's use of and activities
on the Property while conducting such tests. Purchaser shall cause such tests as
Purchaser desires to be conducted on or before the Closing Date, and, if Purchaser in
its sole discretion shall conclude from the results of said tests that the commercial
development of the Property is not economically feasible, and Purchaser shall so
notify Seller in writing on or before the Closing Date, then this Contract shall be
deemed of no further force or effect, and the Earnest Money referred to in Paragraph
24 hereinbelow shall be returned to Purchaser as soon as reasonably possible.
6. Examination of Title and Defects in Title. Purchaser shall have
thirty (30) days from Completion of Assemblage in which to examine Seller's title to
the Property and in which to furnish Seller with a written statement of defects in such
title, which defects, should they exist at the time of Closing, would make Seller
unable to convey title to the Property as provided in Paragraph 8 hereinbelow. Seller
shall have thirty (30) days after receipt by Seller of such written statement of defects
or until the date of Closing, whichever period shall be the greater, in which to cure all
defects, whether reported to Seller by Purchaser as provided for in this Paragraph 6 or
otherwise known to Seller. Seller agrees to use its best efforts to cure such defects
promptly. Purchaser shall also have the right, at Purchaser's sole election and in
Purchaser's sole discretion, to waive any defect in title known to Purchaser by giving
notice in writing to Seller of the specific defect which Purchaser waives, whereupon
Purchaser may close the transaction in accordance with this Contract.
7. Closing. The Closing will be held during the month of March,
2002 (hereinafter referred to as the "Escrow Closing Period "), during which all
transactions contemplated by the Assembled Contracts, including the transaction
contemplated hereby, shall close in escrow. Purchaser shall provide Seller five (5)
days prior written notice of the date of the Closing, which shall be held in the offices
of Tucker, Everitt, Long, Brewton & Lanier, P.A. Seller and Purchaser hereby
acknowledge and understand that the closing during the Escrow Closing Period of all
of the other transactions contemplated by the Assembled Contracts is an express
condition precedent of the Final Closing (as defined in the "Escrow Agreement"
attached hereto as Exhibit "C" and by this reference made a part hereof) of this
Contract. In recognition thereof, Seller and Purchaser hereby irrevocably designate
and appoint Sherman & Hemstreet, Inc. as the "Escrow Agent" hereunder and agree
that the Escrow Agent shall act without fee to Seller with respect to the escrow
arrangement contemplated hereby and in accordance with the terms hereof and of the
Escrow Agreement. Seller and Purchaser agree (a) that the Escrow Agent shall be a
stakeholder only and not liable for any losses, costs or damages it may incur in
performing its responsibilities hereunder unless such losses, costs or damages shall
Exhibits (6) 3
1 1/5/01
•
•
arise out of the willful default or gross negligence of the Escrow Agent or its agents;
(b) that no releases or disbursements, except as set forth herein or in the Escrow
Agreement, shall be made hereunder except upon written instructions from both
Seller and Purchaser or their successors or assigns; and (c) that in the event of a
dispute hereunder between Seller and Purchaser (or their successors or assigns), the
Escrow Agent shall have the right, exercisable in its sole discretion, to be discharged
by tendering unto the registry or custody of any court of competent jurisdiction, the
closing documents and funds held by Escrow Agent, together with any such legal
pleadings as it deems appropriate. Seller and Purchaser hereby agree that on the date
of the Closing they will execute and deliver to the Escrow Agent the warranty deed,
transfer tax declaration, affidavit of ownership, memorandum of closing and any and
all other documents necessary to effect the transfer of title to the Property from Seller
to Purchaser (the "Closing Documents "), together with any and all sums due and
payable in connection with said transaction including, but not limited to, the Purchase
Price (payable by Purchaser), the real estate transfer taxes (payable by Seller) and the
recordation expenses (payable by Seller) (hereinafter referred to as the "Closing
Funds "). The parties agree that such delivery shall be irrevocable and that the Escrow
Agent shall not release the Closing Documents or the Closing Funds except in strict
accordance with the terms of Paragraph 4 of the Escrow Agreement.
8. Conveyance of Property. At the Closing, Seller shall execute
and deliver to the Escrow Agent a general warranty deed with full warranties of title,
conveying marketable fee simple title to the Property, free and clear of all mortgages,
security deeds, other security instruments, liens, encumbrances, tenancies, and
restrictions (including condemnation proceedings) of any kind and nature other than
then current state and county ad valorem taxes not yet due and payable, and such
other items as Purchaser shall have agreed to accept as restrictions or encumbrances
upon title in accordance with Paragraph 6 hereinabove. The description by which title
to the Property was conveyed to Seller shall form the basis for the description of the
Property in such general warranty deed. Additionally, at Purchaser's request, Seller
shall execute and deliver to the Escrow Agent a quit -claim deed conveying to
Purchaser any right, title or interest Seller may have in and to all of the real property
and improvements located thereon. The legal description of the perimeter of the area
shall form the basis for the description of the property in such quitclaim deed.
9. Warranties of Seller. Seller warrants to Purchaser as follows.
A. Seller presently has good and marketable fee simple title to the
Property,
Exhibits (6) 4
1 1/5 /01
•
B. The Property will be in substantially- the same condition at time
of Closing as on the date hereinabove first written.
