|
(Mark One)
|
||||
|
þ
|
ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) | |||
|
|
OF
THE SECURITIES EXCHANGE ACT OF 1934
|
|||
|
|
||||
|
|
For the year ended December 31, 2004 | |||
|
|
||||
|
|
or | |||
|
|
||||
|
o
|
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) | |||
|
|
OF THE SECURITIES EXCHANGE ACT OF 1934 | |||
|
|
||||
|
|
For the transition period from..............to............ | |||
|
|
||||
|
|
Commission file number 0-3576 |
| Georgia | 58-0869052 | |
| (State or other jurisdiction | (I.R.S. Employer | |
| of incorporation or organization) | Identification No.) | |
| 2500 Windy Ridge Parkway, Suite 1600, Atlanta, Georgia | 30339-5683 | |
| (Address of principal executive offices) | (Zip Code) |
|
Title of each class
|
Name
of Exchange on which registered
|
|
| Common Stock ($1 par value) | New York Stock Exchange | |
| 7.75% Series A Cumulative Redeemable | ||
| Preferred Stock ($1 par value) | New York Stock Exchange | |
| 7.50% Series B Cumulative Redeemable | ||
| Preferred Stock ($1 par value) | New York Stock Exchange |
FORWARD-LOOKING STATEMENTS
Certain matters contained in this report are forward-looking statements within the meaning of the federal securities laws and are subject to uncertainties and risks. These include, but are not limited to, general and local economic conditions, local real estate conditions, the activity of others developing competitive projects, the cyclical nature of the real estate industry, the financial condition of existing tenants, interest rates, the Company’s ability to obtain favorable financing or zoning, environmental matters, the effects of terrorism, the failure of assets under contract for sale to ultimately close and other risks detailed from time to time in the Company’s filings with the Securities and Exchange Commission, including the Company’s Current Report on Form 8-K filed on December 10, 2003. The words “believes,” “expects,” “anticipates,” “estimates,” and similar expressions are intended to identify forward-looking statements. Although the Company believes that its plans, intentions and expectations reflected in any forward-looking statements are reasonable, the Company can give no assurance that such plans, intentions or expectations will be achieved. Such forward-looking statements are based on current expectations and speak as of the date of such statements. The Company undertakes no obligation to publicly update or revise any forward-looking statement, whether as a result of future events, new information or otherwise.
2
PART I
Item 1. Business
Corporate Profile
Cousins Properties Incorporated (the “Registrant” or “Cousins”) is a Georgia
corporation, which since 1987 has elected to be taxed as a real estate investment trust (“REIT”).
Cousins Real Estate Corporation and its subsidiaries (“CREC”) is a taxable entity wholly-owned by
the Registrant and is consolidated with the Registrant. CREC owns, develops, and manages its own
real estate portfolio and performs certain real estate related services for other parties. The
Registrant and CREC combined are hereafter referred to as the “Company.”
Cousins is an Atlanta-based, fully-integrated, self-administered equity REIT. The Company has
extensive experience in the real estate industry, including the acquisition, financing,
development, management and leasing of properties. Cousins has been a public company since 1962,
and its common stock trades on the New York Stock Exchange under the symbol “CUZ.” The Company
owns directly and through subsidiaries and joint ventures a portfolio of office, medical office,
retail and residential development projects and holds several tracts of undeveloped land. The
Company is also entering into the industrial real estate market. The strategies employed to
achieve the Company’s investment goals include the development of properties that are leased to
quality tenants, the maintenance of high levels of occupancy within owned properties, the
development of single-family residential subdivisions, the selective sale and financing of assets,
the creation of joint venture arrangements and the acquisition of quality income-producing
properties at attractive prices. The Company also seeks to be opportunistic and take advantage of
normal real estate business cycles.
Unless otherwise indicated, the notes referenced in the discussion below are the “Notes to
Consolidated Financial Statements” included in this Annual Report on Form 10-K on pages F-8 through
F-33.
Brief Description of Company Investments
Office.
As of December 31, 2004, the Company’s office portfolio included the
following nineteen commercial office buildings:
3
The weighted average leased percentage of these office properties was approximately 81%
as of December 31, 2004. The leases expire as follows:
The weighted average remaining lease term of the office portfolio was approximately
seven years as of December 31, 2004. Most of the major tenant leases in these buildings provide
for pass through of operating expenses and contractual rents which escalate over time.
Medical Office.
As of December 31, 2004, the Company’s medical office portfolio
included the following five medical office properties, one of which is currently under
construction:
4
The weighted average leased percentage of these medical office properties, excluding
the property under construction, was approximately 99% as of December 31, 2004. The leases expire
as follows:
The weighted average remaining lease term of the medical office portfolio, excluding
the property under construction, was approximately seven years as of December 31, 2004. Most of
the Company’s leases in these medical office buildings provide for pass through of operating
expenses to its tenants and contractual rents which escalate over time.
Retail
.
As of December 31, 2004, the Company’s retail portfolio included the
following thirteen retail properties, four of which are currently under construction and/or in
lease up:
5
The weighted average leased percentage of these retail properties (excluding the
properties currently under construction and/or in lease up) was approximately 92% as of December
31, 2004. The leases expire as follows:
The weighted average remaining lease term of these retail properties (excluding the
properties currently under construction and/or in lease-up) was approximately eight years as of
December 31, 2004. Most of the major tenant leases in these retail properties provide for pass
through of operating expenses and contractual rents which escalate over time.
Residential/Land Division
.
The Company’s other real estate holdings include interests
in over 200 acres of land held for investment or future development at North Point and Wildwood
Office Park and the option to acquire the fee simple interest in approximately 6,500 acres of land
through its Temco Associates joint venture, among other holdings. See “Residential Lots Under
Development” and “Land Held for Investment or Future Development” in Item 2 of this report for
further information.
Other
.
The Company’s joint venture partners include, but are not limited to, either
the following companies or their affiliates: IBM, The Coca-Cola Company (“Coca-Cola”), Bank of
America Corporation (“Bank of America”), The Prudential Insurance Company of America
(“Prudential”), Temple-Inland Inc. and Emory University.
A table detailing the Company’s real estate properties is included in Item 2 of this
Report.
Significant Changes in 2004
Significant changes in the Company’s business and properties during the year ended
December 31, 2004 were as follows:
Office Division
.
In the third quarter of 2004, the Company sold 101 Second Street, a
387,000 square foot office building and 55 Second Street, a 379,000 square foot office building,
both in San Francisco, California. Both of these properties were owned in consolidated ventures in
which the partner received a participation in the results of operations and gain on sale after
certain thresholds were met. Additionally, in the fourth quarter of 2004, the Company sold
Northside/Alpharetta I and II, two medical office buildings in suburban Atlanta, Georgia, of
103,000 square feet and 198,000 square feet, respectively. The Company has a 50% ownership
interest in CC-JM II Associates, which owned John Marshall-II, a 224,000 square foot office
building in Tysons Corner, Virginia. This property was sold in the fourth quarter of 2004. The
Company has an 11.5%
6
ownership interest in CP Venture Two LLC, which sold Wachovia Tower, a 324,000 square foot
office building in Greensboro, North Carolina, in the fourth quarter of 2004. The Company did not
retain property management for any of these sold properties.
The Company also sold several properties in 2004, of which it retained property management.
In the second quarter of 2004, the Company sold 333 John Carlyle and 1900 Duke Street, two office
buildings in Alexandria, Virginia, of 153,000 square feet and 97,000 square feet, respectively.
Furthermore, the Company sold 101 Independence Center, a 526,000 square foot office building in
Charlotte, North Carolina in the third quarter of 2004. In the third quarter of 2004, Cousins
LORET, a venture in which the Company has a 50% interest, sold The Pinnacle, a 423,000 square foot
office building, and Two Live Oak Center, a 279,000 square foot office building, both in Atlanta,
Georgia. Also in the third quarter of 2004, CPI/FSP I, L.P, a venture in which the Company has a
50% interest, sold Austin Research Park – Buildings III and IV, two office buildings in Austin,
Texas of 174,000 and 184,000 square feet, respectively. Furthermore, in the third quarter of 2004,
Wildwood Associates sold 2500 Windy Ridge Parkway, 4100 Wildwood Parkway, 4200 Wildwood Parkway,
and 4300 Wildwood Parkway, which are all located in Atlanta, Georgia and totaled 822,000 square
feet. In the fourth quarter of 2004, Wildwood Associates sold 2300 Windy Ridge Parkway, a 635,000
square foot office building, 3200 Windy Hill Road, a 698,000 square foot office building, and
approximately 15 acres of stand-alone retail sites under ground leases, also all in Atlanta,
Georgia.
In January 2004, Frost Bank Tower, a 529,000 square foot office building in Austin, Texas, was
completed and became partially operational for financial reporting purposes. In February 2004,
the Company acquired Galleria 75, an approximately 114,000 square foot office building in Atlanta,
Georgia, for approximately $11.4 million. In March 2004, the Company acquired approximately 1 acre
of land for $13.4 million in Miami, Florida, to use for future development. Also in March 2004,
the Company utilized approximately 5 acres of land at its North Point/West Side location and
commenced construction of Inhibitex, an approximately 51,000 square foot office building 100%
leased to Inhibitex, Inc. for its corporate headquarters. Also within the office division is 905
Juniper, an estimated 117-unit condominium building in midtown Atlanta, Georgia, upon which
construction commenced in December 2004.
Retail Division.
In December 2004, the Company sold The Shops of Lake Tuscaloosa, a
62,000 square foot retail center in Tuscaloosa, Alabama.
In March 2004, the Company purchased the land and commenced construction of Hanover Square
South, a 193,000 square foot retail center in Richmond, Virginia, of which the Company owns 69,000
square feet. In May 2004, the Company purchased the land and commenced construction of The Avenue
Carriage Crossing, an approximately 786,000 square foot retail center in Memphis, Tennessee, of
which the Company owns 586,000 square feet. In November 2004, Phase I of The Avenue Viera, an
approximately 381,000 square foot retail center in Viera, Florida, of which the Company owns
306,000 square feet became partially operational for financial reporting purposes. In December
2004, the Company commenced construction of Viera MarketCenter, a 104,000 square foot retail center
in Viera, Florida, adjacent to The Avenue Viera.
Land Division
.
The Company is developing two residential communities in suburban
Atlanta, Georgia and one in Pine Mountain, Georgia. Approximately 1,151 lots are being developed
within these three communities, of which 225, 214 and 137 lots were sold in 2004, 2003 and 2002,
respectively. The Company’s share of lots sold at joint ventures was 579, 272 and 145 for 2004,
2003 and 2002, respectively. The Company also entered into new joint venture arrangements in 2004
for the development of residential communities. See the “Residential Lots Under Development” table
in Item 2 for more detail.
In 2004, the Company sold approximately 6 acres of Company-owned land in Wildwood Office Park
for net gains of approximately $3,313,000 and approximately 70 acres of North Point/West Side land
for net gains of approximately $9,632,000.
Financings and Other.
In July 2004, the Company renewed and recast its unsecured
revolving credit facility with Bank of America and several other banks, increasing the size by $50
million to $325 million (which can be increased to $400 million under certain circumstances). The
new maturity date is September 14, 2007.
In March 2004, Ten Peachtree Place Associates, an entity in which the Company owns a 50%
interest, obtained a $30 million mortgage note payable. The note has a maturity date of February
1, 2015 and an interest rate of 5.39%. A distribution of approximately $9.7 million was made to
the Company in 2004 for its share of the net proceeds from this mortgage after the previous
mortgage was paid in full.
7
On December 17, 2004, the Company issued 4,000,000 shares of 7.5% Series B Cumulative
Redeemable Preferred Stock (Liquidation preference of $25 per share). The net proceeds of $96.5
million from this issuance were used to repay outstanding indebtedness under the Company’s
unsecured credit facility and for general corporate purposes.
In 2004, the Company and certain joint ventures sold properties that generated taxable gains
to the Company of approximately $431 million. The Company paid a special cash dividend of $7.15
per share, or $356.5 million on November 18, 2004, distributing a portion of the taxable gains on
the sales of investment properties to its common stockholders.
Environmental Matters
Under various federal, state and local laws, ordinances and regulations, an owner or operator
of real estate is generally liable for the costs of removal or remediation of certain hazardous or
toxic substances on or in such property. Such laws often impose liability without regard to
whether the owner knew of, or was responsible for, the presence of such hazardous or toxic
substances. The presence of such substances, or the failure to remediate such substances properly,
may subject the owner to substantial liability and may adversely affect the owner’s ability to
develop the property or to borrow using such real estate as collateral. The Company is not aware
of any environmental liability that the Company’s management believes would have a material adverse
effect on the Company’s business, assets or results of operations.
Certain environmental laws impose liability on a previous owner of property to the extent that
hazardous or toxic substances were present during the prior ownership period. A transfer of the
property does not relieve an owner of such liability. Thus, although the Company is not aware of
any such situation, the Company may be liable in respect to properties previously sold.
In connection with the development or acquisition of certain properties, the Company has
obtained Phase One environmental audits (which generally involve inspection without soil sampling
or ground water analysis) from independent environmental consultants. The remaining properties
(including most of the Company’s land held for investment or future development) have not
been so examined. No assurance can be given that environmental liabilities do not exist,
that the reports revealed all environmental liabilities or that no prior owner created any material
environmental condition not known to the Company.
The Company believes that it and its properties are in compliance in all material respects
with all federal, state and local laws, ordinances and regulations regarding hazardous or toxic
substances.
Competition
The Company’s properties compete for tenants with similar properties located in its
markets primarily on the basis of location, rental rates, services provided and the design and
condition of the facilities. The Company also competes with other real estate companies, financial
institutions, pension funds, partnerships, individual investors and others when attempting to
acquire and develop properties. The Land Division also competes with other lot developers.
Executive Offices; Employees
The Registrant’s executive offices are located at 2500 Windy Ridge Parkway, Suite 1600,
Atlanta, Georgia 30339-5683. At December 31, 2004, the Company employed 411 people.
Available Information
The Company makes available free of charge on the “Investor Relations” page of its Web
site,
www.cousinsproperties.com
, its filed and furnished reports on Forms 10-K, 10-Q and
8-K, and all amendments thereto, as soon as reasonably practicable after the reports are filed with
or furnished to the Securities and Exchange Commission.
The Company’s Corporate Governance Guidelines, Director Independence Standards, Code of
Business Conduct and Ethics, and the Charters of the Audit Committee and the Compensation,
Succession, Nominating and Governance Committee of the Board of Directors are also available on the
“Investor Relations” page of the Company’s Web site. The information contained on the Company’s
Web site is not incorporated herein by reference.
Copies of these documents (without exhibits, when applicable) are also available free of
charge upon request to the Company at 2500 Windy Ridge Parkway, Suite 1600, Atlanta, Georgia
30339-5683, Attention: Mark A. Russell, Senior Vice President and Senior Investment Officer. Mr.
Russell, the Company’s investor relations’ contact, may also be reached by telephone at (770)
857-2449, by facsimile at (770) 857-2360 or by email at markrussell@cousinsproperties.com.
8
Item 2. Properties
The following tables set forth certain information relating to major office, medical
office and retail properties, stand alone retail lease sites, residential lots under development,
and land held for investment and future development in which the Company has a 10% or greater
ownership interest. Information presented in Note 4 provides additional information related to its
joint ventures. All information presented is as of December 31, 2004. Dollars are stated in
thousands.
Table of Major Office and Retail Properties
9
10
11
12
13
14
15
Additional
Information Related to Operating Properties
The 3100 Windy Hill Road building, a 188,000 rentable square foot corporate training
facility, occupies a 13-acre parcel of land which is wholly owned by the Company. The training
facility improvements were sold in 1983 to a limited partnership of private investors, at which
time the Company received a leasehold mortgage note. The training facility land was simultaneously
leased to the partnership for thirty years, along with certain equipment for varying periods. The
training facility had been leased by the partnership to IBM through November 30, 1998.
Effective January 1, 1997, the IBM lease was extended eight years beyond its previous
expiration, to November 30, 2006. Based on the economics of the lease, the Company will receive
substantially all of the economic risks and rewards from the property through the term of the IBM
lease. In addition, the Company will receive substantially all of the future economic risks and
rewards from the property beyond the IBM lease because of the short term remaining on the land
lease and the mortgage note balance that would have to be paid off, with interest, in that period
before the limited partnership would receive any significant benefit. Therefore, effective January
1, 1997, the balance of the mortgage note and land was reclassified to Operating Properties, and
revenues and expenses (including depreciation) from that point forward have been recorded as if the
building were owned by the Company.
Residential Lots Under Development
As of December 31, 2004, CREC, Temco Associates and CL Realty, L.L.C. owned the
following parcels of land which are being developed into residential communities. Information in
the table represents total amounts for the development as a whole, not the Company’s share ($ in
thousands):
(Table Continued)
16
17
Land Held for Investment or Future Development
As of December 31, 2004, the Company owned or controlled the following significant land
holdings either directly or indirectly through venture arrangements. The Company evaluates its
land holdings on a regular basis and may convert these land holdings to income-producing assets or
may sell portions of the land holdings if opportunities arise at favorable prices before
development is feasible. Information in the table represents total amounts for the developable
land area as a whole, not the Company’s share. See Note 4 of Notes to Consolidated Financial
Statements for further information related to investments in unconsolidated joint
ventures.
18
In addition, the Company owned, directly or indirectly, the following land parcels
located adjacent to operating properties discussed above. The basis of each of these building pads
is included in the basis of the operating properties in the Company’s consolidated financial
statements or the applicable joint venture’s financial statements. The square footage of potential
office buildings which could be built on the land is as follows:
Other Investments
One Ninety One Peachtree Tower.
One Ninety One Peachtree Tower is a 50-story office
tower located in downtown Atlanta, Georgia, which contains 1.2 million rentable square feet.
C-H Associates, Ltd. (“C-H Associates”), a partnership formed in 1988 between CREC (49%),
Hines Peachtree Associates Limited Partnership (49%) and Peachtree Palace Hotel, Ltd. (2%), owns a
20% interest in the partnership that owns One Ninety One Peachtree Tower. In December 2002, CREC
contributed its interest in C-H Associates to Cousins Texas LLC, an entity which is 76% owned by
the Company and 24% owned by CREC. C-H Associates’ 20% ownership of One Ninety One Peachtree Tower
results in an effective 9.8% ownership interest by Cousins Texas LLC, subject to a preference in
favor of the majority partner, in the One Ninety One Peachtree Tower project. C-H Associates is
accounted for under the equity method of accounting for investments in unconsolidated joint
ventures. The balance of the One Ninety One Peachtree Tower project is currently owned by Equity
Office Properties Trust (“EOP”).
The equity contributed is entitled to a preferred return, with EOP receiving a significant
preferred return. After EOP recovers its preferred return, the partners share in any operating
cash flow distributions in accordance with their percentage interests. The Company has not
recognized any income from its share of the operations of One Ninety One Peachtree Tower to date.
19
Air Rights Near the CNN Center.
The Company owns a leasehold interest in the air rights over
the approximately 365,000 square foot CNN Center parking facility in Atlanta, Georgia, adjoining
the headquarters of Turner Broadcasting System, Inc. and Cable News Network. The air rights are
developable for additional parking or office use. The Company’s net carrying value of this
interest is $0.
Item 3. Legal Proceedings
The Company is subject to various legal proceedings, claims and administrative
proceedings arising in the ordinary course of business, some of which are expected to be covered by
liability insurance and all of which collectively are not expected to have a material adverse
effect on the liquidity, results of operations, business or financial condition of the Company.
Item 4. Submission of Matters to a Vote of Security Holders
No matter was submitted for a vote of the security holders during the fourth quarter of
the Registrant’s fiscal year ended December 31, 2004.
Item X. Executive Officers of the Registrant
The Executive Officers of the Registrant as of the date hereof are as follows:
20
Family Relationships:
Lillian C. Giornelli, Mr. Cousins’ daughter, is a director of the Company. Hugh L.
McColl, Jr., John S. McColl’s father, is a director of the Company. There are no other family
relationships among the Executive Officers or Directors.
Term of Office:
The term of office for all officers expires at the annual stockholders’ meeting. The
Board retains the power to remove any officer at any time.
Business Experience:
Mr. Cousins has served as Chairman of the Board of the Company since inception. He was
also the Chief Executive Officer of the Company from inception until January 2002. Mr. Cousins is
also Director Emeritus of Total System Services, Inc.; Trustee Emeritus of Emory University;
Trustee of the High Museum of Art; Member of the Board of Georgia Research Alliance and Chairman
and Trustee of the CF Foundation.
Mr. Bell has served as the President and Chief Executive Officer of the Company since January
2002. He is also Vice Chairman of the Board and Chairman of the Executive Committee, having served
in these capacities since June 2000. He was a Special Limited Partner with Forstmann Little & Co.
from January 2001 until January 2002. He was Worldwide Chairman and Chief Executive Officer of
Young & Rubicam, Inc. from January 2000 to November 2000; President and Chief Operating Officer of
Young & Rubicam, Inc. from August 1999 to December 1999; and Chairman and Chief Executive Officer
of Young & Rubicam Advertising from September 1998 to August 1999. Mr. Bell is also a director of
Lincoln National Corporation, Regal Entertainment Group, AGL Resources, Inc.,
Georgia-Pacific Corporation and the United States Chamber of Commerce.
Mr. DuPree rejoined the Company in March 2003 as Vice Chairman of the Company. During his
previous tenure with the Company from October 1992 until March 2001, he became Senior Vice
President in April 1993, Senior Executive Vice President in April 1995 and President and Chief
Operating Officer in November 1995. From September 2002 until February 2003, Mr. DuPree was Chief
Executive Officer of Barry Real Estate Companies, a privately held development firm.
Mr. Stone joined the Company in June 1999 as President of Cousins Stone LP, a venture in which
the Company purchased a 50% interest in June 1999. In July 2000, the Company purchased an
additional 25% interest in Cousins Stone LP and in February 2001, the Company purchased the
remaining 25% interest. The name Cousins Stone LP was changed to Cousins Properties Services LP in
August 2001. Mr. Stone was President and Chief Operating Officer of the Company from February 2001
to January 2002 and was a Director of the Company from 2001 to 2003. Effective January 2002, he
relinquished the positions of President and Chief Operating Officer and assumed the position of
President – Texas. In February 2003, he became Vice Chairman of the Company.
Mr. Charlesworth joined the Company in October 1992 and became Senior Vice President,
Secretary and General Counsel in November 1992 and Executive Vice President and Chief Investment
Officer in January 2001. He became Chief Financial Officer in February 2003. He resigned as Chief
Financial Officer in August 2004 and continues to serve as Executive Vice President and Chief
Investment Officer on a part-time basis.
Mr. Fleming joined the Company in July 2001 as Senior Vice President, General Counsel and
Secretary. He became Executive Vice President and Chief Financial Officer in August 2004. He was
a partner in the Atlanta law firm of Fleming & Ray from October 1994 until July 2001. Prior to
that he was a partner at Long Aldridge & Norman, where he served as Managing Partner from 1991
through 1993.
Mr. Jones joined the Company in October 1992 and became Senior Vice President in November 1995
and President of the Office Division in September 1998. He became Executive Vice President and
Chief Administrative Officer in August 2004.
Mr. Harris joined the Company in February 2005 as Senior Vice President and Chief Accounting
Officer. From 2000 to 2003, Mr. Harris served as Senior Vice President, Chief Financial Officer,
Secretary, and Treasurer for JDN Realty Corporation, a real estate investment trust specializing in
the development and management of retail properties. Beginning in 2004, Mr. Harris was the Vice
President and Corporate Controller for Wells Real Estate Funds, Inc., a real estate investment
company, specializing in the acquisition and management of office properties. Mr. Harris is a
certified public accountant.
21
Mr. Jackson joined the Company in December 2004 as Senior Vice President, General Counsel and
Corporate Secretary. From February 1996 to December 2004, he was an associate and then a partner
with the Atlanta-based law firm of Troutman Sanders LLP.
Mr. McColl joined the Company in April 1996 as Vice President of the Office Division. He was
promoted in May 1997 to Senior Vice President.
Mr. Murphy joined the Company in October 1992 and became Senior Vice President of the Company
and President of the Retail Division in November 1995. From 1990 until joining the Company, he was
Senior Vice President of New Market Companies, Inc. and affiliates.
Mr. Robinson joined the Company in May 2004 as Senior Vice President and President of the
Industrial Division. Prior to joining the Company, he was Senior Vice President and President of
Codina Group from March 2001 to April 2004. From 1999 to 2001, he was Senior Vice President of
Duke Realty Company.
Mr. Smith joined the Company in May 1993 as Senior Vice President and President of the Land
Division. From 1983 until joining the Company, he held several positions with Arvida Company,
including President of the Atlanta Division and President of the Texas Division.
22
Company’s
Percent
Economic
Leased
Metropolitan
Rentable
Ownership
(Fully
Property Description
Area
Square Feet
Interest
Executed)
Atlanta
1,253,000
50
%
100
%
Atlanta
983,000
100
%
85
%
Atlanta
365,000
50
%
59
%
Atlanta
347,000
88.50
%
15
%
Atlanta
259,000
50
%
100
%
Atlanta
188,000
100
%
100
%
Atlanta
152,000
100
%
82
%
Atlanta
130,000
100
%
43
%
Atlanta
129,000
100
%
71
%
Atlanta
128,000
100
%
82
%
Atlanta
138,000
100
%
57
%
Atlanta
114,000
100
%
80
%
Atlanta
107,000
100
%
100
%
Georgia
4,293,000
78
%
Charlotte
North Carolina
1,065,000
50
%
100
%
Austin
529,000
90.25
%
62
%
Dallas
203,000
100
%
100
%
Texas
732,000
74
%
Birmingham
190,000
100
%(a)
96
%
Birmingham
149,000
11.50
%
92
%
Birmingham
123,000
100
%(a)
95
%
Alabama
462,000
96
%
6,552,000
81
%
a)
This project is owned through a joint venture with a third party, and a portion
of the upside is shared with the other venturer.
Table of Contents
2014
&
2005
2006
2007
2008
2009
2010
2011
2012
2013
Thereafter
Total
285,387
390,610
117,730
160,070
417,963
96,218
96,199
130,724
230,462
250,872
2,176,235
(b)
13
%
18
%
5
%
7
%
19
%
4
%
4
%
6
%
11
%
13
%
100
%
$
4,654
$
6,084
$
2,158
$
2,365
$
6,240
$
1,597
$
1,494
$
2,190
$
3,717
$
6,085
$
36,584
$
16.31
$
15.57
$
18.33
$
14.77
$
14.93
$
16.59
$
15.53
$
16.76
$
16.13
$
24.26
$
16.81
85,574
46,926
458,402
51,552
181,132
3,948
6,478
647,393
240,318
1,593,218
3,314,941
(d)
3
%
1
%
14
%
2
%
5
%
0
%
0
%
20
%
7
%
48
%
100
%
$
1,383
$
818
$
8,555
$
897
$
3,477
$
73
$
84
$
17,723
$
4,240
$
33,597
$
70,847
$
16.17
$
17.44
$
18.66
$
17.39
$
19.20
$
18.45
$
12.91
$
27.38
$
17.64
$
21.09
$
21.37
Total (including only Company’s % share of Joint Venture Properties):
304,102
414,516
350,886
171,874
511,101
99,712
101,096
454,421
356,070
1,170,193
3,933,971
8
%
11
%
9
%
4
%
13
%
3
%
3
%
12
%
9
%
28
%
100
%
$
4,931
$
6,468
$
6,478
$
2,535
$
8,032
$
1,661
$
1,570
$
11,052
$
5,837
$
26,030
$
74,594
$
16.22
$
15.60
$
18.46
$
14.75
$
15.71
$
16.66
$
15.53
$
24.32
$
16.39
$
22.24
$
18.96
(a)
Where a tenant has the option to cancel its lease without penalty, the lease expiration date
used in the table above reflects the cancellation option date rather than the lease expiration
date.
(b)
Rentable square feet leased as of December 31, 2004 out of approximately 2,585,000 total
rentable square feet.
(c)
Annual contractual rent excludes the operating expense reimbursement portion of the rent
payable. If the lease does not provide for pass through of such operating expense
reimbursements, an estimate of operating expenses is deducted from the rental rate shown. The
contractual rental rate shown is the estimated rate in the year of expiration.
(d)
Rentable square feet leased as of December 31, 2004 out of approximately 3,967,000 total
rentable square feet.
Company’s
Percent
Economic
Leased
Metropolitan
Rentable
Ownership
(Fully
Property Description
Area
Square Feet
Interest
Executed)
Atlanta
358,000
50
%
98
%
Atlanta
160,000
100
%
100
%
Atlanta
51,000
100
%
100
%
Atlanta
51,000
100
%
100
%(a)
Georgia
620,000
99
%
Charlotte
North Carolina
69,000
11.50
%
100
%
689,000
99
%
(a)
This property is under construction.
Table of Contents
2014
&
2005
2006
2007
2008
2009
2010
2011
2012
2013
Thereafter
Total
1,887
1,464
20,508
35,571
84,505
—
2,916
—
64,149
—
211,000
(a)
1
%
1
%
10
%
17
%
40
%
0
%
1
%
0
%
30
%
0
%
100
%
$
39
$
30
$
438
$
806
$
1,773
$
—
$
67
$
—
$
1,473
$
—
$
4,626
$
20.50
$
20.22
$
21.35
$
22.67
$
20.98
$
—
$
23.10
$
—
$
22.88
$
—
$
21.90
3,445
—
68,996
1,178
35,041
7,175
14,735
82,677
25,416
181,920
420,583
(c)
1
%
—
16
%
0
%
8
%
2
%
4
%
20
%
6
%
43
%
100
%
$
56
$
—
$
1,263
$
24
$
767
$
155
$
359
$
1,708
$
545
$
4,484
$
9,361
$
16.40
$
—
$
18.31
$
20.01
$
21.88
$
21.59
$
24.37
$
20.66
$
21.42
$
24.65
$
22.25
Total (including only Company’s % share of Joint Venture Properties):
2,283
1,464
45,475
36,160
102,026
3,588
10,284
25,745
77,079
90,960
395,064
1
%
—
12
%
9
%
26
%
1
%
3
%
7
%
20
%
21
%
100
%
$
45
$
30
$
910
$
818
$
2,156
$
77
$
247
$
557
$
1,745
$
2,242
$
8,827
$
19.79
$
20.22
$
20.01
$
22.63
$
21.13
$
21.59
$
24.01
$
21.62
$
22.64
$
24.65
$
22.34
(a)
Rentable square feet leased as of December 31, 2004 out of approximately 211,000 total
rentable square feet.
(b)
Annual contractual rent excludes the operating expense reimbursement portion of the rent
payable. If the lease does not provide for pass through of such operating expense
reimbursements, an estimate of operating expenses is deducted from the rental rate shown. The
contractual rental rate shown is the estimated rate in the year of expiration.
(c)
Rentable square feet leased as of December 31, 2004 out of approximately 427,000 total
rentable square feet.
Company’s
Percent
Economic
Leased
Metropolitan
Rentable
Ownership
(Fully
Property Description
Area
Square Feet
Interest
Executed)
Atlanta
401,000
11.50
%
100
%
Atlanta
230,000
100
%
96
%
Atlanta
205,000
100
%
96
%
Atlanta
182,000
88.50%
(a)
99
(b)%
Atlanta
103,000
11.50
%
100
%
Georgia
1,121,000
97
%
Viera
306,000
100
%
79
%(c)
Viera
104,000
100
%
93
%(c)
St. Augustine
80,000
50
%
72
%
Florida
490,000
72
%
Memphis
Tennessee
586,000
100
%(a)
51
%(c)
The Avenue of the Peninsula
Rolling Hills Estates
374,000
100
%
84
%
Long Beach
157,000
11.50
%
100
%
California
531,000
85
%
Chesapeake
376,000
11.50
%
100
%
Richmond
69,000
100
%
35%
(c)
Virginia
445,000
100
%
3,173,000
(d)
(a)
This property is subject to a contractual participation in which a third party
may receive a portion of the results of operations or sale.
(b)
An expansion of 13,000 square feet is currently under construction and in lease
up. The expansion space is included in rentable square feet for the property, but
excluded from the percentage leased calculations.
Table of Contents
(c)
This property is under construction and/or in lease up.
(d)
The Company has a 10% interest in Deerfield Towne Center, a 371,000 square foot
retail project that is partially operational and under lease up in Deerfield, Ohio.
The Company has no capital invested in the project, but is entitled to receive 10% of
the operating income and 10% of any residuals upon sale.
2014
&
2005
2006
2007
2008
2009
2010
2011
2012
2013
Thereafter
Total
55,432
67,925
16,068
11,796
32,431
119,487
35,461
18,004
99,313
277,324
733,241
(a)
8
%
9
%
2
%
2
%
4
%
16
%
5
%
2
%
14
%
38
%
100
%
$
1,450
$
1,684
$
217
$
349
$
976
$
2,985
$
634
$
564
$
2,727
$
5,882
$
17,468
$
26.15
$
24.79
$
13.49
$
29.56
$
30.11
$
24.98
$
17.89
$
31.35
$
27.46
$
21.21
$
23.82
54,189
162,790
81,560
55,721
58,379
105,451
141,969
235,511
51,751
314,109
1,261,430
(c)
4
%
13
%
6
%
4
%
5
%
8
%
11
%
19
%
4
%
26
%
100
%
$
809
$
2,167
$
1,751
$
1,106
$
1,083
$
1,231
$
2,203
$
3,735
$
1,084
$
5,109
$
20,278
$
14.93
$
13.31
$
21.47
$
19.84
$
18.56
$
11.67
$
15.52
$
15.86
$
20.95
$
16.26
$
16.08
Total (including only
Company’s % share of Joint Venture Properties):
63,779
106,875
49,749
52,855
46,204
134,403
59,815
77,382
120,569
317,639
1,029,270
6
%
10
%
5
%
5
%
4
%
13
%
6
%
8
%
12
%
31
%
100
%
$
1,593
$
2,413
$
988
$
1,176
$
1,293
$
3,176
$
1,123
$
1,730
$
3,191
$
6,524
$
23,207
$
24.97
$
22.58
$
19.85
$
22.25
$
28.00
$
23.63
$
18.77
$
22.36
$
26.46
$
20.54
$
22.55
(a)
Gross leasable area leased as of December 31, 2004 out of approximately 809,000 square feet
of total gross leasable area.
(b)
Annual contractual rent excludes the operating expense reimbursement portion of the rent
payable and any percentage rents due. If the lease does not provide for pass through of such
operating expense reimbursements, an estimate of operating expenses is deducted from the
rental rate shown. The contractual rental rate shown is the estimated rate in the year of
expiration.
(c)
Gross leasable area leased as of December 31, 2004 out of approximately 1,286,000 square feet
of total gross leasable area.
Table of Contents
Table of Contents
Table of Contents
Adjusted
Cost and
Adjusted
Percentage
Cost Less
Debt
Year
Leased
Average
Major
Depreciation
Maturity
Description
Development
Company’s
Rentable
as of
2004
Major Tenants (lease
Tenants’
and
and
and
Completed
Venture
Ownership
Square Feet
December
Economic
expiration/options
Rentable
Amortization
Debt
Interest
Location
or
Acquired
Partner
Interest
and
Acres
31,
2004
Occupancy
expiration)
Sq.
Feet
(1)
Balance
Rate
Atlanta,
GA
100
%
983,000
85
%
88
%
BellSouth Corporation (3)(2009)
277,744
$
84,142
$
0
N/A
4 Acres (2)
Georgia Lottery Corp. (2013)
127,827
$
44,411
Co Space Services, LLC
112,993
(2020/2025)
Turner Broadcasting (2006/2016)
57,827
Sapient Corporation (2009/2019)
57,689
Austin, TX
90.25
%
529,000
62
%
32
%
Graves, Dougherty, Hearon
64,210
$
131,216
$
0
N/A
2 Acres (4)
& Moody, P.C. (2020/2035)
$
129,156
Frost National Bank (2014/2049)
51,958
Winstead, Sechrest & Minick P.C.
51,875
Jenkens & Gilchrist (2014/2024)
46,662
Suburban Dallas, Texas
100
%
203,000
100
%
94
%
Bombardier Aerospace Corp.
97,740
$
31,545
(5)
$
0
N/A
15 Acres (5)
$
25,023
(5)
Liberty Mutual (2011/2021)
28,124
Cisco Systems, Inc. (2005/2010)
20,433
Birmingham, AL
Daniel Realty
100
%(6)
190,000
96
%
89
%
Infinity Insurance (2005/2015)
107,293
$
15,938
$
9,619
11/1/08
Company
12 Acres
$
12,780
6.78
%
Birmingham, AL
Daniel Realty
100
%(6)
123,000
95
%
98
%
Southern Company, Inc. (3)
41,961
$
20,721
$
13,519
8/10/11
Company
10 Acres
$
15,164
7.38
%
Southern Progress (2006/2011)
29,845
Table of Contents
Adjusted
Cost and
Adjusted
Percentage
Cost Less
Debt
Year
Leased
Average
Major
Depreciation
Maturity
Description
Development
Company’s
Rentable
as of
2004
Major Tenants (lease
Tenants’
and
and
and
Completed
Venture
Ownership
Square Feet
December
Economic
expiration/options
Rentable
Amortization
Debt
Interest
Location
or
Acquired
Partner
Interest
and
Acres
31,
2004
Occupancy
expiration)
Sq.
Feet
(1)
Balance
Rate
Suburban Atlanta, GA
1995
(7)
N/A
100
%
128,000
82
%
75
%
Schweitzer-Mauduit
$
11,476
$
22,365
(8)
8/1/07
7 Acres
International, Inc.
(2007/2012)
32,696
$
10,386
7.86
%
Med Assets HSCA, Inc. (2011/2016)
17,013
Golden Peanut Co. (2007/2012)
14,196
Suburban Atlanta, GA
1996
(7)
N/A
100
%
130,000
43
%
43
%
Dean Witter (2007)
15,709
$
10,215
(8)
(8
)
9 Acres
B2B Workforce, Inc. (2008/2013)
14,171
$
9,299
Suburban Atlanta, GA
1998
N/A
100
%
129,000
71
%
69
%
Merrill Lynch (2014/2024)
35,949
$
12,977
$
30,849
(9)
11/1/11
9 Acres
Wells Fargo Bank NA (2005/2010)
22,222
$
9,672
7.00
%
Phillip Morris (2008/2013)
17,521
Suburban Atlanta, GA
2000
N/A
100
%
152,000
82
%
49
%
Regus Business Centre (2011/2016)
22,422
$
15,610
(9)
(9
)
10 Acres
$
12,268
Matria Healthcare, Inc. (2006)
12,375
Robert W. Baird (2011/2016)
11,074
Kids II, Inc. (2016/2026)
51,059
Atlanta, GA
1996
N/A
100
%
138,000
57
%
69
%
Wachovia (3)(2009)
13,742
$
12,836
$
0
N/A
2 Acres
Roman Cath. Archdiocese (2005)
11,941
$
8,089
KPS Group (2005/2010)
11,029
Suburban Atlanta, GA
2004
N/A
100
%
114,000
80
%
82
%
American Tower L.P. (2006)
22,702
$
11,564
$
0
N/A
7 Acres
THD At-Home Svs. (2007/2008)
24,259
$
11,070
Atlanta, GA
2000
Prudential (3)
88.50
%
347,000
15
%
48
%
Hamilton, Westby, Marshall (2005)
9,865
$
39,241
(5)
$
0
N/A
3 Acres
(5)
$
33,962
(5)
Atlanta, GA
1984
N/A
100
%
107,000
100
%
100
%
Indus International, Inc.
107,000
$
13,393
$
0
N/A
10 Acres
(2012/2017)
$
6,548
Atlanta, GA
1983
N/A
100
%(10)
188,000
100
%
100
%
IBM (2006)
187,995
$
17,005
$
0
N/A
13 Acres
$
11,563
Table of Contents
Adjusted
Percentage
Cost Less
Debt
Year
Leased
Average
Major
Depreciation
Maturity
Description
Development
Company’s
Rentable
as of
2004
Major Tenants (lease
Tenants’
and
and
and
Completed
Venture
Ownership
Square Feet
December
Economic
expiration/options
Rentable
Amortization
Debt
Interest
Location
or
Acquired
Partner
Interest
and
Acres
31,
2004
Occupancy
expiration)
Sq.
Feet
(1)
Balance
Rate
Atlanta, GA
Bank of America (3)
1,253,000
412,159
$
226,399
(11
)
(11
)
4 Acres
Troutman Sanders (2020/2037)
264,044
$
142,924
Ernst & Young LLP (2007/2017)
209,977
Hunton & Williams
113,014
Paul Hastings (2012/2017)(13)
114,893
Charlotte, NC
Bank of America (3)
1,065,000
Bank of America (3)(2016/2035)
1,065,000
$
208,013
$
164,270
12/1/16
8 Acres
$
184,626
6.41
%
Atlanta, GA
J. P. Morgan (3)
365,000
Mirant Corporation (2007)(14)
215,541
$
59,079
$
0
N/A
6 Acres
$
42,578
Atlanta, GA
Coca-Cola (3)
259,000
AGL Services Co. (2013/2028)
226,779
$
40,594
(5)
$
29,728
2/1/15
5 Acres (5)
Domtar (2006/2011)
32,720
$
29,844
(5)
5.39
%
Birmingham, AL
Prudential (3)
149,000
Fortis Benefits Insurance
68,758
$
23,136
$
0
N/A
8 Acres
$
14,679
Daniel Realty Company (2008)
23,440
Atlanta, GA
N/A
160,000
Northside Hospital (3)
51,054
$
26,266
$
24,318
9/1/10
3 Acres
$
19,753
8.27
%
Scottish Rite Hospital for
29,556
Suburban Atlanta, GA
N/A
51,000
AtheroGenics (2009/2019)
50,821
$
7,655
$
0
N/A
4 Acres
$
4,618
Suburban Atlanta, GA
N/A
51,000
Inhibitex (2015/2025)
51,000
$
4,888
(16)
$
0
N/A
5 Acres
Table of Contents
Adjusted
Cost and
Adjusted
Percentage
Cost Less
Debt
Year
Leased
Average
Major
Depreciation
Maturity
Description
Development
Company’s
Rentable
as of
2004
Major Tenants (lease
Tenants’
and
and
and
Completed
Venture
Ownership
Square Feet
December
Economic
expiration/options
Rentable
Amortization
Debt
Interest
Location
or
Acquired
Partner
Interest
and
Acres
31,
2004
Occupancy
expiration)
Sq.
Feet
(1)
Balance
Rate
Atlanta, GA
Emory University
358,000
Emory University (2017/2047)
149,076
$
51,536
$
53,952
6/1/13
(17
)
Resurgens (2014)
26,581
$
45,011
5.90
%
Charlotte, NC
Prudential (3)
69,000
Novant Health, Inc.
63,862
$
8,615
$
0
N/A
1 Acre (18)
$
6,094
Suburban Memphis, TN
Wilson Collierville,
786,000
Dillard’s (20)
N/A
$
40,677
(16)
$
0
N/A
LLC
135 acres
Parisian (2020/2050) (21)
130,000
(586,000 owned
Linens ‘N Things (2015/2030)
28,000
by Carriage
Avenue, LLC)
Viera, FL
N/A
381,000
Rave Motion Pictures (20)
N/A
$
39,951
(16)
$
0
N/A
58 Acres
Belk, Inc. (2024/2044)(21)
65,927
39,861
(16)
(306,000 owned
Bed Bath & Beyond (2015)
24,329
by the Company)
Rolling Hills Estates, CA
N/A
374,000
Regal Cinema (2015/2030)
55,673
$
94,354
$
0
N/A
14 Acres
Saks & Company (2019/2049)
42,404
$
73,417
Borders (2018/2038)
14,286
Restoration Hardware (2010/2020)
13,521
Pottery Barn (2013)
12,089
Suburban Atlanta, GA
N/A
230,000
Borders, Inc. (2015/2030)
24,882
$
41,797
$
37,491
8/1/10
30 Acres
Bed, Bath & Beyond (2010/2025)
21,007
$
28,983
8.39
%
Gap (2010/2015)
19,434
Talbot’s (2010/2020)
12,905
Pottery Barn (3)(2006/2012)
10,000
Suburban Atlanta, GA
N/A
205,000
Linens ‘N Things (2014/2028)
28,030
$
35,033
$
0
N/A
22 Acres
Barnes & Noble (2014/2023)
24,025
$
33,152
Pier One Imports (2013/2023)
9,980
Aspen’s Signature Steaks (2019/2024)
9,580
Table of Contents
Adjusted
Cost and
Adjusted
Percentage
Cost Less
Debt
Year
Leased
Average
Major
Depreciation
Maturity
Description
Development
Company’s
Rentable
as of
2004
Major Tenants (lease
Tenants’
and
and
and
Completed
Venture
Ownership
Square Feet
December
Economic
expiration/options
Rentable
Amortization
Debt
Interest
Location
or Acquired
Partner
Interest
and Acres
31, 2004
Occupancy
expiration)
Sq.
Feet
(1)
Balance
Rate
(16)
N/A
100%
104,000
93% (16)
(16)
Kohl’s Department Stores, Inc.
(2025/2055) (21)
96,077
$
4,255
(16)
$
0
N/A
22 acres
2001
Prudential (3)
88.50% (6)
182,000
99%
92%
Books a Million (2008/2013)
13,750
$
32,320
$
0
N/A
(23)
(22)
(22)
Gap (2012/2022)
10,822
$
26,027
18 Acres (24)
Homebanc Mortgage Corporation
8,851
(2007/2012)
Banana Republic (3)(2012/2022)
8,015
(16)
N/A
100%
193,000
35% (16)
(16)
Target (20)
N/A
$
7,791
(16)
$
0
N/A
29 acres
PetsMart, Inc. (2015/2030)
18,939
(69,000
square feet and
19 acres owned
by the Company)
1999
W.C. Bradley Co.
50%
80,000
72%
73%
Bradley Specialty Retailing,
31,044
$
13,574
$
0
N/A
3 Acres
Inc. (2013/2023)
$
10,226
Suburban Atlanta, GA
1994/1995
Prudential (3)
11.50%
518,000
100%
100%
Target (20)
N/A
$
56,991
$
24,993
7/15/05
60 Acres (25)
Babies “R” Us (2012/2032)
50,275
$
44,512
8.50
%
(401,000
Media Play (2010/2025)
48,884
square feet
Marshalls (2010/2025)
40,000
and 49 acres
Rhodes (2011/2021)
40,000
owned by
Linens ‘N Things (2010/2025)
35,000
CP Venture
United Artists (2014/2034)
34,733
Two LLC)
Circuit City (2015/2030)
33,420
PetsMart, Inc. (2009/2029)
25,465
Old Navy Store (2006/2011)
20,000
Table of Contents
(1)
Cost as shown in the accompanying table includes deferred leasing costs and other related
assets.
(2)
Approximately 0.18 acres of the total four acres of land at Inforum are under a ground lease
expiring 2068.
(3)
Actual tenant or venture partner is an affiliate of the entity shown.
(4)
Approximately 0.36 acres of the total acreage at Frost Bank Tower are under a ground lease
expiring in 2074.
(5)
Includes acreage and cost of land available for future development. See “Land Held for
Investment or Future Development.”
(6)
This project is owned in a joint venture where the partner or an additional third party may
receive a share of the results of the operations or sales proceeds.
(7)
The Company developed 100 and 200 North Point Center East in the years shown. The Company
sold these properties to CP Venture Two LLC in 1998 and repurchased them in 2003.
(8)
100 North Point Center East and 200 North Point Center East were financed together as one
non-recourse mortgage note payable.
(9)
333 North Point Center East and 555 North Point Center East are financed together as one
recourse mortgage note payable.
Table of Contents
(10)
The 3100 Windy Hill Road building was sold in 1983 to a third party, subject to a leasehold
mortgage note with the Company and a ground lease of the underlying land. In 1997, it was
determined that the Company received all the economic rights and rewards of ownership of the property, and 3100 Windy
Hill Road has been accounted for as a consolidated property since that time. See “Additional
Information Related to Operating Properties” following this table.
(11)
With respect to the debt related to Bank of America Plaza, see Note 3 of Notes to
Consolidated Financial Statements for more information.
(12)
Hunton & Williams has the right to terminate its lease at Bank of America Plaza in 2007, upon
36 months notice and payment of a termination fee.
(13)
Paul Hastings has a cancellation right on 12,812 square feet and 20,574 square feet of the
lease with Bank of America Plaza in 2005 and 2006, respectively.
(14)
Mirant Corporation filed for bankruptcy protection in 2003. In January 2004, the Mirant
Corporation lease was renegotiated to reduce the amount of its leased space, the term of the
lease, and the rental rate. See Note 4 of Notes to Consolidated Financial Statements for
additional information.
(15)
At Meridian Mark Plaza, 8,718 square feet of the Northside Hospital lease expires in 2008;
7,521 square feet of the Scottish Rite Hospital lease expires in 2009.
(16)
Project was under construction and/or in lease-up as of December 31, 2004. In certain
situations, lease expiration dates are based upon estimated commencement dates and square
footage is estimated.
(17)
Emory Crawford Long Medical Office Tower was developed on top of a building within the
Crawford Long Hospital campus. The Company received a fee simple interest in the air rights
above this building in order to develop the medical office tower.
(18)
Presbyterian Medical Plaza at University is located on 1 acre, which is subject to a ground
lease expiring in 2057.
(19)
Novant Health, Inc. has the option to renew 23,359 square feet of this lease of Presbyterian
Medical Plaza at University through 2027, with the option to renew the balance through 2022.