10. Termination. In addition to all other rights of Purchaser under
this Agreement as provided by law (and not in lieu of any such rights), Purchaser, at
Purchaser's sole election and in Purchaser's sole discretion, may cancel and
terminate this Agreement by written notice to Seller, whereupon Broker shall return
to Purchaser the Earnest Money if any one or more of the following conditions or
states of fact shall exist at the Final Closing Date (as defined in the Escrow
Agreement) (but, in the alternative, Purchaser may, at Purchaser's sole election and
in Purchaser's sole discretion, decline to cancel and terminate this Agreement by
reason of any such condition or state of fact, and proceed to consummate the
transaction contemplated hereby).
A. Any notice shall be given of proceeding filed or commenced by
any governmental authority or other agency having powers of condemnation
concerning the Property or any portion thereof,
B. The Property or any portion thereof shall be substantially
damaged or destroyed by earthquake, erosion; flooding, or by force of nature or act of
God after the date hereinabove first written;
C. Seller shall not have cured any valid objections to or defects in
title as required by and within the time prescribed in Paragraph 6 hereinabove;
D. ' The failure of Seller's warranties set forth in Paragraph 9
hereinabove to be true and correct on the date of Closing in the same manner and
with the same effect as if then made, Seller hereby expressly agreeing that Seller will
not cause or permit any action to be taken or omitted between the date hereinabove
first written and the date of Closing which would cause any of such representations to
be untrue on the date of Closing;
E. Failure of Seller to deliver to Purchaser at Closing the general
warranty deed described in Paragraph 8 hereinabove;
F. Purchaser, at Purchaser's expense, shall have applied to Lawyers
Title Insurance Corporation for a title insurance binder or commitment agreeing to
issue, at standard rates, a title insurance policy to Purchaser insuring fee simple title
to the Property in favor of Purchaser without exception except for the then current
State and County ad valorem taxes and those items more particularly described in
Exhibits (6) 5
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•
Paragraph 8 hereinabove, and said title insurance company shall have refused to issue
such binder;
G. Failure of Seller to deliver to Purchaser at Closing an affidavit of
Seller stating that there are no outstanding indebtedness, security . agreements,
financing statements, or title retention contracts concerning any improvements,
equipment, appliances, or other fixtures attached to the Property; that there are no
unpaid or unsatisfied mortgages, security deeds, liens, or other encumbrances which
could constitute a lien against the Property except those matters set forth in Paragraph
8; that there are no disputes concerning the location of the lines and corners of the
Property; that there are no pending suits, proceedings, judgments, bankruptcies, liens,
or executions against or affecting Seller in either the County in which the Property is
located or any other County in the State of Georgia which would affect title to the
Property; that there are no outstanding bills incurred for labor and materials used in
making improvements or repairs on the Property or for services of architects,
surveyors, or engineers incurred in connection therewith which have not been
provided for in such a manner as to permit Lawyers Title Insurance Corporation to
issue an owner's policy of title insurance to Purchaser without exception for
mechanics' or materialmen's liens; and that Seller is not subject to withholding under
IRC §1445; or
H. Failure of Purchaser to accomplish Completion of Assemblage
by April 1, 2002.
11. Possession of Property. Seller shall deliver possession of the
Property to Purchaser at the Final Closing (as defined in the Escrow Agreement),
unless Seller's period of possession is extended, by a written agreement of the parties.
Seller shall be entitled to retain all personalty within the improvements located on the
Property, provided that all such personalty shall be removed by Seller not later than
the date possession of the Property is to be delivered to Purchaser in accordance
herewith. Any personalty remaining after such date shall be the property of
Purchaser.
12. Broker's Commission. At the time of, and only in the event of,
Final Closing (as defined in the Escrow Agreement) under this Contract, Purchaser
shall pay Broker a brokerage commission under the terms of a separate agreement.
13. Proration. At the Closing, all state and county ad valorem taxes
with respect to the Property for the year in which the transaction is consummated will
be prorated as of the date of the Closing. If the amount of such taxes is not known at
Exhibits (6)
1 1/5/01
the time of the Closing, proration of such taxes will be made upon the basis of the
most recent ascertainable such billings. Should the actual assessment of such taxes
for the year in which the transaction is consummated be more or less than the amount
used as a basis for such proration, Purchaser and Seller, promptly upon receipt by
either of them of the notice or bill for such taxes, will make the proper adjustment so
that such proration will be accurate, based upon the actual amount of such taxes; and
payment will be made promptly to Seller or Purchaser, whichever shall be entitled to
such payment, by the other party for the purpose of making such adjustment.
14. Liquidated Damages to Seller; Remedies of Purchaser. In the
event that Purchaser refuses . to accept title to the Property as required by this
Contract, or otherwise defaults in Purchaser's obligations hereunder, through no fault
of Seller, the Earnest Money will be delivered to Seller as fixed and full liquidated
damages, and in such event neither Purchaser nor Seller shall have any further rights
or obligations hereunder or any remedies provided by law or equity. In the event that
Seller refuses to convey title to the Property when required by this Contract to do so,
or otherwise defaults in Seller's obligations hereunder, the Earnest Money shall be
immediately returned to Purchaser, and Purchaser shall be entitled to exercise all
rights and remedies available at law or in equity, including, without limitation,
specific performance.
15. Prior Discussions and Amendments. This Contract supersedes
all prior discussions and agreements between Seller and Purchaser with respect to the
conveyance of the Property and all other matters contained herein and constitutes the
sole and entire agreement between Seller and Purchaser with respect thereto. This
Contract may not be modified or amended unless such amendment is set forth in
writing and signed by both Seller and Purchaser.
16. Successors and Assigns. This Contract shall apply to, inure to
the benefit of, and be binding upon and enforceable against Seller and Purchaser and
their respective successors and assigns to the same extent as if specified at length
throughout this Contract. Purchaser may assign this Contract to any individual,
corporation, syndicate, or other business entity, which shall agree to assume each of
Purchaser's obligations hereunder, and, upon assumption, Purchaser shall be released
from all obligations hereunder. Purchaser may direct that title to the Property or any
portion thereof be conveyed to Purchaser or its nominee.
17. Counterparts. This Contract 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.
Exhibits (6) 7
1 1/5/0 1
18. Time of the Essence. Time is of the essence of this Contract.
19. Governing Law. This Contract shall be governed by and
construed according to the Laws of the State of Georgia.
20. Notices. All notices required or permitted by the terms hereof
shall be given by postage prepaid registered or certified United States Mail, return
receipt requested, at the following addresses or at such other address as either part
hereto shall in writing advise the other.
A. To Seller:
B. To Purchaser:
Anderson Equipment Rental Company, L.L.C.
P. Q. Box 10027
Augusta, Georgia 30903
Attention: Charles J. Anderson
with a copy to:
A. Zachry Everitt
Tucker, Everitt, Long, Brewton & Lanier, P.A.
P. 0. Box 2426
Augusta, Georgia 30903
All notices shall be deemed given as of the time such are deposited with the United
States Postal Service for transmittal as aforesaid.
21. Construction. No provision of this Contract shall be construed
by any Court or other judicial authority against any party hereto by reason of such
party's being deemed to have drafted or structured such provision.
22. Confidentiality. Seller, on behalf of himself, his agents,
attorneys and family members, hereby covenants and agrees to keep confidential all
information regarding the Purchase Price and the method of payment thereof
Exhibits (6) 8 •
1 1 /5/01
(provided, however, that Seller may divulge such information as is required and
requested by Purchaser's lender or governmental authorities) regardless of whether
the Closing shall occur. All notices to third parties and all publicity or press releases
with respect to the transaction contemplated hereby or by any of the Assembled
Contracts shall be approved by Purchaser prior to release or dissemination by Seller
or by any person retained by Seller. Purchaser hereby covenants and agrees that it
will not divulge the Purchase Price hereunder or the method of payment thereof or
any other particulars of this Contract to any other owner of Area Property, unless
Seller grants express permission to Purchaser therefor. Seller and Purchaser
acknowledge and agree that, prior to Completion of Assemblage, Purchaser will
record in the Records of Richmond County, Georgia, an affidavit in the form of
Exhibit "D" attached hereto and by this reference made a part hereof, so as to provide
record notice of Purchaser's rights with respect hereto but to maintain the
confidentiality of the terms hereof.
IN WITNESS WHEREOF, Seller and Purchaser have hereunto set
their hands and affixed their seals as of the day and year first above written.
Signed, sealed and delivered in SELLER:
the presence of:
(L.S.)
Witness
Notary Public, County
State of
My Commission Expires:
(NOTARY SEAL)
Exhibits (6) 9
1 1/5/01
Signed, sealed and delivered in PURCHASER:
the presence of:
ANDERSON EQUIPMENT RENTAL
COMPANY, L.L.C.
Witness
By: (L.S.)
Notary Public, County As its Operating Manager
State of
My Commission Expires:
(NOTARY SEAL)
Signed, sealed and delivered in BROKER:
the presence of:
SHERMAN & HEMSTREET, INC.
Witness
By:
Notary Public, County As its:
State of
My Commission Expires:
(NOTARY SEAL)
Exhibits (6) 10
11/5/01
� 4 s
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
•
Exhibits (6) 1 1
11 /5/01
EXHIBIT `B"
DESCRIPTION OF AREA PROPERTY
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 283. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 502 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -1, Parcel 284. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 506 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as. Map 47-1, Parcel 285. Said property is known under the present
system of street numbering in Augusta- Richmond. County, Georgia, as 524 Ninth
Street.
ALL that lot, tract or parcel of land, situate, lying and being on the east side of Ninth
Street in Augusta - Richmond County, Georgia, and being known and designated on
the tax records as Map 47 -2, Parcel 286. Said property is known under the present
system of street numbering in Augusta - Richmond County, Georgia, as 855 Walker
Street.
Exhibits (6) 12
11 /5/01
EXHIBIT "C"
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (hereinafter referred to as this
"Agreement "), made and entered into this day of , 20 , by and
among , having as a mailing address
(hereinafter referred to as "Seller "); ANDERSON
EQUIPMENT RENTAL COMPANY, L.L.C., a Georgia limited liability
company having as a mailing address P. 0. Box 10027, Augusta, Georgia 30903,
Attention: Charles J. Anderson (hereinafter referred to as "Purchaser "); and
SHERMAN & HEMSTREET, INC. having as a mailing address 123 Eighth
Street, Augusta, Georgia 30901, Attention: (hereinafter
referred to as "Escrow Agent ");
•
WITNESSETH:
WHEREAS, Seller and Purchaser have entered into that certain
Contract for the Sale and Purchase of Real Property dated
20 , as to certain . improved real property (hereinafter referred to as the
"Property ") situated in Augusta - Richmond County, Georgia (hereinafter referred to
as the "Sales Contract "); and
WHEREAS, Seller and Purchaser have agreed and are desirous and
willing that the closing of the transaction contemplated by the Sales Contract take
place in accordance with the terms and provisions of this Agreement.