(20)
This anchor tenant owns its own space and land.
(21)
This tenant will build and own its own store and pay the Company under a ground lease.
(22)
The Avenue Viera became partially operational in November 2004. The economic occupancy does
not include a full year of operations.
(23)
An expansion of 13,000 square feet is currently under construction and in lease up at The
Avenue Peachtree City. The expansion space is included in rentable square feet for the
property, but excluded from the percentage leased and average 2004 economic occupancy
calculation.
(24)
Approximately 1.5 acres of the total acreage at The Avenue Peachtree City is under a ground
lease expiring in 2024.
(25)
North Point MarketCenter includes approximately 3 outparcels which are ground leased to
freestanding users.
Table of Contents
Estimated
Total Lots
Initial
to be
Year
Developed
Lots
Remaining
Carrying
Debt
Description
Acquired
(1)
Sold to Date
Lots
Value
Balance
Fulton County
Suburban Atlanta, GA
2001
906
473
433
$
11,364
$
—
Harris County
Pine Mountain, GA
2002
138
60
78
3,348
1,107
East Cobb County
Suburban Atlanta, GA
1971-1989
107
52
55
5,148
—
1,151
585
566
$
19,860
$
1,107
Paulding County
Suburban Atlanta, GA
1998
1,650
1,395
255
$
4,908
$
—
Paulding County
Suburban Atlanta, GA
2003
1,386
142
1,244
16,186
3,395
Table of Contents
Estimated
Total Lots
Initial
to be
Year
Developed
Lots
Remaining
Carrying
Debt
Description
Acquired
(1)
Sold
to Date
Lots
Value
Balance
(50% owned)
Paulding County
Suburban Atlanta, GA
399
0
399
2,864
—
Paulding County
Suburban Atlanta, GA
27
7
20
1,151
—
Paulding County
Suburban Atlanta, GA
996
150
846
14,121
—
4,458
1,694
2,764
$
39,230
$
3,395
Tarrant County
Forth Worth, TX
1,180
0
1,180
$
5,261
$
581
Manatee County
Bradenton, FL
305
40
265
3,397
—
Hillsborough County
Tampa, FL
86
0
86
3,674
—
Tarrant County
Dallas, TX
89
70
19
1,191
—
(37.5% owned)
Fort Bend County
Houston, TX
2,710
110
2,600
23,042
4,169
Manatee County
Tampa, FL
460
88
372
5,828
—
(60% owned)
Collin County
McKinney, TX
587
120
467
10,664
5,587
Dallas County
DeSota, TX
336
85
251
3,647
—
Coweta County
Newnan, GA
619
173
446
7,950
4,741
Tarrant County
Fort Worth, TX
2,445
477
1,968
23,162
—
Fort Bend County
Rosenberg, TX
1,160
—
1,160
5,746
—
9,977
1,163
8,814
$
93,562
$
15,078
(1)
This estimate represents the total projected development capacity for a
development on both owned land and land expected to be purchased for future
development. The numbers shown include lots currently developed
Table of Contents
or to be developed over time, based on management’s current estimates, and lots sold to
date from inception of development.
(2)
Longleaf at Callaway lots are sold to Pine Mountain Builders, LLC, in which
CREC is a joint venture partner. As a result of this relationship, the Company
recognizes profits when houses are built and sold, rather than at the time lots are
sold, as is the case with the Company’s other residential developments. As of December
31, 2004, 27 houses had been sold. See Note 4 of Notes to Consolidated Financial
Statements for more information on Pine Mountain Builders, LLC.
(3)
CREC owns 50% of Temco Associates and CL Realty, L.L.C. (“CL Realty”). See
Note 4 of Notes to Consolidated Financial Statements for a description of Temco
Associates and CL Realty.
Developable
Company’s
Adjusted
Land Area
Joint Venture
Ownership
Cost
Description, Location and Zoned Use
Year Acquired
(1)
Partner
Interest
($ in thousands)
Suburban Atlanta, Georgia
Office and Commercial
1971-1989
62
N/A
100
%
$
2,914
1971-1982
32
IBM
50
%
$
7,826
(2)
(Georgia Highway 400 &
Haynes Bridge Road) (3)
Suburban Atlanta, Georgia
Office and Commercial
1970-1985
112
N/A
100
%
$
4,483
Miami, FL
Mixed Use
2004
1
N/A
100
%
$
13,388
Suburban Atlanta, Georgia
Retail Outparcel
2000
2
N/A
100
%
$
286
Suburban Atlanta, GA
Commercial
2003
8
N/A
100
%
$
2,216
Viera, FL
Retail Outparcels
2004
3
N/A
100
%
$
682
Richmond, VA
Retail Outparcels
2004
5
N/A
100
%
$
2,224
Austin, TX
CommonWealth Pacific
2000
6
LLC and CalPERS
50
%
$
3,162
Atlanta, GA
Mixed Use
2004
1
N/A
100
%
$
3,370
Suburban Atlanta, GA
Handy Road
2004
1,187
Managers, LLC
50
%
$
5,403
(5)
(Paulding County)
Suburban Atlanta, Georgia
Temple-Inland
1991
(6
)
Inc. (7)
50
%
$
710
(1)
Rounded to nearest acre, based upon management’s current estimates.
Table of Contents
(2)
For the portion of the Wildwood Office Park land owned by a joint venture, the cost shown is
what the cost would be if the venture’s land cost were adjusted downward to the Company’s
lower basis in the land it contributed to the venture. The adjusted cost excludes building
predevelopment costs, net, of $1,006,000.
(3)
The North Point property is located both east and west of Georgia Highway 400. The land
located east of Georgia Highway 400 is near North Point Mall, a 1.3 million square foot
regional mall on a 100-acre site, which the Company sold in 1988. Development had been mainly
concentrated on the land located east of Georgia Highway 400, until July 1998 when the Company
commenced construction of the first building, AtheroGenics, on the west side. The land on the
west side has been rezoned to mixed use to include residential as well as office and
commercial. The Company sold approximately 70 and 42 acres of land on the west side in the
years ended December 31, 2004 and 2003, respectively. The Company also transferred
approximately 5 acres of land to Projects Under Construction during the year ended December 31, 2004.
(4)
Current zoning allows large lot residential development.
(5)
The land is subject to a note payable of $3,176,000 that is guaranteed by the Company’s
partner.
(6)
Temco Associates has an option through March 2006, with no carrying costs, to acquire the fee
simple interest in approximately 6,500 acres in Paulding County, Georgia (northwest of
Atlanta, Georgia). The partnership also has an option to acquire interests in a timber rights
only lease covering approximately 22,000 acres. This option also expires in March 2006, with
the underlying lease expiring in 2025. The options may be exercised in whole or in part over
the option period, and the option price of the fee simple land was $1,243 per acre at January
1, 2005, escalating at 6% on January 1 of each succeeding year during the term of the option.
The following is a detail of acreage activity:
2004
2003
2002
161
97
607
—
—
78
149
10
—
472
21
910
—
149
—
782
277
1,595
(7)
Joint venture partner is an affiliate of the entity shown.
Potential Office Building
Square Footage
400,000
300,000
60,000
(1)
Owned by Ten Peachtree Place Associates
Table of Contents
Name
Age
Office Held
73
Chairman of the Board of Directors
55
President, Chief Executive Officer and Vice
Chairman of the Board of Directors
58
Vice Chairman of the Company
51
Vice Chairman of the Company
55
Executive Vice President and Chief Investment Officer
46
Executive Vice President and Chief Financial Officer
54
Executive Vice President and Chief Administrative
Officer
45
Senior Vice President and Chief Accounting Officer
37
Senior Vice President, General Counsel and
Corporate Secretary
42
Senior Vice President - Office Division
46
Senior Vice President and President of the Retail Division
53
Senior Vice President and President of the Industrial
Division
57
Senior Vice President and President of the Land
Division
Table of Contents
Table of Contents
Table of Contents
PART II
Item 5. Market for Registrant’s Common Stock and Related Stockholder Matters
The high and low sales prices for the Company’s common stock and cash dividends
declared per common share were as follows:
The Company’s common stock trades on the New York Stock Exchange (ticker symbol CUZ).
At February 28, 2005, there were 1,231 common stockholders of record.
The following table contains information about purchases of the Company’s equity securities
during the fourth quarter of 2004:
Item 6. Selected Financial Data
The following selected financial data sets forth consolidated financial and operating
information on a historical basis. This data has been derived from the Company’s consolidated
financial statements, and should be read in conjunction with the consolidated financial statements
and notes thereto included in “Item 8, Financial Statements and Supplementary Data.”
23
Item 7. Management’s Discussion and Analysis of Financial Condition and Results of
Operations
The following discussion and analysis should be read in conjunction with the Selected
Financial Data included in Item 6 and the Consolidated Financial Statements and Notes thereto
included in this Annual Report on Form 10-K.
General.
Historically, the Company’s financial results have been significantly affected by
sale transactions and the fees generated by, and start-up operations of, major real estate
developments, which transactions and developments do not necessarily recur. Accordingly, the
Company’s historical financial statements may not be indicative of future operating results. The
notes referenced in the discussion below are the “Notes to Consolidated Financial Statements”
included in this Annual Report on Form 10-K.
2004 Highlights.
24
Overview of 2004 Performance and Company and Industry Trends.
At the beginning of 2004,
because of the strong sales market for well-leased, high quality assets, the Company decided to
sell certain assets in its office portfolio in an attempt to capture some of the value it had
created. By early November, the Company and its joint ventures had sold approximately $1.3 billion
of office assets, of which the Company’s share was approximately $901 million. In November, it
paid $356 million in a special dividend of $7.15 per share, bringing the Company’s total special
dividends for the past two years to $9.22 per share. Harvesting value at the right time,
reinvesting in new development opportunities and returning value to shareholders is a central part
of the Company’s strategy.
The strength of the office sales market in 2004 was contrasted with the lackluster office
leasing market. An oversupply of space and slow job growth continued to depress office market
fundamentals, leading to higher than normal vacancies, high tenant concessions and roll-downs in
rental rates. However, management now anticipates modest, but steady, improvements in the
Company’s key office markets over the next couple of years. Retail and residential
demand, on the other hand, have continued to be strong in 2004. Retail’s strength has come
largely from the consumer side of the economy, while residential demand has been driven by a
favorable interest rate environment and demographic trends.
One of the Company’s key strategies for many years has been to recycle capital from mature, stable
properties, where management believes the Company has maximized its value creation, into new
projects that offer better opportunities to create value. This recycling helps avoid the need for
additional equity funding for new development, and management believes that over time it should
allow the Company to generate higher returns to stockholders. The Company has executed this
strategy in the past through financings, joint ventures and sales. This year, due to the strength
in the real estate investment sales market, the Company decided to sell a number of high quality
assets in its office portfolio. Management believes that the Company received attractive pricing
on its 2004 asset sales, despite the current difficulties in the office leasing markets, and even
though many of these properties were encumbered by debt with interest rates above today’s market
levels.
After giving careful thought to future capital needs, the Company decided to pay an all-cash
special dividend to its common stockholders from the asset sales proceeds. Management concluded
the Company did not need this capital to fund future growth. In addition, the Company recognized
that its ability to maximize total returns in the future depends, at least in part, on the size of
its equity capital base. Limiting the size of this base, while the Company continues to pursue
development projects, should allow the value creation from development to have a greater impact on
the Company’s total returns.
The long-term strategy of the Company is to produce strong stockholder returns. Other
factors, such as the size of the Company, or even short-term consistency of earnings and FFO, are
secondary. Since the Company often “recycles” capital from stable assets into development
projects, its earnings will vary from quarter to quarter and from year to year. Management
believes that the Company’s FFO will be less in 2005 than in 2004 because of the smaller asset base
following the 2004 asset sales and special dividend, and the high level of development projects
that are not yet producing income. But management believes FFO should grow as the
Company’s development projects become operational, and total returns should be higher in the
long run, due to the Company’s smaller equity base.
25
Because of the capital recycling from the recent asset sales, management believes the
Company’s financial condition is sound. In addition to the asset sales, the Company issued $100
million of 7.5% perpetual preferred stock in December, bringing the total outstanding preferred
stock to $200 million. Management believes that the proceeds of
this offering, along with availability under the
Company’s $325 million credit facility, will provide liquidity to support the
Company’s development plans in 2005 and 2006.
In 2004, the Company took a number of steps designed to expand its development capacity. The
land division expanded its partnership with Temple-Inland, and is experiencing a strong volume of
residential lot sales as well as sales of tracts for residential and related uses. The Company
also began an industrial division. The Company also added several key people to the retail
division to help execute its development plans. In addition, the Company has made an effort to
retain key talent in the office division.
The Company made modest investments in the condominium market in 2004 with projects in Miami
and Atlanta, both with development partners. In Miami, the Company began marketing a project in
partnership with the Related Group of Florida. In Atlanta, the Company purchased land for a
Midtown project that will be developed with the Gellerstedt Group.
As a result of the Company’s efforts to expand development capacity, the Company is pursuing a
large number of projects in several Sunbelt markets, including Atlanta, Austin, Dallas, Albuquerque
and San Jose. However, we expect that 2005 will be a challenging year. Rising interest rates could dampen
residential demand. The Company needs to make decisions about whether to lease vacant office space
in today’s difficult markets or wait for possible improvement in the near term. Most of all, the
Company needs to focus attention on executing its development opportunities well while managing its
existing properties to its traditional standards.
Management believes that demographic trends will support new development opportunities over
the next several years, especially in its core markets such as California, Texas, Georgia and
Florida. The Company intends to pursue development opportunities wherever it believes it can
create quality projects that present good opportunities for value creation. These will likely
include Avenue® lifestyle centers, retail power centers, residential lot developments, warehouse
and distribution facilities and office buildings. In addition, the Company will continue to look
for opportunities to create value with land, both by acquiring strategic tracts of land for future
development and by creating value in land it intends to sell to others. The Company will also
continue to explore ways to pursue urban mixed-use projects, given the strong demographic trends
that will drive those types of development in many of the Company’s markets for years to come.
Critical Accounting Policies.
A critical accounting policy is one which is both important to
the portrayal of a company’s financial condition and results of operations and requires significant
judgment or complex estimation processes. As the Company is in the business of developing, owning
and managing office, retail and industrial real estate properties and developing single-family
residential communities which are parceled into lots and sold to various home builders, its
critical accounting policies relate to cost capitalization, impairment of long-lived assets,
depreciation and amortization, residential lot and land tract sales profit recognition and
valuation of receivables.
The Company expenses predevelopment costs incurred on a potential project until it becomes
probable that the project will go forward. After a project becomes probable, all subsequently
incurred predevelopment costs, as well as interest, real estate taxes and certain internal
personnel and associated costs directly related to the project under development, are capitalized.
If the project’s probability comes into question, a reserve may be placed on the assets. If the
decision is made to abandon development of a project that had been deemed probable, all previously
capitalized costs are expensed or the project is written off against the reserve, if one was
established. Therefore, a change in the probability of a project could result in the expensing of
significant costs incurred for predevelopment activity. Furthermore, if a project is developed, a
change in the estimated time and cost of construction could adversely impact the return on the
project and the amount of value created from the development of the project.
The Company periodically evaluates its real estate assets to determine if there has been any
impairment in their carrying values and records impairment losses if the undiscounted cash flows
estimated to be generated by those assets are less than the assets’ carrying amounts. The
evaluation of real estate assets involves many subjective assumptions dependent upon future
economic events that affect the ultimate value of the property. For example, future cash flows
from properties are estimated using expected market rental rates, anticipated leasing results and
potential sales results. A change in assumptions concerning future economic events could
result in an adverse change in the value of a property and cause an impairment to be recorded. The
Company has analyzed all real estate assets that had indicators of impairment and has determined
that the carrying value
26
of all real estate assets on the accompanying Consolidated Balance Sheets
does not exceed undiscounted cash flows estimated to be generated by those assets. Based on this
analysis, no impairment losses were required to be recorded. Unconsolidated joint ventures follow
the same impairment assessment of their properties as the Company. The Company evaluates its
investments in joint ventures, if indicators warrant the need for a review, utilizing a discounted
cash flow calculation. If the calculation results in a lower amount than the carrying value, the
Company determines whether the impairment is other than temporary and records an adjustment, if
needed.
Real estate assets are depreciated or amortized over their estimated useful lives using the
straight-line method of depreciation. Management uses its judgment when estimating the life of the
real estate assets and when allocating the cost of acquired properties. Historical data,
comparable properties and replacement costs are some of the factors considered in determining
useful lives and cost allocations. If management incorrectly estimates the useful lives of the
Company’s real estate assets or if cost allocations are not appropriate, then depreciation and
amortization may not be reflected properly in the Company’s operations.
In its determination of the gross profit percentages to be applied to its residential lot or
land tract sales in order to calculate the profits to be recognized on these sales, the Company
utilizes several estimates. Gross profit percentages are calculated based on the estimated lot
sales prices and the estimated costs of the development or on the estimated total land tract sales
and any estimated development or improvement costs. The Company must estimate the prices of the
lots or land tracts to be sold, the costs to complete the development of the residential community
or the land improvements and the time period over which the lots or land tracts will ultimately be
sold. If the Company’s estimated lot or land tract sales or costs of development, or the
assumptions underlying either, were to be revised or be rendered inaccurate, it could affect the
gross profit percentages and overall profit recognized on these sales.
Receivables, including straight-line rent receivables, are reported net of an allowance for
doubtful accounts and may be uncollectible in the future. The Company performs credit reviews and
analyses on its tenants and reviews its receivables regularly for potential collection problems in
computing the allowance recorded against its receivables. This review process requires the Company
to make certain judgments regarding collectibility notwithstanding the fact that ultimate
collections are inherently difficult to predict. A change in the judgments made could result in an
adjustment to the allowance for doubtful accounts with a corresponding effect to net income.
Results of Operations For The Three Years Ended December 31, 2004
Rental Property Revenues.
Rental property revenues increased from $97,290,000 in 2002 to
$101,389,000 in 2003 and then decreased to $101,102,000 in 2004.
2004
Rental property revenues from the Company’s office portfolio decreased approximately
$4,324,000 in 2004 compared to 2003. Rental property revenues decreased approximately $5,721,000
and $5,370,000 from the sales of 333 John Carlyle/1900 Duke Street and 101 Independence Center,
respectively. These three buildings were sold in 2004 but were not reclassified to discontinued
operations as the Company retained property management. Also contributing to the decrease was a
decrease in rental property revenues from One Georgia Center of approximately $1,814,000, as its
average economic occupancy decreased from 79% in 2003 to 48% in 2004, and a decrease from Inforum
of $1,387,000, as its average economic occupancy decreased from 94% in 2003 to 88% in 2004.
Partially offsetting the decrease in rental property revenues in the office portfolio was an
increase in revenues of $5,350,000 from Frost Bank Tower, which became partially operational in
January 2004, and an increase of $1,201,000 from Galleria 75, which was acquired in February 2004.
The December 2003 acquisition of 100 and 200 North Point Center East increased rental property
revenues by approximately $2,732,000 in 2004, which also partially offset the decrease in 2004.
Rental property revenues from the Company’s retail portfolio increased approximately
$4,037,000 in 2004 compared to 2003. The increase is mainly due to The Avenue West Cobb becoming
partially operational in October 2003, which contributed approximately $4,302,000 to the 2004
increase.
2003
Rental property revenues from the Company’s office division increased approximately $1,397,000
in 2003 compared to 2002. Contributing to the increase in rental property revenues from the office
division was an increase of approximately $1,035,000 from The Points at Waterview, as lease-up
occurred at the property and
average economic occupancy increased from 45% in 2002 to 84% in 2003. Partially offsetting the
increase was a decrease in rental property revenues from 333 North Point Center East of approximately $961,000
in 2003
27
due to a decrease in average economic occupancy from 96% in 2002 to 60% in 2003, as certain
tenants’ leases expired and were not renewed and the space had not yet been re-leased.
Rental property revenues from the Company’s retail division increased approximately $2,702,000
in 2003 compared to 2002. The Avenue West Cobb became partially operational for financial
reporting purposes in October 2003, which contributed approximately $896,000 to the increase.
Rental property revenues from The Avenue of the Peninsula increased approximately $722,000 in 2003,
mainly due to the recognition of termination fees and percentage rents during the year.
Additionally, rental property revenues from The Avenue East Cobb increased approximately $631,000,
mainly due to the recognition of termination fees during the year.
Rental Property Operating Expenses.
Rental property operating expenses increased from
$30,613,000 in 2002 to $32,674,000 and $33,814,000 in 2003 and 2004, respectively. The increases
in both 2003 and 2004 were due primarily to the aforementioned office buildings and retail centers
being purchased or becoming partially operational for financial reporting purposes. The 2004
increase in rental property operating expenses was partially offset by the aforementioned office
asset sales which were not reclassified to Discontinued Operations.
Development Income.
Development income decreased from $4,625,000 in 2002 to $2,870,000 in
2003 and then increased to $3,310,000 in 2004. Development fees from residential joint ventures
increased approximately $979,000 in 2004, as the number of ventures the Company is involved with
and the activity at those ventures increased in 2004. The increase in 2004 was also due to an
increase of approximately $239,000 from construction management fees from tenants at Frost Bank
Tower. Partially offsetting the increase was a decrease of approximately $505,000 in development
fees from the Crawford Long Medical Office Tower, which was substantially completed in early 2003.
Development fees also decreased approximately $432,000 in 2004 from a third party project in Texas
that ended in 2003.
Development income and tenant construction fees decreased approximately $493,000 in 2003 from
the Crawford Long – CPI, LLC joint venture, as construction of the Emory Crawford Long Medical
Office Tower was substantially completed in early 2003. Development fees from third party projects
also decreased approximately $1,426,000 in 2003 primarily due to the wind down of three significant
third party office projects and two retail projects, partially offset by an increase from a third
party retail project.
Leasing and Other Fees.
Leasing and other fees increased from $4,297,000 in 2002 to
$6,991,000 in 2003 and then decreased to $4,463,000 in 2004. The decrease in 2004 was mainly due
to a decrease of approximately $3,303,000 in fees from sales of land that the Company’s Texas
subsidiary brokers. Partially offsetting the decrease was a transaction fee of approximately
$786,000 that the Company recognized in 2004 for brokering the sale of The Pinnacle and Two Live
Oak Center, which were owned by Cousins LORET Venture, L.L.C.
Leasing and other fees increased approximately $3,954,000 at the Company’s Texas subsidiary in
2003, primarily from the aforementioned increase in sales of land that the subsidiary brokered.
The increase was partially offset by a decrease in leasing fees recognized from unconsolidated
joint ventures of approximately $1,292,000 primarily due to two large leases signed in 2002.
Residential Lot and Outparcel Sales and Cost of Sales.
Residential lot and outparcel sales
increased from $9,126,000 in 2002 to $12,945,000 and $16,700,000 in 2003 and 2004, respectively.
Residential lot sales increased due to an increase in the number of lots sold, from 166 in 2002 to
214 and 225 lots in 2003 and 2004, respectively. The mix of lots sold at the residential
developments also changed between years, with the sales price points being different at the various
developments. Also contributing to the increase were two outparcel sales in 2004 for $1,400,000,
compared to one outparcel sale in 2003 for $600,000, and one in 2002 for $547,000.
Residential lot and outparcel cost of sales increased from $7,309,000 in 2002 to $10,022,000
and $12,007,000 in 2003 and 2004, respectively. The increases in residential lot cost of sales were
partially due to the increases in lots sold during the periods and partially to fluctuations in
gross profit percentages used to calculate the cost of sales for residential lot sales in certain
of the residential developments. Furthermore, outparcel cost of sales were approximately $929,000,
$480,000 and $353,000 in 2004, 2003 and 2002, respectively, due to the aforementioned outparcel
sales.
28
Interest and Other Income.
Interest and other income decreased from $4,393,000 in 2002 to
$3,940,000 and $2,528,000 in 2003 and 2004, respectively. Interest income decreased approximately
$3,182,000 in 2004 from the August 2003 repayment of the 650 Massachusetts Avenue note receivable.
The decrease was partially offset by the recognition of approximately $774,000 in interest income
from the $8 million note receivable entered into with a third party in 2004. An increase in
interest income of approximately $596,000 in 2004 due to investments made using proceeds from the
asset sales and the preferred stock offering also partially offset the decrease. Further
offsetting the decrease was an increase of approximately $332,000 from income recognized related to
warrants to buy common stock of two unrelated third parties who are tenants of the Company. The
Company exercised 25,000 of these warrants in 2004.
Interest and other income decreased approximately $945,000 in 2003 compared to 2002 due to the
aforementioned repayment of the 650 Massachusetts Avenue note receivable. The decrease in 2003 was
partially offset by income recognized related to the previously mentioned warrants.
General and Administrative Expenses.
General and administrative expenses increased from
$27,699,000 in 2002 to $29,606,000 and $33,702,000 in 2003 and 2004, respectively. The increases
in 2004 and 2003 were primarily due to increases in salaries and related benefits due to increased
development personnel in the Retail and Industrial Divisions and to increased costs associated with
the Company’s efforts to implement Section 404 of the Sarbanes-Oxley Act of 2002. These increases
were partially offset by an increase in capitalized salaries of development and leasing personnel
due to a larger number of projects under development in 2004 compared to 2003 and also in 2003
compared to 2002. The 2003 increase as compared to 2002 was also due to an increase in audit and
consulting costs, mainly due to the new reporting requirements related to the Sarbanes-Oxley Act of
2002.
Depreciation and Amortization.
Depreciation and amortization increased from $36,302,000 in
2002 to $39,477,000 in 2003 and then decreased to $37,231,000 in 2004. The decrease in 2004 was
mainly due to the sales of 333 John Carlyle, 1900 Duke Street and 101 Independence Center. The
operations of these properties were not reclassified to Discontinued Operations as the Company
continues to manage these properties. The increase in 2003 as compared to 2002 was primarily due
to write-offs of unamortized tenant improvements and leasing costs related to certain tenants who
effected early terminations of their lease obligations.
Interest Expense.
Interest expense decreased from $27,041,000 in 2002 to $22,576,000 and
$14,623,000 in 2003 and 2004, respectively. Interest expense of continuing operations before
capitalization decreased from $32,975,000 in 2002 to $32,260,000 and $28,610,000 in 2003 and 2004,
respectively. Interest expense decreased approximately $1,225,000 in 2004 compared to 2003 from
the Company’s credit facility, due to lower amounts drawn and outstanding during 2004, primarily
due to proceeds received from the aforementioned asset sales. Interest expense also decreased
approximately $2,130,000 and $1,599,000 from the payoff of the 333
John Carlyle/1900 Duke Street and
101 Independence Center notes payable, respectively. Both of these properties were sold in 2004
but were not included in discontinued operations as the Company retained management of these
properties. Contributing to the overall 2004 decrease in interest expense was an increase in
interest capitalized to projects under development (a reduction of interest expense) of
approximately $4,344,000, primarily due to more projects under development in 2004. Capitalized
interest varies as the weighted average expenditures for projects under development changes.
Partially offsetting the decrease in interest expense before capitalization was the assumption of
the 100 and 200 North Point Center East debt in the December 2003 acquisition of those properties,
which increased interest expense by approximately $1,609,000 in 2004.
The 2003 decrease was partially due to a decrease in interest expense of $1,418,000 related to
the Company’s credit facility. The credit facility was paid down in part using the proceeds of the
July 2003 preferred stock offering and from a portion of the proceeds from the aforementioned
property sales. The amount of interest capitalized (a reduction of interest expense), which
changes parallel to the level of projects under development, increased from $5,934,000 in 2002 to
$9,684,000 in 2003. Expenditures were higher in 2003 compared to 2002. The decrease in interest
expense of continuing operations before capitalization in 2003 was partially offset by an increase
in interest expense of $877,000 related to the refinancing of the CSC Associates, L.P. note (see
Note 3).
Income From Unconsolidated Joint Ventures.
(All amounts reflect the Company’s share of joint
venture income.) Income from unconsolidated joint ventures decreased from $26,670,000 in 2002 to
$24,619,000 in 2003 and then increased to $204,493,000 in 2004. The 2004 increase was primarily
due to the recognition of
29
gains on sales of properties by certain joint ventures, of which the Company’s share was
approximately $176,265,000.
Income from Wildwood Associates decreased from $6,360,000 in 2002 to $4,820,000 in 2003 and
then increased to $101,066,000 in 2004. The 2004 increase was due to approximately $99,360,000 in
gain on sale of investment properties. Wildwood Associates sold all of its office buildings and
its eight retail sites under ground leases in 2004. The 2003 decrease was due to a decrease in
rental property revenues at 2300 Windy Ridge Parkway due to a decrease in average economic
occupancy from 99% in 2002 to 86% in 2003. Rental property revenues also decreased in 2003 from
the 3200 Windy Hill Road Building as its average economic occupancy decreased from 100% in 2002 to
94% in 2003. The decrease at the 3200 Windy Hill Road Building was partially offset by a
termination fee received in 2003 from a tenant who exercised its cancellation option. Income from
Wildwood Associates also decreased approximately $551,000 in 2003 due to an impairment loss which
was recognized when certain land was categorized as held for sale. The ultimate sales price was
comparable to the new carrying value.
The loss from Cousins LORET Venture, L.L.C. decreased from $729,000 in 2002 to $153,000 in
2003 and then increased to income of $45,514,000 in 2004. The 2004 increase was due to a
$45,340,000 gain on sale of investment properties. The venture sold The Pinnacle and Two Live Oak
Center in the third quarter of 2004. The 2003 decrease in loss was due to a decrease in
depreciation and amortization of approximately $884,000 in 2003 at Two Live Oak Center. The
decrease in depreciation and amortization was partially offset by a decrease in rental property
revenues as the average economic occupancy of Two Live Oak Center decreased from 89% in 2002 to 81%
in 2003.
Income from Temco Associates (“Temco”) increased from $1,949,000 in 2002 to $3,139,000 and
$5,106,000 in 2003 and 2004, respectively. Lots sold at Temco increased from 289 in 2002 to 356
and 491 lots in 2003 and 2004, respectively. Additionally, during 2002, 2003 and 2004,
approximately 607, 97 and 161 acres, respectively, of the option related to the fee simple interest
were exercised and simultaneously sold. Also in 2003 and 2004, 10 and 149 acres, respectively,
which had previously been exercised under the option agreement, were sold. CREC’s share of the
gain on lot and tract sales was approximately $2,074,000, $3,201,000
and $5,336,000 in 2002, 2003, and
2004, respectively, which also contributed to the 2004 increase as compared to 2003.
Income from CL Realty, L.L.C. increased from $606,000 in 2003 to $3,238,000 in 2004. The
venture was formed in 2002 and lot sales commenced in 2003, with 191 lots being sold. In 2004, 972
lots were sold.
Income from CPI/FSP I, L.P. increased from $2,119,000 in 2002 to $2,368,000 and $14,127,000 in
2003 and 2004, respectively. The 2004 increase is primarily due to a $12,353,000 gain on sale of
investment properties, as the venture sold Austin Research Park – Buildings III and IV in the third
quarter of 2004.
Income from CC-JM II Associates increased from $546,000 in 2002 to $628,000 and $18,476,000 in
2003 and 2004, respectively, primarily due to the sale of the venture’s John Marshall – II building
for a gain of approximately $19,212,000 in the fourth quarter of 2004.
Income from 285 Venture, LLC (the “Venture”) decreased from $2,725,000 in 2002 to a loss of
approximately $845,000 in 2003 and then increased to income of approximately $1,414,000 in 2004.
In 2003, the single underlying tenant, Mirant Corporation (“Mirant”), declared bankruptcy and, in
2004, vacated approximately 41% of the 1155 Perimeter Center West office building, which the
Venture owns. The Venture restructured their lease and filed a bankruptcy claim against Mirant.
The claim consisted of two components—recovery for lost rents from vacated space and recovery for
lost rents from the restructured lease, which reduced Mirant’s rental rates over its remaining
term. The Venture sold this bankruptcy claim in 2004 and the Company’s share of proceeds from the
sale totaled $4,579,000. In 2004, the Company recognized $2,942,000 as a lease termination fee
which represented the portion of the claim related to the vacated space and a monthly amortization
of the portion related to the restructured lease. The portion related to the restructured lease is
being recognized in income over three years, the remaining term of Mirant’s restructured lease.
Income from MC Düsseldorf Holdings, B.V. (“MCDH”) increased approximately $924,000 in 2004.
The Company was a 50% partner in MCDH, which owned 60% of another venture that developed an office
building in Düsseldorf, Germany. MCDH favorably settled some outstanding tax items and, as a
result, the Company recognized income and a distribution in excess of the Company’s investment in
MCDH.
Income from CP Venture LLC entities decreased from $1,046,000 in 2002 to a loss of $22,000 in
2003 and then increased to income of $1,010,000 in 2004. The loss in 2003 was due to an impairment
loss recognized at CP Venture Two LLC related to 100 and 200 North Point Center East. (See Note 4
for a description of the
30
Company’s interest in CP Venture LLC and CP Venture Two LLC.) 100 and 200 North Point Center East
were held for sale in 2003, and, as a result, an impairment loss was recorded to reduce the
properties to their fair value, the Company’s share of which was approximately $985,000.
Gain on Sale of Investment Properties.
Gain on sale of investment properties, net of
applicable income tax provision, was $6,254,000, $100,558,000 and $118,056,000 in 2002, 2003 and
2004, respectively. The 2004 gain included the following: the May 2004 sale of the 333 John
Carlyle and 1900 Duke Street office buildings ($34.5 million); the June 2004 sale of Ridenour land
($0.7 million); the July 2004 sale of the 101 Independence Center office building ($35.8 million);
the sale of undeveloped land at the North Point/Westside mixed use project ($9.6 million); the
recognition of deferred gain from the sale of Wildwood land associated with the property sales
($29.3 million); the sale of Company-owned land at Wildwood ($3.3 million); the sale of a ground
lease adjacent to North Point MarketCenter ($1.4 million); a true-up of gains from the 1996 sale of
Lawrenceville MarketCenter as certain taxes were determined not to be owed on that transaction
($0.6 million); and the recurring amortization, plus the trigger from the sale of Wachovia Tower,
of deferred gain from CP Venture ($2.8 million – See Note 4).
The 2003 gain included the following: deferred gain due to the distribution of proceeds from
the Mira Mesa sale ($90.0 million - see Note 4), the September 2003 sale of 10.6 acres of
Company-owned Wildwood land ($1.9 million), the December 2003 sale of North Point West Side land
($5.3 million) and the recurring amortization of deferred gain from the Prudential transaction
($3.3 million - See Note 4).
The 2002 gain included the following: the December 2002 sale of 5.5 acres of Company-owned
Wildwood land ($2.1 million) and the amortization of net deferred gain from the Prudential
transaction ($4.1 million - See Note 4).
Discontinued Operations.
The Company sold AT&T Wireless Services Headquarters, Cerritos
Corporate Center – Phase II, Mira Mesa MarketCenter, Presidential MarketCenter and Perimeter Expo
in 2003. The Company sold Rocky Creek Properties, Northside/Alpharetta I and II, 101 Second
Street, 55 Second Street and The Shops of Lake Tuscaloosa in 2004. SFAS No. 144 requires that
these office buildings and retail centers that were sold or are considered held for sale be treated
as discontinued operations and that the results of their operations and any gains on sales from
these properties be shown as a separate component of income in the Consolidated Statements of
Income for all periods presented. See Note 7 for a detail of the components of income from
Discontinued Operations.
Income from Discontinued Operations increased from $22,453,000 in 2002 to $27,880,000 in 2003
and then decreased to $3,987,000 in 2004. A termination fee of $20,000,000 was recognized in 2003
from Cable & Wireless Internet Services, Inc., which terminated its 158,000 square foot lease at 55
Second Street in January 2003. The remaining difference between the 2002, 2003 and 2004 results is
the number of properties included in each year.
Funds From Operations.
The table below shows Funds From Operations Available to Common
Stockholders (“FFO”) and the related reconciliation to Net Income Available to Common Stockholders
for Cousins Properties Incorporated and Consolidated Entities and its unconsolidated joint
ventures. Effective January 1, 2003, the Company adopted the National Association of Real Estate
Investment Trusts’ (“NAREIT”) definition of FFO, which is net income available to common
stockholders (computed in accordance with accounting principles generally accepted in the United
States (“GAAP”), excluding extraordinary items, cumulative effect of change in accounting principle
and gains or losses from sales of depreciable property, plus depreciation and amortization of real
estate assets, and after adjustments for unconsolidated partnerships and joint ventures.
Adjustments for unconsolidated partnerships and joint ventures are calculated to reflect FFO on the
same basis. FFO for prior years has been restated to conform to NAREIT’s definition of FFO. In
October 2003, NAREIT revised its prior FFO implementation guidance to indicate that impairment
losses are not an adjustment when calculating FFO. The Company had an impairment loss in 2003
which is not treated as an adjustment to net income in the FFO calculation below.
Prior to 2003, the Company reported FFO based upon NAREIT’s definition with certain
modifications, including the elimination of straight-line rents and reporting stock appreciation
rights on a cash basis. A schedule reconciling GAAP net income with FFO reported by the Company
and FFO calculated pursuant to NAREIT’s definition for 1992 through 2002 is available through the
“Supplemental SEC Information” link on the Company’s Web site at www.cousinsproperties.com.
31
In 2002, the Company incurred a $3,501,000 loss on early extinguishment of debt and treated it
as an extraordinary item in accordance with GAAP. Extraordinary items are excluded when
calculating FFO. As of January 1, 2003, the Company adopted Statement of Financial Accounting
Standards (“SFAS”) No. 145, which no longer characterizes such costs as extraordinary and which
requires prior periods to be restated. FFO for 2002 has accordingly been restated. Adoption of
SFAS No. 145 had no effect on Net Income Available to Common Stockholders.
FFO is used by industry analysts and investors as a supplemental measure of an equity REIT’s
operating performance. Historical cost accounting for real estate assets implicitly assumes that
the value of real estate assets diminishes predictably over time. Since real estate values instead
have historically risen or fallen with market conditions, many industry investors and analysts have
considered presentation of operating results for real estate companies that use historical cost
accounting to be insufficient by themselves. Thus, NAREIT created FFO as a supplemental measure of
REIT operating performance that excludes historical cost depreciation, among other items, from GAAP
net income. The Company believes the use of FFO, combined with the required primary GAAP
presentations, has been fundamentally beneficial, improving the understanding of operating results
of REITs among the investing public and making comparisons of REIT operating results more
meaningful. Company management evaluates the operating performance of its reportable segments and
of its divisions based on FFO. Additionally, the Company uses FFO and FFO per share, along with
other measures, to assess performance in connection with evaluating and granting incentive
compensation to its officers and employees.
32
Liquidity and Capital Resources.
Financial Condition
. The Company’s debt was $302.3 million, or 15% of total market
capitalization, at December 31, 2004, and the Company was subject to the following contractual
obligations and commitments ($ in thousands):
At December 31, 2004, the Company had no amounts drawn on its $325 million credit
facility. The amount available under this credit facility is reduced by outstanding letters of
credit, which were approximately $15.5 million at December 31, 2004. This unsecured credit
facility contains customary conditions precedent to borrowing, including compliance with financial
covenants such as minimum interest coverage and maximum debt to market capitalization. The
interest rate on this facility is equal to LIBOR plus a spread based on the ratio of total debt to
total assets. As of December 31, 2004, the spread over LIBOR was 0.90%. This facility also
contains customary events of default that could give rise to acceleration and include such items as
failure to pay interest or principal and breaches of financial covenants such as maintenance of
minimum capitalization and minimum interest coverage. Unsecured notes payable in the table above
mainly represents the former Perimeter Expo mortgage note payable, which the Company retained when
it sold that property.
The Company’s mortgage debt is primarily non-recourse fixed-rate debt secured by various real
estate. As of December 31, 2004, the weighted average interest rate on this debt was 7.38%. In
addition, many of the Company’s non-recourse mortgages contain covenants which, if not satisfied,
could result in acceleration of the maturity of the debt. The Company expects that it will either
refinance the non-recourse mortgages if it owns the related property at maturity or pay off the
mortgages with proceeds of other financings.
33
The Company has future lease commitments under land leases aggregating approximately $46.8
million over a weighted average remaining term of 68 years. Additionally, the Company has future
lease commitments for office space aggregating approximately $3.6 million over a weighted average
remaining term of 2.4 years.
As of December 31, 2004, the Company had outstanding letters of credit and performance bonds
aggregating approximately $19.2 million. These instruments primarily related to guarantees of
maintenance and/or performance pertaining to the Company’s development projects or additional
collateral on unsecured corporate notes payable.
The Company has development and acquisition projects in various planning stages. The Company
currently intends to finance these projects and projects currently under construction discussed in
Note 8, by using its existing credit facility (increasing the credit facility as required),
long-term non-recourse financing on the Company’s unleveraged projects, joint ventures, project
sales and other financings as market conditions warrant. As of December 31, 2004, outstanding
commitments for the construction and design of consolidated real estate projects totaled
approximately $94.5 million, most of which is estimated to be funded in 2005. In addition, the
Company was obligated under lease agreements at its operating properties to fund remaining tenant
improvement costs of approximately $8.2 million, which is estimated to be funded in 2005.
As a member of various of the unconsolidated joint ventures described in Note 4, the Company
may be required to make additional capital contributions from time to time to fund development
costs, tenant improvement costs or operating deficits. The Company has not guaranteed the debt of
any of its unconsolidated joint ventures, except for guarantees of “non-recourse carve-outs” of
mortgages and except for 72% of the 905 Juniper Venture, LLC construction loan, as discussed in
Note 4.
In September 1996, the Company filed a shelf registration statement with the Securities and
Exchange Commission (“SEC”) for the offering from time to time of up to $200 million of common
stock, warrants to purchase common stock and debt securities. Approximately $68 million had
previously been drawn on this shelf registration. In July 2003, the Company filed a new and
amended shelf registration statement that replaced the existing shelf registration statement, which
provided for the offering from time to time of up to $133 million (increasing the amount available
by $1 million) of common stock, warrants to purchase common stock, debt securities and preferred
stock. As described in Note 5, the Company issued $100 million of Series A preferred stock in July
2003. In November 2004, the Company filed a new and amended shelf registration statement that
replaced the existing shelf registration statement, to offer the same securities as previously
described, but increased the amount available to $200 million. As described in Note 5, the Company
issued $100 million of Series B preferred stock in December 2004. As of December 31, 2004,
approximately $100 million remained available for issuance under the new shelf registration
statement.
The Company from time to time evaluates opportunities and strategic alternatives, including
but not limited to joint ventures, mergers and acquisitions and new private or publicly-owned
entities created to hold existing assets and acquire new assets. These alternatives may also
include sales of single or multiple assets at appropriate times when the Company perceives
opportunities to capture value and redeploy proceeds or distribute proceeds to stockholders. The
Company’s consideration of these alternatives is part of its ongoing strategic planning process.
There can be no assurance that any such alternative, if undertaken and consummated,
would not materially adversely affect the Company or the market price of the Company’s Common
Stock.
Cash Flows.
Cash Flows from Operating Activities
.
Net cash provided by operating
activities of continuing operations increased approximately $189.2 million in 2004 to a total of
$245.9 million. Income from continuing operations before gain on sale of investment properties
increased approximately $183.6 million, primarily due to property sales at joint ventures, as
previously discussed. The effect of recognizing rental revenues on a straight-line or market basis
increased by approximately $3.7 million, primarily due to the opening of Frost Bank Tower and to
the amortization of above-market rents related mainly to the 2003 acquisition of 100 and 200 North
Point Center East. Residential lot and outparcel acquisition and development expenditures
decreased approximately $1.6 million in 2004, primarily due to consolidated residential projects
nearing completion, which also contributed to the increase in net cash provided by operating
activities. Partially offsetting the increase in net cash provided by operating activities were
net decreases in other operating assets and liabilities of approximately $2.6 million.
Net cash provided by operating activities of continuing operations increased from $50.6
million in 2002 to $56.7 million in 2003. In 2003, income from continuing operations before gain
on sale of investment properties
34
increased approximately $2.4 million. Additionally, depreciation and amortization increased
approximately $3.2 million, primarily due to write-offs of unamortized tenant improvements and
leasing costs related to certain tenants who effected early terminations of their lease
obligations. Further contributing to the increase in net cash provided by operating activities was
an increase in residential lot and outparcel cost of sales of approximately $3.4 million due to
increased lot sales in 2003. Partially offsetting the increase in net cash provided by operating
activities were decreases of approximately $3.0 million in changes in other operating assets and
liabilities.
Cash Flows from Discontinued Operations.
Net cash provided by operating activities of
discontinued operations was approximately $38.7 million, $41.9 million and $9.2 million in 2002,
2003, and 2004, respectively. A full year of operations for all the properties sold in 2003 and
2004 was included in the 2002 results. A termination fee of $20 million was included in 2003,
which increased net cash in that year. See Note 7 for detailed information on properties included
in discontinued operations.
Cash Flows from Investing Activities
.
Net cash provided by investing activities
increased approximately $184.2 million in 2004. The Company sold nine wholly-owned properties in
2004, which generated gains of $118.1 million and cost of sales of approximately $351.5 million.
In 2003, five properties were sold for a gain of $100.6 million and cost of sales of approximately
$159.3 million. Approximately $93.3 million in deferred gain was recognized in 2003, primarily
from the distribution of cash proceeds from CP Venture LLC, whereas $32.1 million of deferred gain
was recognized in 2004, primarily from the Wildwood asset sales and the sale of Wachovia Tower (see
Note 4). The gain attributable to minority partner increased approximately $15.9 million in 2004.
In 2003, approximately $2.3 million was recognized relating to the sale of Mira Mesa MarketCenter,
and in 2004, approximately $18.2 million was recognized relating to the sales of 55 and 101 Second
Street. Property acquisition and development expenditures increased from $98.7 million in 2003 to
$174.5 million in 2004, due to an increase in projects under construction during the year and the
acquisition of Galleria 75 in February 2004. Investment in unconsolidated joint ventures decreased
by approximately $5.8 million, primarily due to a decrease of $4.6 million in contributions to Ten
Peachtree Place Associates to pay for re-leasing costs at the Ten Peachtree office building in 2003
and to a decrease of approximately $16.3 million in contributions to CL Realty, L.L.C. The
decrease in investment in unconsolidated joint ventures is partially offset by contributions in
2004 of approximately $4.9 million, $9.0 million, and $2.2 million, respectively, to 905 Juniper
Venture, LLC, Verde Group LLC, and Handy Road Associates, respectively. Distributions in excess of
income from unconsolidated joint ventures increased from approximately $33.9 million in 2003 to
approximately $43.0 million in 2004. This increase is primarily due to distributions resulting
from the sale of properties and is partially offset by a decrease in distributions of approximately
$26.3 million in 2003 from Crawford Long – CPI, LLC, which obtained a mortgage note payable in 2003
and distributed the proceeds. Net cash provided by investing activities also increased due to a
change in restricted cash of approximately $3.3 million, as escrowed amounts were released at
certain sold properties. Partially offsetting the increase in net cash provided by investing
activities was a decrease of approximately $28.0 million in collection of notes receivable, as the
650 Massachusetts Avenue note receivable was collected in 2003. Also offsetting the increase in
net cash provided by investing activities was an $8.0 million note receivable entered into with a
third party in 2004, which is secured by second mortgages on three office buildings in south
Florida.
Net cash used in investing activities increased from $73.0 million in 2002 to net cash
provided by investing activities of $185.8 million in 2003. In 2003, net cash provided by sales
activities increased $252.8 million due to the aforementioned sales of investment properties. Also
contributing to the increase in net cash provided by investing activities was an increase of $25.6
million in collection of notes receivable, net of investment in, resulting from the repayment of
the 650 Massachusetts Avenue note receivable. Distributions in excess of income from
unconsolidated joint ventures increased approximately $24.5 million, consisting primarily of an
increase in distributions of approximately $22.5 million. The increase in distributions was
primarily due to distributions of $26.3 million from Crawford Long – CPI, LLC. In May 2003,
Crawford Long – CPI, LLC, in which the Company is a 50% partner, obtained non-recourse financing of
$55 million. The proceeds from this financing were distributed to the partners. Also contributing
to the net increase in distributions was an increase of approximately $1.7 million from CSC
Associates, partially offset by a decrease in distributions from Wildwood Associates of
approximately $4.7 million. The increase in net cash provided by investing activities was
partially offset by an increase of approximately $22.6 million in property acquisition and
development expenditures as a result of increased development activity in 2003 compared to 2002.
Also partially offsetting the increase in net cash used in investing activities were increases of
$24.1 million in investment in
35
unconsolidated joint ventures. Investment in CL Realty, L.L.C. increased approximately $26.2
million, which was primarily utilized to fund the Company’s portion of land acquisition costs in
connection with CL Realty, L.L.C.’s new residential developments. These increases in contributions
were partially offset by a decrease in contributions to Crawford Long – CPI, LLC of approximately
$4.0 million, as development of the Emory Crawford Long Medical Office Tower was substantially
completed in February 2002.
Cash Flows from Financing Activities
.
Net cash used in financing activities
increased from $278.0 million in 2003 to $548.8 million in 2004. Common dividends paid in 2004
increased approximately $257.1 million due to the payment of a larger special dividend in 2004 than
in 2003. Also contributing to the increase in net cash used in financing activities was an
increase of approximately $160.3 million in repayment of other notes payable mainly due to the
repayment or assumption of debt related to the 2004 property sales. Preferred stock dividends also
increased approximately $5.4 million due to a full year of dividends paid in 2004 on the Series A
preferred stock. Distributions to minority partners increased approximately $9.2 million in 2004.