NOW, THEREFORE, in furtherance of the transaction contemplated
hereby and for and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby covenant and agree as follows:
1. Seller and Purchaser hereby designate, constitute and appoint
Sherman & Hemstreet, Inc. as the "Escrow Agent" under this Agreement, and
Sherman & Hemstreet, Inc. accepts such designation and appointment and agrees
to act without fee to Seller with respect to the escrow arrangement contemplated
hereby and by the Sales Contract in accordance with the terms of this Agreement
and the Sales Contract. It is hereby expressly understood and agreed that in the
event a conflict should arise as between the terms of this Agreement and those of
Exhibits (6) 13
1 I /5/01
the Sales Contract, the terms of this Agreement shall control. Seller and Purchaser
agree (a) that Escrow Agent shall be a stakeholder only and not liable for any
losses, costs or damages it may incur in performing its responsibilities hereunder
unless such losses, costs or damages shall arise out of the willful default or gross
negligence of Escrow Agent or its agents; (b) that no releases or disbursements
shall be made hereunder except upon written instructions from both Seller and
Purchaser or their successors or assigns; and (c) that in the event of a dispute
hereunder between Seller and Purchaser (or their successors or assigns), Escrow
Agent shall have the right, exercisable in its sole discretion, to be discharged by
tendering unto the registry or custody of any court of competent jurisdiction, the
closing documents and funds held by Escrow Agent, together with any such legal
pleadings as it deems appropriate.
2. During the month of March, 2002, on a specific date designated
by Purchaser by giving five (5) days notice thereof to Seller and Escrow Agent,
Seller and Purchaser shall execute and deliver to Escrow Agent the Closing
Documents and the Closing Funds, as defined in the Sales Contract.
3. On the final day of the Escrow Closing Period (hereinafter
referred to as the "Final Closing Date "), Escrow Agent shall ascertain from
Purchaser whether all necessary Closing Documents and Closing Funds have been
deposited in escrow pursuant to each of the Assembled Contracts (said event being
hereinafter referred to as "Completion of Closing "). In the event that Completion
of Closing has occurred on or before the Final Closing Date, Escrow Agent shall
(a) release to Purchaser those Closing Documents not being recorded in the
Records of Richmond County, Georgia, (b) release to Seller the net sale proceeds,
and (c) deliver to the Superior Court of Richmond County (i) all Closing
Documents to be recorded including, without limitation, the Warranty Deed, and
(ii) amounts due and payable for transfer taxes and recordation expenses (the latter
of said events being defined for purposes hereof and of the Sales Contract as the
"Final Closing "). In the event that Escrow Agent is notified by Purchaser that
Completion of Closing has not occurred on the Final Closing Date, Escrow Agent
shall so notify Seller, and shall return to Purchaser the Financing Documents, if
any, and the Closing Funds deposited by Purchaser, and shall return to Seller the
Conveyancing Documents.
4. The terms and provisions of this Agreement are for the benefit
of Seller, Purchaser and Escrow Agent and their respective successors and assigns
only. Nothing contained herein shall be deemed or construed to inure to the benefit
of any other person or party, it being the express intent of Seller, Purchaser and
Exhibits (6) 14
1 1/5/01
Escrow Agent that no such person or party shall be entitled to any of the benefits
hereof, except as herein expressly provided.
5. Time is of the essence of this Agreement.
6. This Agreement is intended as a contract under the laws of the
State of Georgia and shall be governed thereby and construed in accordance
therewith.
IN WITNESS WHEREOF, the parties hereto have executed this
Escrow Agreement under seal as of the day, month and year first above written.
SELLER:
By:
PURCHASER:
ANDERSON EQUIPMENT
RENTAL COMPANY, L.L.C.
By: (L.S.)
As its Operating Manager
ESCROW AGENT:
SHERMAN & HEMSTREET, INC.
By:
As its:
Exhibits (6) 15
11 /5/01
•
EXHIBIT "D"
TITLE AFFIDAVIT
STATE OF GEORGIA )
TITLE AFFIDAVIT
COUNTY OF RICHMOND )
IN RE: PROPERTY OF
DEED BOOK , PAGE
RICHMOND COUNTY, GEORGIA
Before me, the undersigned attesting authority in and for said State
and County, came the undersigned Deponent, who being duly sworn deposes and
says on oath that this Affidavit relates to the property of the owner designated in
the caption hereof as the same is described in the deed book and page herein
referred to. Deponent makes the following statement under oath as be ing.
and material to the ownership of said property, to -wit:
Said property is the subject of a contract of purchase and sale between
the above referenced owner and Anderson Equipment Rental Company, L.L.C.
This day of , 20
Sworn to and subscribed before
me this day of , 20
Notary Public, Richmond County, Deponent
State of Georgia
My Commission Expires:
(NOTARY SEAL)
Exhibits (6) 16
1 1 /5/01
4 y
EXHIBIT "K"
INDENTURE OF LEASE
Between
AUGUSTA, GEORGIA
As Lessor
and
ANDERSON EQUIPMENT RENTAL COMPANY, L.L.C.