A distribution was made to the minority partner in the 101 and 55 Second Street buildings in 2004
from the sale of those buildings, and a distribution was made in 2003 to the minority partner in
Mira Mesa MarketCenter when that property was sold. Net amounts repaid on the credit facility in
2004 decreased approximately $159.2 million, and repurchases of common stock decreased
approximately $5.5 million, both of which partially offset the increase in net cash used in
financing activities.
Net cash used in financing activities increased from $19.4 million in 2002 to $278.0 million
in 2003. The increase in net cash used in financing activities in 2003 was primarily attributable
to an increase of $164.5 million in net amounts paid on the credit facility and a decrease of
$152.5 million in proceeds from other notes payable, due to the February 2002 refinancing of Bank
of America Plaza. Also contributing to the increase in net cash used in financing activities was a
$98.9 million increase in common dividends paid, primarily due to a special dividend of $2.07 per
common share paid in September 2003. Preferred dividends paid also increased $2.4 million due to
the preferred stock offering in July 2003 (see Note 5). An increase of $9.7 million due to the
aforementioned distribution to the minority partner from the 2003 Mira Mesa sale also contributed
to the increase in net cash used in financing activities. Partially offsetting the increase in net
cash used in financing activities was the receipt of $96.3 million of net proceeds from the
aforementioned July 2003 preferred stock offering. A decrease of approximately $34.9 million in
common stock repurchases, net of common stock sold, and a decrease of $38.3 million in repayment of
other notes payable due to the aforementioned refinancing of Bank of America also partially offset
the increase in net cash used in financing activities.
Effects of Inflation.
The Company attempts to minimize the effects of inflation on income
from operating properties by using rents tied to tenants’ sales, periodic fixed-rent increases or
increases based on the Consumer Price Index, and/or pass-through of certain operating expenses of
properties to tenants.
Other Matters.
The events of September 11, 2001 adversely affected the pricing and
availability of property insurance. In particular, premiums increased and terrorism insurance
coverage became harder to obtain. The availability of coverage has improved and, at this time, the
Company and its unconsolidated joint ventures are adequately insured on all of their assets. While
the Company’s cost of property insurance coverage has increased, management believes the costs are
currently reasonable and should not have a material impact on the Company’s financial condition or
results of operations in 2005. There can be no assurance that this situation will continue beyond
2005.
Item 7A.
Quantitative and Qualitative Disclosure about Market Risk
The Company is exposed to the impact of interest rate changes through its variable rate
credit facility. No amounts were drawn on this facility as of December 31, 2004. The Company does
not enter into contracts for trading purposes and does not use leveraged instruments.
The following table summarizes the Company’s market risk associated with notes payable and
notes receivable as of December 31, 2004. The information presented below should be read in
conjunction with Notes 2 and 3 of the consolidated financial statements included in this Annual
Report on Form 10-K. The table presents scheduled principal repayments and related weighted
average interest rates by expected year of maturity.
36
Item 8. Financial Statements and Supplementary Data
The Consolidated Financial Statements, Notes to Consolidated Financial Statements and
Reports of Independent Registered Public Accounting Firm are incorporated herein on pages F-1
through F-33.
The following Selected Quarterly Financial Information for the years ended December 31, 2004
and 2003 should be read in conjunction with the Consolidated Financial Statements and notes thereto
included herein ($ in thousands, except per share amounts):
Note: The above per share quarterly information may not sum to full year per share numbers due to
rounding.
Certain components of quarterly net income disclosed above differ from those as
reported on the Company’s respective quarterly Forms 10-Q. As discussed in Notes 1 and 8 of the
Company’s Annual Report on Form 10-K included herewith, gains and losses from the disposition of
certain real estate assets and the related historical operating results were reclassified as
Discontinued Operations for all periods presented.
Other financial statements and financial statement schedules required under Regulation S-X are
filed pursuant to Item 15 of Part IV of this report.
Item 9. Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure
Not applicable.
37
Item 9A. Controls and Procedures
The Company maintains disclosure controls and procedures that are designed to ensure
that information required to be disclosed in its Exchange Act reports is recorded, processed,
summarized and reported within the time periods specified in the SEC’s rules and forms, and that
such information is accumulated and communicated to management, including the Chief Executive
Officer and Chief Financial Officer, as appropriate, to allow timely decisions regarding required
disclosure. Management necessarily applied its judgment in assessing the costs and benefits of
such controls and procedures, which, by their nature, can provide only reasonable assurance
regarding management’s control objectives. The Company also has investments in certain
unconsolidated entities. As the Company does not always control or manage these entities, the
Company’s disclosure controls and procedures with respect to such entities are necessarily more
limited than those the Company maintains with respect to its consolidated subsidiaries.
The Company’s management, including the Chief Executive Officer and Chief Financial Officer,
does not expect that the disclosure controls can prevent all errors and all fraud. A control
system, no matter how well conceived and operated, can provide only reasonable, not absolute,
assurance that the objectives of the control system are met. There are inherent limitations in all
control systems, including the realities that judgments in decision-making can be faulty, and that
breakdowns can occur because of simple error or mistake. Additionally, controls can be
circumvented by the individual acts of one or more persons. The design of any system of controls
also is based in part upon certain assumptions about the likelihood of future events, and while the
Company’s disclosure controls and procedures are designed to be effective under circumstances where
they should reasonably be expected to operate effectively, there can be no assurance that any
design will succeed in achieving its stated goals under all potential future conditions. Because
of the inherent limitations in any control system, misstatements due to error or fraud may occur
and not be detected.
As a result of management’s assessment of internal controls as prescribed by Section 404 of
the Sarbanes-Oxley Act of 2002, management made several changes to its system of internal controls
and to its disclosure controls and procedures during the fourth quarter of 2004. These changes
included the addition of procedures to improve controls over the preparation of the statements of
cash flows.
As of the end of the period covered by this annual report, the Company, under the supervision
of the Chief Executive Officer and Chief Financial Officer and with the participation of the
Company’s management, carried out an evaluation of the effectiveness of the design and operation of
the Company’s disclosure controls and procedures pursuant to the rules and regulations of the
Exchange Act. Based upon that evaluation, the Chief Executive Officer and Chief Financial Officer
concluded that the Company’s disclosure controls and procedures were effective, in all material
respects.
Report of Management on Internal Control Over Financial Reporting
Management of Cousins Properties Incorporated is responsible for establishing and maintaining
adequate internal control over financial reporting, as such term is defined in Rule 13a-15(f) of
the Exchange Act. Internal control over financial reporting is a process designed to provide
reasonable assurance regarding the reliability of financial reporting and the preparation of
financial statements for external reporting purposes in accordance with generally accepted
accounting principles. Internal control over financial reporting includes those policies and
procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately
and fairly reflect the acquisition and disposition of our assets; (2) provide reasonable assurance
that transactions are recorded as necessary to permit preparation of financial statements in
accordance with generally accepted accounting principles and that our receipts and expenditures are
being made only in accordance with authorizations of our management; and (3) provide reasonable
assurance regarding prevention or timely detection of unauthorized acquisition, use or disposition
of our assets that could have a material effect on the financial statements.
Because of inherent limitations, our internal controls over financial reporting provide
reasonable, not absolute, assurance that the financial statements and footnotes thereto are free of
material error. In addition, no internal control structure can provide absolute assurance that all
instances of fraud have been detected. Also, projections of any evaluation of effectiveness to
future periods are subject to the risk that controls may become inadequate because of changes in
conditions or that the degree of compliance with the policies and procedures may deteriorate.
38
Management, under the supervision of and with the participation of the Chief Executive Officer
and the Chief Financial Officer, assessed the effectiveness of our internal control over financial
reporting as of December 31, 2004. The framework on which the assessment was based is described in
“Internal Control – Integrated Framework” issued by the Committee of Sponsoring Organizations of
the Treadway Commission. Based on this assessment, we concluded that we maintained effective
internal control over financial reporting as of December 31, 2004.
Management’s assessment of the effectiveness of our internal control over financial reporting
has been audited by Deloitte & Touche LLP, an independent registered public accounting firm, as
stated in their report appearing on page F-3 of this Annual Report on Form 10-K.
Item 9B. Other Information.
None.
39
2004 Quarters
2003 Quarters
First
Second
Third
Fourth
First
Second
Third
Fourth
$
32.86
$
33.40
$
36.40
$
39.67
$
26.30
$
28.40
$
30.19
$
31.11
28.99
26.61
31.34
30.27
22.95
25.85
27.15
27.68
.37
.37
.37
.37
.37
.37
.37
.37
—
—
—
7.15
—
—
2.07
—
2/23/04
5/28/04
8/25/04
12/22/04
2/24/03
5/30/03
8/25/03
12/22/03
—
—
—
11/18/04
—
—
9/22/03
—
Total Number of
Total Number
Shares Purchased as
of Shares
Average Price
Part of Publicly
Purchased (1)
Paid Per Share
Announced Plan (2)
—
$
—
—
—
—
—
8,754
31.23
—
8,754
$
31.23
—
(1)
The purchases of equity securities that occurred during the fourth quarter of 2004 related
to shares remitted by employees as payment for income taxes due in conjunction with
restricted stock grants.
(2)
On April 15, 2004, the Board of Directors of the Company authorized a stock repurchase
plan, which expires April 15, 2006, of up to 5,000,000 shares of the Company’s common stock.
No purchases under this plan were made in the fourth quarter of 2004.
Table of Contents
•
In conjunction with its joint venture partners, sold 19 office buildings, eight ground
leases and one retail center comprising a total of 5.7 million square feet for sales prices
totaling $1.3 billion. The Company’s share of the sales prices and square footage of the
sold properties was $901 million and 3.7 million square feet, respectively. The sale of
these assets generated gains to the Company of $345.0 million. The Company will continue
to manage 13 of the sold office buildings and the eight ground leases.
•
Commenced construction of three retail projects and one medical office
building in 2004. When completed, the projects are expected to add 810,000 square feet to
the Company’s operating portfolio at a cost of approximately $132.0 million.
•
Commenced development of four new residential developments in joint
ventures. Upon completion, these projects will contain over 1,600 lots.
•
Sold 1,688 residential lots, including 225 owned by the Company and 1,463
owned by joint ventures.
•
Opened the Frost Bank Tower office building in Austin, Texas, consisting of
529,000 square feet, and Phase I of The Avenue Viera retail center in Viera, Florida,
consisting of 361,000 square feet.
Table of Contents
•
Acquired Galleria 75 for approximately $11.4 million in February 2004.
•
Renewed and recast its unsecured revolving credit facility, increasing the size by $50 million to
$325 million.
•
Completed over 1.7 million square feet of new leases and renewals, including
significant leases with Troutman Sanders, General Electric, Parisian, Kohl’s and Kids II.
•
In conjunction with its joint venture partner, commenced development of an
estimated 117-unit condominium project in Atlanta, Georgia.
•
Paid a special cash dividend in November 2004 to common stockholders of
approximately $356 million, or $7.15 per share, as a result of taxable gains generated from sales of
wholly-owned and joint venture assets, including the transactions mentioned above.
•
Closed a public offering of 4,000,000 shares of 7.50% Series B Cumulative
Redeemable Preferred Stock in December 2004. The net proceeds from the offering were
approximately $96.5 million and were used to pay down the Company’s unsecured credit
facility and for general corporate purposes, including funding ongoing development
activities.
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Table of Contents
($in thousands, except per share Amounts)
Years Ended December 31
,
2004
2003
2002
$
399,742
$
238,803
$
47,872
37,231
39,477
36,302
5,298
14,678
18,085
15,915
21,299
18,549
(2,652
)
(2,511
)
(2,148
)
(35
)
(34
)
(9
)
(118,056
)
(100,558
)
(6,254
)
(81,927
)
(93,459
)
(1,174
)
(176,265
)
—
—
29,627
7,270
2,143
$
108,878
$
124,965
$
113,366
49,005
48,313
49,252
51,016
49,415
49,937
Less Than
1-3
4-5
After
Total
1 Year
Years
Years
5 Years
$
19,274
$
19,148
$
57
$
69
$
—
283,012
5,602
32,662
19,916
224,832
46,797
303
656
670
45,168
3,579
1,446
1,945
188
—
$
352,662
$
26,499
$
35,320
$
20,843
$
270,000
$
15,478
$
15,478
$
—
$
—
$
—
3,683
1,334
2,349
—
—
86,336
86,336
—
—
—
8,170
8,170
—
—
—
$
113,667
$
111,318
$
2,349
$
—
$
—
Table of Contents
Table of Contents
Table of Contents
Table of Contents
Expected Year of Maturity
Fair
($in thousands)
2005
2006
2007
2008
2009
Thereafter
Total
Value
$
24,750
$
5,585
$
27,134
$
14,180
$
5,805
$
224,832
$
302,286
$
324,569
7.73
%
7.24
%
7.74
%
6.96
%
7.26
%
7.34
%
7.38
%
—
$
2,045
$
8,256
$
—
$
—
$
—
$
—
$
10,301
$
11,022
3.00
%
16.66
%
—
—
—
—
13.92
%
—
Quarters
First
Second
Third
Fourth
$
36,315
$
34,826
$
32,229
$
33,437
9,056
9,196
106,676
79,565
2,066
36,500
50,082
29,408
11,376
46,114
157,358
107,022
1,404
1,530
69,318
13,662
10,842
45,707
224,739
118,454
.19
.91
3.17
2.11
.22
.94
4.58
2.39
.19
.88
3.05
2.03
.22
.91
4.41
2.29
$
34,376
$
33,434
$
32,177
$
36,667
6,497
7,663
6,932
3,527
1,003
90,956
2,178
6,421
5,022
96,315
9,379
10,106
22,572
47,185
51,232
350
27,594
143,500
59,190
8,519
.10
2.00
.16
.17
.57
2.97
1.22
.18
.10
1.96
.16
.16
.57
2.92
1.19
.17
Table of Contents
Table of Contents
Table of Contents
PART III
Item 10.
Directors and Executive Officers of the Registrant
The information required by Items 401 and 405 of Regulation S-K is presented in Item X in Part
I above and is included under the captions “Election of Directors” and “Section 16(A) Beneficial
Ownership Reporting Compliance” in the Proxy Statement relating to the 2005 Annual Meeting of the
Registrant’s Stockholders, and is incorporated herein by reference. The Company adopted a Code of
Business Conduct and Ethics (the “Code”) applicable to its Board of Directors and all of its
employees. The Code is publicly available on the “Investor Relations” page of its Web site at
www.cousinsproperties.com. Section 1 of the Code applies to the Company’s senior executive and
financial officers and is a “code of ethics” as defined by applicable SEC rules and regulations.
If the Company makes any amendments to the Code other than technical, administrative or other
non-substantive amendments, or grants any waivers, including implicit waivers, from a provision of
the Code to the Company’s senior executive or financial officers, the Company will disclose on its
Web site the nature of the amendment or waiver, its effective date and to whom it applies.
Item 11.
Executive Compensation
The information under the captions “Executive Compensation” (other than the Committee Report
on Compensation) and “Compensation of Directors” in the Proxy Statement relating to the 2005 Annual
Meeting of the Registrant’s Stockholders is incorporated herein by reference.
Item 12.
Security Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters
The information under the captions “Beneficial Ownership of Common Stock” and “Equity
Compensation Plan Information” in the Proxy Statement relating to the 2005 Annual Meeting of the
Registrant’s Stockholders is incorporated herein by reference.
Item 13.
Certain Relationships and Related Transactions
The information under the caption “Certain Transactions” in the Proxy Statement relating to
the 2005 Annual Meeting of the Registrant’s Stockholders is incorporated herein by reference.
Item 14.
Principal Accountant Fees and Services
The information under the caption “Summary of Fees to
Independent Registered Public Accountants for Fiscal 2004 and 2003” in the Proxy Statement relating to the 2005 Annual Meeting of the
Registrant’s Stockholders is incorporated herein by reference.
40
Table of Contents
PART IV
Item 15. Exhibits and Financial Statement Schedules
NOTE: Other schedules are omitted because of the absence of conditions under which they
are required or because the required information is given in the financial statements or
notes thereto.
(b).
Exhibits
41
42
(a)
1.
Financial Statements
A.
The following Consolidated Financial Statements of the Registrant,
together with the applicable Reports of Independent Registered Public Accounting
Firm, are filed as a part of this report:
Page Number
F-2
F-4
F-5
F-6
F-7
F-8
Financial Statement Schedules
The following financial statement schedule is filed as a part of this report.
Page Numbers
Schedule III- Real Estate and Accumulated
Depreciation - December 31, 2004
S-1 through S-5
3
(a)(i)*
Restated and Amended Articles of Incorporation of Registrant, as amended
December 15, 2004.
3
(b)
By-laws of Registrant, as amended April 29, 1993, filed as Exhibit 3.2 in
the Registrant’s Form 10-Q for the quarter ended June 30, 2002, and incorporated
herein by reference.
4
(a)
Dividend Reinvestment Plan as restated as of March 27, 1995, filed in the
Registrant’s Form S-3 dated March 27, 1995, and incorporated herein by reference.
10
(a)(i)
Cousins Properties Incorporated 1989 Stock Option Plan, as renamed the 1995
Stock Incentive Plan and approved by the Stockholders on May 6, 1996, filed as
Exhibit 4.1 to the Registrant’s Form S-8 dated December 1, 2004 and incorporated
herein by reference.
10
(a)(ii)
Cousins Properties Incorporated 1999 Incentive Stock Plan, as amended and
restated, approved by the Stockholders on May 4, 2004, filed as Annex B to the
Registrant’s Proxy Statement dated March 31, 2004, and incorporated herein by
reference.
10
(b)(i)
Cousins Properties Incorporated Profit Sharing Plan, as amended and restated
effective as of January 1, 2002, filed as Exhibit 10(b)(i) to the Registrant’s Form
10-K for the year ended December 31, 2002 and incorporated herein by reference.
10
(b)(ii)
Cousins Properties Incorporated Profit Sharing Trust Agreement effective as of
January 1, 1991, filed as Exhibit 10(b)(ii) to the Registrant’s Form 10-K for the
year ended December 31, 2002 and incorporated herein by reference.
Table of Contents
10
(d)
Cousins Properties Incorporated Stock Plan for Outside Directors, as
approved by the Stockholders on April 29, 1997, filed as Exhibit 10(d) to the
Registrant’s Form 10-K for the year ended December 31, 2002 and incorporated herein
by reference.
10
(e)
Cousins Properties Incorporated Credit Agreement dated as of July 14,
2004, among Cousins Properties Incorporated, Banks (as defined), Bank of America,
N.A., as Administrative Agent, Banc of America Securities LLC, as Sole Lead Arranger
and Sole Book Manager, Commerzbank AG, as Syndication Agent, PNC Bank, National
Association and Wells Fargo Bank, as Documentation Agents, Eurohypo AG, as Managing
Agent and Other Lenders thereto, filed as Exhibit 10.1 to the Registrant’s Form 10-Q
for the quarter ended June 30, 2004 and incorporated herein by reference.
10.1
*
Purchase and Sale Agreement between Wildwood Associates and UBS Realty
Investors LLC.
11
Computation of Per Share Earnings. Data required by SFAS No. 128,
“Earnings Per Share,” is provided in Note 1 of the Notes to Consolidated Financial
Statements included in this Annual Report on Form 10-K and incorporated herein by
reference.
12
*
Statement Regarding Computation of Earnings to Combined Fixed Charges and
Preferred Dividends.
21
*
Subsidiaries of the Registrant.
23
*
Consent of Independent Registered Public Accounting Firm.
31.1
*
Certification of the Chief Executive Officer Pursuant to Rule 13a-14(a),
as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
31.2
*
Certification of the Chief Financial Officer Pursuant to Rule 13a-14(a),
as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
32.1
*
Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
32.2
*
Certification Pursuant to 18 U.S.C. Section 1350, as Adopted Pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002.
Table of Contents
SIGNATURES
Pursuant to the requirements of Section 13 or 15 (d) of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
Pursuant to the requirements of the Securities Exchange Act of 1934, this
report has been signed below by the following persons on behalf of the
Registrant and in the capacities and on the date indicated.
43
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
F-1
Cousins Properties Incorporated
(Registrant)
BY:
/s/ James A. Fleming
James A. Fleming
Executive Vice President and Chief Financial
Officer (Duly Authorized Officer and Principal)
Financial Officer)
Signature
Capacity
Date
President, Chief Executive
March 23, 2005
Officer and Vice Chairman
of the Board (Principal Executive
Officer)
Executive Vice President and
March 23, 2005
Chief Financial Officer (Principal
Financial Officer)
Senior Vice President and
March 23, 2005
Chief Accounting Officer (Principal
Accounting Officer)
Chairman of the Board
March 23, 2005
Director
March 23, 2005
Director
March 23, 2005
Director
March 23, 2005
Director
March 23, 2005
Director
March 23, 2005
Director
March 23, 2005
Director
March 23, 2005
Director
March 23, 2005
Director
March 23, 2005
Table of Contents
Page
F-2
F-4
F-5
F-6
F-7
F-8
Table of Contents
We have audited the accompanying consolidated balance sheets of Cousins
Properties Incorporated and subsidiaries (the “Company”) as of December 31, 2004 and 2003, and the
related consolidated statements of income, stockholders’ investment, and cash flows for each of the
three years in the period ended December 31, 2004. Our audits also included the financial
statement schedule listed in the Index at Item 15. These financial statements and financial
statement schedule are the responsibility of the Company’s management. Our responsibility is to
express an opinion on the financial statements and financial statement schedule based on our
audits.
We conducted our audits in accordance with the standards of the Public Company Accounting
Oversight Board (United States). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements. An audit also includes assessing the accounting
principles used and significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a reasonable basis for our
opinion.
In our opinion, such consolidated financial statements present fairly, in all material
respects, the financial position of Cousins Properties Incorporated and subsidiaries as of December
31, 2004 and 2003, and the results of their operations and their cash flows for each of the three
years in the period ended December 31, 2004, in conformity with accounting principles generally
accepted in the United States of America. Also, in our opinion, such financial statement schedule,
when considered in relation to the basic consolidated financial statements taken as a whole,
present fairly, in all material respects, the information set forth therein.
We have also audited, in accordance with the standards of the Public Company Accounting
Oversight Board (United States), the effectiveness of the Company’s internal control over financial
reporting as of December 31, 2004, based on the criteria established in Internal Control—Integrated
Framework issued by the Committee of Sponsoring Organizations of the Treadway Commission and our
report dated March 23, 2005 expressed an unqualified opinion on management’s assessment of the
effectiveness of the Company’s internal control over financial reporting.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
F-2
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
Cousins Properties Incorporated:
March 23, 2005
Table of Contents
We have audited management’s assessment, included in the accompanying Report of Management on
Internal Control Over Financial Reporting that Cousins Properties Incorporated and subsidiaries
(the “Company”) maintained effective internal control over financial reporting as of December 31,
2004, based on criteria established in Internal Control—Integrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission. The Company’s management is
responsible for maintaining effective internal control over financial reporting and for its
assessment of the effectiveness of internal control over financial reporting. Our responsibility
is to express an opinion on management’s assessment and an opinion on the effectiveness of the
Company’s internal control over financial reporting based on our audit.
We conducted our audit in accordance with the standards of the Public Company Accounting
Oversight Board (United States). Those standards require that we plan and perform the audit to
obtain reasonable assurance about whether effective internal control over financial reporting was
maintained in all material respects. Our audit included obtaining an understanding of internal
control over financial reporting, evaluating management’s assessment, testing and evaluating the
design and operating effectiveness of internal control, and performing such other procedures as we
considered necessary in the circumstances. We believe that our audit provides a reasonable basis
for our opinions.
A company’s internal control over financial reporting is a process designed by, or under the
supervision of, the company’s principal executive and principal financial officers, or persons
performing similar functions, and effected by the company’s board of directors, management, and
other personnel to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles. A company’s internal control over financial reporting includes
those policies and procedures that (1) pertain to the maintenance of records that, in reasonable
detail, accurately and fairly reflect the transactions and dispositions of the assets of the
company; (2) provide reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted accounting principles,
and that receipts and expenditures of the company are being made only in accordance with
authorizations of management and directors of the company; and (3) provide reasonable assurance
regarding prevention or timely detection of unauthorized acquisition, use, or disposition of the
company’s assets that could have a material effect on the financial statements.
Because of the inherent limitations of internal control over financial reporting, including
the possibility of collusion or improper management override of controls, material misstatements
due to error or fraud may not be prevented or detected on a timely basis. Also, projections of any
evaluation of the effectiveness of the internal control over financial reporting to future periods
are subject to the risk that the controls may become inadequate because of changes in conditions,
or that the degree of compliance with the policies or procedures may deteriorate.
In our opinion, management’s assessment that the Company maintained effective internal control
over financial reporting as of December 31, 2004, is fairly stated, in all material respects, based
on the criteria established in Internal Control—Integrated Framework issued by the Committee of
Sponsoring Organizations of the Treadway Commission. Also in our opinion, the Company maintained,
in all material respects, effective internal control over financial reporting as of December 31,
2004, based on the criteria established in Internal Control—Integrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission.
We have also audited, in accordance with the standards of the Public Company Accounting
Oversight Board (United States), the consolidated financial statements and financial statement
schedule as of and for the year ended December 31, 2004 of the Company and our report dated March 23, 2005 expressed an unqualified opinion on those financial statements and financial statement
schedule.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
F-3
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the Board of Directors and Stockholders of
Cousins Properties Incorporated:
March 23, 2005
Table of Contents
|
Cousins Properties Incorporated and Consolidated Entities
|
||
|
CONSOLIDATED BALANCE SHEETS
|
||
|
($in thousands, except share and per share amounts)
|
||
| December 31, | ||||||||||
| 2004 | 2003 | |||||||||
|
ASSETS
|
||||||||||
|
|
||||||||||
|
PROPERTIES:
|
||||||||||
|
Operating properties, net of accumulated depreciation of
$140,262 in 2004 and $162,955 in 2003
|
$ | 528,551 | $ | 686,788 | ||||||
|
Land held for investment or future development
|
29,563 | 17,435 | ||||||||
|
Projects under construction
|
97,472 | 152,042 | ||||||||
|
Residential lots under development
|
19,860 | 22,496 | ||||||||
|
|
||||||||||
|
Total Properties
|
675,446 | 878,761 | ||||||||
|
|
||||||||||
|
CASH AND CASH EQUIVALENTS
|
89,490 | 13,061 | ||||||||
|
|
||||||||||
|
RESTRICTED CASH
|
1,188 | 3,661 | ||||||||
|
|
||||||||||
|
NOTES AND OTHER RECEIVABLES
|
24,957 | 19,847 | ||||||||
|
|
||||||||||
|
INVESTMENT IN UNCONSOLIDATED JOINT VENTURES
|
199,233 | 185,221 | ||||||||
|
|
||||||||||
|
OTHER ASSETS,
including goodwill of $7,891 in 2004 and $15,696 in 2003
|
36,678 | 39,863 | ||||||||
|
|
||||||||||
|
TOTAL ASSETS
|
$ | 1,026,992 | $ | 1,140,414 | ||||||
|
|
||||||||||
|
|
||||||||||
|
LIABILITIES
AND STOCKHOLDERS’ INVESTMENT
|
||||||||||
|
|
||||||||||
|
NOTES PAYABLE
|
$ | 302,286 | $ | 497,981 | ||||||
|
|
||||||||||
|
ACCOUNTS PAYABLE AND ACCRUED LIABILITIES
|
35,226 | 29,909 | ||||||||
|
|
||||||||||
|
DEPOSITS AND DEFERRED INCOME
|
3,504 | 5,341 | ||||||||
|
|
||||||||||
|
TOTAL LIABILITIES
|
341,016 | 533,231 | ||||||||
|
|
||||||||||
|
MINORITY INTERESTS
|
20,017 | 19,346 | ||||||||
|
|
||||||||||
|
DEFERRED GAIN
|
6,209 | 9,060 | ||||||||
|
|
||||||||||
|
|
||||||||||
|
COMMITMENTS AND CONTINGENT LIABILITIES
(Note 3)
|
||||||||||
|
|
||||||||||
|
STOCKHOLDERS’ INVESTMENT
:
|
||||||||||
|
Preferred Stock, 20,000,000 shares authorized, $1 par value:
|
||||||||||
|
7.75%
Series A cumulative redeemable preferred stock,
$25 liquidation preference, 4,000,000 shares issued |
100,000 | 100,000 | ||||||||
|
7.50% Series B cumulative redeemable preferred stock,
$25 liquidation preference, 4,000,000 and 0 shares issued |
100,000 | — | ||||||||
|
Common
stock, $1 par value; 150,000,000 shares authorized,
52,783,791 and 51,526,647 shares issued in 2004 and 2003, respectively |
52,784 | 51,527 | ||||||||
|
Additional paid-in capital
|
311,943 | 298,542 | ||||||||
|
Treasury stock at cost, 2,691,582 shares
|
(64,894 | ) | (64,894 | ) | ||||||
|
Unearned compensation
|
(10,160 | ) | (5,803 | ) | ||||||
|
Cumulative undistributed net income
|
170,077 | 199,405 | ||||||||
|
|
||||||||||
|
TOTAL STOCKHOLDERS’ INVESTMENT
|
659,750 | 578,777 | ||||||||
|
|
||||||||||
|
TOTAL LIABILITIES AND STOCKHOLDERS’ INVESTMENT
|
$ | 1,026,992 | $ | 1,140,414 | ||||||
|
|
||||||||||
See notes to consolidated financial statements.
F-4
|
Cousins Properties Incorporated and Consolidated Entities
|
||
|
CONSOLIDATED STATEMENTS OF INCOME
|
||
|
(In thousands, except per share amounts)
|
||
See notes to consolidated financial statements.
F-5
|
Cousins Properties Incorporated and Consolidated Entities
CONSOLIDATED STATEMENTS OF STOCKHOLDERS’ INVESTMENT |
||
|
Years Ended December 31, 2004, 2003 and 2002
($in thousands, except share amounts) |
||
| Additional | Cumulative | |||||||||||||||||||||||||||
| Preferred | Common | Paid-In | Treasury | Unearned | Undistributed | |||||||||||||||||||||||
| Stock | Stock | Capital | Stock | Compensation | Net Income | Total | ||||||||||||||||||||||
|
BALANCE
,
December 31, 2001
|
$ | — | $ | 50,106 | $ | 276,268 | $ | (17,465 | ) | $ | (3,580 | ) | $ | 157,344 | $ | 462,673 | ||||||||||||
|
|
||||||||||||||||||||||||||||
|
Net income, 2002
|
— | — | — | — | — | 47,872 | 47,872 | |||||||||||||||||||||
|
Common stock issued pursuant to:
|
||||||||||||||||||||||||||||
|
Exercise of options and
director stock plan
|
— | 750 | 10,562 | — | — | — | 11,312 | |||||||||||||||||||||
|
Stock grant and related
amortization, net of
forfeitures
|
— | (12 | ) | (330 | ) | — | 933 | — | 591 | |||||||||||||||||||
|
Income tax benefit from stock options
|
— | — | 1,672 | — | — | — | 1,672 | |||||||||||||||||||||
|
Common dividends paid
|
— | — | — | — | — | (73,345 | ) | (73,345 | ) | |||||||||||||||||||
|
Purchase of treasury stock
|
— | — | — | (41,891 | ) | — | — | (41,891 | ) | |||||||||||||||||||
|
|
||||||||||||||||||||||||||||
|
BALANCE
,
December 31, 2002
|
— | 50,844 | 288,172 | (59,356 | ) | (2,647 | ) | 131,871 | 408,884 | |||||||||||||||||||
|
|
||||||||||||||||||||||||||||
|
Net income, 2003
|
— | — | — | — | — | 242,161 | 242,161 | |||||||||||||||||||||
|
Preferred stock issued pursuant to
4,000,000 share Series A stock
offering, net of expenses
|
100,000 | — | (3,736 | ) | — | — | — | 96,264 | ||||||||||||||||||||
|
Preferred dividends paid
|
— | — | — | — | — | (2,389 | ) | (2,389 | ) | |||||||||||||||||||
|
Common stock issued pursuant to:
|
||||||||||||||||||||||||||||
|
Exercise of options and
director stock plan
|
— | 558 | 9,292 | — | — | — | 9,850 | |||||||||||||||||||||
|
Stock grant and related
amortization, net of
forfeitures
|
— | 125 | 3,646 | — | (3,156 | ) | — | 615 | ||||||||||||||||||||
|
Income tax benefit from stock options
|
— | — | 1,168 | — | — | — | 1,168 | |||||||||||||||||||||
|
Common dividends paid
|
— | — | — | — | — | (172,238 | ) | (172,238 | ) | |||||||||||||||||||
|
Purchase of treasury stock
|
— | — | — | (5,538 | ) | — | — | (5,538 | ) | |||||||||||||||||||
|
|
||||||||||||||||||||||||||||
|
BALANCE
,
December 31, 2003
|
100,000 | 51,527 | 298,542 | (64,894 | ) | (5,803 | ) | 199,405 | 578,777 | |||||||||||||||||||
|
|
||||||||||||||||||||||||||||
|
Net income, 2004
|
— | — | — | — | — | 407,784 | 407,784 | |||||||||||||||||||||
|
Preferred stock issued pursuant to
4,000,000 share Series B stock
offering, net of expenses
|
100,000 | — | (3,529 | ) | — | — | — | 96,471 | ||||||||||||||||||||
|
Preferred dividends paid
|
— | — | — | — | — | (7,750 | ) | (7,750 | ) | |||||||||||||||||||
|
Common stock issued pursuant to:
|
||||||||||||||||||||||||||||
|
Exercise of options and
director stock plan
|
— | 1,062 | 8,058 | — | — | — | 9,120 | |||||||||||||||||||||
|
Stock grant and related
amortization, net of
forfeitures
|
— | 195 | 5,876 | — | (4,357 | ) | — | 1,714 | ||||||||||||||||||||
|
Income tax benefit from stock options
|
— | — | 2,996 | — | — | — | 2,996 | |||||||||||||||||||||
|
Common dividends paid
|
— | — | — | — | — | (429,362 | ) | (429,362 | ) | |||||||||||||||||||
|
|
||||||||||||||||||||||||||||
|
BALANCE
,
December 31, 2004
|
$ | 200,000 | $ | 52,784 | $ | 311,943 | $ | (64,894 | ) | $ | (10,160 | ) | $ | 170,077 | $ | 659,750 | ||||||||||||
|
|
||||||||||||||||||||||||||||
See notes to consolidated financial statements.
F-6
|
Cousins Properties Incorporated and Consolidated Entities
CONSOLIDATED STATEMENTS OF CASH FLOWS |
||
|
($in thousands)
|
||
| Years Ended December 31, | ||||||||||||
| 2004 | 2003 | 2002 | ||||||||||
|
CASH FLOWS FROM OPERATING ACTIVITIES:
|
||||||||||||
|
Income from continuing operations before gain on sale of investment
properties
|
$ | 203,814 | $ | 20,264 | $ | 17,901 | ||||||
|
Adjustments to reconcile income from continuing operations before gain
on sale of investment properties to net cash provided by operating activities:
|
||||||||||||
|
Depreciation and amortization
|
37,231 | 39,477 | 36,302 | |||||||||
|
Amortization of unearned compensation and stock appreciation right adjustments
|
1,714 | 615 | 273 | |||||||||
|
Effect of recognizing rental revenues on a straight-line or market basis
|
2,868 | (851 | ) | (188 | ) | |||||||
|
Residential lot and outparcel cost of sales
|
11,393 | 9,148 | 5,715 | |||||||||
|
Residential lot and outparcel acquisition and development expenditures
|
(9,429 | ) | (11,064 | ) | (12,000 | ) | ||||||
|
Income tax benefit from stock options
|
2,996 | 1,168 | 1,672 | |||||||||
|
Changes in
other operating assets and liabilities
Change in other receivables |
(2,993 | ) | 4,265 | (2,642 | ) | |||||||
|
Change in accounts payable and accrued liabilities
|
(1,645 | ) | (6,317 | ) | 3,562 | |||||||
|
Net cash provided by operating activities of continuing operations
|
245,949 | 56,705 | 50,595 | |||||||||
|
Net cash provided by operating activities of discontinued operations
|
9,194 | 41,882 | 38,679 | |||||||||
|
CASH FLOWS FROM INVESTING ACTIVITIES:
|
||||||||||||
|
Gain on sale of investment properties, net of applicable income tax provision
|
118,056 | 100,558 | 6,254 | |||||||||
|
Gain on sale of investment properties included in discontinued operations
|
81,927 | 93,459 | 1,174 | |||||||||
|
Gain attributable to minority partner
|
18,172 | 2,292 | — | |||||||||
|
Adjustments to reconcile gain on sale of investment properties to net cash
provided by sales activities:
|
||||||||||||
|
Cost of sales
|
351,470 | 159,322 | 6,257 | |||||||||
|
Deferred income recognized
|
(32,148 | ) | (93,286 | ) | (4,104 | ) | ||||||
|
Property acquisition and development expenditures
|
(174,512 | ) | (98,694 | ) | (76,127 | ) | ||||||
|
Distributions in excess of income from unconsolidated joint ventures
|
43,039 | 33,869 | 9,366 | |||||||||
|
Investment in unconsolidated joint ventures, including interest
capitalized to equity investments
|
(27,754 | ) | (33,574 | ) | (9,485 | ) | ||||||
|
Investment in notes receivable
|
(8,256 | ) | (3,767 | ) | (1,308 | ) | ||||||
|
Collection of notes receivable
|
6 | 28,038 | 5 | |||||||||
|
Change in other assets, net
|
(2,424 | ) | (1,531 | ) | (2,984 | ) | ||||||
|
Change in restricted cash
|
2,473 | (845 | ) | (2,012 | ) | |||||||
|
Net cash provided by (used in) investing activities
|
370,049 | 185,841 | (72,964 | ) | ||||||||
|
CASH FLOWS FROM FINANCING ACTIVITIES:
|
||||||||||||
|
Repayment of credit facility
|
(435,150 | ) | (265,448 | ) | (246,362 | ) | ||||||
|
Proceeds from credit facility
|
435,150 | 106,291 | 251,703 | |||||||||
|
Preferred stock sold, net of expenses
|
96,471 | 96,264 | — | |||||||||
|
Common stock sold, net of expenses
|
9,120 | 9,850 | 11,312 | |||||||||
|
Common stock repurchases
|
— | (5,538 | ) | (41,891 | ) | |||||||
|
Common dividends paid
|
(429,362 | ) | (172,238 | ) | (73,345 | ) | ||||||
|
Preferred dividends paid
|
(7,750 | ) | (2,389 | ) | — | |||||||
|
Proceeds from other notes payable
|
— | 307 | 152,843 | |||||||||
|
Repayment of other notes payable
|
(195,695 | ) | (35,372 | ) | (73,667 | ) | ||||||
|
Debt issuance costs
|
(2,628 | ) | — | — | ||||||||
|
Distributions to minority partners
|
(18,919 | ) | (9,749 | ) | — | |||||||
|
Net cash used in financing activities
|
(548,763 | ) | (278,022 | ) | (19,407 | ) | ||||||
|
NET INCREASE (DECREASE) IN CASH AND CASH EQUIVALENTS
|
76,429 | 6,406 | (3,097 | ) | ||||||||
|
CASH AND CASH EQUIVALENTS AT BEGINNING OF YEAR
|
13,061 | 6,655 | 9,752 | |||||||||
|
CASH AND CASH EQUIVALENTS AT END OF YEAR
|
$ | 89,490 | $ | 13,061 | $ | 6,655 | ||||||
See notes to consolidated financial statements.
F-7
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. SIGNIFICANT ACCOUNTING POLICIES
Consolidation and Presentation:
The Consolidated Financial Statements include the accounts of Cousins Properties Incorporated
(“Cousins”), its majority-owned partnerships and its wholly-owned subsidiary, Cousins Real Estate
Corporation (“CREC”) and its subsidiaries. All of the entities included in the Consolidated
Financial Statements are hereinafter referred to collectively as the “Company.”
In January 2003, the Financial Accounting Standards Board (“FASB”) issued FASB Interpretation
No. 46, “Consolidation of Variable Interest Entities,” which was revised in December 2003
(collectively known as “FIN 46”). This interpretation addresses consolidation by business
enterprises of variable interest entities (“VIEs”). The Company adopted FIN 46 in 2003 to all
entities created or entered into after January 31, 2003. The Company adopted FIN 46 in March 2004
for all entities formed prior to January 31, 2003. The Company concluded that it had four VIEs in
which it was the primary beneficiary: Gipson/Cousins Holdings, LLC, whose purpose is to develop
retail shopping centers; Cousins/Daniel, L.L.C., whose purpose is to own two operating office
buildings; 50 Biscayne Venture, LLC, whose purpose is to own a parcel of land in Miami, Florida;
and Cousins/Weeks, LLC, whose purpose is to develop industrial and warehouse properties. All of
these entities are consolidated with the Company. The Company also concluded there were two VIEs
in which the Company is not the primary beneficiary: Deerfield Towne Center, an entity which owns a
retail project and in which the Company has no capital invested, nor any obligation to contribute
capital, but shares in the results of operations or gains on sale; and Charlotte Gateway Village,
LLC (“Gateway”). Gateway owns and operates an office building complex in Charlotte, North
Carolina. The Company’s investment in Gateway was $10.6 million at December 31, 2004, which is its
maximum exposure. See Note 4 for further discussion of Gateway.
If entities in which the Company has an ownership interest are not VIEs, the Company reviews
these entities using Statement of Financial Accounting Standards (“SFAS”) No. 94, “Consolidation of
All Majority-Owned Subsidiaries,” and Accounting Research Bulletin No. 51, “Consolidated Financial
Statements,” to determine the appropriate consolidation and presentation. A description of the
Company’s investments accounted for under the equity method is included in Note 4.
Income Taxes:
Since 1987, Cousins has elected to be taxed as a real estate investment trust (“REIT”). As a
REIT, Cousins generally is not subject to corporate federal income taxes to the extent that it
distributes 100% of its taxable income (excluding the consolidated taxable income of CREC and
its wholly-owned subsidiaries) to stockholders, which is Cousins’ current intention. The Company
computes taxable income on a basis different from that used for financial reporting purposes (see
Note 6). CREC and its wholly-owned subsidiaries file a consolidated federal income tax return.
Depreciation and Amortization:
Real estate assets are stated at depreciated cost. Buildings which were constructed are
depreciated over 30 years. Buildings that were acquired are depreciated over 15, 25 or 30 years.
See the long-lived assets and cost capitalization section for a further discussion of depreciation
related to properties acquired after June 2001. Furniture, fixtures and equipment are depreciated
over three to five years. Tenant improvements, leasing costs and leasehold improvements are
amortized over the life of the applicable leases or the estimated useful life of the assets,
whichever is shorter. Deferred expenses are amortized over the period of estimated benefit. The
straight-line method is used for all depreciation and amortization.
Long-Lived Assets and Cost Capitalization:
Long-lived assets include property, goodwill and other assets which are held and used by an
entity. The Company evaluates the carrying value of its long-lived assets in accordance with SFAS
No. 144, “Accounting for the Impairment or Disposal of Long-Lived Assets,” and SFAS No. 142,
“Goodwill and Other Intangible Assets.” The carrying value of long-lived assets, other than
goodwill, is reviewed by management for the existence of any other than temporary indicators of
impairment and impairment losses, if any, on held for use assets are
recognized when the expected
undiscounted future operating cash flows derived from such assets are
F-8
less than their carrying
value. In such cases, the carrying value of the long-lived asset is reduced to its fair value.
Management believes no such impairments have occurred within its consolidated entities during any
of the periods presented. Additionally, an impairment loss is recognized if the fair value of a
property held for sale, as defined in SFAS No. 144, net of selling costs, is less than its carrying
value. The Company ceases depreciation of a property when it is categorized as held for sale. The
accounting for long-lived assets is the same at the Company’s unconsolidated joint ventures, one of
which recorded an impairment in 2004 on a held for sale property (see Note 4).
The Company evaluates the carrying value of its investments in unconsolidated joint ventures
in accordance with APB Opinion No. 18, “The Equity Method of Accounting for Investments in Common
Stock.” The Company utilizes a discounted cash flow analysis and evaluates the results of that
calculation to determine if an other-than-temporary impairment exists. The Company concluded that
it did not have an impairment in any of its investments in joint ventures in either 2004 or 2003.
The Company evaluates the carrying value of its goodwill in accordance with SFAS No. 142,
“Goodwill and Other Intangible Assets.” No amortization is recognized for goodwill or other
intangible assets that have indefinite useful lives, and these assets are tested annually for
impairment. For all periods presented, the annual tests for impairment of goodwill and other
intangibles did not result in any impairment. All of the Company’s goodwill relates to the office
division. Approximately $7,805,000 of goodwill was written off in 2004 related to office asset
dispositions (see Note 7).
SFAS No. 141, “Accounting for Business Combinations,” requires that the purchase price of
properties acquired after June 2001 be allocated to land, building, tenant improvements and
identifiable intangible assets. Intangible assets can consist of above or below market leases,
customer relationships or the value of in-place leases. Assets acquired, other than intangibles,
are depreciated using the methodology detailed in the Depreciation and Amortization section of this
Note. Above or below market leases are amortized into rental revenues over the individual
remaining lease terms. The value associated with in-place leases is amortized over the term of the
related lease. The Company had no significant property acquisitions in 2004.
Costs related to planning, developing, leasing and constructing a property are capitalized to
the basis of the property. Capitalized costs associated with a particular property are classified
with Properties in the Consolidated Balance Sheets. Interest is capitalized to qualifying assets
during the period of construction. A weighted average interest rate for all indebtedness of the
Company is applied to average accumulated expenditures during the period to calculate interest to
be capitalized. This amount does not exceed the actual interest expense of the Company during the
period. If a construction loan is obtained for the asset being constructed, interest from that
specific loan is used in the calculation of capitalized interest. Interest is also capitalized to
investments accounted for under the equity method when the investee has property under development
with a carrying value in excess of the investee’s borrowings. To the extent that there is debt at
the venture level during the construction period, the venture capitalizes interest using the
specifics of that debt. If the Company contributes equity to the venture and those funds are used
for construction, the Company capitalizes interest to its investment in the entity during the
period of construction.
Leasing costs capitalized include commissions paid to outside brokers and outside legal costs
to negotiate and document a lease agreement. These costs are capitalized as a cost of the tenant’s
lease and amortized over the related lease term. Internal leasing costs are capitalized utilizing
guidance in SFAS No. 91, “Accounting for Nonrefundable Fees and Costs Associated with Originating
or Acquiring Loans and Initial Direct Costs of Leases.” Leasing personnel are queried monthly and
their compensation and payroll-related fringe benefits directly related to time spent performing
initial direct
leasing activities is capitalized. Costs for development personnel who work directly on the
project under construction are also capitalized during the construction period. An estimate of
time is obtained directly from such personnel and their actual salaries plus an estimate of
payroll-related benefits are applied to the project under construction.
Interest, real estate taxes and operating expenses of properties are also capitalized based on
the percentage of the project available for occupancy from the date a project receives its
certificate of occupancy and for up to one year thereafter.
F-9
Discontinued Operations:
In addition to the requirements previously discussed, SFAS No. 144 requires that the gains and
losses from the disposition of certain real estate assets and the related historical operating
results be included in a separate line item, Discontinued Operations, in the Consolidated
Statements of Income for all periods presented. The results of operations of sold properties for
which the Company continues property management subsequent to the sale are not reflected as
discontinued operations, as this is considered to be continuing involvement with the property by
the Company.
SFAS No. 144 also requires that assets and liabilities of held for sale properties are
separately categorized on the Consolidated Balance Sheet in the period that they are deemed to be
held for sale. The Company had no held for sale properties at December 31, 2004 or 2003. The
Company actively manages its portfolio of investment properties and from time to time recycles
invested capital by disposing of existing assets and redeploying the proceeds. The Company
believes that this is sound portfolio management and that this process tends to enhance total
returns to stockholders.
Fee Income:
Development and leasing fees received from unconsolidated joint ventures and related salaries
and other direct costs incurred by the Company are recognized as income and expense based on the
percentage of the joint venture which the Company does not own. Correspondingly, the Company
adjusts Investment in Unconsolidated Joint Ventures when fees are paid to the Company by a joint
venture in which the Company has an ownership interest. Development and leasing fees and related
costs are recorded in Investment in Unconsolidated Joint Ventures based on the percentage of the
unconsolidated joint venture which the Company owns.
Management fees received from unconsolidated joint ventures are recognized as earned. The
Company expenses salaries and other direct costs related to these management fees.
Development and leasing fees between consolidated entities are eliminated in consolidation.
These fees totaled $5,908,000, $4,017,000 and $4,004,000 in 2004, 2003 and 2002, respectively.
Management fees received from consolidated entities are eliminated in consolidation, and related
salaries and other direct costs incurred to manage the Company’s properties are reflected in Rental
Property Operating Expenses.
Rental Property Revenues:
In accordance with SFAS No. 13, “Accounting for Leases,” income on leases which include
scheduled increases in rental rates over the lease term (other than scheduled increases based on
the Consumer Price Index) and/or periods of free rent is recognized on a straight-line basis.
Above or below market leases are also amortized over the term of the lease into rental property
revenues, as previously mentioned. The Company also recognizes
revenues for recoveries from tenants of operating expenses the Company paid on the tenant’s behalf.
These operating expenses include items such as real estate taxes, insurance and other property
operating costs.
The Company makes valuation adjustments to all tenant-related revenue based upon the tenant’s
credit and business risk. The Company generally suspends the accrual of income on specific tenants
where rental payments or reimbursements are delinquent 90 days or more.
Gain on Sale of Investment Properties:
The Company recognizes gain on sale of investment properties in accordance with the provisions
of SFAS No. 66, “Accounting for Sales of Real Estate.” SFAS No. 66 requires that the sale be
consummated, the buyer’s initial and continuing investment be adequate to demonstrate commitment to
pay, any receivable obtained not be subject to future subordination and the usual risks and rewards
of ownership be transferred. SFAS No. 66 also requires that the seller not have a substantial
continuing involvement with the property. If the Company has a commitment to the buyer and that
commitment is a specific dollar amount, this commitment is accrued and the gain on sale that the
Company recognizes is reduced. If the Company has a construction commitment to the buyer, an
estimate is made of this commitment and a portion of the sale is deferred until the commitment has
been fulfilled.
F-10
Residential Lot Sales Revenues:
Revenue for sales of developed lots to homebuilders is recognized in accordance with the full
accrual method as outlined in SFAS No. 66. If a substantial continuing obligation exists related
to the sale or any other criteria for the full accrual method is not met, the Company would use the
percentage of completion method to recognize revenues on lot sales.
Stock-Based Compensation:
The Company has several types of stock-based compensation plans which are described in Note 5.
The Company has elected to account for its plans under Accounting Principles Board (“APB”) No. 25,
“Accounting for Stock Issued to Employees,” which requires the recording of compensation expense
for some, but not all, stock-based compensation, rather than the alternative accounting permitted
by SFAS No. 123, “Accounting for Stock-Based Compensation.” No stock-based employee compensation
cost was reflected in net income for stock options granted under the plans, as all stock options
granted had an exercise price equal to the market value of the underlying common stock on the date
of grant. Compensation expense was reflected in net income for stock-based compensation other than
stock options.
For purposes of the pro forma disclosures required by SFAS No. 123 and SFAS No. 148,
“Accounting for Stock-Based Compensation — Transition and Disclosure,” the Company has computed the
value of all stock options granted during 2004, 2003 and 2002 using the Black-Scholes option
pricing model with the following weighted average assumptions and results:
The Black-Scholes option valuation model was developed for use in estimating the fair
value of traded options which have no vesting restrictions and are fully transferable. In
addition, option valuation models require the input of highly subjective assumptions. In the
opinion of the Company’s management, because the Company’s stock-based compensation awards have
characteristics significantly different from traded options and because changes in the subjective
assumptions can materially affect the fair value estimate, the results obtained from the valuation
model do not necessarily provide a reliable single measure of the value of its stock-based
compensation awards.
F-11
If the Company had accounted for its stock-based compensation awards in 2004, 2003 and 2002 in
accordance with SFAS No. 123, pro forma results would have been as follows ($ in thousands, except
per share amounts):
In December 2004, the FASB issued SFAS 123 (R) “Share-Based Payment.” Under SFAS
123 (R), companies must begin expensing equity-based awards in the first interim or annual
reporting period beginning after June 15, 2005. SFAS 123 (R) requires that compensation cost be
recognized for all equity based awards granted, modified, cancelled or repurchased after the
effective date. In addition, SFAS 123 (R) requires compensation cost to be recognized on the
portion of awards granted in prior periods for which the requisite service has not yet been
rendered. The Company plans to adopt this pronouncement on July 1, 2005 and currently cannot
estimate the impact adoption will have on its financial condition or results of operations.
Earnings Per Share (“EPS”):
Basic EPS is calculated as net income available to common stockholders divided by the weighted
average number of common shares outstanding during the period. Diluted EPS is calculated as net
income available to common stockholders divided by the diluted weighted average number of common
shares outstanding during the period. Diluted weighted average number of common shares is
calculated to reflect the potential dilution that would occur if stock options or other contracts
to issue common stock were exercised and resulted in additional common stock outstanding. The
income amounts used in the Company’s EPS calculations are reduced for the effect of preferred
dividends and are the same for both basic and diluted EPS.
Share data is as follows (in thousands):
Cash and Cash Equivalents and Restricted Cash:
Cash and cash equivalents include cash and highly liquid money market instruments. Highly
liquid money market instruments include securities and repurchase agreements with original
maturities of three months or
less, money market mutual funds and United States Treasury Bills with maturities of 30 days or
less. Restricted cash primarily represents amounts restricted under debt agreements for future
capital expenditures.
F-12
Use of Estimates:
The preparation of financial statements in conformity with accounting principles generally
accepted in the United States requires management to make estimates and assumptions that affect the
amounts reported in the accompanying financial statements and notes. Actual results could differ
from those estimates.
Reclassifications:
Certain 2003 and 2002 amounts have been reclassified to conform with the 2004 presentation.
2. NOTES AND OTHER RECEIVABLES
At December 31, 2004 and 2003, notes and other receivables included the following ($ in
thousands):
Fair Value –
At December 31, 2004 and 2003, the estimated fair value of the Company’s
$10.3 million and $2.1 million of notes receivable was $11.0 million and $2.1 million,
respectively, calculated by discounting future cash flows from the notes receivable at estimated
rates at which similar loans would have been made at December 31, 2004 and 2003.
3. NOTES PAYABLE, COMMITMENTS AND CONTINGENT LIABILITIES
The following table summarizes the terms of the debt outstanding at December 31, 2004
and 2003 ($ in thousands):
In 1996, CSC Associates, L.P. (“CSC”), an entity in which the Company owns a 50%
equity interest, issued $80 million of 6.377% collateralized non-recourse mortgage notes (the “Prior Notes”) secured by
CSC’s interest in the Bank of America Plaza building and related leases and agreements. CSC loaned
the $80 million proceeds of the Prior Notes to the Company under a non-recourse loan (the “Prior
Cousins Loan”)
secured by the Company’s interest in CSC under the same payment terms as those of the Prior Notes.
The Company paid all costs of issuing the Prior Notes and the Prior Cousins Loan.
F-13
In 2002, CSC refinanced the Prior Notes, completing a $150 million non-recourse mortgage note
payable (the “New Loan”) with an interest rate of 6.958% and a maturity of March 1, 2012. The New
Loan is secured by CSC’s interest in the Bank of America Plaza building and related leases and
agreements. CSC loaned the $150 million of proceeds to the Company under a non-recourse loan (the
“New Cousins Loan”) secured by the Company’s interest in CSC under the same payment terms as those
of the New Loan. The Company paid all costs of issuing the New Loan and the New Cousins Loan,
including a $750,000 fee to an affiliate of Bank of America Corporation. In connection with the
prepayment in full of the Prior Notes, the Company paid a prepayment premium which, along with the
unamortized balance of closing costs paid by the Company related to the Prior Notes, were expensed
by the Company. The sum of these amounts was approximately $3,501,000, which was recognized in
2002 as a loss on debt extinguishment.
Because CSC loaned the proceeds of the Prior Notes and the New Loan to the Company, the Prior
Notes and the New Loan and their related interest expense and maturities are disclosed as
obligations of the Company and are not included in the unconsolidated joint venture balances
disclosed in Note 4. (The related note receivable and interest income are also not included in
Note 4).
In July 2004, the Company renewed and recast its unsecured revolving credit facility with Bank
of America and several other banks, increasing the size by $50 million to $325 million (which can
be increased to $400 million under certain circumstances). The new maturity date is September 14,
2007. The previous credit facility was set to expire in August 2004. The unsecured revolving
credit facility includes covenants customary in facilities of this type, including a requirement
that the Company’s debt to total assets would not exceed 60%, a requirement that the
Company’s common and preferred dividends would not exceed 95% of Funds From Operations, as defined,
or 110% of REIT taxable income (including capital gains), and a requirement that the fixed charge
coverage ratio, as defined, should not be less than 1.5 to 1. The credit facility bears interest
at a rate equal to the London Interbank Offering Rate (“LIBOR”) plus a spread which is based on the
Company’s ratio of total debt to total assets, as defined by the credit facility, according to the
following table:
The 101 Second Street, 333 John Carlyle/1900 Duke Street, 101 Independence Center and
Northside/ Alpharetta I notes payable were either paid off or assumed by the buyer in conjunction
with the 2004 sales of these properties (see Note 7). The 333 John Carlyle/1900 Duke Street note
was cross-collateralized with the 333/555 North Point Center East note. After the sale of 333 John
Carlyle and 1900 Duke Street, the 333/555 North Point Center East note payable became recourse to
the Company.
The aggregate maturities of the indebtedness of the Company at December 31, 2004 detailed
above are as follows ($ in thousands):
At December 31, 2004, the Company had outstanding letters of credit totaling
approximately $15.5 million and performance bonds totaling approximately $3.7 million. The
majority of the Company’s debt is
fixed rate long-term mortgage debt, most of which is non-recourse to the Company. Approximately
$50.1 million of the Company’s debt outstanding at December 31, 2004 is recourse to the Company.
Assets with carrying values of $171.6 million were pledged as security on the non-recourse debt of
the Company. As of December 31, 2004, the weighted average maturity of the Company’s debt was 6
years.
F-14
For each of the years ended December 31, 2004, 2003 and 2002, interest was recorded as follows
($ in thousands):
The Company has future lease commitments under land leases and operating leases for
office space aggregating approximately $50.4 million over weighted average remaining terms of 68
and 2.4 years, respectively. Amounts due under these lease commitments are as
follows:
As of December 31, 2004, outstanding commitments for the construction and design of
real estate projects, including an estimate for unfunded tenant improvements at operating
properties, totaled approximately $94.5 million. At December 31, 2004 and 2003, the estimated fair
value of the Company’s notes payable was approximately $324.6 million and $556.8 million,
respectively, calculated by discounting future cash flows at estimated rates at which similar loans
would have been obtained at December 31, 2004 and 2003.
4. INVESTMENT IN UNCONSOLIDATED JOINT VENTURES
The following information summarizes financial data and principal activities of unconsolidated
joint ventures in which the Company had ownership interests. During the development or construction
of an asset, the Company and its partners may be committed to provide funds pursuant to a
development plan. However, in general, the Company does not have any obligation to fund the
working capital needs of its unconsolidated joint ventures. The partners may elect in their
discretion to fund cash needs if the venture required additional funds to effect re-leasing or had
other specific needs. Additionally, the Company has not guaranteed the outstanding debt of any of
its unconsolidated joint ventures, except for guarantees of “non-recourse carve-outs” of mortgages
and 72% of the outstanding debt of 905 Juniper Venture, LLC, described below. The following tables
are in thousands:
F-15
Charlotte Gateway Village, LLC (“Gateway”) –
On December 14, 1998, the Company and a
wholly-owned subsidiary of Bank of America Corporation formed Gateway for the purpose of developing
and owning Gateway Village, a 1.1 million rentable square foot office building complex in downtown
Charlotte, North Carolina. The project is 100% leased to Bank of America Corporation with a term
of 15 years. Gateway’s net income or loss and cash distributions are allocated to the members as
follows: first to the Company so that it receives a cumulative compounded return equal to 11.46%
on its capital contributions, second to a wholly-owned subsidiary of Bank of America Corporation
until it has received an amount equal to the aggregate amount distributed to the Company and then
50% to each member.
CSC Associates, L.P. (“CSC”) –
CSC was formed in 1989 between the Company and a wholly-owned
subsidiary of Bank of America Corporation, each
as 50% partners. CSC owns the 1.3 million rentable square foot Bank of America Plaza in midtown
Atlanta, Georgia.
F-16
CSC’s net income or loss and cash distributions are allocated to the partners based on their
percentage interests. See Note 3 for a discussion of the presentation of certain CSC assets,
liabilities, revenues and expenses.
285 Venture, LLC –
In March 1999, the Company and a commingled trust fund advised by J.P.
Morgan Investment Management Inc. (the “J.P. Morgan Fund”) formed 285 Venture, LLC, each as 50%
partners, for the purpose of developing and owning 1155 Perimeter Center West, an approximately
365,000 rentable square foot office building complex in Atlanta, Georgia. Income allocations and
cash distributions are made to the partners based on their percentage interests. The J.P. Morgan
Fund contributed the approximately six-acre site upon which 1155 Perimeter Center West was
developed. The land had an agreed-upon value of approximately $5.4 million, which the Company
matched with a cash contribution. Mirant Corporation (“Mirant”), who was the 99% tenant of 1155
Perimeter Center West until January 2004, declared bankruptcy in 2003. In January 2004, its lease
was amended to reduce the term, the rental rate and the square footage leased. Mirant has also
indicated that it will vacate an additional 25,000 square feet in January 2005 and another 25,000
square feet in January 2006. The Company is actively attempting to re-lease the space Mirant
vacated, and no assurances can be made as to the timing of leasing or the leasing terms that may be
obtained.
Crawford
Long – CPI, LLC –
In October 1999, the Company formed Crawford Long — CPI, LLC with
Emory University, each as 50% partners, for the purpose of developing and owning the Emory Crawford
Long Medical Office Tower, an approximately 358,000 rentable square foot medical office building
located in midtown Atlanta, Georgia, which became partially operational for financial reporting
purposes in February 2002. Income allocations and cash distributions are made to the partners
based on their percentage interests. In May 2003, Crawford Long — CPI, LLC obtained a $55 million
mortgage note payable, with a maturity of June 1, 2013 and an interest rate of 5.9%.
Ten Peachtree Place Associates (“TPPA”) –
TPPA is a general partnership between the Company
(50%) and a wholly-owned subsidiary of The Coca-Cola Company (“Coca-Cola”) (50%). The venture owns
Ten Peachtree Place, a 259,000 rentable square foot building located in midtown Atlanta, Georgia.
The building was 100% leased to Coca-Cola through November 30, 2001. The building has since been
re-leased to unrelated third parties. Additionally, the venture owns an adjacent pad currently
used for parking upon which an office building or an apartment, townhouse or condominium complex
could be developed.
The TPPA partnership agreement generally provided that each partner was entitled to receive
50% of cash
flows from operating activities, net of note principal amortization, through the term of the
Coca-Cola lease. After the Coca-Cola lease expired, in accordance with the partnership agreement,
each partner must contribute on a 50% basis capital contributions needed for tenant improvements
and leasing commissions related to the re-leasing of the building, as well as to fund any operating
deficits. The cash flows from operating activities, net of note principal amortization, will be
used first to repay these capital contributions plus 8% interest to each partner on a 50% basis.
Cash flows will be allocated on a 50% basis until July 1, 2011. After July 1, 2011, the Company
and its partner are entitled to receive 15% and 85% of the cash flows (including any sales
proceeds), respectively, until the two partners have received a combined distribution of $15.3
million. Thereafter, each partner is entitled to receive 50% of cash flows.
TPPA obtained a mortgage note payable in March 2004 for $30 million with a maturity of
February 1, 2015 and an interest rate of 5.39%. The previous mortgage note payable was repaid in
full.
Wildwood Associates –
Wildwood Associates was formed in 1985 between the Company and IBM, each
as 50% partners. Wildwood Office Park (“Wildwood”) is an office park in Atlanta, Georgia containing
approximately 285 acres. Wildwood Associates owns approximately 32 acres of undeveloped land in
Wildwood, of which an estimated 16 acres are committed to be contributed to Wildwood Associates by
the Company. The Company also directly owns approximately 62 acres in the park. The estimated 16
acres of land which are committed to be contributed to Wildwood Associates by the Company are
included in Wildwood Associates’ financial statements under the caption “Land Committed to be
Contributed” and are not included in “Land Held for Investment or Future Development” in the
Company’s financial statements. All costs associated with the land are borne by Wildwood
Associates. In addition to undeveloped land as described above, Wildwood Associates owned six
office buildings consisting of approximately 2,155,000 square feet and approximately 15 acres of
stand-alone retail sites ground leased to various users. Wildwood sold these office buildings and
retail sites in 2004 for $420 million to unrelated third parties, and recognized
F-17
gains of approximately $200.8 million on the transactions (see Note 7). The Company and IBM each
leased office space from the partnership during 2004 at rates comparable to those charged to third
parties.
Through December 31, 2004, IBM had contributed $46.6 million in cash plus properties having an
agreed upon value of $16.3 million for its one-half interest in Wildwood Associates. The Company
had contributed $84,000 in cash plus properties having an agreed-upon value of $54.5 million for
its one-half interest in the partnership and is obligated to contribute the aforesaid estimated 16
acres of additional land with an agreed-upon value of $8.3 million. The Company’s investment as
recorded in the Consolidated Balance Sheets, which was a negative investment of $0.4 million at
December 31,
2004 due to partnership distributions in excess of contributions, is based upon the Company’s
historical cost of the properties at the time they were contributed or committed to be contributed
to the partnership, whereas its investment as recorded on Wildwood Associates’ books ($11.8 million
at December 31, 2004) is based upon the agreed-upon values at the time the partnership was
formed. In accordance with SOP 78-9, “Accounting for Investments in Real Estate Ventures,” this
basis differential is being recognized as the underlying land contributed is sold by the venture.
The 2004 sale by Wildwood Associates of all its office buildings and retail sites triggered
recognition of a portion of the basis differential, which totaled approximately $29.3 million and
was recognized as a Gain on Sale of Investment Properties in the accompanying 2004 Consolidated
Statement of Income.
Generally, the Company does not have any obligation to fund the working capital needs, nor
does the Company typically guarantee the outstanding debt, of any of its unconsolidated joint
ventures. However, Wildwood Associates is a general partnership and the general partner can have
liability under state law for certain debts of the partnership, although there is no debt at
Wildwood Associates at December 31, 2004.
CPI/FSP I, L.P. –
In May 2000, CPI/FSP I, L.P. was formed. 50% of the venture is owned by
the Company through a general partner, Cousins Austin GP, Inc. (1%), and a limited partner, Cousins
Austin, Inc. (49%). The remaining 50% is owned by a general partner, Fifth Street Properties -
Austin, LLC (1%), and a limited partner, Fifth Street Properties — Austin Investor, LLC (49%),
which are both owned by CommonWealth Pacific LLC and CalPERS. Income allocations and cash
distributions are made to the partners based on their percentage interests. CPI/FSP I, L.P.
developed Austin Research Park – Buildings III and IV, two approximately 174,000 and 184,000
rentable square foot office buildings, respectively, in Austin, Texas. Additionally, the venture
owns an adjacent pad for potential future development of an office building. Austin Research Park
– Buildings III and IV were sold for $78.7 million to an unrelated third party in September 2004.
CPI/FSP I, L.P. recognized a gain of approximately $27.2 million on the transaction, and the
majority of equity at the venture was distributed to the partners.
Cousins LORET Venture, L.L.C. (“Cousins LORET”) –
Effective July 31, 1997, Cousins LORET was
formed between the Company and LORET Holdings, L.L.C. (“LORET”), each as 50% members. Income
allocations and cash distributions are made to the partners based on their percentage interests.
LORET contributed Two Live Oak Center, a 279,000 rentable square foot office building located in
Atlanta, Georgia, which was renovated in 1997. LORET also contributed an adjacent four-acre site
on which construction of The Pinnacle, a 423,000 rentable square foot office building, was
completed in November 1998. The Company contributed $25 million of cash to Cousins LORET to match
the
value of LORET’s agreed-upon equity. The Pinnacle and Two Live Oak Center were sold for $200
million to an unrelated third party in August 2004. LORET recognized a gain of approximately $90.0
million on the transaction, and the majority of equity at the venture was distributed to the
partners.
CC-JM II Associates –
This joint venture was formed in 1994 between the Company and an
affiliate of CarrAmerica Realty Corporation, each as 50% general partners, to develop and own John
Marshall-II, a 224,000 rentable square foot office building in suburban Washington, D.C. Income
allocations and cash distributions are allocated to the partners based on their percentage
interests. The building is 100% leased until January 2011 to Booz-Allen & Hamilton, an
international consulting firm, as a part of its corporate headquarters campus. John Marshall – II
was sold in October 2004 for $59.3 million to an unrelated third party. CC-JMII Associates
recognized a gain of approximately $40.7 million on the transaction, and the majority of equity at
the venture was distributed to the partners.
CP Venture LLC, CP Venture Two LLC and CP Venture Three LLC –
On November 12, 1998 (the
“Closing Date”), the Company entered into a venture arrangement (the “Venture”) with The Prudential
Insurance Company of America (“Prudential”). On such date the Company contributed its interest in
nine
F-18
properties (the “Properties”) to the Venture. At the time of contribution, the Properties were
valued by the Company and Prudential based on arm’s-length negotiations at a total gross value of
$283,750,000 subject to mortgages in the principal amount of $53,281,000. The following table
details the values allocated to each of the Properties and the mortgages to which certain
Properties were subject ($ in thousands):
Under the Venture arrangements, Prudential contributed cash to the Venture equal to the
agreed-upon net value of the properties ($230,469,000) at dates specified in the agreements.
The structure of the Venture is as follows: CP Venture LLC, the parent entity, owns a 99%
interest in each of CP Venture Two LLC (“Property Activity LLC”) and CP Venture Three LLC
(“Development Activity LLC”). The Company owns a 1% direct interest in Property Activity LLC and
Prudential owns a 1% direct interest in Development Activity LLC. The contributed properties are
owned and operated by Property Activity LLC. The Company has a 10.6061% interest in CP
Venture LLC’s 99% interest in Property Activity LLC, which, combined with its 1% direct interest,
gives it a net interest of 11.5% in the economics of Property Activity LLC. Prudential has the
remaining net interest of 88.5% in the economics of Property Activity LLC.
The cash contributed by Prudential was contributed to Development Activity LLC. To the extent
such funds were not yet needed for development activity, Development Activity LLC could temporarily
invest such funds; such potential investments could include temporary loans to the Company. The
Venture earned interest on the temporary loans at the same rate as the Company’s credit facility.
Prudential is entitled to 10.6061% of CP Venture LLC’s 99% share of the economics of Development
Activity LLC, which, combined with its 1% direct interest, entitles it to an overall net interest
of 11.5% in the economics of Development Activity LLC. Prudential first receives a priority
current return of 9.5% per annum on its share (11.5%) of capital outstanding of Development
Activity LLC. Prudential also receives a liquidation preference whereby it is first entitled to,
subject to capital account limitations, sufficient proceeds to allow it to achieve an overall 11.5%
internal rate of return on its share of outstanding capital of Development Activity LLC. After
these preferences to Prudential, the Company has certain preferences, with the residual interests
in the development activity being shared according to the interests of the parties. All Prudential
priority current returns have been distributed to Prudential during the year.
CP Venture LLC appointed the Company to serve as Development Manager and in such capacity to
act for it in connection with its ownership of Development Activity LLC. CP Venture LLC also
appointed Prudential to serve as Property Manager and in such capacity to act for it in connection
with its ownership of Property Activity LLC. Prudential appointed the Company to serve as property
manager of the Properties for Property Activity LLC. The Company also serves as Administrative
Manager of CP Venture LLC. Property Activity LLC is expected to continue to operate the
contributed Properties as long as they are still owned by Property Activity LLC. Development
Activity LLC is expected to develop commercial real estate projects over time, as selected by the
Development Manager. Development Activity LLC may also make acquisitions, which are anticipated to
be redevelopment or value-added opportunities. In 2000, Development Activity LLC developed Mira
Mesa MarketCenter (“Mira Mesa”), a 480,000 square foot retail center in suburban San Diego,
California, and acquired One Georgia Center, an approximately 363,000 rentable square foot office
building in midtown Atlanta, Georgia. In 2001, Development Activity LLC also developed The Avenue
Peachtree City, an approximately 182,000 square foot retail center in suburban Atlanta, Georgia.
In October 2004, the remaining cash contributed to Development Activity LLC was used to purchase an
85% limited partnership interest in the partnership which owns
Frost Bank Tower, a 529,000 square foot office building in Austin, Texas, which the Company
developed.
F-19
For financial reporting purposes, the Properties were deconsolidated and contributed to
Property Activity LLC. Both Property Activity LLC and CP Venture LLC are being treated as
unconsolidated joint ventures. Development Activity LLC is treated as a consolidated entity in the
Company’s financial statements as the Company has a controlling financial and voting interest. The
Company initially deferred the net gain on the contributed Properties and is recognizing this net
gain as Gain on Sale of Investment Properties, Net of Applicable Income Tax Provision, in the
accompanying Consolidated Statements of Income as capital distributions of cash are made from
Development Activity LLC to the Company or when the Properties initially contributed to Property
Activity LLC are liquidated by Property Activity LLC. The liquidation of the Properties may be in
the form of actual sales of the Properties or in the form of the depreciation of the Properties
which have an average remaining life of 24 years. The total net deferred gain on the contributed
Properties on the Closing Date was approximately $96.8 million over the cost of the Properties.
Including depreciation recapture of $23.8 million, the total net deferred gain on the Closing Date
was approximately $120.6 million. This gain was reflected as Deferred Gain in the Consolidated
Balance Sheets.
In May 2003, CP Venture Three LLC sold Mira Mesa. Capital distributions of approximately
$75.0 million and $9.7 million were made by the Venture to the Company and Prudential,
respectively, as a result of the sale. In accordance with the provisions of SFAS No. 66
“Accounting for Sales of Real Estate,” the distribution of these unrestricted cash proceeds allowed
for 88.5% of the remaining unamortized gain at the distribution date to be recognized under the
full accrual method. Accordingly, a gain of $90.0 million was recognized in Gain on Sale of
Investment Properties, Net of Applicable Income Tax Provision, in the accompanying 2003
Consolidated Statement of Income. Additionally, the Company has accrued the liquidation preference
for the period commencing on the Closing Date through May 27, 2003 as the result of significant
gains earned at Development Activity LLC.
In December 2003, the Company purchased 100 and 200 North Point Center East from Property
Activity LLC. The purchase price was equal to the outstanding balance of the mortgage note payable
at the time of sale, which was approximately $22.4 million. Property Activity LLC recognized an
impairment loss of approximately $8.6 million, which represented the difference between the book
value of the asset and the fair value of the property. The fair value of the property approximated
the balance of the mortgage note payable. The Company recorded 11.5% of this impairment loss
through Income from Unconsolidated Joint Ventures, which totaled approximately $1.0 million.
Deferred gain was recognized for an amount equal to the Company’s
impairment loss. Additional deferred gain of approximately $1.3 million was recorded against the
basis of the acquired properties. The total deferred gain recognized represented the remaining
deferred gain related to the original contribution of 100 and 200 North Point Center East to
Property Activity LLC.
In December 2004, Property Activity LLC sold Wachovia Tower to an unrelated third party for
approximately $36.0 million. Property Activity LLC recognized an impairment loss of approximately
$1.5 million, which represented the difference between the book value of the asset and the sales
price. The Company recorded 11.5% of this impairment loss through Income from Unconsolidated Joint
Ventures, which totaled approximately $0.2 million. Deferred gain of approximately $2.5 million
was recognized related to deferred gain from the original contribution of Wachovia Tower to
Property Activity LLC. The total remaining deferred gain of $6.2 million on the Consolidated
Balance Sheet as of December 31, 2004, relates to the portion of the initial gain attributable to
the 11.5% ownership interest the Company continues to hold in Property Activity LLC. This portion
of the gain is being recognized as the underlying assets of Property Activity LLC are liquidated
(either through sales of the properties or through depreciation), as previously discussed.
Brad Cous Golf Venture, Ltd. (“Brad Cous”) –
Effective January 31, 1998, the Company formed
Brad Cous with W.C. Bradley Co., each as 50% partners, for the purpose of developing and owning The
Shops at World Golf Village, an approximately 80,000 square foot retail center located adjacent to
the PGA Hall of Fame in St. Augustine, Florida. Income allocations and cash distributions are made
to the partners based on their percentage interests.
CL Realty, L.L.C. –
In August 2002, CL Realty, L.L.C. was formed between CREC and a subsidiary
of Temple-Inland Inc., each as 50% members, for the purpose of developing and investing primarily
in single-family residential lot development properties. Income allocations and cash distributions
are made to the partners based on their percentage interests.
F-20
CL Realty, L.L.C. is developing six single-family residential communities in Texas with 5,797
total projected lots and three single-family residential communities in Florida with 851 total
projected lots. The partnership also has a 37.5% interest in a venture that is developing
single-family residential community in Texas with 2,710 total projected lots and a 10% interest in
a joint venture that is developing a single-family residential community in Georgia with 619 total
projected lots. During 2004 and 2003, 972 and 191 lots, respectively, were sold at developments in
which CL Realty, L.L.C. has an interest.
Temco Associates, LLC (“Temco”) –
Temco was formed in 1991 as a partnership between CREC (50%)
and a subsidiary of Temple-Inland Inc. (50%). In 2004, Temco was converted to an LLC. Income
allocations and
cash distributions are made to the partners based on their percentage interests. Temco has an
option through March 2006, with no carrying costs, to acquire the fee simple interest in
approximately 6,500 acres in Paulding County, Georgia (northwest of Atlanta, Georgia). The
partnership also has an option to acquire interests in a timber rights only lease covering
approximately 22,000 acres. This option also expires in March 2006, with the underlying lease
expiring in 2025. The options may be exercised in whole or in part over the option period, and the
option price of the fee simple land was $1,243 per acre at January 1, 2005, escalating at 6% on
January 1 of each succeeding year during the term of the option.
Temco is developing three single-family residential communities in Georgia with 2,673 total
projected lots. The partnership also has a 75% and 50% interest in two joint ventures that are
developing single-family residential communities in Georgia with 1,785 total projected lots.
During 2004, 2003 and 2002, 491, 356 and 289 lots, respectively, were sold in Temco Associates
projects.
Following is a detail of acreage activity for the land under option:
Pine Mountain Builders, LLC –
In 2003, Pine Mountain Builders, LLC (“Pine Mountain
Builders”) was formed between a subsidiary of CREC and Fortress Construction Company, each as 50%
members, for the purpose of constructing homes at a residential community CREC is developing.
Income allocations and cash distributions are made to the partners based on their percentage
interests. During 2004, Pine Mountain Builders sold 27 homes.
Handy Road Associates, LLC –
In 2004, Handy Road Associates, LLC was formed between CREC and
Handy Road Managers, LLC, each as 50% members, for the purpose of acquiring and owning 1,187 acres
of land in suburban Atlanta, Georgia. This land is being held for future development and/or sale.
The note payable at the venture is guaranteed by the partners of Handy Road Managers, LLC.
905 Juniper Venture, LLC (“905 Juniper”) –
905 Juniper was formed in 2004 between CREC and GDL
Juniper, LLC (“GDL”) for the purpose of developing and selling an estimated 117-unit condominium
complex in midtown Atlanta, Georgia. Income and cash distributions are allocated to the partners
in a 72% CREC/28% GDL split, after each partner receives a 10% preferred return on their
investment.
Additionally, 905 Juniper obtained a $20,500,000 construction loan at LIBOR plus 2%, of which the
Company has guaranteed 72% of the outstanding balance. As of December 31, 2004, approximately
$160,000 was outstanding under this construction loan.
Other –
This category consists of several other joint ventures including:
Cousins-Hines Partnerships –
Through the Cousins-Hines partnerships, the Company effectively
owns 9.8% of One Ninety One Peachtree Tower in Atlanta, Georgia, subject to a preference in favor
of the majority partner. This 1.2 million rentable square foot office building, which opened in
December 1990, was developed by the Company in partnership with the Hines Interests Limited
Partnership and the Dutch Institutional
F-21
Holding Company (“DIHC”). In October 1997, Cornerstone Properties, Inc. purchased DIHC’s interest
in the partnership. In June 2000, Equity Office Properties Trust acquired Cornerstone Properties,
Inc.
Verde Group, LLC, (“Verde”) –
CREC has a $10 million ownership interest, which represents less
than 10%, in Verde, a real estate development company. The Company will recognize income based on
its ownership percentage and has not recognized any income to date.
MC Düsseldorf Holdings, B.V. –
The Company had a 50% interest in a Dutch joint venture, who in
turn had an interest in a venture which owned an office building in Düsseldorf, Germany. The
venture settled a long-outstanding tax liability in 2004, and the Company received a cash
distribution and recognized income of approximately $924,000.
Additional Information –
The Company recognized $8,088,000, $6,337,000, and $8,037,000 of
development, leasing, and management fees from unconsolidated joint ventures in 2004, 2003 and
2002, respectively. See Note 1, Fee Income, for a discussion of the accounting treatment for fees
from unconsolidated joint ventures.
5. STOCKHOLDERS’ INVESTMENT
Preferred Stock Offerings:
On December 17, 2004, the Company issued 4,000,000 shares of 7.50% Series B Cumulative
Redeemable Preferred Stock (liquidation preference of $25 per share). The net proceeds of $96.5
million from this issuance were used to repay outstanding indebtedness under the Company’s
unsecured credit facility and for general corporate purposes. On July 24, 2003, the Company issued
4,000,000 shares of 7.75% Series A Cumulative Redeemable Preferred Stock (liquidation preference of
$25 per share). The net proceeds from this issuance, approximately $96.3 million, were also used
to repay outstanding indebtedness under the Company’s unsecured credit facility and for general
corporate
purposes. Issuance costs for both offerings were recorded as a reduction of Additional Paid-in
Capital. The Series B preferred stock may be redeemed on or after December 17, 2009, and the
Series A preferred stock may be redeemed on or after July 24, 2008, both at the Company’s option at
$25 per share plus all accrued and unpaid dividends through the date of redemption. Dividends on
both the Series A and Series B preferred stock are payable quarterly in arrears on February 15, May
15, August 15 and November 15.
1999 Incentive Stock Plan:
In May 1999, the stockholders of the Company approved the adoption of the 1999 Incentive Stock
Plan (the “1999 Plan”), which covered the issuance of 1,343,288 shares of common stock, all of
which shares had been available for use under the 1995 Stock Incentive Plan, the Stock Plan for
Outside Directors and the Stock Appreciation Right Plan (collectively, the “Predecessor Plans”).
Upon adoption of the 1999 Plan, no additional shares of common stock can be issued under the
Predecessor Plans. In May 2004 and May 2003, the stockholders of the Company approved amendments
to the 1999 Plan to increase the number of shares of common stock available under the 1999 Plan by
700,000 in 2004 and 1,000,000 in 2003. As of December 31, 2004, 271,707 shares were authorized to
be awarded pursuant to the 1999 Plan, which allows awards of stock options, stock grants or stock
appreciation rights.
Stock Options –
At December 31, 2004, 6,174,475 stock options awarded to key employees and
outside directors pursuant to both the 1999 Plan and the Predecessor Plans were outstanding. All
stock options have a term of 10 years from the date of grant. Key employee stock options granted
prior to December 28, 2000 have a vesting period of five years under both the 1999 Plan and the
Predecessor Plans. Options granted on or after December 28, 2000 have a vesting period of four
years. Outside director stock options are fully vested on the grant date under the 1999 Plan but
had a vesting period of one year under the Predecessor Plans.
In 2004, the Company or its joint ventures sold properties that generated taxable gains of
approximately $401 million. Mostly as a result of these sales (more fully discussed in Note 7),
the Company paid a special cash dividend of $7.15 per share, which totaled $356.5 million on
November 18, 2004, distributing a portion of the taxable gains on the sales of investment
properties to its common stockholders. In 2003, the Company sold properties that generated taxable
gains of approximately $107.3 million. Mostly as a result of these sales (more fully discussed in
Note 7), the Company paid a special cash dividend of $2.07 per share, which totaled
$100.5 million, on September 22, 2003, distributing a portion of the taxable gains on the sales of
investment properties to its common stockholders. The Company was recapitalized through these
special large dividends
F-22
which caused the market value per share of the Company’s stock underlying
the option to decrease. In both 2004 and 2003, the market value of the Company’s stock decreased
by approximately the amount of the special dividend on the ex-dividend date. Stock options
outstanding were correspondingly adjusted to keep the intrinsic value equal to what it was before
the special dividend, in accordance with the guidelines set forth in Paragraph 53 of FASB
Interpretation No. 44, “Certain Transactions Involving Stock Compensation (an interpretation of APB
No. 25).” The price per option was decreased and the number of options increased in accordance
with the criteria described in a. and b. in Paragraph 53. No deferred compensation or compensation
expense was recorded in 2004 or 2003 as the result of these option adjustments, nor did these
adjustments represent new measurement dates or new awards. The options granted line in the 2004 and
2003 stock option activity table below includes the adjustment of 969,357 and 387,597,
respectively, to the stock options for the special dividends, and these adjustments are not
reflected in the weighted average exercise price below, except the 2004 granted amounts have been
adjusted to reflect the change for the special dividend.
The following is a summary of stock option activity under the 1999 Plan and the Predecessor
Plans (in thousands, except per share amounts):
The following table provides a breakdown by exercise price range of the number of
options for stock options outstanding and exercisable, weighted average exercise price, and the
remaining contractual lives for stock options outstanding at December 31, 2004 (number of shares in
thousands):
Stock Grants –
As indicated above, the 1999 Plan provides for stock grants, which may
be subject to specified performance and vesting requirements.
In December 2000 and February 2001, the Company awarded 169,777 and 20,000 shares,
respectively, of performance accelerated restricted stock (“PARS”) to certain key employees. The
PARS will become fully vested upon the achievement of certain defined performance requirements,
which can be met as early as the
end of the calendar year, which includes the third anniversary of the grant date. The PARS will
vest in any event if the employee is employed on November 14, 2006. The shares were issued on the
grant date and
F-23
recorded in Common Stock and Additional Paid-in Capital, with the offset recorded in
Unearned Compensation, in the accompanying Consolidated Balance Sheets. Unearned Compensation is
being amortized into compensation expense beginning January 1, 2001 through November 14, 2006,
which is the current estimate of when the PARS will vest. If this estimate changes, the
amortization of this Unearned Compensation will be adjusted accordingly. If a key employee leaves
the Company prior to the vesting of the PARS, said employee’s unvested rights in the PARS are
forfeited and any compensation expense amortized prior to such forfeiture is reversed in the year
of forfeiture. Compensation expense related to the PARS was approximately $655,000, $558,000 and
$591,000 in 2004, 2003 and 2002, respectively. As of December 31, 2004, 147,810 shares of PARS
were outstanding.
In December 2004 and 2003, the Company issued 196,667 and 131,664 shares, respectively, of
restricted stock to certain key employees. The stock was issued on the grant date and recorded in
Common Stock and Additional Paid-in Capital, with the offset recorded in Unearned Compensation in
the accompanying Consolidated Balance Sheets. Unearned Compensation associated with these
restricted stock grants is being amortized into compensation expense over the vesting period, which
is four years. Compensation expense related to the restricted stock was approximately $1,059,000
and $56,000 in 2004 and 2003, respectively. If an employee leaves the Company prior to vesting in
the restricted stock, such stock is forfeited and the stock is removed from Common Stock,
Additional Paid-in Capital and Unearned Compensation. As of December 31, 2004, 293,642 shares of
restricted stock were outstanding.
Outside directors can elect to receive any portion of their director fees in stock, based on
95% of the average market price on the date of service. Outside directors elected to receive
7,342, 5,745, and 7,120 shares of stock in lieu of cash for director fees in 2004, 2003, and 2002,
respectively.
Stock Repurchase Plan:
In April 2004, the Board of Directors of the Company authorized a stock repurchase plan, which
expires April 15, 2006, of up to five million shares of the Company’s common stock. No common
stock was
repurchased in 2004. In November 2001, the Board of Directors of the Company adopted a stock
repurchase plan authorizing the repurchase of up to five million shares of common stock prior to
January 1, 2004. During 2003, the Company repurchased 234,100 shares of common stock for an
aggregate purchase price of approximately $5,538,000. Prior to 2003, the Company purchased
2,457,482 shares for an aggregate price of approximately $59,356,000 under previous plans.
Ownership Limitations:
In order to maintain Cousins’ qualification as a REIT, Cousins’ Articles of Incorporation
include certain restrictions on the ownership of more than 3.9% of the Company’s total common and
preferred stock.
Distribution of REIT Taxable Income
:
The following is a reconciliation between dividends paid and dividends applied in 2004,
2003 and 2002 to meet REIT distribution requirements ($ in thousands):
Tax Status of Dividends:
Dividends applied (including those to be applied from subsequent years) to meet REIT
distribution requirements are anticipated to be equal to Cousins’ taxable income (see Note 6).
Since electing to qualify as a REIT in 1987, Cousins has had no accumulated undistributed taxable
income.
In 2004, the Company designated 31% of the common dividend paid February 23, 2004 and 75% of
the common dividends paid May 28, 2004, August 25, 2004, November 18, 2004 and December 22, 2004 as
capital gain dividends. In addition, 10% of the common dividend paid February 23, 2004 and 25% of
the common dividends paid May 28, 2004, August 25, 2004, November 18, 2004 and December 22, 2004
were designated as 25% unrecaptured Section 1250 gain dividends. Also in 2004, the Company
designed 73% of
F-24
the preferred dividends paid as capital gain dividends and 24% of the preferred
dividends paid as 25% unrecaptured Section 1250 gain dividends.
In 2003, the Company designated 38% of the common dividend paid May 30, 2003, 36% of the
common dividend paid August 25, 2003, 85% of the common dividend paid September 22, 2003 and 7% of
the common dividend paid December 22, 2003 as post-May 5, 2003 capital gain dividends. In
addition, 7% of the common dividend paid May 30, 2003, 6% of the common dividend paid August 25,
2003, 15% of the
common dividend paid September 22, 2003 and 1% of the common dividend paid December 22, 2003 were
designated as 25% unrecaptured Section 1250 gain dividends. Also in 2003, the Company designated
58% of the preferred dividend paid November 17, 2003 as post-May 5, 2003 capital gain dividends and
10% as 25% unrecaptured Section 1250 gain dividends.
In addition, in 2004 and 2003, an amount calculated as 0.47% for each year of total dividends
was an “adjustment attributed to depreciation of tangible property placed in service after 1986”
for alternative minimum tax purposes. This amount was passed through to stockholders and must be
used as an item of adjustment in determining each stockholder’s alternative minimum taxable income.
6. INCOME TAXES
In 2004, 2003 and 2002, because Cousins has elected to be taxed as a REIT and
distributed all of its taxable income (see Note 5), it incurred no federal income tax liability.
The differences between taxable income as reported on Cousins’ tax return (estimated 2004 and
actual 2003 and 2002) and Consolidated Net Income as reported herein are as follows ($ in
thousands):
F-25
CREC II merged into CREC effective December 31, 2003. CREC is a taxable
entity and CREC II was a taxable entity prior to its merger. The consolidated provision
for income taxes is composed of the following ($ in thousands):
The net income tax provision differs from the amount computed by applying the
statutory federal income tax rate to CREC’s and CREC IPs income (loss) before taxes as
follows ($ in thousands):
The tax effect of significant temporary differences representing CREC’s deferred tax
assets and liabilities are as follows ($ in thousands):
F-26
7. DISCONTINUED OPERATIONS AND PROPERTY SALES
In the second quarter of 2003, the Company sold AT&T Wireless Services Headquarters, Cerritos
Corporate Center – Phase II (collectively called “Cerritos”) and Mira Mesa MarketCenter. In the
third quarter of 2003, the Company sold Presidential MarketCenter and Perimeter Expo. The results
of operations and gains on sale for these properties are included in Discontinued Operations in the
accompanying 2003 Consolidated Statements of Income.
In the first quarter of 2004, the Company disposed of its 75% investment in Rocky Creek
Properties, which was previously consolidated with the Company’s operations. In the third quarter
of 2004, the Company sold 101 Second Street, a 387,000 square foot office building in San
Francisco, California, and 55 Second Street, a 379,000 square foot office building also in San
Francisco, California. Both of these properties were owned in consolidated ventures in which the
partner received a participation in the results of operations and gain on sale after certain
thresholds were met. Additionally the Company sold Northside/Alpharetta I and II, two 103,000
square foot and 198,000 square foot, respectively, medical office buildings in suburban Atlanta,
Georgia, in November 2004. In December 2004, the Company sold The Shops of Lake Tuscaloosa, a
62,000 square foot retail center in Tuscaloosa, Alabama. The results of operations for all of
these properties were reclassified to Income from Discontinued Operations for all periods presented
and the gain on sale, net of tax and any partner’s participation, was included in Discontinued
Operations. Income from Discontinued Operations in 2004 includes a mark-to-market debt adjustment
of $605,000 for the Northside/Alpharetta I note payable, which was assumed by the buyer in the sale
of that property. The mark-to-market debt adjustment equaled the prepayment penalty paid by the
buyer and is included in interest expense in the below table.
The following table details the components of Income from Discontinued Operations ($ in
thousands):
The Company allocated goodwill, which relates entirely to the office division, to the
office asset sales. Approximately $7,805,000 was written off in 2004 related to these sales.
Goodwill was written off for sales treated as both discontinued and continuing operations,
including sales of office properties owned in joint ventures.
The gain on sale of the properties included in Discontinued Operations described above is as
follows (amounts are net of income taxes and minority interest and $ are in thousands):
The Company also sold several properties in 2004, of which it retained
property management. The results of operations and gain on sales were not included in Discontinued
Operations due to this continuing
F-27
involvement with the properties. In the second quarter of 2004, the Company sold 333 John
Carlyle and 1900 Duke Street, two office buildings in Alexandria, Virginia, of 153,000 square feet
and 97,000 square feet, respectively. The Company sold 101 Independence Center, a 526,000 square
foot office building in Charlotte, North Carolina in the third quarter of 2004. In the third
quarter of 2004, Cousins LORET sold The Pinnacle, a 423,000 square foot office building, and Two
Live Oak Center, a 279,000 square foot office building, both in Atlanta, Georgia. Also in the
third quarter of 2004, CPI/FSP I, L.P, sold Austin Research Park – Buildings III and IV, two
174,000 and 184,000 square foot, respectively, office buildings in Austin, Texas. Furthermore, in
the third quarter of 2004, Wildwood Associates sold the following office buildings located in
Atlanta, Georgia:
In the fourth quarter of 2004, Wildwood Associates sold 2300 Windy Ridge Parkway, a 635,000
square foot office building, 3200 Windy Hill Road, a 698,000 square foot office building, and
approximately 15 acres of stand-alone retail sites under ground leases, all in Atlanta, Georgia.
When the Company and its partner, IBM, formed Wildwood Associates, the Company mainly
contributed undeveloped land and IBM mainly contributed cash. The fair value of the land at the
time of contribution was higher than the Company’s basis in the land and the resulting step-up in
basis was deferred by the Company. A portion of this basis differential was recognized upon the
sale of the above-mentioned Wildwood properties in 2004, resulting in approximately $29.3 million
being recognized as Gain on Sale of Investment Properties in the accompanying 2004 Consolidated
Statements of Income. See Note 4 for further discussion.
Additionally, the Company has a 50% ownership interest in CC-JM II Associates, which owned
John Marshall-II, a 224,000 square foot office building in Tysons Corner, Virginia. This property
was sold in the fourth quarter 2004, and the Company did not retain management. Property Activity
LLC sold Wachovia Tower, a 324,000 square foot office building in Greensboro, North Carolina, to an
unrelated third party in the fourth quarter 2004 (see Note 4 for more discussion). The results of
operations and gain or loss on sale were not included in Discontinued Operations as John
Marshall–II and Wachovia Tower were owned in joint ventures and SFAS No. 144 excludes discontinued
treatment for joint venture properties.
Office Division
As discussed in Note 7, the Company sold several office and medical office buildings in 2004.
In January 2004, Frost Bank Tower, a 529,000 square foot office building in Austin, Texas,
became partially operational for financial reporting purposes. In February 2004, the Company
acquired Galleria 75, an approximately 114,000 square foot office building in Atlanta, Georgia, for
approximately $11.4 million. In March 2004, the Company acquired approximately 1 acre of land for
$13.4 million in Miami, Florida, to use for future development. Also in March 2004, the Company
utilized approximately 5 acres of land at its North Point/West Side location and commenced
construction of Inhibitex, an approximately 51,000 square foot office building 100% leased to
Inhibitex, Inc. for its corporate headquarters. Also within the office division is 905 Juniper, an
estimated 117-unit condominium building in midtown Atlanta, Georgia, upon which construction
commenced in December 2004.
Retail Division
As discussed in Note 7, the Company sold The Shops of Lake Tuscaloosa in 2004.
In March 2004, the Company purchased the land and commenced construction of Hanover Square
South, a 193,000 square foot retail center in Richmond, Virginia, of which the Company owns 69,000
square feet. In May 2004, the Company commenced construction of The Avenue Carriage Crossing, an
approximately 786,000 square foot retail center in Memphis, Tennessee, of which the Company owns
586,000 square feet. In November 2004, Phase I of The Avenue Viera, an approximately 381,000
square foot retail center in Viera, Florida, of which the Company owns 306,000 square feet became partially operational for financial
reporting
F-28
purposes. In December 2004, the Company commenced construction of Viera MarketCenter, a
104,000 square foot retail center in Viera, Florida, adjacent to The Avenue Viera.
Land Division
CREC is developing three residential communities, two in suburban Atlanta, Georgia and one in
Pine Mountain, Georgia. Approximately 1,151 lots are being developed within these three
communities, of which 225, 214 and 137 lots were sold in 2004, 2003 and 2002, respectively. In
2002, the Company also sold 29 lots at completed and sold-out residential developments.
In 2004, the Company sold approximately 6 acres of Company-owned land in Wildwood for net
gains of approximately $3,313,000. In 2004, the Company sold approximately 70 acres of North
Point/ West Side land for net gains of approximately $9,632,000.