As Lessee
Exhibits (6) 2
11/5/01
EXHIBIT "K"
INDENTURE OF LEASE
Between
AUGUSTA, GEORGIA
As Lessor
and
ANDERSON EQUIPMENT RENTAL COMPANY, L.L.C.
As Lessee
Exhibits (6) 2
11 /5/01
INDENTURE OF LEASE
THIS INDENTURE, made and entered into as the day of
, 20 , by and between AUGUSTA, GEORGIA, a ..municipality
of the State of Georgia, as Lessor, and. ANDERSON EQUIPMENT RENTAL
COMPANY, L.L.C., a Georgia limited liability company, as Lessee;
WITNESSETH:
For and in consideration of the mutual covenants and considerations
herein set forth, Lessor and Lessee agree as follows.
1. Definitions. For the purposes of this Lease, the following
defined terms shall have the meanings ascribed thereto in this Article 1.
"Act of Default" means those events, occurrences and circumstances
so designated in Section 8.1.
"Entity" means any person, corporation, partnership (general or
limited), joint venture, association, joint stock company, trust or other business
entity or organization.
"Existing Improvements" means the water tank, pumps and associated
fixtures and equipment located on the Land.
"Expire ", "Expired" or "Expiration" mean the expiration of the Term
of this Lease by reason of lapse of time, and not by reason of any Act of Default.
"Extended Term" means the period of time commencing at midnight,
local time in the City of Augusta, County of Richmond, State of Georgia, on
, 2052, and ending (that is, scheduled to Expire) at midnight, local
time in the City of Augusta, County of Richmond, State of Georgia, on
, 2077, for which Lessee shall have the option to renew and extend this
Lease, subject to the requirements of Section 2.3 and subject to Termination prior
to scheduled Expiration as provided in this Lease.
"Improvement" means, collectively, any and all buildings, structures
and other permanent improvements to the real estate of every nature, character and
description located, as of the date hereof or thereafter, on the Land or (if the
Exhibits (6) 3
1 1/5/0 1
context hereof so indicates) portions thereof, and any and all fixtures located
therein and owned by Lessee and specifically including duct work and heating,
ventilating and air conditioning equipment and machinery. The Improvements
include, without limitation, the Existing Improvements and the Expansion
Improvements.
"Land" means all that tract or parcel of land lying and being in the
County of Richmond, State of Georgia, and being more particularly described in
Exhibit "A" attached hereto and by reference made a part hereof.
"Lease" means this Indenture of Lease.
"Lease Year" means the successive periods of twelve (12) months
each, beginning the first (1st) day of January of each calendar year and ending on
the last day of December of each calendar year during the Primary Term and (if
applicable) the Extended Term, except for the initial Lease Year of the Primary
Term which shall begin on the date of this Lease and end December 31, 2002.
"Leased Property" means, as of the date of this Lease, the Land.
"Leasehold Mortgage" means any deed to secure debt, security deed,
mortgage, security agreement or other instrument in the nature thereof at any time
and from time to time constituting a lien upon the leasehold estate of Lessee
created hereby but not upon the reversionary fee estate of Lessor in the Leased
Property.
"Leasehold Mortgagee" means the holder or, collectively, the holders
of a Leasehold Mortgage.
"Lessee" means Anderson Equipment Rental Company, L.L.C. as the
lessee under this Lease and the successors and permitted assigns thereof.
"Lessor" means Augusta, Georgia as the lessor under this Lease and
the successors and assigns thereof.
"Notice" means a written advice or notification required or perm itted
by this Lease, as more particularly provided in Section 9.4.
"Parties" means all parties to this Lease; that is, Lessor and Lessee.
Exhibits (6) 4
1 1/5/01
•
"Party" means any party to this Lease; that is, Lessor or Lessee.
"Primary Term" means the period of time constituting the initial term
of this Lease, commencing on the date of this Lease and ending (that is, scheduled
to Expire) at midnight, local time in the City of Augusta, County of Richmond,
State of Georgia, on December 31, 2052, subject to Termination prior to scheduled
Expiration as provided in this Lease.
"Term" means, as the context may require, the Primary Term and, if
Lessee has exercised the option of Lessee described in Section 2.3, the Extended
Term.
"Terminate ", "Terminated" and "Termination" mean the termination
of the Term of this Lease by reason of an Act of Default, and not by reason of
lapse of time.
"Transfer" means any transfer, sale, conveyance, grant, assignment,
encumbrance, pledge, hypothecation or other disposition.
2. Lease of Property -Term of Lease,
2.1 Lease. Lessor, in consideration of the rents, covenants,
agreements and conditions herein set forth, which Lessee hereby agrees shall be
paid, kept and performed by Lessee, does hereby lease, let, demise and rent to
Lessee, and Lessee does hereby rent and lease from Lessor all right, title and
interest of Lessor in and to the Leased Property.
TO HAVE AND TO HOLD the Leased Property and all rights,
privileges and appurtenances thereunto appertaining unto Lessee, for and during
the Term, unless sooner Terminated in accordance with any of the provisions of
the Lease.
2.2 Relocation. Lessor shall have the right to substitute other
property for the Leased Property at any time during the Term or Extended Term
with the prior written approval of Lessee, which approval shall not be unreasonable
withheld.