Interest paid (net of amounts capitalized) (see Note 3) and income taxes received or paid (net
of refunds) were as follows ($ in thousands):
Significant non-cash financing and investing activities included the following:
In 2004, 2003 and 2002, approximately $169,937,000, $106,773,000 and $26,836,000,
respectively, were transferred from Projects Under Construction to Operating Properties. In 2004,
approximately $682,000 was transferred from Projects Under Construction to Land Held for Investment
or Future Development for retail outparcels, and approximately $228,000 was transferred from Land
Held for Investment or Future Development to Projects Under Construction for the aforementioned
construction of Inhibitex. Also in 2004, approximately $1,066,000 was transferred from Land Held
for Investment or Future Development to Residential Lots under Development for construction of the
last phase of the River’s Call residential development. In 2003, approximately $966,000 was
transferred from Projects Under Construction to Land Held for Investment or Future
Development. Also in 2003, approximately $3,479,000 was transferred from Operating Properties to
Other Assets. In 2002, approximately $942,000 was transferred from Land Held for Investment or
Future Development to Residential Lots Under Development.
In 2003, 100 and 200 North Point Center East were purchased by the Company by assuming the
mortgage note payable, which had an outstanding balance upon purchase of approximately $22,411,000.
In addition, the Deferred Gain and Operating Properties were reduced by approximately $1,306,000
which represented the remaining initial deferred gain related to 100 and 200 North Point Center
East.
In 2003, an adjustment of the PARS granted in 2000 (see Note 5) was made due to forfeitures
and approximately $7,000 of Common Stock and approximately $198,000 of Additional Paid-in Capital
were offset against Unearned Compensation. In 2002, an adjustment of PARS was made due to
forfeitures and approximately $12,000 of Common Stock and approximately $330,000 of Additional
Paid-in Capital were offset against Unearned Compensation.
In 2004 and 2003, restricted stock was granted (see Note 5) and Common Stock was increased
approximately $197,000 and $132,000, respectively. Additional Paid-in Capital was increased
approximately $5,945,000 and $3,844,000, respectively, with the offset of approximately $6,142,000
and $3,976,000, respectively, recorded in Unearned Compensation. In 2004, an adjustment of
restricted stock was made due to forfeitures and approximately $2,000 of Common Stock and
approximately $69,000 of Additional Paid-in Capital were offset against Unearned Compensation.
F-29
The Company’s leases typically contain escalation provisions and provisions requiring tenants
to pay a pro rata share of operating expenses. The leases typically include renewal options and
are classified and accounted for as operating leases.
At December 31, 2004, future minimum rentals to be received by consolidated entities under
existing non-cancelable leases, excluding tenants’ current pro rata share of operating expenses,
are as follows ($ in thousands):
The Company has four reportable segments: Office Division, Retail Division, Land Division and
Industrial Division (formed in 2004). The Office, Retail and Industrial Divisions develop, lease
and manage office buildings, retail centers and industrial properties, respectively. The Land
Division owns various tracts of strategically located land which is being held for investment or
future development. The Land Division also develops single-family residential communities which
are parceled into lots and sold to various home builders. The Company’s reportable segments are
broken down based on the type of product the division provides. The divisions are managed
separately because each product they provide has separate and distinct development issues, leasing
and/or sales strategies and management issues. Unallocated and other consists of general corporate
overhead costs not specific to any segment and is mainly comprised of interest expense, as
financing decisions are not generally made at the reportable segment level.
The management of the Company evaluates the performance of its reportable segments based on
funds from operations available to common stockholders (“FFO”). The Company calculates its FFO
using the National Association of Real Estate Investment Trusts (“NAREIT”) definition of FFO, which
is net income available to common stockholders (computed in accordance with GAAP), excluding
extraordinary items, cumulative effect of change in accounting principle and gains or losses from
sales of depreciable property, plus depreciation and amortization of real estate assets, and after
adjustments for unconsolidated partnerships and joint ventures. Adjustments for unconsolidated
partnerships and joint ventures are calculated to reflect FFO on the same basis. The Company
changed its method of calculating FFO in the first quarter 2003 to agree with NAREIT’s definition,
and FFO for prior reporting periods has been restated. In October 2003, NAREIT revised its prior
FFO implementation guidance to indicate that impairment losses are not an adjustment when
calculating FFO. Impairment losses are therefore included in FFO.
FFO is used by industry analysts, investors and the Company as a supplemental measure of an
equity REIT’s operating performance. Historical cost accounting for real estate assets implicitly
assumes that the value of real estate assets diminishes predictably over time. Since real estate
values instead have historically risen or fallen with market conditions, many industry investors
and analysts have considered presentation of operating results for real estate companies that use
historical cost accounting to be insufficient by themselves. Thus, NAREIT created FFO as a
supplemental measure of a REIT’s operating performance that excludes historical cost depreciation,
among other items, from GAAP net income.
The Company believes that the use of FFO, combined with the required primary GAAP
presentations, has been fundamentally beneficial, improving the understanding of operating results
of REITs among the investing public and making comparisons of REIT operating results more
meaningful. In addition to Company
management evaluating the operating performance of its reportable segments based on FFO results,
F-30
management uses FFO and FFO per share, along with other measures, to assess performance in
connection with evaluating and granting incentive compensation to its officers and employees.
The notations (100%) and (JV) used in the following tables indicate
wholly-owned and unconsolidated joint ventures, respectively, and all amounts are in thousands.
F-31
F-32
F-33
SCHEDULE III
COUSINS PROPERTIES INCORPORATED AND CONSOLIDATED ENTITIES
S-1
SCHEDULE III
COUSINS PROPERTIES INCORPORATED AND CONSOLIDATED ENTITIES
S-2
SCHEDULE III
COUSINS PROPERTIES INCORPORATED AND CONSOLIDATED ENTITIES
S-3
SCHEDULE III
COUSINS PROPERTIES INCORPORATED AND CONSOLIDATED ENTITIES
S-4
SCHEDULE III
COUSINS PROPERTIES INCORPORATED AND CONSOLIDATED ENTITIES
NOTES:
S-5
Table of Contents
Table of Contents
Table of Contents
2004
2003
2002
4.06
%
4.10
%
4.51
%
4.69
%
5.49
%
5.97
%
8 years
8 years
8 years
0.195
0.187
0.192
$
4.09
$
2.87
$
2.33
Table of Contents
2004
2003
2002
$
399,742
$
238,803
$
47,872
1,609
573
607
(4,006
)
(2,825
)
(3,040
)
$
397,345
$
236,551
$
45,439
$
8.16
$
4.94
$
0.97
$
8.11
$
4.90
$
0.92
$
7.84
$
4.83
$
0.96
$
7.82
$
4.79
$
0.91
2004
2003
2002
49,005
48,313
49,252
2,011
1,102
685
51,016
49,415
49,937
918
1,364
976
Table of Contents
2004
2003
$
10,301
$
2,051
4,092
7,808
10,564
9,988
$
24,957
$
19,847
Term/Amortization
Balance at
Period
Final
December 31,
Description
Rate
(Years)
Maturity
2004
2003
Floating based
3/N/A
9/14/07
$
—
$
—
on LIBOR
6.958
%
10/20
3/01/12
143,743
146,155
8.39
%
10/30
8/01/10
37,491
37,889
7.00
%
10/25
11/01/11
30,849
31,424
8.27
%
10/28
9/01/10
24,318
24,635
7.86
%
10/25
8/01/07
22,365
22,365
8.04
%
10/30
8/15/05
19,125
19,471
7.38
%
10/30
8/10/11
13,519
13,676
6.78
%
10/30
11/01/08
9,619
9,861
8.33
%
10/30
4/19/10
—
87,182
7.00
%
10/25
11/01/11
—
47,922
8.22
%
11/25
12/01/07
—
43,912
7.70
%
8/28
1/01/06
—
9,709
Various
Various
Various
1,257
3,780
$
302,286
$
497,981
Table of Contents
Applicable
Leverage Ratio
Spread
0.90
%
1.00
%
1.10
%
1.35
%
1.50
%
$
24,750
5,585
27,134
14,180
5,805
224,832
$
302,286
Table of Contents
Expensed
Capitalized
Total
$
14,623
$
13,987
$
28,610
6,475
41
6,516
$
21,098
$
14,028
$
35,126
$
22,576
$
9,684
$
32,260
9,459
—
9,459
$
32,035
$
9,684
$
41,719
$
27,041
$
5,934
$
32,975
10,382
—
10,382
$
37,423
$
5,934
$
43,357
$
1,749
1,769
832
523
335
45,168
$
50,376
Table of Contents
Company’s
Total Assets
Total Debt
Total Equity
Investment
2004
2003
2004
2003
2004
2003
2004
2003
$
190,757
$
196,713
$
164,270
$
173,176
$
25,821
$
23,125
$
10,588
$
10,621
163,797
159,593
—
—
153,712
156,290
78,696
80,242
45,276
50,613
—
—
41,526
49,298
22,592
26,941
48,023
50,841
53,952
54,661
(7,074
)
(5,168
)
(2,145
)
(1,145
)
31,194
33,429
29,728
11,015
554
21,636
(1,287
)
9,248
26,093
222,712
—
202,618
23,619
11,762
(440
)
(35,911
)
3,609
50,323
—
—
3,237
48,534
1,640
24,995
727
106,986
—
95,041
561
9,473
286
4,457
518
22,244
—
18,076
78
3,610
39
2,336
142,852
187,125
24,993
25,733
115,997
159,171
7,638
12,616
10,621
11,140
—
—
10,537
11,092
5,430
5,543
67,986
53,773
581
—
66,365
53,522
36,640
27,509
54,876
37,801
7,305
6,322
42,414
31,306
21,962
16,200
7,443
2,688
1,995
1,142
545
605
522
613
5,403
—
3,176
—
2,227
—
2,205
—
5,480
—
160
—
5,220
—
4,913
—
—
—
—
—
—
—
9,954
956
$
804,655
$
1,185,981
$
286,160
$
587,784
$
485,339
$
574,256
$
199,233
$
185,221
Company’s Share of
Total Revenues
Net Income (Loss)
Net Income (Loss)
2004
2003
2002
2004
2003
2002
2004
2003
2002
$
30,153
$
29,903
$
29,377
$
3,906
$
3,473
$
3,167
$
1,176
$
1,176
$
1,184
42,602
43,697
42,489
23,121
23,960
23,083
11,486
11,905
11,466
10,703
9,660
11,490
7,500
(1,339
)
5,774
1,414
(845
)
2,725
8,781
7,882
5,336
293
858
1,924
95
376
927
6,635
5,464
1,172
786
1,063
(1,708
)
399
531
(854
)
39,842
54,376
55,755
204,838
10,196
12,720
101,066
4,820
6,360
6,578
9,107
8,670
30,776
4,910
4,412
14,127
2,368
2,119
12,292
20,499
21,226
90,268
(306
)
(1,376
)
45,514
(153
)
(729
)
4,339
5,197
4,722
39,315
1,236
1,158
18,476
628
546
27,744
30,874
32,681
8,960
(193
)
9,099
1,010
(22
)
1,046
1,273
1,256
1,142
127
181
(137
)
64
90
(68
)
25,708
7,962
—
6,031
1,315
—
3,238
606
—
32,095
18,271
14,428
11,107
7,065
3,850
5,106
3,139
1,949
9,642
—
—
982
—
—
398
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
(1
)
924
—
(1
)
$
258,387
$
244,148
$
228,488
$
428,010
$
52,419
$
61,965
$
204,493
$
24,619
$
26,670
Table of Contents
Table of Contents
Table of Contents
Allocated
Value
Mortgage
Net Value
$
53,000
$
—
$
53,000
23,000
—
23,000
46,050
24,582
21,468
8,600
—
8,600
56,750
28,699
28,051
12,350
—
12,350
51,200
—
51,200
32,800
—
32,800
$
283,750
$
53,281
$
230,469
Table of Contents
Table of Contents
2004
2003
2002
161
97
607
–
–
78
149
10
–
472
21
910
–
149
–
782
277
1,595
Table of Contents
Table of Contents
Number of
Weighted Average
Options
Exercise Price Per Option
2004
2003
2002
2004
2003
2002
6,072
5,375
5,206
$
21.99
$
22.14
$
20.80
1,894
1,549
1,269
$
31.04
$
27.26
$
24.08
(1,734
)
(605
)
(786
)
$
18.77
$
18.31
$
15.51
(58
)
(247
)
(314
)
$
24.29
$
24.49
$
24.39
6,174
6,072
5,375
$
20.82
$
21.99
$
22.14
3,334
3,406
2,908
$
18.47
$
20.15
$
20.22
Options Outstanding
Options Exercisable
Weighted
Weighted
Weighted
Average
Average
Average
Exercise
Contractual
Exercise
Exercise Price Range
Outstanding
Price
Life (in years)
Exercisable
Price
621
$
14.15
3.00
621
$
14.15
3,137
18.17
7.10
1,765
18.13
765
21.01
6.30
733
21.05
1,651
28.27
9.50
215
25.00
6,174
$
20.82
7.20
3,334
$
18.47
Table of Contents
2004
2003
2002
$
437,112
$
174,627
$
73,345
(5,577
)
—
(5,656
)
9,663
5,577
—
—
—
(9,111
)
$
441,198
$
180,204
$
58,578
Table of Contents
2004
2003
2002
$
407,784
$
242,161
$
47,872
24,277
(952
)
69
(7,509
)
(4,328
)
(3,470
)
—
(1,437
)
371
424,552
235,444
44,842
4,087
(81,780
)
(4,470
)
9,569
8,503
3,233
(1,292
)
(1,719
)
(186
)
105
1,815
(884
)
9
101
57
5,387
6,685
4,021
(17,661
)
(1,470
)
(2,345
)
9,759
12,698
10,857
389
505
530
(866
)
(7,386
)
(528
)
3,308
2,892
604
3,946
3,502
2,204
(94
)
414
643
$
441,198
$
180,204
$
58,578
Table of Contents
2004
2003
2002
$
3,213
$
3,502
$
1,680
377
318
199
3,590
3,820
1,879
452
(160
)
(61
)
53
(19
)
(7
)
505
(179
)
(68
)
4,095
3,641
1,811
(1,351
)
(1,045
)
(285
)
$
2,744
$
2,596
$
1,526
2004
2003
2002
Amount
Rate
Amount
Rate
Amount
Rate
$
4,073
34
%
$
3,236
34
%
$
1,598
34
%
479
4
381
4
188
4
(376
)
(3
)
24
1
24
1
(81
)
(1
)
—
—
1
—
4,095
34
%
3,641
39
%
1,811
39
%
(1,351
)
(1,045
)
(285
)
$
2,744
$
2,596
$
1,526
2004
2003
$
1,022
$
1,662
336
1,720
—
793
583
659
730
600
2,671
5,434
(4,805
)
(4.739
)
(357
)
(353
)
(1,457
)
(1,141
)
(729
)
(1,079
)
(71
)
(42
)
(7,419
)
(7,354
)
$
(4,748
)
$
(1,920
)
Table of Contents
2004
2003
2002
$
23,688
$
67,462
$
71,382
7,928
14,821
18,523
5,298
14,678
18,085
6,475
9,459
10,382
—
624
1,710
—
—
139
$
3,987
$
27,880
$
22,543
2004
2003
2002
648
—
—
45,489
—
—
21,632
—
—
12,564
—
—
1,554
—
—
—
35,018
—
40
9,011
—
—
22,468
—
—
26,962
—
—
—
1,174
81,927
93,459
1,174
Table of Contents
Property Name
Rentable Square Feet
316,000
100,000
256,000
150,000
8.
CONSOLIDATED PROPERTY TRANSACTIONS
Table of Contents
9.
CONSOLIDATED STATEMENTS OF CASH FLOWS
–
SUPPLEMENTAL INFORMATION
2004
2003
2002
$
22,128
$
32,788
$
36,484
$
(1,487
)
$
1,855
$
681
Table of Contents
10.
RENTAL PROPERTY REVENUES
Office and
Medical Office
Retail
Total
$
38,906
$
24,005
$
62,911
38,441
26,025
64,466
34,248
25,149
59,397
32,868
24,333
57,201
27,181
23,407
50,588
124,390
97,085
221,475
$
296,034
$
220,004
$
516,038
11.
REPORTABLE SEGMENTS
Table of Contents
Table of Contents
Office
Retail
Land
Industrial
Unallocated
Division
Division
Division
Division
and Other
Total
$
74,829
$
26,273
$
—
$
—
$
—
$
101,102
22,952
736
—
—
—
23,688
13,827
1,287
1,363
—
—
16,477
—
1,400
15,300
—
2,528
19,228
111,608
29,696
16,663
—
2,528
160,495
(26,434
)
(7,380
)
—
—
—
(33,814
)
(7,784
)
(144
)
—
—
—
(7,928
)
(16,244
)
(8,399
)
(14,462
)
(743
)
(26,501
)
(66,349
)
—
—
—
—
(6,475
)
(6,475
)
—
—
—
—
(2,744
)
(2,744
)
(50,462
)
(15,923
)
(14,462
)
(743
)
(35,720
)
(117,310
)
67,551
2,712
—
—
—
70,263
—
—
8,992
—
924
9,916
(20,686
)
(701
)
—
—
—
(21,387
)
—
—
(123
)
—
(14,352
)
(14,475
)
(209
)
—
—
—
—
(209
)
46,656
2,011
8,869
—
(13,428
)
44,108
14,796
1,386
13,445
—
—
29,627
—
—
—
—
(8,042
)
(8,042
)
122,598
17,170
24,515
(743
)
(54,662
)
108,878
(23,758
)
(10,821
)
—
—
—
(34,579
)
(5,100
)
(198
)
—
—
—
(5,298
)
(14,900
)
(891
)
(89
)
—
—
(15,880
)
80,587
7,231
—
—
611
88,429
79,725
2,202
—
—
—
81,927
176,265
—
—
—
—
176,265
$
415,417
$
14,693
$
24,426
$
(743
)
$
(54,051
)
$
399,742
$
528,752
$
283,778
$
105,822
$
384
$
108,256
$
1,026,992
$
115,584
$
12,320
$
71,329
$
—
$
—
$
199,233
$
67,434
$
87,756
$
28,751
$
—
$
—
$
183,941
2004
2003
2002
$
101,102
$
101,389
$
97,290
16,477
18,380
18,235
16,700
12,945
9,126
2,528
3,940
4,393
$
136,807
$
136,654
$
129,044
Table of Contents
Office
Retail
Land
Unallocated
Division
Division
Division
and Other
Total
$
79,153
$
22,236
$
—
$
—
$
101,389
58,439
9,023
—
—
67,462
16,465
1,530
385
—
18,380
—
—
12,945
3,940
16,885
154,057
32,789
13,330
3,940
204,116
(25,913
)
(6,761
)
—
—
(32,674
)
(13,013
)
(1,808
)
—
—
(14,821
)
(18,813
)
(7,907
)
(13,521
)
(28,532
)
(68,773
)
(255
)
(369
)
—
(9,459
)
(10,083
)
—
—
—
(2,596
)
(2,596
)
(57,994
)
(16,845
)
(13,521
)
(40,587
)
(128,947
)
79,716
2,649
547
—
82,912
—
—
3,909
—
3,909
(24,811
)
(682
)
—
—
(25,493
)
—
—
(164
)
(13,744
)
(13,908
)
(1,536
)
—
—
—
(1,536
)
53,369
1,967
4,292
(13,744
)
45,884
—
—
7,270
—
7,270
—
—
—
(3,358
)
(3,358
)
149,432
17,911
11,371
(53,749
)
124,965
(26,239
)
(10,727
)
—
—
(36,966
)
(13,472
)
(1,206
)
—
—
(14,678
)
(20,448
)
(817
)
—
—
(21,265
)
2,009
1,334
—
89,945
93,288
9,011
84,448
—
—
93,459
$
100,293
$
90,943
$
11,371
$
36,196
$
238,803
$
804,605
$
206,021
$
77,459
$
52,329
$
1,140,414
$
124,425
$
15,475
$
45,321
$
—
$
185,221
$
56,758
$
41,383
$
11,617
$
—
$
109,758
Office
Retail
Land
Unallocated
Division
Division
Division
and Other
Total
$
77,756
$
19,534
$
—
$
—
$
97,290
54,525
16,857
—
—
71,382
16,266
1,570
399
—
18,235
—
—
9,126
4,393
13,519
148,547
37,961
9,525
4,393
200,426
(25,148
)
(5,465
)
—
—
(30,613
)
(15,130
)
(3,393
)
—
—
(18,523
)
(18,565
)
(5,729
)
(10,234
)
(36,992
)
(71,520
)
(795
)
(915
)
—
(10,382
)
(12,092
)
—
—
—
(1,526
)
(1,526
)
—
—
—
(139
)
(139
)
(59,638
)
(15,502
)
(10,234
)
(49,039
)
(134,413
)
78,163
2,619
—
—
80,782
—
—
2,040
—
2,040
(23,673
)
(641
)
—
—
(24,314
)
—
—
(90
)
(13,208
)
(13,298
)
54,490
1,978
1,950
(13,208
)
45,210
—
—
2,143
—
2,143
143,399
24,437
3,384
(57,854
)
113,366
(25,353
)
(8,801
)
—
—
(34,154
)
(15,044
)
(3,041
)
—
—
(18,085
)
(17,554
)
(986
)
—
—
(18,540
)
1,885
2,226
—
—
4,111
—
1,174
—
—
1,174
$
87,333
$
15,009
$
3,384
$
(57,854
)
$
47,872
$
866,685
$
263,308
$
34,135
$
83,949
$
1,248,077
$
156,165
$
16,324
$
13,027
$
—
$
185,516
$
56,269
$
17,339
$
14,519
$
—
$
88,127
Table of Contents
(Page 1 of 5)
REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 2004
($ in thousands)
Costs Capitalized
Gross Amount at Which
Initial Cost
Subsequent
Carried at
to
Company
to
Acquisition
End
of Period
Life on
Buildings
Buildings
Which De-
and
and
preciation
Land
Land
Improvements
Improvements
Accumu-
Date of
In 2004
and
Buildings
and
Less Cost
Less Cost
lated
Construc-
Statement
Improve-
and
Improve-
of Sales
Land and
of Sales
Total
Deprecia-
tion/
Date
of Income
Description
Encumbrances
ments
Improvements
ments
and
Other
Improvements
and
Other
(a)
tion
(a)
Renovation
Acquired
Is
Computed
LAND HELD FOR INVESTMENT OR FUTURE DEVELOPMENT
¾
$
682
$
¾
$
¾
$
—
$
682
$
—
$
682
$
¾
¾
2004
—
¾
11,500
¾
¾
1,888
11,500
1,888
13,388
¾
¾
2004
—
¾
2,609
¾
¾
(385
)
2,609
(385
)
2,224
¾
¾
2004
—
¾
10,294
¾
18,361
(24,172
)
28,655
(24,172
)
4,483
¾
¾
1970-1985
—
¾
3,370
¾
—
—
3,370
—
3,370
¾
¾
2004
—
¾
611
¾
¾
(325
)
611
(325
)
286
¾
¾
2000
¾
¾
10,214
¾
4,873
(12,173
)
15,087
(12,173
)
2,914
¾
—
1971-1989
—
¾
2,188
¾
28
¾
2,216
¾
2,216
¾
—
2003
—
¾
41,468
¾
23,262
(35,167
)
64,730
(35,167
)
29,563
¾
Table of Contents
(Page 2 of 5)
REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 2004
($ in thousands)
Costs Capitalized
Gross Amount at Which
Initial Cost
Subsequent
Carried at
to
Company
to
Acquisition
End
of Period
Life on
Buildings
Buildings
Which De-
and
and
preciation
Land
Land
Improvements
Improvements
Accumu-
Date of
In 2004
and
Buildings
and
Less Cost
Less Cost
lated
Construc-
Statement
Improve-
and
Improve-
of Sales
Land and
of Sales
Total
Deprecia-
tion/
Date
of Income
Description
Encumbrances
ments
Improvements
ments
and
Other
Improvements
and
Other
(a)
tion
(a)
Renovation
Acquired
Is
Computed
$
¾
$
5,226
$
67,370
$
—
$
11,546
$
5,226
$
78,916
$
84,142
$
39,731
—
1999
25 Years (d)
—
12,270
—
1,543
117,403
13,813
117,403
131,216
2,060
2001
2001
30 Years (d)
—
6,673
4,743
—
148
6,673
4,891
11,564
494
—
2004
25 Years (d)
—
2,558
22,910
—
6,077
2,558
28,987
31,545
6,522
—
2000
25 Years (d)
9,619
3,362
12,261
—
315
3,362
12,576
15,938
3,158
¾
1998
30 Years (d)
13,519
1,899
—
—
18,822
1,899
18,822
20,721
5,557
1998
1998
30 Years (d)
30,849
(b)
551
¾
—
12,426
551
12,426
12,977
3,305
1996
1996
30 Years (d)
—
(b)
368
¾
—
15,242
368
15,242
15,610
3,342
1998
1998
30 Years (d)
—
4,740
7,229
—
867
4,740
8,096
12,836
4,747
¾
1996
15 Years (d)
—
9,267
27,079
—
2,895
9,267
29,974
39,241
5,279
¾
2000
30 Years (d)
—
—
17,005
—
—
—
17,005
17,005
5,442
1997
1997
25 Years (d)
—
20
¾
478
12,895
498
12,895
13,393
6,845
1984
1984
30 Years (d)
22,365
(c)
1,475
9,625
—
376
1,475
10,001
11,476
1,090
¾
2003
30 Years (d)
—
(c)
1,726
7,920
—
569
1,726
8,489
10,215
916
¾
2003
30 Years (d)
76,352
50,135
176,142
2,021
199,581
52,156
375,723
427,879
88,488
Table of Contents
(Page 3 of 5)
REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 2004
($ in thousands)
Costs Capitalized
Gross Amount at Which
Initial Cost
Subsequent
Carried at
to
Company
to
Acquisition
End
of Period
Life on
Buildings
Buildings
Which De-
and
and
preciation
Land
Land
Improvements
Improvements
Accumu-
Date of
In 2004
and
Buildings
and
Less Cost
Less Cost
lated
Construc-
Statement
Improve-
and
Improve-
of Sales
Land and
of Sales
Total
Deprecia-
tion/
Date
of Income
Description
Encumbrances
ments
Improvements
ments
and
Other
Improvements
and
Other
(a)
tion
(a)
Renovation
Acquired
Is
Computed
$
24,318
$
2,200
$
—
$
19
$
24,047
$
2,219
$
24,047
$
26,266
$
6,513
30 Years (d)
—
200
—
¾
7,455
200
7,455
7,655
3,037
30 Years (d)
24,318
2,400
—
19
31,502
2,419
31,502
33,921
9,550
100,670
52,535
176,142
2,040
231,083
54,575
407,225
461,800
98,038
—
4,338
17,152
—
72,864
4,338
90,016
94,354
20,937
30 Years (d)
37,491
7,205
—
—
34,592
7,205
34,592
41,797
12,814
30 Years (d)
—
4,945
—
—
30,088
4,945
30,088
35,033
1,881
30 Years (d)
—
3,510
—
123
28,687
3,633
28,687
32,320
6,293
30 Years (d)
¾
4,559
¾
(1,482
)
432
3,077
432
3,509
299
Various(e)
37,491
24,557
17,152
(1,359
)
166,663
23,198
183,815
207,013
42,224
138,161
77,092
193,294
681
397,746
77,773
591,040
668,813
140,262
Table of Contents
(Page 4 of 5)
REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 2004
($ in thousands)
Costs Capitalized
Gross Amount at Which
Initial Cost
Subsequent
Carried at
to
Company
to
Acquisition
End
of Period
Life on
Buildings
Buildings
Which De-
and
and
preciation
Land
Land
Improvements
Improvements
Accumu-
Date of
In 2004
and
Buildings
and
Less Cost
Less Cost
lated
Construc-
Statement
Improve-
and
Improve-
of Sales
Land and
of Sales
Total
Deprecia-
tion/
Date
of Income
Description
Encumbrances
ments
Improvements
ments
and
Other
Improvements
and
Other
(a)
tion
(a)
Renovation
Acquired
Is
Computed
PROJECTS UNDER CONSTRUCTION
$
—
$
228
$
—
$
—
$
4,660
$
228
$
4,660
$
4,888
$
—
—
6,471
—
1,333
32,147
7,804
32,147
39,951
90
—
15,853
—
—
24,824
15,853
24,824
40,677
—
—
7,412
—
—
379
7,412
379
7,791
—
—
3,555
—
—
700
3,555
700
4,255
—
—
33,291
—
1,333
58,050
34,624
58,050
92,674
90
—
33,519
—
1,333
62,710
34,852
62,710
97,562
90
RESIDENTIAL LOTS UNDER DEVELOPMENT
—
2,001
¾
10,362
(7,215
)
12,363
(7,215
)
5,148
¾
—
4,720
¾
22,650
(16,006
)
27,370
(16,006
)
11,364
¾
1,107
2,098
¾
4,497
(3,247
)
6,595
(3,247
)
3,348
—
1,107
8,819
¾
37,509
(26,468
)
46,328
(26,468
)
19,860
¾
$
139,268
$
160,898
$
193,294
$
62,785
$
398,821
$
223,683
$
592,115
$
815,798
$
140,352
Table of Contents
(Page 5 of 5)
REAL ESTATE AND ACCUMULATED DEPRECIATION
DECEMBER 31, 2004
($ in thousands)
(a)
Reconciliations of total real estate carrying value and accumulated depreciation
for the three years ended December 31, 2004
are as follows:
Real Estate
Accumulated Depreciation
2004
2003
2002
2004
2003
2002
$
1,041,964
$
1,123,242
$
1,045,805
$
163,203
$
158,046
$
106,039
186,753
133,483
89,650
¾
¾
¾
¾
¾
¾
39,934
51,711
52,387
186,753
133,483
89,650
39,934
51,711
52,387
(411,700
)
(189,003
)
(12,213
)
(62,482
)
(24,275
)
(380
)
(1,161
)
(20,577
)
¾
(1,161
)
(20,577
)
¾
(58
)
(5,181
)
¾
858
(1,702
)
¾
(412,919
)
(214,761
)
(12,213
)
(62,785
)
(46,554
)
(380
)
$
815,798
$
1,041,964
$
1,123,242
$
140,352
$
163,203
$
158,046
(b)
333 North Point Center East and 555 North Point Center East were financed together
with such properties being collateral for one recourse mortgage note payable.
(c)
100 North Point Center East and 200 North Point Center East were financed together
with such properties being collateral for one non-recourse mortgage note payable.
(d)
Buildings and building improvements are depreciated over 15 to 40 years. Leasehold
improvements and other capitalized leasing costs are depreciated over the life of the
lease.
(e)
Amounts capitalized under the North Point Retail sites consist of leasing costs
relating to ground leases. These costs are
being amortized over the life of each lease, and range from 10 to 24 years.
Exhibit 3(a)(i)
ARTICLES OF AMENDMENT
TO
RESTATED ARTICLES OF INCORPORATION
OF
COUSINS PROPERTIES INCORPORATED
1.
The name of the corporation is Cousins Properties Incorporated (the "Corporation"). The Corporation is organized under the laws of the State of Georgia.
2.
Pursuant to Section 14-2-1003 of the Georgia Business Corporation Code, as amended, these Articles of Amendment (the "Amendment") amend the Corporation's Restated and Amended Articles of Incorporation, as amended (the "Articles of Incorporation").
3.
The Amendment is to add the following as a new Article 4.D of the Articles of Incorporation, to set forth the terms, as determined by the Board of Directors of the Corporation, of a series of the Corporation's Preferred Stock:
D. 7 1/2% Series B Cumulative Redeemable Preferred Stock.
(1) Designation and Number. A series of Preferred Stock, designated the "7 1/2% Series B Cumulative Redeemable Preferred Stock" (the "Series B Preferred Stock"), is hereby established. The number of shares of Series B Preferred Stock hereby authorized shall be 4,000,000.
(2) Rank. The Series B Preferred Stock shall, with respect to dividend rights and rights upon liquidation, dissolution or winding up of the Corporation, rank (a) senior to all classes or series of the Corporation's common stock and to any other class or series of the
Exhibit 3(a)(i)
Corporation's capital stock other than any class or series referred to in
clauses (b) and (c) of this sentence; (b) on a parity with the Series A
and any class or series of the Corporation's capital stock, the terms of
which specifically provide that such class or series ranks on a parity
with the Series B Preferred Stock with respect to dividend rights and
rights upon liquidation, dissolution or winding up of the Corporation; and
(c) junior to any class or series of the Corporation's capital stock the
terms of which specifically provide that such class or series ranks senior
to the Series B Preferred Stock with respect to dividend rights and rights
upon liquidation, dissolution or winding up of the Corporation. The term
"capital stock" shall include all classes and series of preferred and
common stock but shall not include convertible debt securities.
(3) Dividends.
(a) Holders of the then outstanding Series B Preferred Stock shall be entitled to receive, when, as and if declared by the Board of Directors, out of funds legally available for the payment of dividends, cumulative cash dividends at a rate of 7 1/2% of the $25.00 liquidation preference per share per annum (equivalent to a fixed annual amount of $1.875 per share per annum). Such dividends shall be cumulative from the first date on which any shares of Series B Preferred Stock are issued and shall be payable when, as and if declared by the Board of Directors, quarterly in arrears on or before February 15, May 15, August 15 and November 15 of each year commencing on February 15, 2005 (each, a "Dividend Payment Date"), or, if any such day is not a business day, then on the next succeeding business day, but in such a case no interest or additional dividends or other sums shall accrue on the amount so payable from the Dividend Payment Date to such next succeeding business day. The quarterly period between Dividend Payment Dates is referred to herein as a "dividend period" and the dividend which shall accrue in respect of any full dividend period shall be $0.46875 per share regardless of the actual number of days in such full dividend period. The first dividend will be for less than a full quarter and will cover the period from December 17, 2004 to February 15, 2005. Such dividend and any dividend payable on the Series B Preferred Stock for any partial dividend period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends will be payable to holders of record as they appear in the stock records of the Corporation at the close of business on the applicable record date, which shall be the first day of the calendar month in which the applicable Dividend Payment Date falls or on such other date designated by the Board of Directors as the record date for the payment of dividends on the Series B Preferred Stock that is not more than 30 nor less than 10 days prior to such Dividend Payment Date (each, a "Dividend Record Date").
(b) No dividends on Series B Preferred Stock shall be declared by
the Board of Directors or paid or set apart for payment by the Corporation
(i) at such time as the terms and provisions of any contractual agreement
of the Corporation, including any agreement relating to its outstanding
indebtedness, (1) prohibits such declaration, payment or setting apart for
payment, or (2) provides that such declaration, payment or setting apart
for
Exhibit 3(a)(i)
payment would constitute a breach thereof or a default thereunder, or (ii) if such declaration or payment shall be restricted or prohibited by law.
(c) Notwithstanding the foregoing, dividends on the Series B Preferred Stock shall accrue whether or not: (i) the terms and provisions of Section D.3(b) above or any agreement relating to the Corporation's outstanding indebtedness at any time prohibit the then current payment of dividends, (ii) the Corporation has earnings, (iii) there are funds legally available for the payment of such dividends and (iv) such dividends are declared by the Board of Directors. Accrued but unpaid dividends on the Series B Preferred Stock will accumulate as of the Dividend Payment Date on which they first become payable.
(d) Except as provided in Section D.(3)(e) below, no dividends will be declared or paid or set apart for payment, and no distributions will be declared, on any common stock of the Corporation or any series of Preferred Stock ranking, as to dividends, on a parity with or junior to the Series B Preferred Stock (other than a dividend in shares of the Corporation's common stock or in any other class of shares of capital stock of the Corporation ranking junior to the Series B Preferred Stock as to dividends and upon liquidation) for any period unless full cumulative dividends on the Series B Preferred Stock for all dividend periods ending on or prior to the date of such declaration, payment or setting apart have been, or contemporaneously are, (i) declared and paid or (ii) declared and a sum sufficient for the payment thereof is set apart for such payment.
(e) When dividends are not paid in full (and a sum sufficient for such full payment is not so set apart) upon the Series B Preferred Stock and the shares of any other series of Preferred Stock ranking on a parity as to dividends with the Series B Preferred Stock, all dividends declared upon the Series B Preferred Stock and any other series of Preferred Stock ranking on a parity as to dividends with the Series B Preferred Stock shall be declared pro rata so that the amount of dividends declared per share of Series B Preferred Stock and such other series of Preferred Stock shall in all cases bear to each other the same ratio that accrued dividends per share on the Series B Preferred Stock and such other series of Preferred Stock (which shall not include any accrual in respect of unpaid dividends for prior dividend periods if such shares of Preferred Stock do not have a cumulative dividend) bear to each other. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on Series B Preferred Stock which may be in arrears.
(f) Except as provided in the immediately preceding paragraph, no dividends (other than in common stock or other shares of capital stock of the Corporation ranking junior to the Series B Preferred Stock as to dividends and upon liquidation) shall be declared or paid or set aside for payment, nor shall any other distribution be declared or made, upon the common stock or any other shares of capital stock of the Corporation ranking junior to or on a parity with the Series B Preferred Stock as to dividends or upon liquidation, nor shall any common stock of the Corporation, or any other shares of capital stock of the Corporation ranking junior to or on a parity with the Series B Preferred Stock as to dividends or upon liquidation be redeemed, purchased or otherwise acquired for any
Exhibit 3(a)(i)
consideration (or any moneys be paid to or made available for a sinking
fund for the redemption of any such shares) by the Corporation (except (1)
by conversion into or exchange for other shares of capital stock of the
Corporation ranking junior to the Series B Preferred Stock as to dividends
and upon liquidation or (2) for the redemption, purchase or acquisition by
the Corporation of any shares of capital stock that have become Excess
Shares pursuant to Article 11 of these Articles of Incorporation) (either
such action, an "Event"), unless full cumulative dividends on the Series B
Preferred Stock for all dividend periods ending on or prior to the date of
the Event have been, or contemporaneously are, (i) declared and paid or
(ii) declared and a sum sufficient for the payment thereof is set apart
for such payment.
(g) Any dividend payment made on Series B Preferred Stock shall first be credited against the earliest accrued but unpaid dividend due with respect to such shares which remains payable. Holders of the Series B Preferred Stock shall not be entitled to any dividend, whether payable in cash, property or securities, in excess of full cumulative dividends on the Series B Preferred Stock as described above.
(4) Liquidation Preference.
(a) Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, the holders of Series B Preferred Stock then outstanding will be entitled to be paid, out of the assets of the Corporation legally available for distribution to its shareholders after payment or provision for payment of all debts and other liabilities of the Corporation, in cash or property at its fair market value as determined by the Board of Directors, a liquidation preference of $25.00 per share of Series B Preferred Stock, plus an amount equal to any accrued and unpaid dividends per share to the date of payment, before any distribution of assets is made to holders of common stock of the Corporation or any other class or series of capital stock of the Corporation that ranks junior to the Series B Preferred Stock as to liquidation rights.
(b) In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Corporation are insufficient to pay the amount of the liquidating distributions on all outstanding Series B Preferred Stock and the corresponding amounts payable on all shares of other classes or series of capital stock of the Corporation ranking on a parity with the Series B Preferred Stock in the distribution of assets, then the holders of the Series B Preferred Stock and all other such classes or series of capital stock of the Corporation shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which such holders of Series B Preferred Stock would otherwise be respectively entitled.
(c) After payment of the full amount of the liquidating distributions to which they are entitled, the holders of Series B Preferred Stock will have no right or claim to any of the remaining assets of the Corporation.
Exhibit 3(a)(i)
(d) Written notice of any such liquidation, dissolution or winding up of the Corporation, stating the payment date or dates when, and the place or places where, the amounts distributable in such circumstances shall be payable, shall be given by first class mail, postage pre-paid, not less than 30 nor more than 60 days prior to the payment date stated therein, to each record holder of the Series B Preferred Stock at the respective addresses of such holders as the same shall appear on the stock transfer records of the Corporation.
(e) None of (i) the consolidation, combination or merger of the Corporation with or into any other corporation, trust or entity, or of any other corporation, trust or entity with or into the Corporation, (ii) the sale, lease or conveyance of all or substantially all of the assets, property or business of the Corporation, or (iii) any statutory share exchange, shall be deemed to constitute a liquidation, dissolution or winding up of the Corporation.
(5) Redemption.
(a) Right of Optional Redemption; Application of "Excess Share" Provision. The Series B Preferred Stock shall have no stated maturity date and is not redeemable prior to December 17, 2009. However, for the purpose of ensuring that the Corporation remains a qualified REIT for federal income tax purposes, in accordance with the Articles of Incorporation, outstanding shares of Series B Preferred Stock are at all times, together with all other shares of capital stock of the Corporation held by a shareholder of the Corporation in excess of the specified ownership limitations contained in the Articles of Incorporation, subject in all respects to the provisions of Article 11 of the Articles of Incorporation, including, without limitation, the provisions contained therein regarding Excess Shares.
On and after December 17, 2009, the Corporation, at its option and upon not less than 30 nor more than 60 days' prior written notice, may redeem the Series B Preferred Stock, in whole or in part, at any time or from time to time, for cash at a redemption price of $25.00 per share, plus all accrued and unpaid dividends thereon to the date fixed for redemption (except as provided in Section D.(5)(c) below), without interest. If less than all of the outstanding Series B Preferred Stock is to be redeemed, the Series B Preferred Stock to be redeemed shall be selected pro rata (as nearly as may be practicable without creating fractional shares) or by any other equitable method determined by the Corporation.
(b) Limitations on Redemption and Repurchase. Unless full cumulative dividends for all past dividend periods on all Series B Preferred Stock shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment, no shares of Series B Preferred Stock shall be redeemed unless all outstanding shares of Series B Preferred Stock are simultaneously redeemed, and the Corporation shall not purchase or otherwise acquire directly or indirectly any Series B Preferred Stock (except by exchange for shares of capital stock of the Corporation ranking junior to the Series B Preferred Stock as to dividends and upon
Exhibit 3(a)(i)
liquidation); provided, however, that the foregoing is subject in all respects to Article 11 of the Articles of Incorporation, including the purchase by the Corporation of Excess Shares, in order to ensure that the Corporation remains qualified as a REIT for federal income tax purposes.
Except as specifically prohibited herein, and subject to applicable law, the Corporation may from time to time conduct open market or private purchases of the Series B Preferred Stock or other securities.
(c) Payment of Dividends in Connection with Redemption If a redemption date falls after a Dividend Record Date and prior to the corresponding Dividend Payment Date, each holder of Series B Preferred Stock at the close of business on such Dividend Record Date shall be entitled to the dividend payable on such shares on the corresponding Dividend Payment Date notwithstanding the redemption of such shares before such Dividend Payment Date. Except as provided in Section D.5(a) above and this Section D.5(c), the Corporation will make no payment or allowance for unpaid dividends, whether or not in arrears, on Series B Preferred Stock which are redeemed.
(d) Procedures for Redemption.
(i) Notice of redemption will be (A) given by publication in the New York Times, the Wall Street Journal, or other newspaper of similar general circulation in the City of New York, such publication to be made once a week for two successive weeks commencing not less than 30 nor more than 60 days prior to the redemption date, and (B) mailed by the Corporation, postage prepaid, not less than 30 nor more than 60 days prior to the redemption date, addressed to the respective holders of record of the Series B Preferred Stock to be redeemed at their respective addresses as they appear on the stock transfer records of the Corporation. No failure to give such notice or any defect thereto or in the mailing thereof shall affect the validity of the proceedings for the redemption of any shares of Series B Preferred Stock except as to the holder to whom notice was defective or not given.
(ii) In addition to any information required by law or by the applicable rules of any exchange upon which Series B Preferred Stock may be listed or admitted to trading, such notice shall state: (A) the redemption date; (B) the redemption price; (C) the aggregate number of shares of Series B Preferred Stock to be redeemed and the number to remain outstanding after the redemption; (D) the place or places where the Series B Preferred Stock are to be surrendered for payment of the redemption price; and (E) that dividends on the shares of Series B Preferred Stock to be redeemed will cease to accrue on such redemption date. If less than all of the shares of Series B Preferred Stock held by any holder are to be redeemed, the notice mailed to such holder shall also specify the number of Series B Preferred Stock held by such holder to be redeemed.
(iii) If notice of redemption of any Series B Preferred Stock has been given and if the funds necessary for such redemption have been set apart by the Corporation in
Exhibit 3(a)(i)
trust for the benefit of the holders of any Series B Preferred Stock so called for redemption, then from and after the redemption date, dividends will cease to accrue on such Series B Preferred Stock, such Series B Preferred Stock shall no longer be deemed outstanding and all rights of the holders of such shares will terminate, except the right to receive the redemption price.
(iv) Holders of Series B Preferred Stock to be redeemed shall surrender such Series B Preferred Stock at the place designated in such notice and, upon surrender in accordance with said notice of the certificates for Series B Preferred Stock so redeemed (properly endorsed or assigned for transfer, if the Corporation shall so require and the notice shall so state), such Series B Preferred Stock shall be redeemed by the Corporation at the redemption price plus any accrued and unpaid dividends payable upon such redemption. In case less than all the shares of Series B Preferred Stock represented by any such certificate are redeemed, a new certificate or certificates shall be issued representing the unredeemed shares of Series B Preferred Stock without cost to the holder thereof.
(v) The deposit of funds with a bank or trust corporation for the purpose of redeeming Series B Preferred Stock shall be irrevocable except that:
(A) the Corporation shall be entitled to receive from such bank or trust corporation the interest or other earnings, if any, earned on any money so deposited in trust, and the holders of any shares redeemed shall have no claim to such interest or other earnings; and
(B) any balance of monies so deposited by the Corporation and unclaimed by the holders of the Series B Preferred Stock entitled thereto at the expiration of two years from the applicable redemption dates shall be repaid, together with any interest or other earnings thereon, to the Corporation, and after any such repayment, the holders of the shares entitled to the funds so repaid to the Corporation shall look only to the Corporation for payment without interest or other earnings.
(e) Excess Share Provisions. The Series B Preferred Stock is subject to the provisions of Article 11 of the Articles of Incorporation, including, without limitation, the provision for the redemption of Excess Shares.
(f) Status of Redeemed Shares. Any shares of Series B Preferred Stock that shall at any time have been redeemed as provided herein shall, after such redemption, have the status of authorized but unissued shares of Preferred Stock, without designation as to series until such shares are thereafter designated as part of a particular series by the Board of Directors.
(6) Voting Rights.
Exhibit 3(a)(i)
(a) Holders of the Series B Preferred Stock will not have any voting rights, except as set forth below or as otherwise from time to time required by law.
(b) Whenever dividends on any Series B Preferred Stock shall be in arrears for six or more quarterly periods (a "Preferred Dividend Default"), the size of the Board of Directors shall automatically increase by two directors and the holders of such Series B Preferred Stock (voting separately as a class with the holders of all other series of Preferred Stock, if any, ranking on a parity with the Series B Preferred Stock as to dividends or upon liquidation ("Parity Preferred") upon which like voting rights have been conferred and are exercisable) will be entitled to vote for the election of such additional members of the Board of Directors (the "Preferred Directors") (i) at a special meeting called by the holders of record of at least 20% of the Series B Preferred Stock or the holders of 20% of any other series of such Parity Preferred so in arrears (unless such request is received less than 90 days before the date fixed for the next annual or special meeting of shareholders) or at the next annual meeting of shareholders, and (ii) at each subsequent annual meeting until all dividends accumulated on such Series B Preferred Stock for the past dividend periods shall have been fully declared and paid or declared and a sum sufficient for the payment thereof set aside for payment.
(c) If and when all accumulated dividends on the Series B Preferred
Stock shall have been declared and paid in full or declared and set aside
for payment in full, the holders of the Series B Preferred Stock shall be
divested of the voting rights set forth in Section D.(6)(b) hereof
(subject to revesting in the event of each and every Preferred Dividend
Default) and, if all accumulated dividends have been paid in full or
declared and set aside for payment in full on all other series of Parity
Preferred upon which like voting rights have been conferred and are
exercisable, the term of office of each Preferred Director so elected
shall terminate. Any Preferred Director may be removed at any time with or
without cause by the vote of, and shall not be removed otherwise than by
the vote of, the holders of record of a majority of the outstanding Series
B Preferred Stock when they have the voting rights set forth in Section
D.(6)(b) hereof (voting separately as a class with all other series of
Parity Preferred upon which like voting rights have been conferred and are
exercisable). The Preferred Directors shall each be entitled to one vote
per director on any matter. So long as a Preferred Dividend Default shall
continue, any vacancy in the office of a Preferred Director may be filled
by written consent of the Preferred Director remaining in office, or if
none remains in office, by a vote of the holders of record of a majority
of the outstanding Series B Preferred Stock when they have the voting
rights set forth in Section D.(6)(b) hereof (voting separately as a class
with all other series of Parity Preferred upon which like voting rights
have been conferred and are exercisable).