2.3 Term. The initial term of this Lease shall be the Primary Term.
Provided that Lessee is not then in default hereunder, Lessee shall have the option
to renew and extend this Lease for the Extended Term. The option for the
Exhibits (6) 5
11/5/01
•
Extended Term may be exercised by Lessee giving Notice thereof to Lessor not
earlier than two (2) years prior to the scheduled Expiration of the Primary Term,
but not prior thereto, and not less than one (1) year prior to the scheduled
Expiration of the Primary Term, but not thereafter. Notwithstanding the foregoing,
however, the Primary Term or the Extended Term, as the case may be, shall
immediately terminate at such time as Lessor shall provide potable water of
sufficient volume and pressure to support the fire protection system in Lessee's
property and improvements located at 326 Prep Phillips Drive in Augusta, Georgia.
3. Rent.
3.1 Rent. Rent (the "Rent ") for the entire Primary Term of this
Lease consist of the conveyance by Lessee to Lessor of four (4) real properties on
Walker and Ninth Streets in Augusta, Georgia, in exchange for property on Prep
Phillips Drive in Augusta, Georgia, and the leasehold estate established by this
ground lease. Lessor and Lessee each acknowledge the receipt of such
consideration and its adequacy as rent for the entire Primary Term.
3.1.1 Rent for Extended Term. The Rent for each Lease Year
during the Extended Term shall be One Hundred and no /100 ($100.00) dollars per
year payable in advance on or before the 10 day of January of each year.
4. Improvements.
4.1 Title to Improvements. Title to all Improvements and all
equipment, fixtures and machinery therein or thereon shall be and remain in Lessee
during the Term. Lessee hereby Transfers to Lessor all of Lessee's right, title and
interest in and to all Improvements and all such property now or hereafter situated
on, below or above the Land, provided, however, such conveyance shall not be
effective until the Expiration or Termination of this Lease, whichever occurs first.
5. Acceptance, Use and Alteration.
5.1 Acceptance. Lessee has leased the Leased Property after a full
and complete physical examination thereof and accepts the same in the physical
condition or state in which the Leased Property now is held without any
representation or warranty, express or implied in fact or by law, by Lessor and
without recourse against Lessor, as to the physical nature, condition or usability
thereof.
Exhibits (6) 6
1 1/x/01
•
•
5.2 Use. Lessee shall not use or occupy, or permit the use or
occupancy of, the Land or the Improvements, and not do or permit anything to be
done in or to the Land or the Improvements, in whole or in part, in a manner which
(i) would in any way make void or voidable any insurance then in force with
respect thereto, or (ii) may make it impossible to obtain (at standard rates therefor)
fire or other insurance thereon required to be furnished by Lessee hereunder, or
(iii) might constitute a public or private nuisance or offensive conduct or
circumstances, whether or not constituting a nuisance.
6. Insurance.
6.1 Coverage. During the Term, Lessee, at no cost and expense to
Lessor, will keep and maintain general public liability insurance protecting and
indemnifying Lessee and Lessor against any and all claims for damages to person
or property or for loss of life or of property occurring upon, in or about the Land
and the Improvements and the adjoining streets, other than streets dedicated to the
public and accepted for maintenance by the public, such insurance to afford
immediate protection to the limit of not less than
($ ) Dollars in respect of bodily injury or death to any one person, and
to the limit of not less than _ ($ )
Dollars in respect to any one accident, :... and to the limit of not less than
($ ) Dollars for property damage
with not more than ($ ) Dollars
deductible.
6.2 Insureds. Insurance to be provided by Lessee shall name Lessee
and Lessor as insureds as their respective interests may appear.
7. Assignments, Subleases and Mortgages.
7.1 Assignments. Lessee shall be entitled to Transfer all or any part
of (i) the leasehold estate created by this Lease, (ii) the rights, powers, privileges,
benefits, interests, obligations and options of Lessee under this Lease or (iii) the
Improvements or any interest or estate therein without the prior approval of Lessor.
8. Defaults.
8.1 Acts of Default. The occurrence of any of the events, acts or
circumstances described in Subsections 8.1.1 through 8.1.5 shall be and constitute
an Act of Default under this Lease.
Exhibits (6) 7
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8.1.1 Failure in Payment. Failure by Lessee to pay in full any
Rent, insurance premium or other charge payable under this Lease on the date
upon which such ought to be paid, and the continuance of such failure for thirty
(3 0) days after Lessor has given Lessee Notice of such failure.
8.1.2 Failure in Performance. Failure by Lessee to observe,
perform or comply with any of the terms, covenants, agreements or conditions
contained in this Lease (other than as specified in Subsection 8.1.1), and the
continuance of such failure for thirty (30) days after Lessor has given Lessee
Notice of such failure, unless Lessee has commenced to cure such failure within
such period of thirty (30) days and has been prevented from completing such cure
by circumstances contemplated by Section 8.2, and then only if Lessee diligently
and continuously prosecutes to completion such cure at the earliest possible date
allowed by circumstances contemplated by Section 8.2.
8.1.3 Insolvency. The insolvency of Lessee.
8.1.4 Abandonment. The desertion, vacation or abandonment
of the Land or the Improvements by Lessee,:. regardless of whether or not Lessee
continues to pay all stipulated Rent-and other charges payable under this Lease.