(d) So long as any shares of Series B Preferred Stock remain outstanding, the Corporation shall not, without the affirmative vote of the holders of at least two-thirds of the Series B Preferred Stock outstanding at the time, given in person or by proxy, either in writing or at a meeting (voting separately as a class): (i) authorize or create, or increase the authorized or issued amount of, any class or series of capital stock of the Corporation
Exhibit 3(a)(i)
ranking senior to the Series B Preferred Stock with respect to payment of dividends or the distribution of assets upon liquidation, dissolution or winding up, or reclassify any authorized shares of capital stock of the Corporation into any such shares, or create, authorize or issue any obligation or security convertible into or evidencing the right to purchase any such shares, or (ii) amend, alter or repeal the provisions of the Articles of Incorporation, whether by merger, consolidation or otherwise, so as to materially and adversely affect any right, preference, privilege or voting power of the Series B Preferred Stock or the holders thereof; provided, however, that with respect to the occurrence of any event set forth in Section D.(6)(d)(ii) above, so long as any shares of the Series B Preferred Stock remain outstanding with the terms thereof materially unchanged, taking into account that upon the occurrence of an event the Corporation may not be the surviving entity, the occurrence of any such event shall not be deemed to materially and adversely affect any right, preference, privilege or voting power of the Series B Preferred Stock or the holders thereof, and provided, further, that (i) any increase in the amount of the authorized common stock of the Corporation or Preferred Stock or the creation or issuance of any other series of common stock of the Corporation or Preferred Stock ranking on a parity with or junior to the Series B Preferred Stock with respect to payment of dividends or the distribution of assets upon liquidation, dissolution or winding up, and (ii) any change to the number or classification of the Board of Directors, shall not be deemed to materially and adversely affect such rights, preferences, privileges or voting powers and provided, further, that any amendment to Article 11 of the Articles of Incorporation relating to Excess Shares, the Limit or any other matter described therein of any type or nature shall in no event be deemed to materially and adversely affect such rights, preferences, privileges or voting powers so long as after such amendment, any single "Person" may "Own" (each as defined in Article 11 of the Articles of Incorporation prior to or after such amendment) 3.9% of the value of the outstanding shares of capital stock of the Corporation without violating the Limit.
On any matter on which the holders of the Series B Preferred Stock shall be entitled to vote (as provided herein or by applicable law), including any action by written consent, each share of Series B Preferred Stock shall have one vote per share, except that when shares of any other series of preferred stock shall have the right to vote with the Series B Preferred Stock as a single class on any matter, then the Series B Preferred Stock and such other series shall have with respect to such matters one vote per $25.00 of stated liquidation preference.
(e) The foregoing voting provisions will not apply, and the Series B Preferred Stock will not be entitled to vote, after any notice of redemption is mailed to the holders and a sum sufficient to redeem the shares of Series B Preferred Stock has been deposited with a bank, trust company or other financial institution under an irrevocable obligation to pay the redemption price of the holders of such Series B Preferred Stock upon surrender of such shares.
(7) Conversion. The Series B Preferred Stock is not convertible into or exchangeable for any other property or securities of the Corporation, except that shares of the Series B
Exhibit 3(a)(i)
Preferred Stock may automatically become Excess Shares in accordance with Article 11 of the Articles of Incorporation in order to ensure that the Corporation remains qualified as a REIT for federal income tax purposes.
4.
This Amendment was adopted on December 15, 2004.
5.
This Amendment was duly adopted by the Corporation's Board of Directors without shareholder approval, as such approval was not required.
IN WITNESS WHEREOF, Cousins Properties Incorporated has caused these Articles of Amendment to be executed and sealed by its duly authorized officer this 15th day of December, 2004.
COUSINS PROPERTIES INCORPORATED
By: /s/ James A. Fleming
-----------------------------------
James A. Fleming
Executive Vice President and Chief
Financial Officer
|
EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
BETWEEN
WILDWOOD ASSOCIATES
AND
2300 WINDY RIDGE PARKWAY INVESTORS LLC
WILDWOOD OFFICE PARK
ATLANTA, GEORGIA
AUGUST 31ST, 2004
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS............................................................................ 2 ARTICLE 2. PURCHASE AND SALE...................................................................... 13 2.1. Agreement to Sell and Purchase the Associates Properties............................... 13 2.2. Intentionally Omitted.................................................................. 14 2.3. Permitted Exceptions................................................................... 14 2.4. Earnest Money.......................................................................... 14 2.5. Purchase Price......................................................................... 15 2.6. Assumption of Loan..................................................................... 15 2.7. Independent Contract Consideration..................................................... 16 2.8. Closing................................................................................ 17 ARTICLE 3. PURCHASER'S INSPECTION AND REVIEW RIGHTS............................................... 17 3.1. Due Diligence Inspections.............................................................. 17 3.2. Deliveries by Seller to Purchaser; Purchaser's Access to Property Records of Seller.... 18 3.3. Condition of the Properties............................................................ 21 3.4. Title and Survey....................................................................... 22 3.5. Service Contracts...................................................................... 23 3.6. Termination of Agreement............................................................... 24 3.7. Confidentiality........................................................................ 24 ARTICLE 4. REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS....................................... 25 4.1. Representations and Warranties of Seller............................................... 25 4.2. Knowledge Defined...................................................................... 29 4.3. Covenants and Agreements of Seller..................................................... 29 4.4. Representations and Warranties of Purchaser............................................ 31 4.5. Covenants and Agreements of Purchaser.................................................. 32 ARTICLE 5. CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS....................................... 33 5.1. Seller's Closing Deliveries............................................................ 33 5.2. Purchaser's Closing Deliveries......................................................... 36 5.3. Closing Costs.......................................................................... 37 5.4. Prorations and Credits................................................................. 38 ARTICLE 6. CONDITIONS TO CLOSING.................................................................. 41 6.1. Conditions Precedent to Purchaser's Obligations........................................ 41 6.2. Conditions Precedent to Seller's Obligations........................................... 44 6.3. Special Additional Condition........................................................... 44 |
ARTICLE 7. CASUALTY AND CONDEMNATION............................................................. 45 7.1. Casualty............................................................................... 45 7.2. Condemnation........................................................................... 46 ARTICLE 8. DEFAULT AND REMEDIES.................................................................. 47 8.1. Purchaser's Default.................................................................... 47 ARTICLE 9. ASSIGNMENT............................................................................ 49 9.1. Assignment............................................................................. 49 ARTICLE 10. BROKERAGE COMMISSIONS................................................................. 49 10.1. Broker................................................................................. 49 ARTICLE 11. INDEMNIFICATION....................................................................... 50 11.1. Indemnification by Seller.............................................................. 50 11.2. Indemnification by Purchaser........................................................... 50 11.3. Limitations on Indemnification......................................................... 51 11.4. Survival............................................................................... 51 11.5. Indemnification as Sole Remedy......................................................... 51 ARTICLE 12. MISCELLANEOUS......................................................................... 51 12.1. Notices................................................................................ 51 12.2 Possession............................................................................. 53 12.3 Time Periods........................................................................... 53 12.4 Publicity.............................................................................. 53 12.5 Discharge of Obligations............................................................... 53 12.6 Severability........................................................................... 53 12.7 Construction........................................................................... 53 12.8 Sale Notification Letters.............................................................. 53 12.9 Access to Records Following Closing.................................................... 54 12.10 Submission to Jurisdiction............................................................. 54 12.11 General Provisions..................................................................... 54 12.12 Attorney's Fees........................................................................ 55 12.13 Counterparts........................................................................... 55 12.14 Effective Agreement.................................................................... 55 |
SCHEDULE OF EXHIBITS
Reference
---------
Exhibit "A-1" Description of Associates Lands pp. 2-6
Exhibit "B" List of Personal Property p. 6
Exhibit "B-1" List of Property Excluded from Associates Personal Property p. 7
Exhibit "C" List of Existing Commission Agreements p. 8 & Section 4.1(g)
Exhibit "D" Form of Escrow Agreement p. 8
Exhibit "E" List of Existing Environmental Reports p. 8
Exhibit "F" List of Existing Surveys p. 8
Exhibit "G" List of Leases p. 9 & Section 4.1(e)
Exhibit "H" List of Loan Documents Section 3.2(a)(vii) & Section 4.1(i)
Exhibit "I" Title Exceptions p. 11 & Section 3.2(a)(xii)
Exhibit "J" Exception Schedule p. 11 & Section 4.1(e)
Exhibit "K" List of Service Contracts p. 13
Exhibit "L-1" Form of Tenant Estoppel Certificate p. 13, Section 4.3(e) & Section 6.1(c)
Exhibit "L-2" Form of Tenant Estoppel Certificate (Ground Lease) p. 13, Section 4.3(e) & Section 6.1(c)
Exhibit "M" Form of Master Declaration Estoppel Certificate Section 4.3(f)
Exhibit "N" Form of Plaza Declaration Estoppel Certificate Section 4.3(g)
Exhibit "O" Property Tax Appeals Section 4.1(l)
Exhibit "P" Unpaid Tenant Inducement Costs and Leasing Commissions Section 4.1(g) & Section 5.4(f)
Exhibit "Q" Intentionally Omitted
Exhibit "R" Associates Post Closing Tenant Improvement Obligations p. 5; Section 5.4(e)
Exhibit "S" Associates Benefited Property Section 4.5(a)
Exhibit "T" Cousins Benefited Property Section 4.5(b)
|
Exhibit "U" 2300 Windy Ridge Parkway Covenant Section 5.1(a) Exhibit "V" Associates Limited Warranty Deed Covenant Section 5.1(a) |
SCHEDULE OF CLOSING DOCUMENTS
Schedule 1-A Form of Limited Warranty Deeds
Schedule 1-B Form of Limited Warranty Deeds (Ground Lease)
Schedule 2 Form of Assignment and Assumption of Leases and Security Deposits
and Leasing Commission Obligations arising after Closing
Schedule 3 Form of Bill of Sale to Personal Property
Schedule 4 Intentionally Omitted
Schedule 5 Transferee's Affidavit as to Broker's Liens
Schedule 6 Form of Assignment and Assumption of Service Contracts
Schedule 7 Form of General Assignment of Seller's Interest in Intangible
Property
Schedule 8 Form of Seller's Affidavit (for Purchaser's Title Insurance
Purposes)
Schedule 9 Form of Seller's Certificate (as to Seller's Representations and
Warranties)
Schedule 10 Form of Seller's FIRPTA Affidavit
Schedule 11 Form of Purchaser's Certificate (as to Purchaser's
Representations and Warranties)
|
PURCHASE AND SALE AGREEMENT
WILDWOOD OFFICE PARK
THIS PURCHASE AND SALE AGREEMENT (the "Agreement"), made and entered into this 30th day of August, 2004, by and between WILDWOOD ASSOCIATES, a Georgia general partnership ("Seller" or "Associates") whose sole general partners are Cousins Properties Incorporated and International Business Machines Corporation and 2300 WINDY RIDGE PARKWAY INVESTORS LLC, a Delaware limited liability company ("Purchaser").
WHEREAS, Associates desires to sell certain improved real property commonly known as "2300 Windy Ridge Parkway" located at 2300 Windy Ridge Parkway, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, and Purchaser desires to purchase such real, personal and intangible property; and
WHEREAS, Associates desires to sell the land (excluding the improvements) and the reversionary interest of the landlord under the "2401 Ground Lease" (as hereinafter defined) with respect to the improvements commonly known as "2401 Windy Ridge Parkway" located at 2401 Windy Ridge Parkway, Atlanta, Cobb County, Georgia, and Purchaser desires to purchase such land and reversionary interest; and
WHEREAS, Associates desires to sell certain improved real property commonly known as "3050 Windy Hill Road" located at 3050 Windy Hill Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, and Purchaser desires to purchase such real, personal and intangible property; and
WHEREAS, Associates desires to sell certain improved real property commonly known as "3175 Windy Hill Road" located at 3175 Windy Hill Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, and Purchaser desires to purchase such real, personal and intangible property; and
WHEREAS, Associates desires to sell certain improved real property commonly known as "3200 Windy Hill Road" located at 3200 Windy Hill Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, and Purchaser desires to purchase such real, personal and intangible property; and
WHEREAS, Associates desires to sell the land (excluding the improvements) and the reversionary interest of the landlord under the "1547 Ground Lease" (as hereinafter defined) with respect to the improvements commonly known as "1547 Powers Ferry Road" located at 1547 Powers Ferry Road, Atlanta, Cobb County, Georgia, and Purchaser desires to purchase such land and reversionary interest; and
WHEREAS, Associates desires to sell the land (excluding the improvements) and the reversionary interest of the landlord under the "1927 Ground Lease" (as hereinafter defined) with
respect to the improvements commonly known as "1927 Powers Ferry Road" located at 1927 Powers Ferry Road, Atlanta, Cobb County, Georgia, and Purchaser desires to purchase such land and reversionary interest; and
WHEREAS, Associates desires to sell certain improved real property commonly known as "1931 Powers Ferry Road" located at 1931 Powers Ferry Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, and Purchaser desires to purchase such real, personal and intangible property; and
WHEREAS, Associates desires to sell certain improved real property commonly known as "1935 Powers Ferry Road" located at 1935 Powers Ferry Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, and Purchaser desires to purchase such real, personal and intangible property; and
WHEREAS, Associates desires to sell certain improved real property commonly known as "1945 Powers Ferry Road" located at 1945 Powers Ferry Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, and Purchaser desires to purchase such real, personal and intangible property; and
WHEREAS, the parties hereto desire to provide for said sale and purchase on the terms and conditions set forth in this Agreement;
NOW, THEREFORE, for and in consideration of the premises, the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby covenant and agree as follows:
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, each of the following capitalized terms shall have the meaning ascribed to such terms as set forth below:
"2300 Windy Ridge Parkway" shall mean the improved real property commonly known as 2300 Windy Ridge Parkway, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, being the Associates Land identified as 2300 Windy Ridge Parkway on EXHIBIT "A-1" attached hereto and made a part hereof, together with the related Associates Improvements, the Associates Personal Property, the Associates Intangible Property and all right, title and interest of Associates as "landlord" or "lessor" in and to the Leases, any guaranties of the Leases and the Security Deposits, with respect to such Associates Land and Associates Improvements.
"2401 Windy Ridge Parkway" shall mean the land (excluding the improvements) identified as 2401 Windy Ridge Parkway on EXHIBIT "A-1" attached hereto and the reversionary interest of the landlord under the 2401 Ground Lease in the improvements commonly known as "2401 Windy Ridge Parkway" located at 2401 Windy Ridge Parkway, Atlanta, Cobb County, Georgia.
"3050 Windy Hill Road" shall mean the improved real property commonly known as 3050 Windy Hill Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, being the Associates Land identified as 3050 Windy Hill Road on EXHIBIT "A-1" attached hereto, together with the related Associates Improvements, the Associates Personal Property, the Associates Intangible Property and all right, title and interest of Associates as "landlord" or "lessor" in and to the Leases, any guaranties of the Leases and the Security Deposits, with respect to such Associates Land and Associates Improvements.
"3175 Windy Hill Road" shall mean the improved real property commonly known as 3175 Windy Hill Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, being the Associates Land identified as 3175 Windy Hill Road on EXHIBIT "A-1" attached hereto, together with the related Associates Improvements, Associates Personal Property, and Associates Intangible Property, and all right, title and interest of Associates as "landlord" or "lessor" in and to the Leases, any guaranties of the Leases and the Security Deposits, with respect to such Associates Land and Associates Improvements.
"3200 Windy Hill Road" shall mean the improved real property commonly known as 3200 Windy Hill Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, being the Associates Land identified as 3200 Windy Hill Road on EXHIBIT "A-1" attached hereto, together with the related Associates Improvements, Associates Personal Property, and Associates Intangible Property, and all right, title and interest of Associates as "landlord" or "lessor" in and to the Leases, any guaranties of the Leases and the Security Deposits, with respect to such Associates Land and Associates Improvements.
"1547 Ground Lease" shall mean that certain unrecorded Ground Lease between Wildwood Office Park, Inc., as Lessor, and First Georgia Bank of Cobb County, as Lessee, dated February 27, 1985; as amended by Addendum to Ground Lease between the same parties, dated June 27, 1985; as affected by letter from Lessee dated July 19, 1991; as affected by letter from Lessor dated January 18, 1995; as affected by letter from Lessee dated January 24, 1995; as affected by Quitclaim Deed dated August 31, 1998; as further amended by Second Amendment to Lease between Wildwood Associates, successor-in-interest to Lessor, and First Union National Bank, successor-in-interest to Lessee, dated as of August 31, 1998.
"1927 Ground Lease" shall mean that certain Ground Lease between Wildwood Associates, as Landlord, and California Pizza Kitchen, Inc., as Tenant, dated October 11, 1993; as evidenced by Short Form of Lease dated as of October 11, 1993; as affected by Supplemental Agreement between the same parties, undated; as amended by letter agreement dated as of June 17, 1994; as affected by letter from Landlord dated January 18, 1995; as assigned by Assignment and Assumption of Lease between California Pizza Kitchen, Inc., as Assignor, and CPK Acquisition Corp., a wholly owned subsidiary of Taco Bell Corp., as Assignee, dated August 29, 1997; as amended by First Amendment to Ground Lease between Landlord and CPK Acquisition Corp., dated as of October 31, 2000; as affected by Excess Property Sublease between Taco Bell Corp., as Sublessor, and SAGRO, LLC d/b/a Sal Grosso, as Sublessee, dated November 21, 2002 with Consent to Subletting from Landlord, dated January 6, 2003.
"2401 Ground Lease" shall mean that certain Lease between Wildwood Associates, as Lessor, and The First National Bank of Atlanta, as Lessee, dated September 30, 1986; as amended by First Amendment to Lease between Landlord and Wachovia Bank, N.A., successor in interest by merger to Tenant, dated as of July 27, 1998; as affected by letter from Landlord dated September 27, 1994; as affected by Quitclaim Deed dated July 22, 1998; as affected by Sublease Agreement between Wachovia Bank, N.A., as Sublandlord, and National Bank of Commerce, as Subtenant, dated March 31, 2003.
"1547 Powers Ferry Road" shall mean the land (excluding the improvements) identified as 1547 Powers Ferry Road on EXHIBIT "A-1" attached hereto and the reversionary interest of the landlord under the 1547 Ground Lease in the improvements commonly known as "1547 Powers Ferry Road" located at 1547 Powers Ferry Road, Atlanta, Cobb County, Georgia.
"1927 Powers Ferry Road" shall mean the land (excluding the improvements) identified as 1927 Powers Ferry Road on EXHIBIT "A-1" attached hereto and the reversionary interest of the landlord under the 1927 Ground Lease in the improvements commonly known as "1927 Powers Ferry Road" located at 1927 Powers Ferry Road, Atlanta, Cobb County, Georgia.
"1931 Powers Ferry Road" shall mean the improved real property commonly known as 1931 Powers Ferry Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, being the Associates Land identified as 1931 Powers Ferry Road on EXHIBIT "A-1" attached hereto, together with the related Associates Improvements, Associates Personal Property, and Associates Intangible Property, and all right, title and interest of Associates as "landlord" or "lessor" in and to the Leases, any guaranties of the Leases and the Security Deposits, with respect to such Associates Land and Associates Improvements.
"1935 Powers Ferry Road" shall mean the improved real property commonly known as 1935 Powers Ferry Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, being the Associates Land identified as 1935 Powers Ferry Road on EXHIBIT "A-1" attached hereto, together with the related Associates Improvements, Associates Personal Property, and Associates Intangible Property, and all right, title and interest of Associates as "landlord" or "lessor" in and to the Leases, any guaranties of the Leases and the Security Deposits, with respect to such Associates Land and Associates Improvements.
"1945 Powers Ferry Road" shall mean the improved real property commonly known as 1945 Powers Ferry Road, Atlanta, Cobb County, Georgia, together with certain related personal and intangible property, being the Associates Land identified as 1945 Powers Ferry Road on EXHIBIT "A-1" attached hereto, together with the related Associates Improvements, Associates Personal Property, and Associates Intangible Property, and all right, title and interest of Associates as "landlord" or "lessor" in and to the Leases, any guaranties of the Leases and the Security Deposits, with respect to such Associates Land and Associates Improvements.
"Additional Earnest Money" shall mean One Million Four Hundred Seventy-Five Thousand and No/100 Dollars ($1,475,000.00 U.S.).
"Assignment and Assumption of Leases" shall mean the form of assignment and assumption of Ground Lease, Leases and Security Deposits and obligations under the
Commission Agreements to be executed and delivered by Purchaser and Associates as to the Associates Ground Leases, the Leases, Security Deposits and Commission Agreements with respect to the Associates Properties, and by Purchaser at the Closing in the form attached hereto as SCHEDULE 2.
"Assignment and Assumption of Service Contracts" shall mean the form of assignment and assumption of the Service Contracts to be executed and delivered by Purchaser and Associates as to the Service Contracts with respect to the Associates Properties at the Closing in the form attached hereto as SCHEDULE 6.
"Associates Ground Lease" shall mean any one of the 1547 Ground Lease, the 1927 Ground Lease, or the 2401 Ground Lease.
"Associates Ground Leases" shall mean, collectively, the 1547 Ground Lease, the 1927 Ground Lease, and the 2401 Ground Lease.
"Associates Ground Lease Improvements" shall mean, as to any particular Associates Ground Lease Land, the improvements located on such Associates Ground Lease Land, and as to the Associates Ground Lease Lands, collectively, the improvements located on the Associates Ground Lease Lands.
"Associates Ground Lease Land" shall mean those certain tracts or parcels of real property located in Cobb County, Georgia, which are more particularly identified on EXHIBIT "A-1" attached hereto as any one of 1547 Powers Ferry Road, 1927 Powers Ferry Road, or 2401 Windy Ridge Parkway.
"Associates Ground Lease Lands" shall mean, collectively those certain tracts or parcels of real property located in Cobb County, Georgia, which are more particularly identified on EXHIBIT "A-1" attached hereto as 1547 Powers Ferry Road, 1927 Powers Ferry Road, or 2401 Windy Ridge Parkway.
"Associates Ground Lease Reversionary Interest" shall mean the reversionary interest of Associates as landlord under an Associates Ground Lease in the Associates Ground Lease Improvements on the Associates Ground Lease Land leased pursuant to such Associates Ground Lease Land.
"Associates Ground Lease Reversionary Interests" shall mean the reversionary interests of Associates as landlord under the Associates Ground Leases in the Associates Ground Lease Improvements.
"Associates Improvements" shall mean all buildings, structures and improvements now or on the Closing Date situated on the Associates Lands, including without limitation, all parking areas and facilities, improvements and fixtures located on the Associates Lands.
"Associates Intangible Property" shall mean all intangible property, if any, owned by Associates and related to the Associates Ground Lease Lands, Associates Ground Lease Reversionary Interests, Associates Lands and Associates Improvements, including without
limitation, the rights and interests, if any, of Associates in and to the
following (to the extent assignable): (i) the names "2300 Windy Ridge Parkway",
"2401 Windy Ridge Parkway", "3050 Windy Hill Road", "3175 Windy Hill Road",
"3200 Windy Hill Road", "1547 Powers Ferry Road", "1927 Powers Ferry Road",
"1931 Powers Ferry Road", "1935 Powers Ferry Road", and "1945 Powers Ferry
Road", (ii) all assignable plans and specifications and other architectural and
engineering drawings for the Associates Ground Lease Lands, Associates Ground
Lease Reversionary Interests, Associates Lands and Associates Improvements;
(iii) all assignable warranties or guaranties given or made in respect of the
Associates Improvements or Associates Personal Property; (iv) all transferable
consents, authorizations, variances or waivers, licenses, permits and approvals
from any governmental or quasi-governmental agency, department, board,
commission, bureau or other entity or instrumentality solely in respect of the
Associates Ground Lease Lands, Associates Ground Lease Reversionary Interests,
Associates Lands or Associates Improvements; and (v) all of the right, title and
interest of Associates in and to all assignable Service Contracts with respect
to the Associates Properties that Purchaser agrees to assume (or is deemed to
have agreed to assume). "Associates Intangible Property" shall also include the
non-exclusive right and interest in and to the name "Wildwood Plaza" to be
shared in common with Associates and Cousins and their respective successors and
assigns.
"Associates Land" shall mean those certain tracts or parcels of real property located in Cobb County, Georgia, which are more particularly identified on EXHIBIT "A-1" attached hereto as any one of 2300 Windy Ridge Parkway, 3050 Windy Hill Road, 3175 Windy Hill Road, 3200 Windy Hill Road, 1931 Powers Ferry Road, 1935 Powers Ferry Road, or 1945 Powers Ferry Road, together with all rights, privileges and easements appurtenant to said real property, and all right, title and interest, if any, of Associates in and to any land lying in the bed of any street, road, alley or right-of-way, open or closed, adjacent to or abutting the Associates Land.
"Associates Lands" shall mean, collectively, those certain tracts or parcels of real property located in Cobb County, Georgia, which are more particularly identified on EXHIBIT "A-1" attached hereto as 2300 Windy Ridge Parkway, 2500 Windy Ridge Parkway, 3050 Windy Hill Road, 3175 Windy Hill Road, 3200 Windy Hill Road, 1931 Powers Ferry Road, 1935 Powers Ferry Road, and 1945 Powers Ferry Road, together with all rights, privileges and easements appurtenant to said real property, and all right, title and interest, if any, of Associates in and to any land lying in the bed of any street, road, alley or right-of-way, open or closed, adjacent to or abutting the Associates Lands.
"Associates Personal Property" shall mean all furniture (including common area furnishings and interior landscaping items), carpeting, draperies, appliances, personal property (excluding any computer software which either is licensed to Associates or Associates deems proprietary), machinery, apparatus and equipment owned by Associates and currently used exclusively in the operation, repair and maintenance of the Associates Lands and Associates Improvements and situated thereon, as generally described on EXHIBIT "B" attached hereto and made a part hereof, and all non-confidential books, records and files (excluding any appraisals, budgets, strategic plans for the Associates Properties, internal analyses, information regarding the marketing of the Associates Properties for sale, submissions relating to Associates' obtaining of corporate authorization, attorney and accountant work product, attorney-client privileged documents, or other information in the possession or control of Associates or Associates' property manager which Associates deems proprietary) relating to the Associates Ground Lease
Lands, Associates Ground Lease Reversionary Interests, Associates Lands and Associates Improvements; provided, however, the property described on EXHIBIT "B-1" attached hereto and made a part hereof is expressly excluded from the definition of Associates Personal Property. The Associates Personal Property does not include any property owned by tenants, contractors or licensees, and shall be conveyed by Associates to Purchaser subject to depletions, replacements and additions in the ordinary course of Associates' business.
"Associates Post Closing Tenant Improvement Obligations" shall mean the work and obligations described on EXHIBIT "R" attached hereto and made a part hereof.
"Associates Property" shall mean and refer to (x) any Associates Land, together with the items set forth in Section 2.1(b), (d), (e) and (f) hereof with respect to such Associates Land, or (y) any Associates Ground Lease Land and the related Associates Ground Lease Reversionary Interest, together with the items set forth in Section 2.1(e) and (f) hereof with respect to such Associates Ground Lease Land.
"Associates Properties" shall have the meaning ascribed thereto in
Section 2.1 hereof.
"Assumption Agreement" shall have the meaning ascribed thereto in
Section 2.6 hereof.
"Basket Limitation" shall mean an amount equal to $25,000.00;
"Bill of Sale" shall mean the form of bills of sale to the Personal Property to be executed and delivered to Purchaser by Associates as to the Associates Personal Property at the Closing in the form attached hereto as SCHEDULE 3.
"Broker" shall have the meaning ascribed thereto in Section 10.1 hereof.
"Business Day" shall mean any day other than a Saturday, Sunday or other day on which banking institutions in the States of Georgia and Connecticut are authorized by law or executive action to close or any day on which the New York Stock Exchange is closed.
"Cap Limitation" shall mean an amount equal to $6,000,000.00; provided, however, if this Agreement is terminated by Purchaser with respect to any particular Property or Properties as provided in this Agreement, the Cap Limitation shall be reduced to an amount equal to 2.424% of the aggregate Purchase Price of the Properties not affected by such termination.
"Closing" shall mean the consummation of the purchase and sale of the Properties pursuant to the terms of this Agreement.
"Closing Date" shall have the meaning ascribed thereto in Section 2.8 hereof.
"Closing Documents" shall mean any certificate, instrument or other document delivered pursuant to this Agreement.
"Commission Agreements" shall have the meaning ascribed thereto in
Section 4.1(g) hereof, and such agreements are more particularly described on
EXHIBIT "C" attached hereto and made a part hereof.
"Cousins" shall mean Cousins Properties Incorporated, a Georgia corporation.
"Cousins Benefited Property" shall mean the Property of Cousins Properties Incorporated described on EXHIBIT "T" attached hereto and made a part hereof.
"Due Diligence Material" shall have the meaning ascribed thereto in
Section 3.7 hereof.
"Earnest Money" shall mean the Initial Earnest Money, together with any Additional Earnest Money actually paid by Purchaser to Escrow Agent hereunder, and together with all interest which accrues thereon as provided in Section 2.4(c) hereof and in the Escrow Agreement.
"Effective Date" shall mean the last date upon which the following
shall have occurred: (a) Purchaser and Seller shall have delivered at least two
(2) fully executed counterparts of this Agreement to each other party, (b)
Purchaser, Seller and Escrow Agent shall have executed and delivered at least
one (1) fully executed counterpart of the Escrow Agreement to each other party,
and (c) Purchaser shall have delivered the Initial Earnest Money (by federal
wire transfer) to Escrow Agent.
"Environmental Law" shall mean any law, ordinance, rule, regulation, order, judgment, injunction or decree relating to pollution or substances or materials which are considered to be hazardous or toxic, including, without limitation, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Hazardous Materials Transportation Act, the Clean Water Act, the Toxic Substances Control Act, the Emergency Planning and Community Right to Know Act, the Georgia Underground Storage Tank Management Act, O.C.G.A. Sections 12-13-1 et seq. as amended, the Georgia Hazardous Site Response Act, O.C.G.A. Sections 12-8-90 et seq. as amended, any state and local environmental law, all amendments and supplements to any of the foregoing and all regulations and publications promulgated or issued pursuant thereto.
"Escrow Agent" shall mean the Title Company, at its office at 101 Huntington Avenue F1 13, Boston, Massachusetts 02199-7610.
"Escrow Agreement" shall mean that certain Escrow Agreement in the form attached hereto as EXHIBIT "D" entered into contemporaneously with the execution and delivery of this Agreement by Seller, Purchaser and Escrow Agent with respect to the Earnest Money.
"Existing Environmental Reports" shall mean those certain reports, correspondence and related materials, if any, more particularly described on EXHIBIT "E" attached hereto and made a part hereof.
"Existing Surveys" shall mean those certain surveys with respect to the Land and the Improvements or the Associates Ground Lease Lands more particularly described on EXHIBIT
"F" attached hereto and made a part hereof. "Existing Survey" shall mean any one of the Existing Surveys.
"FIRPTA Affidavit" shall mean the form of FIRPTA Affidavit to be executed and delivered to Purchaser at Closing by Seller as to the Associates Ground Lease Lands, the Associates Ground Lease Reversionary Interests, the Land and Improvements owned by Seller in the form attached hereto as SCHEDULE 10.
"First Title Notice" shall have the meaning ascribed thereto in Section 3.4 hereof.
"General Assignment" shall have the meaning ascribed thereto in Section 5.1(h) hereof.
"Hazardous Substances" shall mean any and all pollutants, contaminants, toxic or hazardous wastes or any other substances that might pose a hazard to health or safety, the removal of which may be required or the generation, manufacture, refining, production, processing, treatment, storage, handling, transportation, transfer, use, disposal, release, discharge, spillage, seepage or filtration of which is or shall be restricted, prohibited or penalized under any Environmental Law (including, without limitation, lead paint, asbestos, urea formaldehyde foam insulation, petroleum, mold and polychlorinated biphenyls).
"Improvements" shall mean the Associates Improvements.
"Initial Earnest Money" shall mean One Million and No/100 Dollars ($1,000,000.00 U.S.).
"Inspection Period" shall mean the period expiring at 6:00 P.M. local Atlanta, Georgia, time on Friday, September 24, 2004.
"Intangible Property" shall mean the Associates Intangible Property.
"Joint Service Contracts" shall have the meaning ascribed thereto in
Section 3.5 hereof.
"Land" shall mean the Associates Ground Lease Lands and the Associates Lands.
"Lease" and "Leases" shall mean the leases or occupancy agreements (other than the Associates Ground Leases), including those in effect on the Effective Date which are more particularly identified as Associates Leases on EXHIBIT "G" attached hereto, and any amended or new leases entered into pursuant to Section 4.3(a) of this Agreement, which as of the Closing affect all or any portion of the Associates Lands or Associates Improvements.
"Lender" shall mean Teachers Insurance and Annuity Association of America, as to 3200 Windy Hill Road.
"Limited Warranty Deed" shall mean the form of deed attached hereto as
SCHEDULE 1-A.
"Limited Warranty Deed (Ground Lease)" shall mean the form of deed attached hereto as SCHEDULE 1-B.
"Loan" shall mean with respect to 3200 Windy Hill Road, that certain indebtedness encumbering 3200 Windy Hill Road evidenced by that certain Promissory Note executed by Associates in favor of Lender dated December 16, 1996, in the original principal amount of $70,000,000.
"Loan Documents" shall have the meaning ascribed thereto in Section 2.6 hereof.
"Losses" shall have the meaning ascribed thereto as Section 11.1 hereof.
"Major Tenant" or "Major Tenants" shall mean:
(a) with respect to 2300 Windy Ridge Parkway, Manhattan Associates, Inc. and Computer Associates, Inc.;
(b) with respect to 2401 Windy Ridge Parkway, Wachovia Bank, N.A.;
(c) with respect to 3050 Windy Hill Road, Houston's Restaurants, Inc;
(d) with respect to 3175 Windy Hill Road, Bright Horizons Children's Centers, Inc.;
(e) with respect to 3200 Windy Hill Road, International Business Machines Corporation, General Electric Company, and Coca-Cola Enterprises, Inc.;
(f) with respect to 1547 Powers Ferry Road, Wachovia Bank, N.A.;
(g) with respect to 1927 Powers Ferry Road, CPK Acquisition Corp.;
(h) with respect to 1931 Powers Ferry Road, La Madeleine, Inc.;
(i) with respect to 1935 Powers Ferry Road, Famous Dave's of America, Inc.; and
(j) with respect to 1945 Powers Ferry Road, TGI Friday's Inc.
"Master Declaration" shall mean that certain Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office
Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
"Monetary Objection" or "Monetary Objections" with respect to any individual Property shall mean (a) any mortgage, deed to secure debt, deed of trust or similar security instrument encumbering all or any part of such Property other than the Loan Documents affecting such Property, (b) any mechanic's, materialman's or similar lien (unless resulting from any act or omission of Purchaser or any of its agents, contractors, representatives or employees or any tenant of such Property), (c) the lien of ad valorem real or personal property taxes, assessments and governmental charges affecting all or any portion of such Property which are delinquent, and (d) any judgment of record against Seller in the county or other applicable jurisdiction in which such Property is located. "Monetary Objection" or "Monetary Objections" with respect to all Properties, collectively, shall mean (a) any mortgage, deed to secure debt, deed of trust or similar security instrument encumbering all or any part of the Properties other than the Loan Documents, (b) any mechanic's, materialman's or similar lien (unless resulting from any act or omission of Purchaser or any of its agents, contractors, representatives or employees or any tenant of the Properties), (c) the lien of ad valorem real or personal property taxes, assessments and governmental charges affecting all or any portion of the Properties which are delinquent, and (d) any judgment of record against Seller in the county or other applicable jurisdiction in which the Properties are located.
"Other Notices of Sale" shall have the meaning ascribed thereto in
Section 5.1(s) hereof.
"Permitted Exceptions" as to any individual Land and related
Improvements shall mean, collectively, (a) liens for taxes, assessments and
governmental charges not yet due and payable or due and payable but not yet
delinquent with respect to such Land and related Improvements, (b) the Leases
affecting such Land and related Improvements, (c) the Associates Ground Leases,
as to the Associates Ground Lease Lands, (d) such state of facts as would be
disclosed by a current survey of such Land, (e) the matters identified as
affecting such Land and related Improvements on EXHIBIT "I" attached hereto and
made part hereof, and (f) such other easements, restrictions and encumbrances
with respect to such Land and related Improvements that do not constitute
Monetary Objections. "Permitted Exceptions" as to Associates with respect to the
Associates Ground Lease Lands, Associates Ground Lease Reversionary Interests,
Associates Lands and Associates Improvements shall mean, collectively, (a) liens
for taxes, assessments and governmental charges not yet due and payable or due
and payable but not yet delinquent with respect to the Associates Ground Lease
Lands, Associates Ground Lease Reversionary Interests, Associates Lands and
Associates Improvements, (b) the Associates Ground Leases, as to the Associates
Ground Lease Lands, (c) the Leases affecting the Associates Lands and Associates
Improvements, (d) such state of facts as would be disclosed by a current survey
of each of the Associates Ground Lease Lands and Associates Lands, (e) the
matters identified as affecting the Associates Ground Lease Lands, Associates
Ground Lease Reversionary Interests, Associates Lands and Associates
Improvements set forth on EXHIBIT "I" attached hereto and made part hereof, and
(f) such other easements, restrictions and encumbrances with respect to the
Associates Ground Lease Lands, Associates Ground Lease Reversionary Interests,
Associates Lands and Associates Improvements that do not constitute Monetary
Objections.
"Personal Property" shall mean the Associates Personal Property.
"Plaza Declaration" shall mean that certain Declaration of Covenants and Cross-Easements for Wildwood Plaza by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 501, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza between Cousins Properties Incorporated and Wildwood Associates, dated January 25, 1991, recorded in Deed Book 5994, page 402, aforesaid records, as further amended by Second Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated February 28, 1996, recorded in Deed Book 9441, page 371, aforesaid records, as further amended by Third Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated April 8, 1996, recorded in Deed Book 9558, page 241, aforesaid records, as further amended by Fourth Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated December 13, 2000, recorded in Deed Book 13316, page 3859, aforesaid records, and as further amended by Fifth Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated June 3, 2004, recorded in Deed Book 13988, page 829, aforesaid records.
"Property" shall mean any individual Associates Property.
"Properties" shall mean the Associates Properties collectively.
"Purchase Price" shall be the amount specified in Section 2.5 hereof.
"Purchaser Related Entities" shall have the meaning ascribed thereto in
Section 11.1 hereof.
"Purchaser's Certificate" shall have the meaning ascribed thereto in
Section 5.2(g) hereof.
"Security Deposits" shall mean any security deposits, rent or damage deposits or similar amounts (other than rent paid for the month in which the Closing occurs), including any letters of credit and other non-cash instruments given for any of the foregoing purposes, actually held by Associates with respect to any of the Leases.
"Seller Related Entities" shall have the meaning ascribed thereto in
Section 11.2 hereof.
"Seller's Affidavit" shall mean the form of owner's affidavit to be given by Seller at Closing to the Title Company in the form attached hereto as SCHEDULE 8.
"Seller's Certificate" shall mean the form of certificate to be executed and delivered by Seller to Purchaser at the Closing with respect to the truth and accuracy of Seller's warranties and representations contained in this Agreement (modified and updated as the circumstances require), in the form attached hereto as SCHEDULE 9.
"Service Contracts" shall mean all those certain contracts and agreements more particularly described as Associates Service Contracts on EXHIBIT "K" attached hereto and made a part hereof relating to the repair, maintenance or operation of the Associates Lands,
Associates Improvements or Associates Personal Property which will extend beyond the Closing Date, including, without limitation, all equipment leases.
"Survey" and "Surveys" shall have the meaning ascribed thereto in
Section 3.4 hereof.
"Taxes" shall have the meaning ascribed thereto in Section 5.4(a) hereof.
"Tenant Estoppel Certificate" or "Tenant Estoppel Certificates" shall mean certificates to be sought from the tenants under the Leases in substantially the form attached hereto as EXHIBIT "L-1" and from the tenants under the Associates Ground Leases in the form attached hereto as EXHIBIT "L-2"; provided, however, if any Lease or Associates Ground Lease provides for the form or content of an estoppel certificate from the tenant thereunder, the Tenant Estoppel Certificate with respect to such Lease or Associates Ground Lease may be in the form as called for therein.
"Tenant Inducement Costs" shall mean any out-of-pocket payments required under a Lease to be paid by the landlord thereunder to or for the benefit of the tenant thereunder which is in the nature of a tenant inducement, including specifically, but without limitation, tenant improvement costs, lease buyout payments, and moving, design, refurbishment and club membership allowances and costs. The term "Tenant Inducement Costs" shall not include loss of income resulting from any free rental period, it being understood and agreed that the Seller shall bear the loss resulting from any free rental period until the Closing Date and that Purchaser shall bear such loss from and after the Closing Date.
"Tenant Notices of Sale" shall have the meaning ascribed thereto in
Section 5.1(r) hereof.
"Title Company" shall mean First American Title Insurance Company.
"Title Commitment" shall have the meaning ascribed thereto in Section 3.4 hereof.
"Transfer Fee" shall have the meaning ascribed thereto in Section 2.6 hereof.
"Transfer Request Fee" shall have the meaning ascribed thereto in
Section 2.6 hereof.
"Waived Breach" shall have the meaning ascribed thereto in Section 11.3 hereof.
ARTICLE 2.
PURCHASE AND SALE
2.1. AGREEMENT TO SELL AND PURCHASE THE ASSOCIATES PROPERTIES. Subject to and in accordance with the terms and provisions of this Agreement, Associates agrees to sell and Purchaser agrees to purchase, the following properties (collectively, the "Associates Properties"):
(a) the Associates Lands;
(b) the Associates Improvements;
(c) the Associates Ground Lease Lands and the Associates Ground Lease Reversionary Interests;
(d) all right, title and interest of Associates as "landlord" or "lessor" in and to the Leases, any guaranties of the Leases and the Security Deposits, with respect to the Associates Lands and Associates Improvements;
(e) the Associates Personal Property; and
(f) the Associates Intangible Property.
Notwithstanding any provision of this Agreement to the contrary, expressly excluded from the Properties and from the quitclaim deeds referenced in Section 5.1(b) hereof, are all rights of Cousins as Declarant under the Master Declaration and all rights of Cousins as Declarant under the Plaza Declaration.
2.2. INTENTIONALLY OMITTED.
2.3. PERMITTED EXCEPTIONS. Each of the Properties shall be conveyed subject to the matters which are, or are deemed to be, Permitted Exceptions with respect to such Property.
2.4. EARNEST MONEY.
(a) Within two (2) Business Days after Purchaser's execution and delivery of this Agreement, Purchaser shall deliver the Initial Earnest Money to Escrow Agent by federal wire transfer, payable to Escrow Agent, which Initial Earnest Money shall be held and released by Escrow Agent in accordance with the terms of the Escrow Agreement.
(b) Provided that Purchaser has not elected to terminate this Agreement pursuant to Section 3.6 hereof, on or before the last day of the Inspection Period, Purchaser shall deposit the Additional Earnest Money with Escrow Agent. The parties hereto mutually acknowledge and agree that time is of the essence in respect of Purchaser's timely deposit of the Additional Earnest Money with Escrow Agent prior to the expiration of the Inspection Period; and that if Purchaser fails to deposit the Additional Earnest Money with Escrow Agent prior to the expiration of the Inspection Period, this Agreement shall terminate, and Escrow Agent shall return the Initial Earnest Money to Purchaser, and neither party hereto shall have any further rights or obligations hereunder, except those provisions of this Agreement which by their express terms survive the termination of this Agreement.
(c) The Earnest Money shall be applied to the Purchase Price at the Closing and shall otherwise be held, refunded, or disbursed in accordance with the terms of the Escrow Agreement and this Agreement. All interest and other income from time to time earned on the Initial Earnest Money and the Additional Earnest Money shall be earned for the account of Purchaser, and shall be a part of the Earnest Money; and the Earnest Money hereunder shall be comprised of the Initial Earnest Money and the Additional Earnest Money and all such interest and other income.
2.5. PURCHASE PRICE. Subject to adjustment and credits as otherwise specified in this Section 2.5 and elsewhere in this Agreement, the purchase price (the "Purchase Price") to be paid by Purchaser to Seller for the Properties shall be Two Hundred Forty-Seven Million Five Hundred Thousand and No/100 Dollars ($247,500,000.00 U.S.), allocated as follows:
Allocated
Property Purchase Price
-------- --------------
2300 Windy Ridge Parkway $110,000,000
2401 Windy Ridge Parkway (Wachovia) $ 1,885,000
3050 Windy Hill Road (Houstons) $ 3,065,000
3175 Windy Hill Road (Bright Horizons) $ 1,460,000
3200 Windy Hill Road $119,000,000
1547 Powers Ferry Road (Wachovia/NBC) $ 3,360,000
1927 Powers Ferry Road (Sal Grasso) $ 2,720,000
1931 Powers Ferry Road (La Madeleine) $ 1,085,000
1935 Powers Ferry Road (Famous Dave's) $ 1,925,000
1945 Powers Ferry Road (TGI Fridays) $ 3,000,000
|
The Purchase Price shall be paid by Purchaser to Seller at the Closing as follows:
(a) The Earnest Money shall be paid by Escrow Agent to Seller at Closing; and
(b) Seller shall provide to Purchaser at Closing a credit against the Purchase Price in an amount equal to the sum of the then outstanding principal balance of the Loan made by Lender, which Loan is to be assumed by Purchaser as provided in Section 2.6 below. Seller shall also provide to Purchaser at Closing a credit in the amount of $7,000,000 against the Purchase Price allocated to 3200 Windy Hill Road as a capital cost credit for improvement of vacant space with respect to 3200 Windy Hill Road.
(c) At Closing, the balance of the Purchase Price, after (i) applying the Earnest Money as partial payment of the Purchase Price, and (ii) crediting the aggregate outstanding principal balance of the Loan against the Purchase Price, and subject to prorations and other adjustments specified in this Agreement, shall be paid by Purchaser in immediately available funds to the Title Company, for further delivery to an account or accounts designated by Seller. If the amount due Seller pursuant to this Agreement is not received by Seller in sufficient time for reinvestment on the Closing Date, then Purchaser shall reimburse Seller for loss of interest due to the failure to reinvest Seller's funds on the Closing Date. If Seller's existing mortgage lender with respect to 2300 Windy Ridge Parkway does not receive the amount required for the payoff of the loan by such mortgage lender by the time on the Closing Date provided by such lender for payoff of the loan, then Purchaser shall reimburse Seller for any interest charged by such mortgage lender for failure to receive the payoff amount by the time on the Closing Date provided by such mortgage lender. The provisions of the preceding sentence of this Section 2.5(c) shall survive the Closing.
2.6. ASSUMPTION OF LOAN. Seller and Purchaser shall use reasonable efforts to obtain from Lender, (1) consent to the transfer, by Associates to Purchaser, of the Property affected by
such Lender's Loan, (2) consent to Purchaser's assumption of the obligations of Associates first arising after the Closing Date under the documents evidencing, governing and securing the Loan (the "Loan Documents"), subject to any non-recourse provisions contained in the Loan Documents, and (3) release of Seller from any obligations under the Loan Documents arising or accruing after the Closing Date, such consents and release to be evidenced by an agreement to be executed and delivered at Closing among Purchaser, Associates and the Lender (the "Assumption Agreement"). Purchaser shall provide to Seller and Lender such information as shall be reasonably requested by Lender so that Lender can determine whether Purchaser qualifies as a permitted assignee under the Loan Documents. Purchaser acknowledges that the Loan provide that upon submitting to the Lender a request for such Lender's consent to a transfer to Purchaser of the Property affected by such Loan, such Lender is entitled to receive a non-refundable fee or payment or reimbursement of the expenses such Lender incurs in considering the transfer request, or both such fee and such expenses (the "Transfer Request Fee"), which Transfer Request Fee (exclusive of the payment or reimbursement of such Lender's expenses) is credited against the Transfer Fee (as hereinafter defined) for such Loan in the event such Lender consents to the proposed transfer to Purchaser. Purchaser shall be solely responsible for the payment of the Transfer Request Fee and shall pay such Transfer Request Fee with respect to the Loan upon submittal to the Lender with respect to such Loan of the request for such Lender's consent to the transfer of 3200 Windy Hill Road to Purchaser. Purchaser also acknowledges that Lender may require payment of a transfer fee (which transfer fee shall be not less than one-half of one percent (0.5%) of the outstanding principal balance of the Loan), and payment of or reimbursement for fees and expenses incurred by such Lender in connection with the transfer of 3200 Windy Hill Road, including recording fees, title insurance fees and fees and expenses of such Lender's counsel (collectively, with respect to such Loan, the "Transfer Fee"). Purchaser shall be solely responsible for the payment of the portion of the Transfer Fee equal to one-half of one percent (0.5%) of the outstanding principal balance of the Loan and the fees and expenses incurred by the Lender and shall pay such portion of the Transfer Fee at or prior to the Closing. Seller shall be responsible for the portion of the Transfer Fee, if any, in excess of the amount thereof to be paid by Purchaser and shall pay such portion of the Transfer Fee at or prior to the Closing. Purchaser agrees that, if requested by Lender, Purchaser shall at Closing execute and deliver to the Lender an indemnity acceptable to the Lender with respect to environmental matters concerning the applicable Properties and an indemnity acceptable to the Lender with respect to brokerage, leasing, finder's or similar fees relating to 3200 Windy Hill Road or the Loan.
Seller shall cause the Loan with respect to 2300 Windy Ridge Parkway to be paid in full at Closing, and such Property shall be conveyed to Purchaser by Seller free and clear of the loan documents with respect to 2300 Windy Ridge Parkway.
2.7. INDEPENDENT CONTRACT CONSIDERATION. In addition to, and not in
lieu of the delivery to Escrow Agent of the Initial Earnest Money, Purchaser
shall deliver to Seller, concurrently with Purchaser's execution and delivery of
this Agreement to Seller, Purchaser's check, payable to the order to Seller, in
the amount of One Hundred and No/100 Dollars ($100.00). Seller and Purchaser
hereby mutually acknowledge and agree that said sum represents adequate
bargained for consideration for Seller's execution and delivery of this
Agreement and Purchaser's right to inspect the Properties pursuant to Article
III. Said sum is in addition to and independent of any other consideration or
payment provided for in this
Agreement and is nonrefundable in all events, but shall be credited to the Purchase Price at Closing.
2.8. CLOSING. The consummation of the sale by Seller and purchase by Purchaser of the Properties (the "Closing") shall be held on October 12, 2004. Subject to the foregoing, the Closing shall take place through the escrow services of the National Commercial Services Division of the Title Company located at 101 Huntington Avenue F1 13, Boston, Massachusetts 02199-7601, and at such specific time and date (the "Closing Date") as shall be designated by Purchaser in a written notice to Seller not less than three (3) Business Days prior to Closing. If Purchaser fails to give such notice of the Closing Date, the Closing shall be held at 10:00 a.m. on the outside date for Closing as provided above. It is contemplated that the transaction shall be closed with the concurrent delivery of the documents of title and the payment of the Purchase Price. Notwithstanding the foregoing, there shall be no requirement that Seller and Purchaser physically meet for the Closing, and all documents to be delivered at the Closing shall be delivered to the Title Company unless the parties hereto mutually agree otherwise. Seller and Purchaser agree to use reasonable efforts to complete all requirements for the Closing prior to the Closing Date.
ARTICLE 3.
PURCHASER'S INSPECTION AND REVIEW RIGHTS
3.1. DUE DILIGENCE INSPECTIONS.
(a) From and after the Effective Date until the Closing Date or earlier termination of this Agreement, Seller shall permit Purchaser and its authorized representatives to inspect the Properties, to perform due diligence and environmental investigations, to examine the records of Associates with respect to the Associates Properties, and make copies thereof, at such times during normal business hours as Purchaser or its representatives may request, at least one (1) Business Day in advance thereof. All such inspections shall be nondestructive in nature, and specifically shall not include any physically intrusive testing without Seller's prior written consent as provided in Section 3.1(d) below. All such inspections shall be performed in such a manner to minimize any interference with the business of the tenants under the Leases and the Associates Ground Leases at the Properties and, in each case, in compliance with the rights and obligations of Seller as landlord under the Leases. Purchaser's contact with any tenant of the Properties shall be limited to customary tenant interviews, and Purchaser shall not have the right to interview the tenants under the Leases without providing Seller with an opportunity to jointly conduct such interview. All inspection fees, appraisal fees, engineering fees and all other costs and expenses of any kind incurred by Purchaser relating to the inspection of the Properties shall be solely Purchaser's expense. Seller reserves the right to have a representative present at the time of making any such inspection. Purchaser shall notify Seller not less than one (1) Business Day in advance of making any such inspection.
(b) If the Closing is not consummated hereunder, Purchaser shall promptly, at Seller's request, deliver copies of all reports, surveys and other information furnished to Purchaser by third parties in connection with such inspections to Associates, as to the Associates Properties; provided, however, that delivery of such copies and information shall be without warranty or representation whatsoever, express or implied, including, without limitation, any warranty or
representation as to ownership, accuracy, adequacy or completeness thereof or otherwise. This Section 3.1(b) shall survive the termination of this Agreement.
(c) To the extent that Purchaser or any of its representatives, agents or contractors damages or disturbs the Properties or any portion thereof, Purchaser shall return the same to substantially the same condition which existed immediately prior to such damage or disturbance. Purchaser hereby agrees to and shall indemnify, defend and hold harmless Seller from and against any and all expense, loss or damage which Seller may incur (including, without limitation, reasonable attorney's fees actually incurred) as a result of any act or omission of Purchaser or its representatives, agents or contractors, other than any expense, loss or damage to the extent arising from any act or omission of Seller during any such inspection. Said indemnification agreement shall survive the Closing and any earlier termination of this Agreement for a period of two (2) years after the Closing Date or the date of termination, as applicable, except with respect to any expense, loss or damage as to which Seller shall have sent a written notice to Purchaser prior to the expiration of said two (2) year period. The foregoing indemnity shall not include any costs or expense merely arising from Purchaser's discovery of any adverse environmental or physical conditions relating to the Land or Improvements. Purchaser shall maintain and shall ensure that Purchaser's consultants and contractors maintain commercial general liability insurance in an amount not less than $5,000,000, combined single limit, and in form and substance adequate to insure against all liability of Purchaser and its consultants and contractors, respectively, and each of their respective agents, employees and contractors, arising out of inspections and testing of the Properties or any part thereof made on Purchaser's behalf. Purchaser agrees to provide to Seller a certificate of insurance with regard to each applicable liability insurance policy prior to any entry upon the Properties by Purchaser or its consultants or contractors, as the case may be, pursuant to this Section 3.1.
(d) If Purchaser desires to perform any invasive or physically intrusive testing of the Properties, including, without being limited to, any sampling in connection with the Phase II environmental assessments of the Properties, or any other investigation that will involve the removal of flooring, making excavations or test borings, disturbance of any plants, trees or shrubs, or any other invasive test or activity (collectively, "Invasive Testing"), then Purchaser shall provide to either Jack A. LaHue or Janet Brody a written request for approval therefor, which Invasive Testing request shall include the nature and scope of the proposed Invasive Testing and the identity of the company or persons by whom it would be performed. Seller shall approve or disapprove, in Seller's reasonable discretion, any such Invasive Testing request in writing within two (2) Business Days following Seller's receipt thereof, if received on a Business Day.
3.2. DELIVERIES BY SELLER TO PURCHASER; PURCHASER'S ACCESS TO PROPERTY RECORDS OF SELLER.
(a) Purchaser acknowledges receipt of the following (and Purchaser further acknowledges that no additional items are required to be delivered by Seller to Purchaser except as may be expressly set forth in other provisions of this Agreement):
(i) Copies of current property tax bills and assessor's statements of current assessed value with respect to each Property.
(ii) Copies of operating statements for the past 24 months with respect to each Property.
(iii) A 2004 Operating Budget with respect to each Property.
(iv) Copies of all Leases and guarantees relating thereto existing as of the Effective Date with respect to each Property.
(v) An aged tenant receivable report, if any, regarding income from the tenants with respect to each Property.
(vi) Annual tenant, tax and operating expense reconciliation statements for the past 24 months with respect to each Property.
(vii) Copies of the Loan Documents listed on EXHIBIT "H" attached hereto.
(viii) Copies of the Commission Agreements with respect to each Property.
(ix) Copies of all Service Contracts currently in place with respect to each Property.
(x) Copies of the current policies of title insurance of Associates with respect to the Associates Ground Lease Lands, the Associates Lands and Associates Improvements.
(xi) Copies of the Existing Surveys with respect to the Land and the Associates Ground Lease Lands.
(xii) Copies of the Associates Ground Leases and each of the title documents listed on EXHIBIT "I" attached hereto.
(xiii) Copies of the Master Declaration and the Plaza Declaration.
(xiv) Copies of the Existing Environmental Reports with respect to each Property.
(xv) The current rent roll with respect to the Properties.
(xvi) A detailed list of all capital improvements in excess of $50,000 each made during the last three (3) calendar years.
(xvii) Such zoning certifications from Cobb County as are in Seller's possession.
(xviii) Utility bills for 2300 Windy Ridge Parkway and 3200 Windy Hill Road for the last twenty-four (24) months.
(xix) An inventory of all personal property of Seller at the Properties ($300 or greater in value).
(xx) A narrative description of any pending or threatened litigation or condemnation at or affecting the Properties.
(b) From the Effective Date until the Closing Date or earlier termination of this Agreement, Associates shall allow Purchaser and Purchaser's representatives, on reasonable advance notice and during normal business hours, to have access to its existing books, records and files relating to the Properties (and Seller covenants that it shall not intentionally withhold any such books, records and files relating to the Properties), at its on-site management offices at the Properties, at the office of the Broker, or at the office of Cousins at 2500 Windy Ridge Parkway, Suite 1600, Atlanta, Georgia 30339, for the purpose of inspecting and (at Purchaser's expense) copying the same, including, without limitation, the materials listed below (to the extent any or all of the same are in the possession of Associates or Cousins), subject, however, to the limitations of any confidentiality or nondisclosure agreement to which Seller may be bound, and provided that Seller shall not be required to deliver or make available to Purchaser any appraisals, strategic plans for the Properties or any of them, internal analyses, information regarding the marketing for sale of the Properties or any of them, submissions relating to Seller's obtaining of corporate authorization, attorney and accountant work product, and attorney-client privileged documents. Purchaser acknowledges and agrees, however, that, except as otherwise set forth in this Agreement, Seller makes no representation or warranty of any nature whatsoever, express or implied, with respect to the ownership, enforceability, accuracy, adequacy or completeness or otherwise of any of such records, evaluations, data, investigations, reports or other materials. If the Closing contemplated hereunder fails to take place for any reason, Purchaser shall promptly, upon Seller's request, return all copies of materials copied from the books, records and files of Seller relating to the Properties. It is understood and agreed that Seller shall not have any obligation to obtain, commission or prepare any such books, records, files, reports or studies not now in the possession of Seller. Subject to the foregoing, Seller agrees to make available to Purchaser for inspection and copying, without limitation, the following books, records and files relating to the Properties, all to the extent the same are in the possession of Seller:
(i) Tenant Information. Copies of any financial statements or other financial information of any tenants under the Leases (and the Lease guarantors, if any), written information relative to the tenants' payment histories, and tenant correspondence, to the extent Associates has the same in its possession;
(ii) Plans. All available construction plans and specifications in the possession of Associates relating to the development, condition, repair and maintenance of the Properties, the Improvements and the Personal Property;
(iii) Permits; Licenses. Copies of any permits, licenses, or other similar documents in the possession of Associates relating to the use, occupancy or operation of the Properties;
(iv) Operating Costs and Expenses. All available records of any operating costs and expenses for the Properties in the possession of Associates; and
(v) URLs. A description of the web site and related URLs (Domain Names) utilized in connection with the Properties, along with copies of any contracts relating to the hosting, maintenance or marketing of such web site and information as to the registration of the URLs, including the expiration dates of such registration.
3.3. CONDITION OF THE PROPERTIES.
(a) Seller recommends that Purchaser employ one or more independent engineering and/or environmental professionals to perform engineering, environmental and physical assessments on Purchaser's behalf in respect of the Properties and the condition thereof. Purchaser and Seller mutually acknowledge and agree that, except for the representations and warranties of Seller set forth in this Agreement, the Properties are being sold in an "AS IS" condition and "WITH ALL FAULTS," known or unknown, contingent or existing (but subject to the representations and warranties of Seller set forth in this Agreement). Purchaser has the sole responsibility to fully inspect the Properties, to investigate all matters relevant thereto, including, without limitation, the condition of the Properties, and to reach its own, independent evaluation of any risks (environmental or otherwise) or rewards associated with the ownership, leasing, management and operation of the Properties. Effective as of the Closing and except as expressly set forth in this Agreement, Purchaser hereby waives and releases Seller and its partners and their respective officers, directors, shareholders, agents, affiliates, employees and successors and assigns from and against any and all claims, obligations and liabilities arising out of or in connection with the Properties.
(b) To the fullest extent permitted by law, Purchaser does hereby unconditionally waive and release Seller and its partners and their respective officers, directors, shareholders, agents, affiliates and employees from any present or future claims and liabilities of any nature arising from or relating to the presence or alleged presence of Hazardous Substances in, on, at, from, under or about the Properties or any adjacent property, including, without limitation, any claims under or on account of any Environmental Law, regardless of whether such Hazardous Substances are located in, on, at, from, under or about the Properties or any adjacent property prior to or after the date hereof, but the foregoing release is inapplicable to claims for breach of the representations and warranties of Seller set forth in this Agreement. In addition, Purchaser does hereby covenant and agree to defend, indemnify, and hold harmless Seller and its partners and their respective officers, directors, shareholders, agents, affiliates and employees from and against any claims, demands, penalties, fines, liabilities, settlements, damages, costs or expenses of whatever kind or nature, known or unknown, existing and future, including any action or proceeding brought or threatened, or ordered by governmental authorities, relating to any Hazardous Substances which may be placed, located or released on the Properties after the date of Closing. The terms and provisions of this Section 3.3 shall survive the Closing hereunder until the expiration of any applicable statute of limitations.
3.4. TITLE AND SURVEY. Seller has provided Purchaser with a preliminary
title commitment with respect to each of the Properties (individually, a
"Seller's Title Commitment", and collectively, the "Seller's Title
Commitments"). Purchaser shall have the right, but not the obligation, to order
at Purchaser's expense from the Title Company, a preliminary title commitment
with respect to each of the Properties (individually, a "Purchaser's Title
Commitment", and collectively, the "Purchaser's Title Commitments"). Purchaser
shall direct the Title Company to send a copy of each of the Purchaser's Title
Commitments to Seller. "Title Commitment" shall mean a Seller's Title Commitment
or a Purchaser's Title Commitment. The Seller's Title Commitments and
Purchaser's Title Commitments are collectively referred to as the "Title
Commitments". Promptly upon execution of this Agreement, Purchaser may arrange,
also at its expense, for the preparation of one or more updates of each Existing
Survey (individually, a "Survey", and collectively, the "Surveys"). Purchaser
likewise shall make copies of all such Surveys available to Seller prior to
Closing. Purchaser shall have until the end of the Inspection Period to give
written notice (the "First Title Notice") to Seller of such objections as
Purchaser may have to any exceptions to title disclosed in the Title Commitments
or in the Surveys or otherwise in Purchaser's examinations of title. From time
to time at any time after the First Title Notice and prior to the Closing Date,
Purchaser may give written notice (a "Subsequent Title Notice") to Seller of
exceptions to title first appearing of record with respect to a Property after
the effective date of the most recent previous title commitment or updated title
commitment with respect to such Property or matters of survey which matters of
record or matters of survey would not have been disclosed by an accurate updated
examination of title or preparation of an updated ALTA survey prior to date of
the initial Title Commitment with respect to such Property or the initial Survey
with respect to such Property. Seller shall have the right, but not the
obligation (except as to Monetary Objections), to attempt to remove, satisfy or
otherwise cure any exceptions to title to which the Purchaser so objects. Within
five (5) Business Days after receipt of Purchaser's First Title Notice, Seller
shall give written notice to Purchaser informing the Purchaser of the election
of Seller with respect to the objections in the First Title Notice. Within five
(5) Business Days after receipt of any Subsequent Title Notice, Seller shall
give written notice to Purchaser informing the Purchaser of the election of
Seller with respect to the objections in such Subsequent Title Notice. If Seller
fails to give written notice of election within such five (5) Business Day
period, Seller shall be deemed to have elected not to attempt to cure the
objections (other than Monetary Objections) set forth in the First Title Notice
or such Subsequent Title Notice, whichever is applicable. If Seller elects to
attempt to cure any objections, Seller shall be entitled to one or more
reasonable adjournments of the Closing of up to but not beyond the thirtieth
(30th) day following the initial date set for the Closing to attempt such cure,
but, except for Monetary Objections, Seller shall not be obligated to expend any
sums, commence any suits or take any other action to effect such cure. Except as
to Monetary Objections, if Seller elects, or is deemed to have elected, not to
cure any exceptions to title to which Purchaser has objected or if, after
electing to attempt to cure, Seller determines that it is unwilling or unable to
remove, satisfy or otherwise cure any such exceptions, Purchaser's sole remedy
hereunder in such event shall be either (i) to accept title to the applicable
Property subject to such exceptions as if Purchaser had not objected thereto and
without reduction of the Purchase Price; (ii) if such exceptions are matters
first appearing of record after the date of this Agreement, and arise by,
through or under Seller, to either (A) terminate this Agreement or (B) terminate
this Agreement only as to the particular Property or Properties affected by such
title exception, whereupon the parties shall proceed to close under this
Agreement as to all other Properties at a Purchase Price which excludes the
portion of the Purchase Price allocated to the
particular Property or Properties affected by such title exception and as to which this Agreement was terminated, or (C) obtain specific performance of Seller's obligations to convey the Properties to Purchaser in accordance with this Agreement, and if specific performance cannot be obtained as a result of the willful and intentional default of Seller, committed with the intent to deprive Purchaser of its right to acquire the Properties pursuant to the terms of this Agreement, Purchaser shall be entitled to obtain actual (but not consequential or punitive) damages from Seller incurred as a result of such default; or (iii) to terminate this Agreement within three (3) Business Days after receipt of written notice from Seller either of the election of Seller not to attempt to cure any objection or of the determination of Seller, having previously elected to attempt to cure, that Seller is unable or unwilling to do so, or three (3) Business Days after Seller is deemed hereunder to have elected not to attempt to cure such objections (and upon any such termination under clause (ii) or (iii), Escrow Agent shall return the Earnest Money to Purchaser), and if Purchaser has elected to terminate this Agreement under clause (ii)(A) above, because Seller has failed to cure or satisfy exceptions first appearing of record after the date of this Agreement that arose by, through or under Seller, Seller shall also pay to Seller an amount equal to all out-of-pocket expenses actually incurred by Purchaser in connection with this transaction, provided that such reimbursement of out-of-pocket expenses shall not exceed $250,000 in the aggregate. Notwithstanding anything to the contrary contained elsewhere in this Agreement, Seller shall be obligated to cure or satisfy all Monetary Objections at or prior to Closing, and may use the proceeds of the Purchase Price at Closing for such purpose.
3.5. SERVICE CONTRACTS. Not less than fifteen (15) days prior to the expiration of the Inspection Period, Purchaser will designate in a written notice to Seller which Service Contracts Purchaser will assume and which Service Contracts will be terminated by Seller at Closing; provided, however, that Seller shall not be obligated to terminate, and Purchaser shall assume the obligations of Seller arising from and after Closing under, all Service Contracts which cannot be terminated by Seller upon no more than thirty (30) days prior notice or which can be terminated by Seller only upon payment of a fee, premium, penalty or other form of early termination compensation. Taking into account any credits or prorations to be made pursuant to Article 5 hereof for payments coming due after Closing but accruing prior to Closing, Purchaser will assume the obligations arising from and after the Closing Date under those Service Contracts which Purchaser has designated will not be terminated. Seller, without cost to Purchaser, shall terminate at Closing all Service Contracts that are not so assumed, to the extent any relates to any one or more of the Properties. If Purchaser fails to notify Seller in writing on or prior to the date which is fifteen (15) days prior to the expiration of the Inspection Period of any Service Contracts that Purchaser does not desire to assume at Closing, Purchaser shall be deemed to have elected to assume all such Service Contracts and to have waived its right to require Seller to terminate such Service Contracts at Closing. Those Service Contracts which cover properties or improvements in addition to the Properties are herein called "Joint Service Contracts". Notwithstanding the foregoing to the contrary, Seller shall terminate the Joint Service Contracts at Closing with respect to the Properties, Seller shall not assign the Joint Service Contracts, Purchaser shall not assume the Joint Service Contracts, and Purchaser shall make or cause to be made such arrangements as Purchaser elects with respect to the services currently provided to the Properties under the Joint Service Contracts, either with the providers thereunder or with such other providers as selected by Purchaser. At Closing, Purchaser and Cousins shall enter into a Management Agreement and a Leasing Agreement with respect to the Properties which shall provide for the management and leasing of the Properties by Cousins for a term of three (3) years
after Closing in accordance with the terms of such Management Agreement and Leasing Agreement. The Management Agreement and Leasing Agreement shall be in a form to be determined by the parties hereto prior to the expiration of the Inspection Period.
3.6. TERMINATION OF AGREEMENT. Purchaser shall have until the expiration of the Inspection Period to determine, in Purchaser's sole opinion and discretion, the suitability of the Properties for acquisition by Purchaser or Purchaser's permitted assignees, and to obtain all necessary internal approvals, including, but not limited to, required Investment Committee approval. Purchaser shall have the right to terminate this Agreement at any time on or before said time and date of expiration of the Inspection Period by giving written notice to Seller of such election to terminate. If Purchaser so elects to terminate this Agreement pursuant to this Section 3.6, Escrow Agent shall pay the Initial Earnest Money to Purchaser, whereupon, except for those provisions of this Agreement which by their express terms survive the termination of this Agreement, no party hereto shall have any other or further rights or obligations under this Agreement. If Purchaser fails to so terminate this Agreement prior to the expiration of the Inspection Period, Purchaser shall have no further right to terminate this Agreement pursuant to this Section 3.6. Notwithstanding the foregoing, in the event Purchaser's environmental inspections of the Properties during the Inspection Period reveal a Material Environmental Defect as to one or more of the Properties, Purchaser may, at its option, by written notice to Seller given prior to the expiration of the Inspection Period, terminate this Agreement only as to the particular Property or Properties affected by such Material Environmental Defect, whereupon Purchaser shall proceed to close under this Agreement as to all of the other Properties at a Purchase Price which excludes the portion of the Purchase Price allocated the particular Property or Properties affected such Material Environmental Defect and as to which this Agreement was terminated. For purposes of this Agreement, the term "Material Environmental Defect" shall be applied on a Property by Property basis and shall mean the presence of an environmental condition affecting a particular Property which, in the case of 2300 Windy Ridge Parkway or 3200 Windy Hill Road, either cannot be remediated at a cost of less than $1,000,000 or in the case of each other Property cannot be remediated at a cost of less than $100,000.
3.7. CONFIDENTIALITY. All information acquired by Purchaser or any of its designated representatives (including by way of example, but not in limitation, the officers, directors, members and employees of Purchaser, and Purchaser's engineers, consultants, counsel and potential lenders, and the officers, directors, shareholders and employees of each of them) with respect to the Properties, whether delivered by Seller or any representatives of Seller or obtained by Purchaser as a result of its inspection and investigation of the Properties, examination of the books, records and files of Seller in respect of the Properties, or otherwise (collectively, the "Due Diligence Material") shall be used solely for the purpose of determining whether the Properties are suitable for Purchaser's acquisition and ownership thereof and for no other purpose whatsoever. The terms and conditions which are contained in this Agreement and all Due Diligence Material which is not published as public knowledge or which is not generally available in the public domain shall be kept in strict confidence by Purchaser and shall not be disclosed to any individual or entity other than to those authorized representatives of Purchaser who need to know the information for the purpose of assisting Purchaser in evaluating the Properties for Purchaser's potential acquisition thereof; provided, however, that Purchaser shall have the right to disclose any such information if required by applicable law or as may be necessary in connection with any court action or proceeding with respect to this Agreement.
Purchaser shall and hereby agrees to indemnify and hold Seller harmless from and against any and all loss, liability, cost, damage or expense that Seller may suffer or incur (including, without limitation, reasonable attorneys' fees actually incurred) as a result of the unpermitted disclosure or use of any of the Due Diligence Material to any individual or entity other than an appropriate representative of Purchaser and/or the use of any Due Diligence Material for any purpose other than as herein contemplated and permitted. If Purchaser elects to terminate this Agreement pursuant to any provision hereof permitting such termination, or if the Closing contemplated hereunder fails to occur for any reason, Purchaser will promptly return to Seller all Due Diligence Material in the possession of Purchaser and any of its representatives, and destroy all copies, notes or abstracts or extracts thereof, as well as all copies of any analyses, compilations, studies or other documents prepared by Purchaser or for its use (whether in written or electronic form) containing or reflecting any Due Diligence Material, but excluding internal analyses prepared by Purchaser or by UBS Realty Investors LLC. In the event of a breach or threatened breach by Purchaser or any of its representatives of this Section 3.7, Seller shall be entitled, in addition to other available remedies, to an injunction restraining Purchaser or its representatives from disclosing, in whole or in part, any of the Due Diligence Material and any of the terms and conditions of this Agreement. Nothing contained herein shall be construed as prohibiting or limiting Seller from pursuing any other available remedy, in law or in equity, for such breach or threatened breach. The provisions of this Section shall survive any termination of this Agreement.
ARTICLE 4.
REPRESENTATIONS, WARRANTIES AND OTHER AGREEMENTS
4.1. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller hereby makes the following representations and warranties to Purchaser:
(a) Organization, Authorization and Consents. Cousins is a duly organized and validly existing corporation under the laws of the State of Georgia. International Business Machines Corporation is a duly organized and validly existing corporation under the laws of the State of New York and is qualified to do business in the State of Georgia. Associates is a duly organized and validly existing general partnership under the laws of the State of Georgia. Seller has the right, power and authority to enter into this Agreement and to convey the Properties in accordance with the terms and conditions of this Agreement, to engage in the transactions contemplated in this Agreement and to perform and observe the terms and provisions hereof.
(b) Action of Seller, Etc. Seller has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and upon the execution and delivery of any document to be delivered by Seller on or prior to the Closing, this Agreement and such document shall constitute the valid and binding obligation and agreement of Seller, enforceable against Seller in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general application affecting the rights and remedies of creditors.
(c) No Violations of Agreements. Provided Associates obtains from Lender the consents referred to in Section 2.6 hereof, neither the execution, delivery or performance of this Agreement by Seller, nor compliance with the terms and provisions hereof, will result in any
breach of the terms, conditions or provisions of, or conflict with or constitute a default under, or result in the creation of any lien, charge or encumbrance upon the Properties of Seller or any portion thereof pursuant to the terms of any indenture, deed to secure debt, mortgage, deed of trust, note, evidence of indebtedness or any other agreement or instrument by which Seller is bound.
(d) Litigation. To Seller's knowledge, except as et forth in EXHIBIT "J", no investigation, action or proceeding is pending or threatened (i) relating to the ownership, operation, use or value of the Properties, or (ii) questioning the validity of this Agreement or any action taken or to be taken pursuant hereto, or (iii) involving condemnation or eminent domain proceedings involving the Properties or any portion thereof.
(e) Existing Leases. Other than the Associates Ground Leases and the Leases listed on EXHIBIT "G" attached hereto, Seller has not entered into any contract or agreement with respect to the occupancy of the Properties or any portion or portions thereof which will be binding on Purchaser after the Closing. The copies of the Associates Ground Leases and the Leases affecting the Properties of Seller heretofore delivered by Seller to Purchaser are true, correct and complete copies thereof, and the Associates Ground Leases and the Leases affecting the Properties have not been amended except as evidenced by amendments similarly delivered and constitute the entire agreement between Seller and the tenants thereunder. Except as set forth in EXHIBIT "J" attached hereto, Seller has not received any written notice of Seller's default or failure to comply with the terms and provisions of the Associates Ground Leases and the Leases affecting the Properties which remain uncured, and to Seller's knowledge, no material uncured default by Seller exists. Except as set forth on EXHIBIT "J" attached hereto, Seller has no knowledge of any material default by the tenant under any Leases or Associates Ground Leases which remains uncured.
(f) Right of First Offer. Except as set forth on EXHIBIT "J", no tenant of Seller has any right or option (including any right of first refusal or right of first offer) to purchase all or any part of the Properties of Seller or any interest therein.
(g) Leasing Commissions. There are no lease brokerage agreements,
leasing commission agreements or other agreements providing for payments of any
amounts for leasing activities or procuring tenants with respect to the
Properties of Seller or any portion or portions thereof other than as disclosed
in EXHIBIT "C" attached hereto (the "Commission Agreements"), and all leasing
commissions and brokerage fees accrued or due and payable under the Commission
Agreements with respect to the Properties of Seller as of the date hereof and at
the Closing have been or shall be paid in full. Notwithstanding anything to the
contrary contained herein, (i) the respective obligations of Seller and
Purchaser with respect to certain leasing commissions are set forth on EXHIBIT
"P" attached hereto, and (ii) Purchaser shall be responsible for the payment of
all leasing commissions payable for (a) any new leases entered into after the
Effective Date that have been approved (or deemed approved) by Purchaser, and
(ii) except as expressly otherwise provided on EXHIBIT "P" attached hereto, the
renewal, expansion or extension of any Leases existing as of the Effective Date
and exercised or effected after the Effective Date.
(h) Management Agreement. Except for a management agreement between Associates and Cousins with respect to the Associates Properties, which management agreement will be cancelled and terminated with respect the Associates Properties at Closing, there is no agreement currently in effect relating to the management of the Properties of Seller by any third-party management company.
(i) Loan Documents. All material documents, instruments and agreements which comprise the Loan Documents with respect to 3200 Windy Hill Road are listed on EXHIBIT "H" attached hereto and made a part hereof. Seller has delivered to Purchaser complete and accurate copies of such Loan Documents. Seller has not received any written notice from the Lender asserting a default under such Loan Documents which remains uncured or outstanding.
(j) Master Declaration. Seller has delivered to Purchaser a complete and accurate copy of the Master Declaration. To Seller's knowledge, there are no existing or uncured defaults by Seller under the Master Declaration.
(k) Plaza Declaration. Seller has delivered to Purchaser a complete and accurate copy of the Plaza Declaration. To Seller's knowledge, there are no existing or uncured defaults by Seller under the Plaza Declaration.
(l) Taxes and Assessments. Except as may be set forth on EXHIBIT "O" attached hereto and made a part hereof, Seller has not filed, and has not retained anyone to file, notices of protests against, or to commence action to review, real property tax assessments against the Properties of Seller.
(m) Compliance with Laws. To Seller's knowledge and except as set forth on EXHIBIT "J", Seller has received no written notice from any person or entity (including any governmental authority) alleging any violations of law (including any Environmental Law), municipal or county ordinances, or other legal requirements with respect to the Properties of Seller where such violations remain outstanding.
(n) Other Agreements. To Seller's knowledge, except for the Leases, the Associates Ground Leases, the Service Contracts, the Commission Agreements, the Loan Documents, and the Permitted Exceptions, there are no leases, management agreements, brokerage agreements, leasing agreements or other agreements or instruments in force or effect that grant to any person or any entity (other than Seller) any right, title, interest or benefit in and to all or any part of the Properties or any rights relating to the use, operation, management, maintenance or repair of all or any part of the Properties which will survive the Closing or be binding upon Purchaser other than those which Purchaser has agreed in writing to assume prior to the expiration of the Inspection Period (or is deemed to have agreed to assume) or which are terminable upon thirty (30) days notice without payment of premium or penalty.
(o) Seller Not a Foreign Person. Seller is not a "foreign person" which would subject Purchaser to the withholding tax provisions of Section 1445 of the Internal Revenue Code of 1986, as amended.
(p) Employees. Seller has no employees to whom by virtue of such employment Purchaser will have any obligation after the Closing.
(q) Rent Roll. The information contained in the rent roll provided by Seller to Purchaser is true and accurate in all material respects.
(r) Operating Statements. To Seller's knowledge, the operating statements delivered to Purchaser by Seller pursuant to Section 3.2(a)(ii) fairly present the financial results of the operation of the Properties for the periods covered thereby and were prepared by or for Seller in the ordinary course of Seller's business and are operating statements relied upon by Seller in the operation of the Properties.
(s) ERISA. Neither Seller nor any holder of an interest in Seller is a "party in interest" to any employee benefit plans, and the Properties are not assets of an employee benefit plan covered under Part 4 of Title 1 of the Employee Retirement Income Security Act of 1974, as amended (ERISA), or as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended. For purposes of the foregoing, the term "party in interest" shall have the meaning assigned to such term in Section 3(14) of ERISA.
(t) Executive Order 13224. Neither Seller nor any holder of an interest in Seller is (i) a person or entity described by Section 1 of Executive Order 13224 Blocking Property and Prohibiting Transactions with Persons who Commit, Threaten to Commit, or Support Terrorism, 66 Federal Register 49,079, September 24, 2001, or (ii) engages in any dealings or transactions or is otherwise associate with any such persons or entities.
(u) Environmental Laws. To Seller's knowledge, except as may be disclosed in the Existing Environmental Reports, there are no material violations of Environmental Laws with respect to the Properties.
The representations and warranties made in this Agreement by Seller
shall be continuing and shall be deemed remade by Seller as of the Closing Date,
with the same force and effect as if made on, and as of, such date, subject to
Seller's right to update such representations and warranties by written notice
to Purchaser and in the certificate of Seller to be delivered pursuant to
Section 5.1(i) hereof.
Except as otherwise expressly provided in this Agreement or in any documents to be executed and delivered by Seller to Purchaser at the Closing, Seller has not made, and Purchaser has not relied on, any information, promise, representation or warranty, express or implied, regarding the Property, whether made by Seller on behalf of Seller, or otherwise, including, without limitation, the physical condition of the Properties, the financial condition of the tenants under the Leases or the Associates Ground Leases, title to or the boundaries of the Properties, pest control matters, soil conditions, the presence, existence or absence of hazardous wastes, toxic substances or other environmental matters, compliance with building, health, safety, land use and zoning laws, regulations and orders, structural and other engineering characteristics, traffic patterns, market data, economic conditions or projections, past or future economic performance of the tenants or the Properties, and any other information pertaining to the Properties or the market and physical environments in which the Properties are located.
Purchaser acknowledges (i) that Purchaser has entered into this Agreement with the intention of making and relying upon its own investigation or that of Purchaser's own consultants and representatives with respect to the physical, environmental, economic and legal condition of the Properties and (ii) that Purchaser is not relying upon any statements, representations or warranties of any kind, other than those specifically set forth in this Agreement or in any document to be executed and delivered by Seller to Purchaser at the Closing, made (or purported to be made) by Seller or anyone acting or claiming to act on behalf of Seller. Purchaser will inspect the Properties and become fully familiar with the physical condition thereof and, subject to the terms and conditions of this Agreement, shall purchase the Properties in their "as is" condition, "with all faults," on the Closing Date. The provisions of this grammatical paragraph shall survive the Closing until the expiration of any applicable statute of limitations.
4.2. KNOWLEDGE DEFINED. All references in this Agreement to the "knowledge of Associates" or "to Associates' knowledge" or to the "knowledge of Seller" or "to Seller's knowledge", shall refer only to the actual knowledge of James F. George, Dara J. Nicholson, and Jack A. LaHue, each of whom has been actively, each of whom has been actively involved in the management of Associates' business in respect of the Associates Properties in the capacities of Senior Vice President, Senior Vice President, and Senior Vice President, respectively, of Cousins, as a general partner of Associates. The term "knowledge of Associates" or "to Associates' knowledge" or to the "knowledge of Seller" or "to Seller's knowledge", shall not be construed, by imputation or otherwise, to refer to the knowledge of Associates, or any affiliate of Associates, or to any other partner, beneficial owner, officer, director, agent, manager, representative or employee of Associates, or any of their respective affiliates, or to impose on any of the individuals named above any duty to investigate the matter to which such actual knowledge, or the absence thereof, pertains. There shall be no personal liability on the part of the individuals named above arising out of any representations or warranties made herein or otherwise.
4.3. COVENANTS AND AGREEMENTS OF SELLER.
(a) Leasing Arrangements. During the pendency of this Agreement, except as provided in this Section 4.3(a), Seller will not enter into any lease affecting the Properties, or modify or amend in any material respect, or terminate, any of the existing Leases or Associates Ground Leases affecting the Properties without Purchaser's prior written consent in each instance, which consent shall not be unreasonably withheld, delayed or conditioned and which shall be deemed given unless withheld by written notice to Seller given within five (5) Business Days after Purchaser's receipt of Seller's written request therefor, each of which requests shall be accompanied by a copy of any proposed modification or amendment of an existing Lease or Associates Ground Lease or of any new Lease that Seller wishes to execute between the Effective Date and the Closing Date, including, without limitation, a description of any Tenant Inducement Costs and leasing commissions associated with any proposed renewal or expansion of an existing Lease or Associates Ground Lease or with any such new Lease. If Purchaser fails to notify Seller in writing of its approval or disapproval within said five (5) Business Day period, such failure by Purchaser shall be deemed to be the approval of Purchaser. At Closing, Purchaser shall reimburse Seller for any Tenant Inducement Costs, leasing commissions or other expenses, including reasonable attorneys' fees, actually incurred by Seller pursuant to a renewal or expansion of any existing Lease or Associates Ground Lease or new Lease approved (or
deemed approved) by Purchaser hereunder. Such attorneys' fees to be reimbursed by Purchaser in connection with any particular new Lease or any material amendment of an existing Lease providing for the extension of the lease term thereof shall not exceed $5,000 if the particular new Lease or the material amendment to an existing Lease involves less than 10,000 square feet of rentable floor area and shall not exceed $10,000 if the new Lease or the material amendment to an existing Lease involves more than 10,000 square feet of rentable floor area.
Seller has notified Purchaser that W. H. Smith Inc., a tenant of 3200 Windy Hill Road, has not paid rent for the month of August 2004 and has advised Seller that it desires to terminate its Lease in exchange for a cash payment to the Landlord under such Lease. Purchaser has underwritten the Purchase Price allocated to 3200 Windy Hill Road on the basis that the Lease with W. H. Smith Inc. having no value, and Purchaser is willing to permit Seller to terminate the Lease with W. H. Smith Inc. and to collect and retain a termination payment without sharing such termination payment with Purchaser (notwithstanding that a portion of such termination payment will be attributable to rent which would become due and owing by the tenant under such Lease after the Closing). Accordingly, Seller agrees that Seller will terminate the Lease with W. H. Smith Inc., either voluntarily or involuntarily, prior to Closing, and Purchaser consents to such termination. Seller and Purchaser further agree that Seller shall retain all right, title and interest in and to any termination payment payable by W. H. Smith Inc. as a result of an early termination of its Lease and any claim against W. H. Smith Inc. for rent or other damages arising out of any voluntary or involuntary termination of its Lease prior to Closing or in connection with any bankruptcy or insolvency proceeding filed by or against W. H. Smith Inc. prior to or after Closing, including, without limitation, the right to file any proof of claim for such rent and damages in any proceeding filed by or against W. H. Smith Inc. prior to or after Closing under any chapter of the U.S. Bankruptcy Code.
Reference is made to the Lease Agreement between Seller and International Business Machines Corporation dated as of December 18, 1989, as amended, with respect to premises at 3200 Windy Hill Road (the "3200 IBM Lease") Prior to Closing, Seller shall cause the 3200 IBM Lease to be amended in writing to delete Article 21 thereof in its entirety, thereby causing the rights granted to the tenant under Article 21 of the 3200 IBM Lease to be of no further force or effect.
(b) New Contracts. During the pendency of this Agreement, Seller will not enter into any contract, or modify, amend, renew or extend any existing contract, that will be an obligation affecting the Properties or any part thereof subsequent to the Closing or except as provided in Section 4.3(a) above, make or create any transfer, deed, easement, encumbrance, lease or other interest in the Properties or any part thereof, without Purchaser's prior written consent in each instance (which Purchaser agrees not to withhold or delay unreasonably), except contracts entered into in the ordinary course of business that are terminable without cause (and without penalty or premium) on 30 days (or less) notice.
(c) Operation of Property. During the pendency of this Agreement, Seller shall continue to operate the Properties in a good and businesslike fashion consistent with Seller's past practices.
(d) Insurance. During the pendency of this Agreement, Seller shall, at Seller's expense, continue to maintain existing liability insurance coverages and the fire insurance coverages (including rent loss insurance coverages) with respect to the Improvements which are currently in force and effect.
(e) Tenant Estoppel Certificates. Seller shall endeavor in good faith (but without obligation to incur any material cost or expense) to obtain and deliver to Purchaser prior to Closing a written Tenant Estoppel Certificate in the form attached hereto as EXHIBIT "L-1" signed by each tenant under each of the Leases (but not under such of the Leases as are in the nature of license agreements as distinguished from leases) and in the form attached hereto as EXHIBIT "L-2" signed by each tenant under each of the Associates Ground Leases; provided that delivery of such signed Tenant Estoppel Certificates shall be a condition of Closing only to the extent set forth in Section 6.1(c) hereof; and in no event shall the inability or failure of Seller to obtain and deliver said Tenant Estoppel Certificates (Seller having used its good faith efforts as set forth above as to tenants under Leases or Associates Ground Leases of the Properties of Seller) be a default of Seller hereunder.
(f) Master Declaration Estoppel. Seller shall endeavor in good faith (but without obligation to incur any material cost or expense, other than the payment of any applicable fee to the Declarant) to obtain and deliver to Purchaser prior to Closing a written Estoppel Certificate in the form attached hereto as EXHIBIT "M" signed by the Declarant under the Master Declaration; provided that in no event shall the inability or failure of Seller to obtain and deliver said Estoppel Certificate (Seller having used its good faith efforts as set forth above) be a default of Seller hereunder.
(g) Plaza Declaration Estoppel. Seller shall endeavor in good faith (but without obligation to incur any cost or expense) to obtain and deliver to Purchaser prior to Closing a written Estoppel Certificate in the form attached hereto as EXHIBIT "N" signed by the Declarant under the Plaza Declaration; provided that in no event shall the inability or failure of Seller to obtain and deliver said Estoppel Certificate (Seller having used its good faith efforts as set forth above) be a default of Seller hereunder.
(h) Existing Loan Documents. During the pendency of this Agreement, except as expressly provided in this Agreement, Seller shall not amend or modify any of the Loan Documents without the prior written consent of Purchaser, and Seller shall pay all installments of debt service which become due under the Loan Documents and otherwise comply in all material respects with the terms of the Loan Documents.
(i) Reaffirmation Relating to Tenant Defaults. Within two (2) Business Days after receipt by Seller of a one-time written request submitted by Purchaser prior to the expiration of the Inspection Period, Seller shall reaffirm in writing to Purchaser the truth and accuracy of the representation and warranty of Seller set forth in the last sentence of Section 4.1(e) hereof, with such modifications thereto as may be appropriate in light of any change in circumstance since the Effective Date.
4.4. REPRESENTATIONS AND WARRANTIES OF PURCHASER. Purchaser hereby makes the following representations and warranties to Seller:
(a) Organization, Authorization and Consents. Purchaser is a duly organized and validly existing limited liability company under the laws of the State of Delaware. Purchaser has the right, power and authority to enter into this Agreement and to purchase the Property in accordance with the terms and conditions of this Agreement, to engage in the transactions contemplated in this Agreement and to perform and observe the terms and provisions hereof.
(b) Action of Purchaser, Etc. Purchaser has taken all necessary action to authorize the execution, delivery and performance of this Agreement, and upon the execution and delivery of any document to be delivered by Purchaser on or prior to the Closing, this Agreement and such document shall constitute the valid and binding obligation and agreement of Purchaser, enforceable against Purchaser in accordance with its terms, except as enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws of general application affecting the rights and remedies of creditors.
(c) No Violations of Agreements. Neither the execution, delivery or performance of this Agreement by Purchaser, nor compliance with the terms and provisions hereof, will result in any breach of the terms, conditions or provisions of, or conflict with or constitute a default under the terms of any indenture, deed to secure debt, mortgage, deed of trust, note, evidence of indebtedness or any other agreement or instrument by which Purchaser is bound.
(d) Litigation. To Purchaser's knowledge, Purchaser has received no written notice that any action or proceeding is pending or threatened, which questions the validity of this Agreement or any action taken or to be taken pursuant hereto.
The representations and warranties made in this Agreement by Purchaser
shall be continuing and shall be deemed remade by Purchaser as of the Closing
Date, with the same force and effect as if made on, and as of, such date subject
to Purchaser's right to update such representations and warranties by written
notice to Seller and in Purchaser's certificate to be delivered pursuant to
Section 5.2(d) hereof. All references in this Agreement to the "knowledge of
Purchaser" shall refer only to the actual knowledge of Michael T. Mistretta whom
has been actively involved in the acquisition of the Properties in the capacity
of Director - Acquisitions of Purchaser's Manager. The term "knowledge of
Purchaser" shall not be construed, by imputation or otherwise, to refer to the
knowledge of Purchaser, or any affiliate of Purchaser, or to any other partner,
member, beneficial owner, officer, agent, manager, representative or employee of
Purchaser, or any of their respective affiliates, or to impose on any of the
individuals named above any duty to investigate the matter to which such actual
knowledge, or the absence thereof, pertains. There shall be no personal
liability on the part of the individuals named above arising out of any
representations or warranties made herein or otherwise.
4.5. COVENANTS AND AGREEMENTS OF PURCHASER.
(a) Associates Properties. Purchaser agrees, for the benefit of Associates, its successors in title and assigns, and for the benefit of the property of Associates described on EXHIBIT "S" attached hereto and made a part hereof (the "Associates Benefited Property"), that Purchaser, its successors in title and assigns, shall not object directly or indirectly to, and shall not assist others in objecting to, and shall not take any action or make any statements, public or
private (and specifically including but not limited to statements to the media), in opposition to any application for rezoning or variances to a residential classification, or rezoning or variances to increase the height of the buildings to be constructed but not the density, with respect to the Associates Benefited Property or any portion thereof. The terms and provisions of this Section 4.5(a) shall survive the Closing hereunder until the expiration of ten (10) years after the Closing Date; provided, however, if fee simple title to any particular Property or Properties shall be sold and conveyed to any person or entity not affiliated with the grantee in the Associates Limited Warranty Deed or the Associates Limited Warranty Deed (Ground Lease), as the case may be, the foregoing covenant and agreement shall expire and be of no further force or effect as to the purchaser of the particular Property or Properties (and such purchaser's successors-in-title) on the date which is seven (7) years after the Closing Date.
(b) CPI Properties. Purchaser agrees, for the benefit of Cousins, its successors in title and assigns, and for the benefit of the property of Cousins described on EXHIBIT "T" attached hereto and made a part hereof (the "CPI Benefited Property"), that Purchaser, its successors in title and assigns, shall not object directly or indirectly to, and shall not assist others in objecting to, and shall not take any action or make any statements, public or private (and specifically including but not limited to statements to the media), in opposition to any application for rezoning or variances to a residential classification, or rezoning or variances to increase the height of the buildings to be constructed but not the density, with respect to the CPI Benefited Property or any portion thereof. The terms and provisions of this Section 4.5(b) shall survive the Closing hereunder until the expiration of ten (10) years after the Closing Date; provided, however, if fee simple title to any particular Property or Properties shall be sold and conveyed to any person or entity not affiliated with the grantee in the Associates Limited Warranty Deed or the Associates Limited Warranty Deed (Ground Lease), as the case may be, the foregoing covenant and agreement shall expire and be of no further force or effect as to the purchaser of the particular Property or Properties (and such purchaser's successors-in-title) on the date which is seven (7) years after the Closing Date. Cousins shall be deemed to be a third-party beneficiary of the covenant set forth in this Section 4.5(b).
ARTICLE 5.
CLOSING DELIVERIES, CLOSING COSTS AND PRORATIONS
5.1. SELLER'S CLOSING DELIVERIES. For and in consideration of, and as a condition precedent to Purchaser's delivery to Seller of the Purchase Price, Seller shall obtain or execute and deliver to Purchaser at Closing the following documents, all of which shall be duly executed, acknowledged and notarized where required:
(a) Limited Warranty Deeds. A Limited Warranty Deed (Ground Lease) from Associates with respect to the Associates Ground Lease Lands and Associates Ground Lease Reversionary Interests (the "Associates Limited Warranty Deed (Ground Lease)"), subject only to the Permitted Exceptions, and executed and acknowledged by Associates, and a Limited Warranty Deed from Associates with respect to the Associates Lands and Associates Improvements (the "Associates Limited Warranty Deed"), subject only to the Permitted Exceptions, and executed and acknowledged by Associates. The legal descriptions of the Associates Ground Lease Lands set forth in the Associates Limited Warranty Deed (Ground Lease) and of the Associates Lands set forth in the Associates Limited Warranty Deed shall be
based upon and conform to the applicable legal descriptions attached hereto as EXHIBIT "A-1". The Associates Limited Warranty Deed conveying 2300 Windy Ridge Parkway will include a covenant relating solely to 2300 Windy Ridge Parkway which shall be in the form attached hereto as Exhibit "U" and made a part hereof. The Associates Limited Warranty Deed conveying 2400 Windy Ridge Parkway, 3050 Windy Hill Road, 1547 Powers Ferry Road, 1927 Powers Ferry Road, 1931 Powers Ferry Road, 1935 Powers Ferry Road and 1945 Powers Ferry Road will include a covenant relating solely to such Property which shall be in the form attached hereto as Exhibit "V" and made a part hereof.