8.1.5 Levy. The Land or the Improvements or Lessee's interest
therein are levied upon or attached under process against Lessee and not satisfied
or dissolved within ninety (90) days after Notice from Lessor to Lessee to obtain
satisfaction thereof
8.2 Force Majeure. For the purposes of any of the provisions of
this Lease, except such provisions as require or concern the payment of monies,
neither Lessor nor Lessee, as the case may be, shall be considered in breach of, or
default in, the obligations thereof with respect to this Lease in the event of
enforced delay in the performance of such obligations due to unforeseeable causes
beyond the control and without the fault or negligence thereof, including, but not
restricted to, acts of God, acts of the public enemy, acts of the Federal
Government, acts of the other Party, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes and unusually severe weather or delays due
to such causes; it being the purpose and intent of this Section 8.2 that in the event
of the occurrence of any such enforced delay, the time or times for performance of
the obligations of Lessor or Lessee, as the case may be, with respect to this Lease
shall be extended for the period of the enforced delay; provided, that the Party
Exhibits (6) 8
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seeking the benefit of the provisions of this Section 8.2 shall, within thirty (30)
days after the beginning of any such enforced delay, have first advised the other
Party thereof by Notice, and of the cause of causes thereof, and requested an
extension for the period of the enforced delay.
8.3 Remedies. Whenever any Act of Default shall have happened,
Lessor may, to the extent not prohibited by law, take any one or more of the
remedial steps described in Subsections 8.3.1 through 8.3.3.
8.3.1 Taking of Possession. Lessor may reenter and take
possession of the Land and the Improvements without Terminating this Lease, and
sublease in their entirety the same for the account of Lessee.
8.3.2 Termination. Lessor may Terminate the Term and . this
Lease, exclude Lessee from possession of the Land and the Improvements.
8.3.3 Enforcement. Lessor may take whatever action at law or
in equity may appear necessary or desirable to enforce performance and
observance of any obligation, agreement or covenant of Lessee under this Lease,
and to recover any or all damages. to Lessor. for Lessee's violation or breach of this
Lease.
8.4 Holding Over. Lessee hereby agrees to surrender possession of
the Land and the Improvements to Lessor upon the Termination or Expiration of
the Term and upon any reentry by Lessor as permitted by this Lease, and Lessor
may thereupon enter upon, reenter, possess and repossess the Land and the
Improvements, by force, summary proceedings, ejectment or otherwise, and may
dispossess and remove Lessee and all other Entities from the Land and the
Improvements and may have, hold and enjoy the Land and the Improvements and
the right to receive all rental and other income therefrom, free of any right or claim
of Lessee; but should Lessee, in breach of such covenant, refuse to surrender
possession and instead hold over, Lessee shall be only a tenant at sufferance and
' not a tenant at will. Lessee hereby waives all right to notice, summons and service
of process now or hereafter provided by law in connection with dispossessory
proceedings against tenants holding over.
9. Miscellaneous Provisions.
9.1 Recording and Filing. This Lease shall be filed for recordation
in the Office of the Clerk of the Superior Court of Richmond County, Georgia, and
Exhibits (6) 9
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in such other location as may from time to time be provided by law as the proper
place for recordation of this Lease.
9.2 Notices. Each Notice shall be deemed to have been properly
given or served by the deposit of such with the United States Postal Service, or any
official successor thereto, designated as registered or certified mail, return receipt
requested, bearing adequate postage and addressed as hereinafter provided. Each
Notice shall be effective upon being deposited as aforesaid. The time period in
which a response to any such Notice must be given or any action taken with
respect thereto, however, shall commence to run from the date of receipt on the
return receipt of the Notice by the addressee thereof. Rejection or other refusal to
accept or the inability to deliver because of changed address of which no Notice
was given shall be deemed to be receipt of the Notice sent. In the event that
registered or certified mail is not being accepted for prompt delivery, each Notice
may then be served by personal service addressed as hereinafter provided. By
giving to the other party at least thirty (30) days Notice thereof, any party shall
have the right from time to time during the Term to change the addresses thereof
and to specify as the address thereof any other address within the United States of
America.
9.2..1 Notice to Lessor. Each Notice to Lessor shall be
addressed as follows:
530 Greene Street
Augusta, Georgia 30901
Attention: Bob Young, Mayor
With a copy to:
James B. Wall
Burnside, Wall, Daniel, Ellison & Revell
P. O. Box 2125
Augusta, Georgia 30903
9.2.2 Notice to Lessee. Each Notice to Lessee shall be
addressed as follows:
P. O. Box 10027
Augusta, Georgia 30903
Attention: Charles J. Anderson, Operating Manager
Exhibits (6) 1 0
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With a copy to:
A. Zachry Everitt
Tucker, Everitt, Long, Brewton & Lanier, P.A.
P. 0. Box 2426
Augusta, Georgia 30903
9.3 Fees and Commissions. Lessor and Lessee each represent to the
other that there are no claims for brokerage or other commissions or finder's or
other similar fees in connection with the transactions contemplated by this Lease
insofar as such claims shall be based on arrangements or agreements made by or
on behalf of the Party so representing.
9.4 Waiver. No consent or waiver, express or implied, by Lessor or
Lessee to or of any breach or default by the other Party in the performance by such
other Party of the obligations thereof under this Lease shall be deemed or
construed to be a consent or waiver to or of any other breach of default in the
performance by such other Party of the same or any other obligations of such other
Party under this Lease.. Failure on the part of either .Lessor or Lessee to complain
of any act or failure to act of the other:. Party or to declare the other Party in default,
irrespective of how long such failure continues, shall not constitute a waiver of
such Party of the rights thereof under this Lease.
9.5 Severability. If any provision of this Lease or the application
thereof to any Entity or circumstance shall be invalid or unenforceable to any
extent, the remainder of this Lease and the application of such provisions to any
other Entity or circumstance shall not be affected thereby and shall be enforced to
the greatest extent permitted by law.
9.6 Amendment. Neither this Lease nor any provision hereof may
be changed, waived, discharged or terminated orally, but only by an instrument in
writing signed by the Party against whom enforcement of the change, waiver,
discharge or termination is sought.
9.7 Terminology. All personal pronouns used in this Lease, whether
used in the masculine, feminine or neuter gender, shall include all other genders;
the singular shall include the plural; and the plural shall include the singular.
Unless otherwise expressly stated, titles of Articles, Sections, Subsections and
Paragraphs of this Lease are for convenience only, and neither limit nor amplify
Exhibits (6) 11
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the provisions of this Lease, and all references in this Lease of Articles, Sections,
Subsections or Paragraphs shall refer to the corresponding Article, Section,
Subsection or Paragraph of this Lease unless specific reference is made to the
articles, sections or subdivisions of another document or instrument.
9.8 Counterparts. This Lease may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall comprise but a single instrument.
9.9 Binding Agreement. Subject to the restrictions on Transfers set
forth herein, this Lease shall inure to the benefit of and be binding upon Lessor and
Lessee and their respective heirs, executors, legal representatives, successors and
assigns. Whenever in this Lease a reference to Lessor, Lessee or any Entity is
made, such reference shall be deemed to include a reference to the heirs, executors,
legal representatives, successors and assigns of Lessor, Lessee or such Entity.
9.10 Interpretation. No provision of this Lease shall be construed
against or interpreted to the disadvantage of either Lessor or Lessee by any court or
other governmental or judicial authority by reason of such Party having or being
deemed to have structured or dictated such provision.
9.11 Governing Law. This Lease and the obligations of Lessor and
Lessee hereunder shall be interpreted, construed and enforced in accordance with
the Laws of the State of Georgia.
9.12 Relationship of Parties. No express or implied term, provision
or condition of this Lease shall or shall be deemed to constitute Lessor and Lessee
as partners or joint venturers.
9.13 Indemnity. Lessee is and shall be in exclusive control of the
Land and the Improvements, and Lessor shall not in any event whatsoever be liable
for any injury or damage to any person or property happening on, in, about or in
connection with the Land and the Improvements or any part thereof. Lessee shall
indemnity and hold harmless Lessor and all Entities claiming by, through or under
Lessor from all claims, suits, actions and proceedings whatsoever which may be
brought or instituted on account of, growing out of, occurring from, incident to or
resulting from, directly or indirectly, any and all injuries or damages to persons or
property arising out of the use and occupation of the Land or the Improvements or
in connection with or growing out of this Lease or the performance by Lessee of
the obligations of Lessee under this Lease. Lessee shall assume on behalf of
Exhibits (6) 12
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EXHIBIT "A"
DESCRIPTION OF LEASED PROPERTY
ALL that parcel of land situate, lying and being in Augusta, Georgia, fronting a
distance of 65.00 feet on the north side of Prep Phillips Drive and extending back
therefrom between parallel lines a distance of 90.00 "feet. Said property is
designated as Lot 1.4 on Map 048 -4 in the Office of the Tax Assessor of Augusta,
Georgia.
Exhibits (6) 14
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EXHIBIT "L"
BILL OF SALE
STATE OF GEORGIA )
BILL OF SALE
COUNTY OF RICHMOND )
KNOW ALL MEN that the undersigned maker, AUGUSTA,
GEORGIA, of this instrument for and in consideration of the sum of Ten and no /100
($10.00) Dollars to it in hand paid, at and before the delivery of these presents, the
receipt whereof is hereby acknowledged; has bargained, sold and delivered, and by
these presents does bargain, sell and deliver unto ANDERSON EQUIPMENT
RENTAL COMPANY, L.L.C. the following described personal property, to -wit:
That certain water pump, water tower and all related pipes,
apparatuses; fixtures, parts and .equipment located on a
parcel of land on the north side . of Prep. Phillips Drive
which is designated as Parcel 1.4 on Map 48 -4 in the
Office of the Tax Assessor of Augusta, Georgia.
TO HAVE AND TO HOLD the said personal property above
described, unto ANDERSON EQUIPMENT RENTAL COMPANY, L.L.C., its
successors and assigns, to its only proper use, benefit and behoof forever.
The undersigned maker of this instrument fully warrants the right and
title to said property unto ANDERSON EQUIPMENT RENTAL COMPANY,
L.L.C., its successors and assigns.
Exhibits (6)
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IN WITNESS WHEREOF, the undersigned has caused these presents
to be executed by its Mayor and attested by its Clerk of Council and its seal to be
affixed hereto as of the day of , 20
•
Signed, sealed and delivered AUGUSTA, GEORGIA
before us this day of
• ,20
By:
As its Mayor
Witness
ATTEST:
Notary Public, County,
State of Georgia B
As its Clerk of Council
My Commission Expires:
(NOTARY SEAL) (SEAL)
Exhibits (6)
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