(b) Assumption Agreement. Three (3) counterparts of the Assumption Agreement executed and acknowledged by Seller;
(c) Bill of Sale. A bill of sale from Seller for the Personal Property of Seller in the form attached hereto as SCHEDULE 3 (the "Bill of Sale"), without warranty as to the condition of the Personal Property, but with warranty of title as to the specifically described Personal Property;
(d) Assignment and Assumption of Ground Leases, Leases and Security Deposits. Two (2) counterparts with respect to Seller of an assignment and assumption of the Associates Ground Leases, the Leases and Security Deposits with respect to the Properties and, to the extent required elsewhere in this Agreement, the obligations of Seller under the Commission Agreements with respect to the Properties in the form attached hereto as SCHEDULE 2 (the "Assignment and Assumption of Leases"), executed and acknowledged by Seller;
(e) Intentionally Omitted;
(f) Amendments or Supplements to Master Declaration and Plaza Declaration. Amendments or supplements to the Master Declaration and the Plaza Declaration providing for the assignment of the rights and obligations of the Declarant thereunder to property owners' associations for each Declaration and for the ultimate turnover of control of each association by each Declarant to the applicable property owners in forms to be determined by the parties hereto prior to the expiration of the Inspection Period;
(g) Assignment and Assumption of Service Contracts. Two (2)
counterparts with respect to Seller of an assignment and assumption of Service
Contracts with respect to the Properties in the form attached hereto as SCHEDULE
6 (the "Assignment and Assumption of Service Contracts"), executed, acknowledged
and sealed by Seller;
(h) General Assignment. An assignment with respect to Seller of the Intangible Property in the form attached hereto as SCHEDULE 7 (the "General Assignment"), executed and acknowledged by Seller;
(i) Seller's Affidavit. An owner's affidavit from Seller substantially in the form attached hereto as SCHEDULE 8 ("Seller's Affidavit"), stating that there are no known boundary disputes with respect to the Properties, that there are no parties in possession of the Properties other than Seller and the tenants under the Leases of such Properties, and as to the Associates Ground Lease Lands, the tenants and other persons and entities permitted by the Associates
Ground Leases, that any improvements or repairs made by, or for the account of, or at the instance of Seller to or with respect to the Properties within ninety-five (95) days prior to the Closing have been paid for in full (or that adequate provision has been made therefor to the reasonable satisfaction of the Title Company), and including such other matters as may be reasonably requested by the Title Company;
(j) Seller's Certificate. A certificate from Seller in the form attached hereto as SCHEDULE 9 ("Seller's Certificate"), evidencing the reaffirmation of the truth and accuracy in all material respects of Seller's representations and warranties set forth in Section 4.1 hereof, with such modifications thereto as may be appropriate in light of any change in circumstance since the Effective Date;
(k) FIRPTA Certificate. A FIRPTA Certificate from Seller in the form attached hereto as SCHEDULE 10;
(l) Evidence of Authority. Such documentation as may reasonably be required by Purchaser and Purchaser's title insurer to establish that this Agreement, the transactions contemplated herein, and the execution and delivery of the documents required hereunder, are duly authorized, executed and delivered on behalf of Seller;
(m) Settlement Statements. A settlement statement (for each Property) setting forth the amounts paid by or on behalf of and/or credited to each of Purchaser and Seller pursuant to this Agreement;
(n) Surveys and Plans. Such surveys, site plans, plans and specifications, and other matters relating to the Property as are in the possession of Seller to the extent not theretofore delivered to Purchaser;
(o) Certificates of Occupancy. To the extent the same are in the possession of Seller, original or photocopies of certificates of occupancy for all space within the Improvements located on the Property;
(p) Leases. To the extent the same are in the possession of Seller, original executed counterparts of the Leases and the Associates Ground Leases;
(q) Tenant Estoppel Certificates. All originally executed Tenant Estoppel Certificates as may be in the possession of Seller;
(r) Notices of Sale to Tenants. Seller will join with Purchaser in executing a notice, in form and content reasonably satisfactory to Seller and Purchaser (the "Tenant Notices of Sale"), which Purchaser shall send to each tenant under the Associates Ground Leases and the Leases informing such tenant of the sale of the Properties and of the assignment to and assumption by Purchaser of Seller's interest in the Associates Ground Leases and the Leases and the Security Deposits and directing that all rent and other sums payable for periods after the Closing under the Associates Ground Leases or such Leases shall be paid as set forth in said notices;
(s) Notices of Sale to Service Contractors and Leasing Agents. Seller will join with Purchaser in executing notices, in form and content reasonably satisfactory to Seller and Purchaser (the "Other Notices of Sale"), which Purchaser shall send to each service provider and leasing agent under the Service Contracts and Commission Agreements (as the case may be) assumed by Purchaser at Closing informing such service provider or leasing agent (as the case may be) of the sale of the Properties and of the assignment to and assumption by Purchaser of Seller's obligations under the Service Contracts and Commission Agreements arising after the Closing Date and directing that all future statements or invoices for services under such Service Contracts and/or Commission Agreements for periods after the Closing be directed to Seller or Purchaser as set forth in said notices;
(t) Notices of Sale to Declarant under Master Declaration. Seller will join with Purchaser in executing a notice, in form and content reasonably satisfactory to Seller and Purchaser (the "Master Notice"), which Purchaser shall send to the Declarant under the Master Declaration informing the Declarant of the sale of the Properties and directing that all requests for payments under the Master Declaration with respect to the Properties for periods after the Closing be directed to Purchaser as set forth in said notice and providing a notice address for Purchaser under the Master Declaration;
(u) Notice of Sale under Plaza Declaration. Seller will join with Purchaser in executing a notice, in form and content reasonably satisfactory to Seller and Purchaser (the "Plaza Notice") which Purchaser shall send to the Declarant under the Plaza Declaration and informing the Declarant of the sale of the Properties and directing that all requests for payments under the Plaza Declaration for periods after the Closing be directed to Purchaser as set forth in said notice and providing for a notice address for Purchaser under the Plaza Declaration.
(v) Keys and Records. All of the keys to any door or lock on the Properties and the original tenant files and other non-confidential books and records (excluding any appraisals, budgets, strategic plans for the Properties, internal analyses, information regarding the marketing of the Properties for sale, submissions relating to Seller's obtaining of corporate authorization, attorney and accountant work product, attorney-client privileged documents, or other information in the possession or control of Seller which Seller deems proprietary) relating to the Property in the possession of Seller;
(w) Management and Leasing Agreements. A Management Agreement and a Leasing Agreement for the Properties in the forms to be determined by the parties hereto prior to the expiration of the Inspection Period; and
(x) Other Documents. Such other documents as shall be reasonably requested by Purchaser's title insurer to effectuate the purposes and intent of this Agreement.
5.2. PURCHASER'S CLOSING DELIVERIES. Purchaser shall obtain or execute and deliver to Seller at Closing the following documents, all of which shall be duly executed, acknowledged and notarized where required:
(a) Assumption Agreement. Three (3) counterparts of the Assumption Agreement, executed and acknowledged by Purchaser;
(b) Assignment and Assumption of Leases. Two (2) counterparts of the Assignment and Assumption of Leases, executed and acknowledged by Purchaser;
(c) Assignment and Assumption of Service Contracts. Two (2) counterparts of the Assignment and Assumption of Service Contracts, executed and acknowledged by Purchaser;
(d) Affidavit as to Broker's Liens. Two (2) counterparts of a Transferee's Affidavit as to Broker's Liens substantially in the form attached hereto as SCHEDULE 5;
(e) General Assignment. Two (2) counterparts of the General Assignment, executed and acknowledged by Purchaser;
(f) Purchaser's Certificate. A certificate in the form attached hereto as SCHEDULE 11 ("Purchaser's Certificate"), evidencing the reaffirmation of the truth and accuracy in all material respects of Purchaser's representations and warranties contained in Section 4.4 hereof, with such modifications thereto as may be appropriate in light of any change in circumstances since the Effective Date;
(g) Notice of Sale to Tenants. The Tenant Notices of Sale, executed by Purchaser, as contemplated in Section 5.1(r) hereof;
(h) Notices of Sale to Service Contractors and Leasing Agents. The Other Notices of Sale to service providers and leasing agents, as contemplated in Section 5.1(s) hereof;
(i) Master Notice and Plaza Notice. The Master Notice and Plaza Notice as contemplated in Sections 5.1(t) and 5.1(u) hereof;
(j) Settlement Statement A settlement statement (for each Property) setting forth the amounts paid by or on behalf of and/or credited to each of Purchaser and Seller pursuant to this Agreement;
(k) Evidence of Authority. Such documentation as Seller may reasonably require to establish that this Agreement, the transaction contemplated herein, and the execution and delivery of the documents required hereunder, are duly authorized, executed and delivered;
(l) Management and Leasing Agreements. A Management Agreement and a Leasing Agreement for the Properties in the forms to be determined by the parties hereto prior to the expiration of the Inspection Period; and
(m) Other Documents. Such other documents as shall be reasonably requested by Seller's counsel to effectuate the purposes and intent of this Agreement.
5.3. CLOSING COSTS. Seller shall pay the costs of issuing the Seller's Title Commitments, the attorneys' fees of Seller, one-half of any escrow closing fees charged by the Title Company, and all other costs and expenses incurred by Seller in closing and consummating the purchase and sale of the Properties pursuant hereto. Purchaser shall pay the Transfer Fees,
the cost of any owner's title insurance premium and title examination fees (including but not limited to the costs of issuing Purchaser's Title Commitments, the costs of any updates to the Title Commitments, the costs of any endorsements to the Title Commitments, and the costs of any title policies issued pursuant to the Title Commitments or any of them), the cost of the Surveys, all recording fees on all instruments to be recorded in connection with this transaction, including the Assumption Agreement, the attorneys' fees of Purchaser, one-half of any escrow closing fees charged by the Title Company, and all other costs and expenses incurred by Purchaser in the performance of Purchaser's due diligence inspection of the Properties and in closing and consummating the purchase and sale of the Properties pursuant hereto. Seller shall pay the Real Estate Transfer Taxes imposed by the State of Georgia upon the conveyance of the Properties pursuant hereto.
5.4. PRORATIONS AND CREDITS. The following items in this Section 5.4 shall be adjusted and prorated between Seller and Purchaser as of 11:59 P.M. on the day preceding the Closing, based upon the actual number of days in the applicable month or year:
(a) Taxes. All general real estate taxes (including community improvement district taxes) imposed by any governmental authority ("Taxes") for the calendar year in which the Closing occurs shall be prorated between Purchaser and Seller as to the Taxes with respect to the Properties as of the Closing. If the Closing occurs prior to the receipt by Seller of the tax bill for any of the Properties for the calendar year or other applicable tax period in which the Closing occurs, Taxes with respect to such Property or Properties shall be prorated for such calendar year or other applicable tax period based upon the prior year's tax bill. Notwithstanding the foregoing or Section 5.4(b) below, (x) Taxes shall not be prorated with respect to any Property as to which the tenant under the Lease(s) with respect to such Property is obligated to pay Taxes directly to the applicable taxing authority, and (y) Taxes shall not be prorated with respect to the Associates Ground Lease Lands and Associates Ground Lease Improvements.
(b) Reproration of Taxes. After receipt of final Taxes and other bills, Purchaser shall prepare and present to Seller a calculation of the reproration of such Taxes and other items with respect to the Properties, based upon the actual amount of such items charged to or received by the parties for the year or other applicable fiscal period. Purchaser and Seller shall make the appropriate adjusting payment between them within thirty (30) days after presentment to Seller of Purchaser's calculation and appropriate back-up information. Purchaser shall provide Seller with appropriate backup materials related to the calculation, and Seller may inspect Purchaser's books and records related to the Properties of Seller to confirm the calculation. The provisions of this Section 5.4(b) shall survive the Closing for a period of one (1) year after the Closing Date.
(c) Rents, Income and Other Expenses. Rents and any other amounts payable by tenants of the Properties shall be prorated as of the Closing Date and be adjusted against the Purchase Price on the basis of a schedule which shall be prepared by Seller and delivered to Purchaser for Purchaser's review and approval at least two (2) Business Days prior to Closing. Purchaser shall receive at Closing a credit for Purchaser's pro rata share of the rents, additional rent, common area maintenance charges, tenant reimbursements and escalations, and all other payments payable for the month of Closing with respect to the Properties and for all other rents and other amounts with respect to the Properties that apply to periods from and after the Closing, but which are received by Seller prior to Closing. Purchaser agrees to pay to Seller, upon receipt, any
rents or other payments by tenants under their respective Leases or the
Associates Ground Leases with respect to the Properties that apply to periods
prior to Closing but are received by Purchaser after Closing; provided, however,
that any delinquent rents or other payments by tenants shall be applied first to
any current amounts owing by such tenants, then to delinquent rents in the order
in which such rents are most recently past due, with the balance, if any, paid
over to Seller to the extent of delinquencies existing at the time of Closing to
which Seller is entitled; it being understood and agreed that Purchaser shall
not be legally responsible to Seller for the collection of any rents or other
charges payable with respect to such Leases or the Associates Ground Leases or
any portion thereof, which are delinquent or past due as of the Closing Date;
but Purchaser agrees that Purchaser shall send monthly notices for a period of
three (3) consecutive months in an effort to collect any rents and charges not
collected as of the Closing Date. Any reimbursements payable by any tenant under
the terms of any tenant lease affecting any of the Properties as of the Closing
Date, which reimbursements pertain to such tenant's pro rata share of increased
operating expenses or common area maintenance costs incurred with respect to
such Properties at any time prior to the Closing, shall be prorated upon
Purchaser's actual receipt of any such reimbursements, on the basis of the
number of days of Seller's and Purchaser's respective ownership of such
Properties during the period in respect of which such reimbursements are
payable; and Purchaser agrees to pay to Seller Seller's pro rata portion of such
reimbursements within thirty (30) days after Purchaser's receipt thereof.
Conversely, if any tenant under any such Lease or any of the Associates Ground
Leases shall become entitled at any time after Closing to a refund of tenant
reimbursements actually paid by such tenant prior to Closing, then, Seller
shall, within thirty (30) days following Purchaser's demand therefor, pay to
Purchaser an amount equal to Seller's pro rata share of such reimbursement
refund obligations, said proration to be calculated on the same basis as
hereinabove set forth, and Seller agrees to cooperate with Purchaser in regard
to any audits relating to reimbursable costs conducted by or for tenants after
Closing. Seller hereby retains its right to pursue any tenant under the Leases
or the Associates Ground Leases for sums due Seller for periods attributable to
Seller's ownership of the Properties; provided, however, that Seller (i) shall
be required to notify Purchaser in writing of its intention to commence or
pursue such legal proceedings or claims; and (ii) shall only be permitted to
commence or pursue any legal proceedings or claims after the applicable Lease or
Associates Ground Lease has expired or terminated or after the tenant's right of
possession has been terminated or after the tenant thereunder has filed a
proceeding under any chapter of the U.S. Bankruptcy Code. The provisions of this
Section 5.4(c) shall survive the Closing for a period of one (1) year after the
Closing Date.
(d) Percentage Rents. Percentage rents, if any, collected by Purchaser from any tenant under such tenant's Lease affecting the Property of Seller for the percentage rent accounting period in which the Closing occurs shall be prorated between Seller and Purchaser as of the Closing Date, as, if, and when received by Purchaser, such that Seller's pro rata share shall be an amount equal to the total percentage rentals paid for such percentage rent accounting period under the applicable Lease multiplied by a fraction, the numerator of which shall be the number of days in such accounting period prior to Closing and the denominator of which shall be the total number of days in such accounting period; provided, however, that such proration shall be made only at such time as such tenant is current or, after application of a portion of such payment, will be current in the payment of all rental and other charges under such tenant's Lease that accrue and become due and payable from and after the Closing. The provisions of this Section 5.4(d) shall survive the Closing for a period of one (1) year after the Closing Date.
(e) Associates Post Closing Tenant Improvement Obligations. Set forth on EXHIBIT "R" attached hereto is a list and description of work and obligations to be performed by Associates after the Closing.
(f) Tenant Inducement Costs.
(i) Set forth on EXHIBIT "P" attached hereto and made a part hereof is a list of Leases at the Properties with respect to which Tenant Inducement Costs and/or leasing commissions have not been paid in full as of the Effective Date. The responsibility for the payment of such Tenant Inducement Costs and leasing commissions with respect to the Properties shall be allocated as between Seller and Purchaser as set forth on EXHIBIT "P". Some or all of such Tenant Inducement Costs and leasing commissions set forth on EXHIBIT "P" may become due and payable after the scheduled date for Closing under this Agreement. As to those amounts which are the responsibility of Purchaser as set forth on EXHIBIT "P", Purchaser shall assume such payment obligation at Closing (or, if and to the extent all or a portion of such amounts have been paid by Seller prior to Closing, Purchaser shall reimburse Seller at Closing for the amounts paid by Seller on account thereof). With respect to those amounts which are the responsibility of Seller as set forth on EXHIBIT "P", Seller shall remain responsible for paying such amounts, as and when due under the applicable Lease or Commission Agreement, as the case may be. In addition, Associates shall remain responsible for performing and paying, as and when due under the applicable Lease, the Associates Post Closing Tenant Improvement Obligations.
(ii) Except as set forth in Section 5.4(f)(i) above, and
except as may be specifically provided to the contrary elsewhere in
this Agreement, Purchaser shall be responsible for the payment of all
Tenant Inducement Costs and leasing commissions which become due and
payable (whether before or after Closing) as a result of any renewals
or extensions or expansions of existing Leases approved or deemed
approved by Purchaser in accordance with Section 4.3(a) hereof between
the Effective Date and the Closing Date and under any new Leases,
approved or deemed approved by Purchaser in accordance with said
Section 4.3(a). The provisions of this Section 5.4(f) shall survive the
Closing.
(g) Security Deposits. Purchaser shall receive at Closing a credit with respect to the Purchase Price for all Security Deposits transferred and assigned to Purchaser at Closing in connection with the Leases affecting the Properties, together with a detailed inventory of such Security Deposits.
(h) Operating Expenses. Personal property taxes, vault charges, sewer charges, utility charges, and normally prorated operating expenses actually paid or payable as of the Closing Date with respect to the Properties shall be prorated as of the Closing Date with respect to the Properties and adjusted against the Purchase Price allocated to Seller, provided that within ninety (90) days after the Closing, Purchaser and Seller will make a further adjustment for such taxes, charges and expenses affecting the Properties which may have accrued or been incurred prior to the Closing Date, but not collected or paid at that date. Seller shall pay all special assessments imposed against the Property in full at Closing whether or not such assessments may be paid in installments not due until after the Closing. In addition, within one hundred eighty (180) days after the close of the
fiscal year(s) used in calculating the pass-through to tenants of operating expenses and/or common area maintenance costs under the Leases (where such fiscal year(s) include(s) the Closing Date), Seller and Purchaser shall, upon the request of either, re-prorate on a fair and equitable basis in order to adjust for the effect of any credits or payments due to or from tenants for periods prior to the Closing Date. All prorations shall be made based on the number of calendar days in such year or month, as the case may be. Notwithstanding the foregoing, personal property taxes, vault charges, sewer charges, utility charges, and operating expenses shall not be prorated with respect to any Property as to which the tenant under the Associates Ground Lease with respect to such Property is obligated to pay the same directly to the provider thereof. The provisions of this Section 5.4(h) shall survive the Closing for a period of one (1) year after the Closing Date.
(i) Interest Under Loan. All interest accrued under the Loan shall be prorated as of the Closing Date and adjusted against the Purchase Price.
ARTICLE 6.
CONDITIONS TO CLOSING
6.1. CONDITIONS PRECEDENT TO PURCHASER'S OBLIGATIONS. The obligations of Purchaser hereunder to consummate the transaction contemplated hereunder shall in all respects be conditioned upon the satisfaction of each of the following conditions prior to or simultaneously with the Closing, any of which may be waived by Purchaser in its sole discretion by written notice to Seller at or prior to the Closing Date:
(a) Seller shall have performed, in all material respects, all covenants, agreements and undertakings of Seller contained in this Agreement;
(b) All representations and warranties of Seller as set forth in this
Agreement shall be true and correct in all material respects as of the date of
this Agreement and as of Closing, provided that solely for purposes of this
subparagraph such warranties and representations shall be deemed to be given
without being limited to Seller's knowledge and without modification (by update
or otherwise, as provided in Section 5.1(i) hereof), and except that, subject to
Section 6.3 hereof, no change in circumstances or status of the tenants under
any of the Leases or the Associates Ground Leases occurring after the date
hereof, including, without limitation, tenant defaults, bankruptcies or other
adverse matters relating to such tenants, or any change after the date hereof in
the representation or warranty set forth in the last sentence of Section 4.1(e)
hereof, shall be deemed to be a condition to the obligations of Purchaser to
consummate the transaction contemplated hereunder;
(c) Tenant Estoppel Certificates from each of the Major Tenants and, with respect to 2300 Windy Ridge Parkway, any three of Scientific Research Corporation, Profit Recovery Group, Life Office Management Associates and Financial Services Corporation, shall have been delivered to Purchaser, with each such estoppel certificate (i) as to the Leases, to be substantially in the form attached hereto as EXHIBIT "L-1" (or if the applicable Lease provides for a particular form of estoppel certificate to be given by the tenant thereunder, the Tenant Estoppel Certificate with respect to such Lease may be in the form as called for therein), (ii) as to the Associates Ground Leases, to be substantially in the form attached hereto as EXHIBIT "L-2" (or if the applicable Associates Ground Lease provides for a particular form of estoppel certificate to
be given by the tenant thereunder, the Tenant Estoppel Certificate with respect to such Associates Ground Lease may be in the form as called for therein), except that the Tenant Estoppel Certificate for the 1927 Ground Lease shall include an acknowledgement by the tenant that the right of first refusal granted to such tenant in Section 18.25 of the 1927 Ground Lease does not apply to the conveyance of 1927 Powers Ferry Road to either Purchaser or its permitted assignee of Purchaser pursuant to Section 9.1 of this Agreement, (iii) to be dated within forty-five (45) days prior to the first Closing Date (and not the extended Closing Date for 2300 Windy Ridge Parkway), (iv) to confirm the material terms of the applicable Lease or Associates Ground Lease as contained in the copies of the Leases and Associates Ground Leases obtained by or delivered to Purchaser, and (v) to confirm the absence of any material defaults under the applicable Lease or Associates Ground Lease as of the date thereof. The delivery of said Tenant Estoppel Certificates from the Major Tenants and, with respect to 2300 Windy Ridge Parkway, any three of the four tenants listed above, shall be a condition of Closing, and the failure or inability of Seller to obtain and deliver said Tenant Estoppel Certificates, Seller having used its good faith efforts to obtain the same from the tenants under Leases of the Properties of Seller, shall not constitute a default by Seller under this Agreement;
(d) A Master Declaration Estoppel Certificate from the Declarant under the Master Declaration shall have been delivered to Purchaser, with such estoppel certificate (i) to be substantially in the form attached hereto as EXHIBIT "M", (ii) to be dated within thirty (30) days prior to the Closing Date, and (iii) to confirm the absence of any material defaults under the Master Declaration by Seller as "Owners" as defined in the Master Declaration. The delivery of said Master Declaration Estoppel Certificate from such Declarant shall be a condition of Closing, and the failure or inability of Seller to obtain and deliver said Master Declaration Estoppel Certificate, Seller having used its good faith efforts to obtain the same, shall not constitute a default by Seller under this Agreement;
(e) A Plaza Declaration Estoppel Certificate from the Declarant under
the Plaza Declaration shall have been delivered to Purchaser, with such estoppel
certificate (i) to be substantially in the form attached hereto as EXHIBIT "N",
(ii) to be dated within thirty (30) days prior to the Closing Date, and (iii) to
confirm the absence of any material defaults under the Plaza Declaration by
Associates as "Owner" as defined in the Plaza Declaration. The delivery of said
Plaza Declaration Estoppel Certificate from such Declarant shall be a condition
of Closing, and the failure or inability of Seller to obtain and deliver said
Plaza Declaration Estoppel Certificate, Seller having used its good faith
efforts to obtain the same, shall not constitute a default by Seller under this
Agreement;
(f) Associates and Purchaser shall have obtained from Lender the consents contemplated in Section 2.6 of this Agreement; and
(g) If Purchaser shall have obtained Purchaser's Title Commitments as provided in Section 3.4, the Title Company is prepared, upon payment by Purchaser of the policy premium, to update Purchaser's Title Commitments through the date of recordation of the Limited Warranty Deed and Limited Warranty Deed (Ground Lease) applicable to each Property, show all conditions as having been satisfied and delete all title exceptions not approved, deemed approved or waived by Purchaser as provided in Section 3.4 hereof.
In the event any of the conditions in this Section 6.1 have not been satisfied
(or otherwise waived in writing by Purchaser) prior to or on the Closing Date
(as same may be extended or postponed as provided in this Agreement), Purchaser
shall have the right to terminate this Agreement by written notice to Seller
given prior to the Closing, whereupon (i) Escrow Agent shall return the Earnest
Money to Purchaser; and (ii) except for those provisions of this Agreement which
by their express terms survive the termination of this Agreement, no party
hereto shall have any other or further rights or obligations under this
Agreement; provided, however, that in the event that any such condition or
conditions which have not been satisfied (or otherwise waived in writing by
Purchaser) only affect a particular Property, then and in such event, Purchaser
may terminate this Agreement only as to such particular Property or Properties
by giving written notice of such termination to Seller prior to Closing,
whereupon Purchaser shall proceed to close under this Agreement as to all of the
other Properties at a Purchase Price which excludes the portion of the Purchase
Price allocated to the particular Property or Properties affected by such
unsatisfied condition and as to which this Agreement was terminated. If
Purchaser terminates this Agreement only as to such particular Property or
Properties as provided in the preceding sentence, Seller may then elect to
suspend such termination by giving written notice to Purchaser of such
suspension at or prior to the Closing of the Properties not affected by
Purchaser's termination in order to allow Seller additional time to cause the
satisfaction of the condition or conditions which have not been satisfied, and
if Seller does elect to suspend such termination by giving timely written notice
thereof, one percent (1%) of the Purchase Price allocable to the Properties as
to which this Agreement was terminated by Seller shall remain in escrow with
Escrow Agent (and shall not be applied to the Purchase Price at the initial
Closing), and Seller shall have up to thirty (30) days to cause the satisfaction
of aforesaid particular condition or conditions, and the Closing Date with
respect to each of the particular Properties as to which Purchaser terminated
this Agreement shall be extended until the earlier of (i) the date which is two
(2) Business Days after evidence of the satisfaction of the applicable condition
or conditions has been provided to Purchaser, or (ii) the date which is thirty
(30) days after the initial Closing Date. In the event such conditions with
respect to any such Property or Properties are not satisfied on or before the
expiration of such thirty (30) day period, the termination of this Agreement
with respect to the Property or Properties as to which the condition or
conditions remain unsatisfied shall be final, the suspension of such termination
shall be cancelled, and all remaining Earnest Money held by Escrow Agent shall
be returned to Purchaser. If Purchaser terminates this Agreement with respect to
2300 Windy Ridge Parkway as a result of the failure to obtain estoppel
certificates from three of Chevron USA, Inc., Profit Recovery Group, Life Office
Management Associates and Financial Services Corporation as contemplated by
Section 6.1(c) above, Seller may, at its option, elect to rescind such
termination by Purchaser by executing and delivering to Purchaser at Closing
certificates (individually, a "Seller Estoppel Certificate" and, collectively,
the "Seller Estoppel Certificates"), substantially in the same form as the
Certificate attached hereto as Exhibit "L-1", covering the particular tenants
necessary so that Purchaser shall be deemed to have received, at Closing, the
missing Tenant Estoppel Certificate or Tenant Estoppel Certificates. In the
event Seller elects to deliver such Seller Estoppel Certificates, each statement
therein shall survive the Closing for a period terminating on the earlier to
occur of (i) the date on which Purchaser has received an executed Tenant
Estoppel Certificate signed by the tenant under the lease in question, or (ii)
one (1) year from the Closing Date. Subject to the Cap Limitation and the
foregoing limitation on survival, Seller hereby agrees that it shall be liable
for any actual and valid liability of Seller to Purchaser after Closing which
arises out of the statements contained in any Seller Estoppel Certificate.
Notwithstanding the forgoing, if the
condition in Section 6.1(f) has not been satisfied prior to or on the Closing Date as a result of Purchaser's failure to provide to Seller and Lender such information as shall be reasonably requested by Lender so that Lender can determine whether Purchaser qualifies as a permitted assignee under the Loan Documents or as a result of Purchaser's failure to comply with the reasonable requirements imposed by Lender as a condition to obtaining the consents contemplated in Section 2.6 of this Agreement, such failure by Purchaser shall constitute a default by Purchaser under this Agreement, and Purchaser shall not be entitled to the return of the Earnest Money.
6.2. CONDITIONS PRECEDENT TO SELLER'S OBLIGATIONS. The obligations of Seller hereunder to consummate the transaction contemplated hereunder shall in all respects be conditioned upon the satisfaction of each of the following conditions prior to or simultaneously with the Closing, any of which may be waived by Seller in its sole discretion by written notice to Purchaser at or prior to the Closing Date:
(a) Purchaser shall have paid and Seller shall have received the Purchase Price, as adjusted pursuant to the terms and conditions of this Agreement, which Purchase Price shall be payable in the amount and in the manner provided for in this Agreement;
(b) Purchaser shall have performed, in all material respects, all covenants, agreements and undertakings of Purchaser contained in this Agreement;
(c) All representations and warranties of Purchaser as set forth in this Agreement shall be true and correct in all material respects as of the date of this Agreement and as of Closing, provided that solely for purposes of this subparagraph such warranties and representations shall be deemed to be given without being limited to Purchaser's knowledge and without modification (by update or otherwise, as provided in Section 5.2(d) hereof); and
(d) Associates and Purchaser shall have obtained from the Lender the consents and releases contemplated in Section 2.6(a) of this Agreement. Such consents and releases from such Lender shall not be subject to any condition or requirement imposed by such Lender upon Seller or which affects Seller that Seller, in the exercise of its sole discretion, determines to be unacceptable.
6.3. SPECIAL ADDITIONAL CONDITION. The obligations of Purchaser hereunder to consummate the transaction hereunder with respect to any particular Property or Properties shall in all respects be conditioned upon there not existing as of the date of Closing (i) a "material monetary default" by any Major Tenant of such particular Property or Properties, or (ii) a "bankruptcy event" with respect to any Major Tenant. As used in this Section 6.3, a "material monetary default" by a Major Tenant shall be deemed to be the failure of the Major Tenant to pay when due any base or minimum rent payable by the Major Tenant under its Lease or Associates Ground Lease, as the case may be. As used in this Section 6.3, a "bankruptcy event" with respect to any Major Tenant shall mean the filing by the Major Tenant of a petition in bankruptcy under any state law or in any proceeding under the Bankruptcy Code (11 U.S.C. Section 101 et seq.) seeking reorganization, arrangement, liquidation or similar relief, or the filing against such Major Tenant of any such petition, and in either case the applicable petition or proceeding has not been dismissed. In the event either of the conditions in this Section 6.3 have
not been satisfied (or otherwise waived in writing by Purchaser) prior to or on the Closing Date (as same may be extended or postponed as provided in this Agreement), Purchaser may terminate this Agreement only as to such particular Property or Properties affected by such unsatisfied condition by giving written notice of such termination to Seller prior to Closing, whereupon Purchaser shall proceed to close under this Agreement as to all of the other Properties at a Purchase Price which excludes the portion of the Purchase Price allocated to the particular Property or Properties affected by such unsatisfied condition and as to which this Agreement was terminated. If Purchaser terminates this Agreement only as to such particular Property or Properties as provided in the preceding sentence as a result of a then existing material monetary default by a Major Tenant of the particular Property or Properties, Seller may elect to suspend such termination by giving written notice to Purchaser of such suspension at or prior to the Closing of the Properties not affected by Purchaser's termination in order to allow the Major Tenant time to cure the material monetary default, and if Seller does elect to suspend such termination by giving timely written notice thereof, one percent (1%) of the Purchase Price allocable to the particular Property or Properties as to which this Agreement was terminated by Seller shall remain in escrow with Escrow Agent (and shall not be applied to the Purchase Price at the initial Closing), and Seller shall have up to thirty (30) days to cause the material monetary default to be cured, and the Closing Date with respect to each of the particular Properties as to which Purchaser terminated this Agreement shall be extended until the earlier of (a) the date which is two (2) Business Days after evidence of the satisfaction of the applicable condition or conditions has been provided to Purchaser, or (b) the date which is thirty (30) days after the initial Closing Date. In the event the conditions with respect to such Property or Properties are not satisfied on or before the expiration of such thirty (30) day period, the termination of this Agreement with respect to the Property or Properties as to which the condition or conditions remain unsatisfied shall be final, the suspension of such termination shall be cancelled, and all remaining Earnest Money held by Escrow Agent shall be returned to Purchaser.
ARTICLE 7.
CASUALTY AND CONDEMNATION
7.1. CASUALTY. Risk of loss up to and including the Closing Date shall be borne by Seller. In the event of any immaterial damage or destruction to the Properties or any portion thereof, Seller and Purchaser shall proceed to close under this Agreement, and Purchaser will receive (and Seller will assign to Purchaser at the Closing Seller's rights under insurance policies to receive) any insurance proceeds (including any rent loss insurance applicable to any period on and after the Closing Date) due Seller as a result of such damage or destruction (less any amounts reasonably expended for restoration or collection of proceeds) and assume responsibility for such repair, and Purchaser shall receive a credit at Closing for any deductible amount under said insurance policies. For purposes of this Agreement, the term "immaterial damage or destruction" shall be applied on a Property by Property basis and shall mean such instances of damage or destruction of the subject Property: (i) as to each of 2300 Windy Ridge Parkway and 3200 Windy Hill Road, which can be repaired or restored at a cost of $2,000,000.00 or less, and as to all other Properties, which can be repaired or restored at a cost of $200,000 or less; (ii) which can be restored and repaired within one hundred eighty (180) days from the date of such damage or destruction; (iii) which are not so extensive as to allow any Major Tenant of such Property to terminate its Lease with respect to such Property on account of such damage or destruction; and (iv) in which Seller's rights under its rent loss insurance policies
covering such Property are assignable to Purchaser and will continue pending restoration and repair of the damage or destruction.
In the event of any material damage or destruction to one or more of the Properties or any portion thereof, Purchaser may, at its option, by notice to Seller given within the earlier of twenty (20) days after Purchaser is notified by Seller of such damage or destruction, or the Closing Date, but in no event less than ten (10) days after Purchaser is notified by Seller of such damage or destruction (and if necessary the Closing Date shall be extended to give Purchaser the full 10-day period to make such election): (i) if the material damage or destruction affects 2300 Windy Ridge Parkway or 3200 Windy Hill Road or more than one of the other Properties, terminate this Agreement, whereupon Escrow Agent shall immediately return the Earnest Money to Purchaser, or (ii) proceed to close under this Agreement, receive (and Seller will assign to Purchaser at the Closing the rights of Seller under insurance policies to receive) any insurance proceeds (including any rent loss insurance applicable to the period on or after the Closing Date) due Seller as a result of such damage or destruction (less any amounts reasonably expended for restoration or collection of proceeds) and assume responsibility for such repair, and Purchaser shall receive a credit at Closing for any deductible amount under said insurance policies, or (iii) terminate this Agreement only as to the particular Property or Properties affected by such material damage or destruction, whereupon Purchaser shall proceed to close under this Agreement as to all of the other Properties at a Purchase Price which excludes the portion of the Purchase Price allocated to the particular Property or Properties affected by such material damage or destruction and as to which this Agreement was terminated. If Purchaser fails to deliver to Seller notice of its election within the period set forth above, Purchaser will conclusively be deemed to have elected to proceed with the Closing as provided in clause (ii) of the preceding sentence. If Purchaser elects clause (ii) above, Seller will cooperate with Purchaser after the Closing to assist Purchaser in obtaining the insurance proceeds from the insurers of Seller. For purposes of this Agreement "material damage or destruction" shall mean all instances of damage or destruction that are not immaterial, as defined herein.
7.2. CONDEMNATION. If, prior to the Closing, all or any part of the Properties is subjected to a bona fide threat of condemnation by a body having the power of eminent domain or is taken by eminent domain or condemnation (or sale in lieu thereof), or if Seller has received written notice that any condemnation action or proceeding with respect to the Properties is contemplated by a body having the power of eminent domain (collectively, a "Taking"), Seller shall give Purchaser immediate written notice of such Taking. In the event of any immaterial Taking with respect to the Properties or any portion thereof, Seller and Purchaser shall proceed to close under this Agreement. For purposes of this Agreement, the term "immaterial Taking" shall be applied on a Property by Property basis and shall mean such instances of Taking of the subject Property: (i) which do not result in a taking of any portion of the building structure of the building occupied by tenants on such Property; (ii) which do not result in a decrease in the number of parking spaces at such Property (taking into account the number of additional parking spaces that can be provided within 180 days of such Taking); and (iii) which are not so extensive as to allow any Major Tenant of such Property to terminate its Lease with respect to such Property on account of such Taking.
In the event of any material Taking of one or more of the Properties or any portion thereof, Purchaser may, at its option, by written notice to Seller given within thirty (30) days
after the receipt of such notice from Seller, elect to cancel this Agreement. If Purchaser chooses to cancel this Agreement in accordance with this Section 7.2, then the Earnest Money shall be returned immediately to Purchaser by Escrow Agent and the rights, duties, obligations, and liabilities of the parties hereunder shall immediately terminate and be of no further force and effect, except for those provisions of this Agreement which by their express terms survive the termination of this Agreement. For purposes of this Agreement "material Taking " shall mean all instances of a Taking that are not immaterial, as defined herein.
If Purchaser does not elect to, or has no right to, cancel this Agreement in accordance herewith on account of a Taking, this Agreement shall remain in full force and effect and the sale of the Properties contemplated by this Agreement, less any interest taken by eminent domain or condemnation, or sale in lieu thereof, shall be effected with no further adjustment and without reduction of the Purchase Price, and at the Closing, Seller shall assign, transfer, and set over to Purchaser all of the right, title, and interest of Seller in and to any awards applicable to the Properties that have been or that may thereafter be made for such taking. At such time as all or a part of the Properties is subjected to a bona fide threat of condemnation and Purchaser shall not have elected to terminate this Agreement as provided in this Section 7.2, and provided that the Inspection Period has expired and Purchaser has delivered the Additional Earnest Money to Escrow Agent, (i) Purchaser shall thereafter be permitted to participate in the proceedings as if Purchaser were a party to the action, and (ii) Seller shall not settle or agree to any award or payment pursuant to condemnation, eminent domain, or sale in lieu thereof without obtaining Purchaser's prior written consent thereto in each case.
ARTICLE 8.
DEFAULT AND REMEDIES
8.1. PURCHASER'S DEFAULT. If Purchaser fails to consummate this transaction for any reason other than the default of Seller, failure of a condition to Purchaser's obligation to close, or the exercise by Purchaser of an express right of termination granted herein, Seller shall be entitled, as its sole remedy hereunder, to terminate this Agreement and to receive and retain the Earnest Money as full liquidated damages for such default of Purchaser, the parties hereto acknowledging that it is impossible to estimate more precisely the damages which might be suffered by Seller upon Purchaser's default, and that said Earnest Money is a reasonable estimate of the probable loss of Seller in the event of default by Purchaser. The retention by Seller of said Earnest Money is intended not as a penalty, but as full liquidated damages. The right to retain the Earnest Money as full liquidated damages is the sole and exclusive remedy of Seller in the event of default hereunder by Purchaser, and Seller hereby waives and releases any right to (and hereby covenant that it shall not) sue the Purchaser: (a) for specific performance of this Agreement, or (b) to recover actual damages in excess of the Earnest Money. The foregoing liquidated damages provision shall not apply to or limit Purchaser's liability for Purchaser's obligations under Sections 3.1(b), 3.1(c), 3.7 and 10.1 of this Agreement or for Purchaser's obligation to pay to Seller all attorney's fees and costs of Seller to enforce the provisions of this Section 8.1. Purchaser hereby waives and releases any right to (and hereby covenants that it shall not) sue Seller or seek or claim a refund of said Earnest Money (or any part thereof) on the grounds it is unreasonable in amount and exceeds the actual damages of Seller or that its retention by Seller constitutes a penalty and not agreed upon and reasonable liquidated damages.
8.2. SELLER'S DEFAULT. If Seller defaults in any of its obligations under this Agreement to be performed at or prior to Closing, for any reason other than Purchaser's default or the permitted termination of this Agreement by Seller or Purchaser as expressly provided herein, Purchaser shall be entitled, as its sole remedy, either (a) to receive the return of the Earnest Money from Escrow Agent, and in the case of a material default by Seller, Seller shall also pay to Purchaser all actual out-of-pocket expenses incurred by Purchaser in connection with this transaction, provided that such reimbursement of out-of-pocket expenses must not exceed the sum of $250,000 in the aggregate, which return and reimbursement, if applicable, shall operate to terminate this Agreement and release Seller from any and all liability hereunder, (b) to enforce specific performance of Seller's obligation to convey the Property to Purchaser in accordance with this Agreement, or (c) if such Seller default is only with respect to Seller's obligation as to a particular Property, then and in such event, Purchaser may terminate this Agreement only as to such particular Property or Properties by giving written notice of such termination to Seller, whereupon Purchaser shall proceed to close under this Agreement as to all of the other Properties at a Purchase Price which excludes the portion of the Purchase Price allocated to the particular Property or Properties as to which such default applies and as to which this Agreement was terminated. If Purchaser terminates this Agreement only as to such particular Property or Properties as provided in the preceding sentence, Seller may then elect to suspend such termination by giving written notice to Purchaser of such suspension at or prior to the Closing of the Properties not affected by Purchaser's termination in order to allow Seller additional time to cure the applicable default, and if Seller does elect to suspend such termination by giving timely written notice thereof, one percent (1%) of the Purchase Price allocable to the Properties as to which the Agreement was terminated by Seller shall remain in escrow with Escrow Agent (and shall not be applied to the Purchase Price at the initial Closing), and Seller shall have up to thirty (30) days to cause the cure of the particular default, and the Closing Date with respect to each of the particular Properties as to which Purchaser terminated this Agreement shall be extended until the earlier of (i) the date which is two (2) Business Days after evidence of the curing of the applicable default has been provided to Purchaser, or (ii) the date which is thirty (30) days after the initial Closing Date. In the event such default with respect to any such Property or Properties is not cured on or before the expiration of such thirty (30) day period, the termination of this Agreement with respect to the Property or Properties as to which the default remains uncured shall be final, the suspension of such termination shall be cancelled and all remaining Earnest Money held by Escrow Agent shall be returned to Purchaser. Notwithstanding the foregoing, if the remedy of specific performance cannot be obtained by Purchaser as a result of an intentional and willful default by Seller, committed with the intent to deprive Purchaser of its right to acquire the Properties pursuant to this Agreement, Purchaser shall be entitled to obtain actual (but not consequential or punitive) damages from Seller incurred as a result of such default. Except as set forth above, Purchaser expressly waives its rights to seek damages in the event of Seller's default hereunder. Purchaser shall be deemed to have elected to terminate this Agreement and to receive a return of the Earnest Money from Escrow Agent if Purchaser fails to file suit for specific performance against Seller in a court having jurisdiction in the county and state in which the Property is located, on or before sixty (60) days following the date upon which the Closing was to have occurred.
ARTICLE 9.
ASSIGNMENT
9.1. ASSIGNMENT. Subject to the next following sentence, this Agreement
and all rights and obligations hereunder shall not be assignable by any party
without the written consent of the other. Notwithstanding the foregoing to the
contrary, (i) this Agreement and all of Purchaser's rights hereunder may be
transferred and assigned to any entity controlled by Purchaser, and (ii) only
contemporaneously with the Closing hereunder, Purchaser's rights under this
Agreement with respect to any one or more of the separate Properties may be
transferred and assigned to any entity controlled by Purchaser or to any entity
directly or indirectly owned by separate accounts or other clients of UBS Realty
Investors LLC so that the applicable Property or Properties as to which the
transfer and assignment relates shall be conveyed to the applicable assignee and
such assignee shall become the "Purchaser" under this Agreement as to such
Property or Properties. Notwithstanding the foregoing, Purchaser agrees that
1927 Powers Ferry Road will be acquired by, and Purchaser's rights under this
Agreement with respect to 1927 Powers Ferry Road will be assigned to, the same
purchaser of at least one (1) other Property. Any assignee or transferee under
any such assignment or transfer by Purchaser as to which the written consent of
Seller has been given or as to which the consent of Seller is not required
hereunder shall expressly assume all of Purchaser's duties, liabilities and
obligations under this Agreement (whether arising or accruing prior to or after
the applicable assignment or transfer) by written instrument delivered to Seller
as a condition to the effectiveness of such assignment or transfer, except that
any assignee or transferee under a transfer or assignment effectuated
contemporaneously with the Closing under clause (ii) of the preceding sentence
shall be required to assume only such of Purchaser's duties, liabilities and
obligations under this Agreement that relate to the particular Property or
Properties as to which the transfer and assignment relates, and upon such
assumption by the assignee or transferee, except for the duties and obligations
arising under Purchaser's indemnities set forth in Sections 3.1(c) and 10.1 of
this Agreement, the original Purchaser shall be released and shall have no
further liabilities, duties or obligations under this Agreement that relate to
such particular Property or Properties as to which the transfer and assignment
relates. No assignment or transfer effectuated under clause (i) of this Section
9.1 shall relieve the original Purchaser of any duties or obligations hereunder,
and the written assignment and assumption agreement shall expressly so provide.
No assignment or transfer effectuated under clause (ii) above shall relieve the
original Purchaser of any duties and obligations arising under Purchaser's
indemnities set forth in Sections 3.1(c) and 10.1 hereof. For purposes of this
Section 9.1, the term "control" shall mean the ownership of at least fifty
percent (50%) of the applicable entity. Subject to the foregoing, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto and
their respective legal representatives, successors and permitted assigns. This
Agreement is not intended and shall not be construed to create any rights in or
to be enforceable in any part by any other persons.
ARTICLE 10.
BROKERAGE COMMISSIONS
10.1. BROKER. Upon the Closing, and only in the event the Closing occurs, Seller shall pay a brokerage commission to Eastdil Realty Company, LLC ("Broker"), a New York limited liability company, pursuant to a separate agreement between Seller and Broker. Broker is representing Seller in this transaction. Broker has joined in the execution of this Agreement for
the purpose of acknowledging and agreeing that no real estate commission shall
be earned by it or due it if the transaction contemplated herein does not close
for any reason whatsoever. Broker acknowledges and agrees that it shall look
solely to Seller, and not to Purchaser, for the payment of such commission, and
Broker hereby waives and releases any present or future claims against Purchaser
for the payment of such commission. In addition, Broker (upon receipt of its
brokerage commission) agrees to execute and deliver to Seller and Purchaser at
the Closing a release and waiver of any claim Broker may have against Purchaser
or the Properties. Broker shall and does hereby indemnify and hold Purchaser and
Seller harmless from and against any and all liability, loss, cost, damage, and
expense, including reasonable attorneys' fees actually incurred and costs of
litigation, Purchaser or Seller shall ever suffer or incur because of any claim
by any agent, salesman, or broker, whether or not meritorious, for any fee,
commission or other compensation with regard to this Agreement or the sale and
purchase of the Properties contemplated hereby, and arising out of any acts or
agreements of Broker. Seller shall and does hereby indemnify and hold Purchaser
harmless from and against any and all liability, loss, cost, damage, and
expense, including reasonable attorneys' fees actually incurred and costs of
litigation, Purchaser shall ever suffer or incur because of any claim by any
agent, salesman, or broker, whether or not meritorious, for any fee, commission
or other compensation with regard to this Agreement or the sale and purchase of
the Properties contemplated hereby, and arising out of any acts or agreements of
Seller, including any claim asserted by Broker. Likewise, Purchaser shall and
does hereby indemnify and hold Seller free and harmless from and against any and
all liability, loss, cost, damage, and expense, including reasonable attorneys'
fees actually incurred and costs of litigation, Seller shall ever suffer or
incur because of any claim by any agent, salesman, or broker other than Broker,
whether or not meritorious, for any fee, commission or other compensation with
respect to this Agreement or the sale and purchase of the Properties
contemplated hereby and arising out of the acts or agreements of Purchaser. This
Section 10.1 shall survive the Closing until the expiration of any applicable
statute of limitations and shall survive any earlier termination of this
Agreement.
ARTICLE 11.
INDEMNIFICATION
11.1. INDEMNIFICATION BY SELLER. Following the Closing and subject to
Sections 11.3 and 11.4, Seller shall indemnify and hold Purchaser, its
affiliates, members and partners, and the partners, shareholders, officers,
directors, employees, representatives and agents of each of the foregoing
(collectively, "Purchaser-Related Entities") harmless from and against any and
all costs, fees, expenses, damages, deficiencies, interest and penalties
(including, without limitation, reasonable attorneys' fees and disbursements)
suffered or incurred by any such indemnified party in connection with any and
all losses, liabilities, claims, damages and expenses ("Losses"), arising out
of, or in any way relating to, (a) any breach of any representation or warranty
of Seller contained in this Agreement or in any Closing Document, and (b) any
breach of any covenant of Seller contained in this Agreement which survives the
Closing or in any Closing Document.
11.2. INDEMNIFICATION BY PURCHASER. Following the Closing and subject to Sections 11.3 and 11.4, Purchaser shall indemnify and hold Seller, its affiliates, members and partners, and the partners, shareholders, officers, directors, employees, representatives and agents of each of the foregoing (collectively, "Seller-Related Entities") harmless from any and all Losses arising
out of, or in any way relating to, (a) any breach of any representation or warranty by Purchaser contained in this Agreement or in any Closing Document, and (b) any breach of any covenant of Purchaser contained in this Agreement which survives the Closing or in any Closing Documents.
11.3. LIMITATIONS ON INDEMNIFICATION. Notwithstanding the foregoing
provisions of Section 11.1, (a) Seller shall not be required to indemnify
Purchaser or any Purchaser-Related Entities under this Agreement unless the
aggregate of all amounts for which an indemnity would otherwise be payable by
Seller under Section 11.1 above exceeds the Basket Limitation and, in such event
Seller shall be responsible for only the amount in excess of the Basket
Limitation (the "Excess Amount"), (b) in no event shall the liability of Seller
with respect to the indemnification provided for in Section 11.1 above exceed in
the aggregate the Cap Limitation, (c) if prior to the Closing, Purchaser or
Seller, as the case may be, obtains knowledge of any inaccuracy or breach of any
representation, warranty or covenant of either Seller or Purchaser contained in
this Agreement (a "Waived Breach") and nonetheless proceeds with and consummates
the Closing, then Purchaser and any Purchaser-Related Entities, or Seller or
Seller-Related Entities, as the case may be, shall be deemed to have waived and
forever renounced any right to assert a claim for indemnification under this
Article 11 for, or any other claim or cause of action under this Agreement, at
law or in equity on account of any such Waived Breach, and (d) notwithstanding
anything herein to the contrary, the Basket Limitation and the Cap Limitation
shall not apply with respect to Losses suffered or incurred as a result of
breaches of any covenant or agreement of Seller set forth in Section 5.3,
Section 5.4, Section 10.1, EXHIBIT "P" or "EXHIBIT "R" of this Agreement.
11.4. SURVIVAL. The representations, warranties and covenants contained
in this Agreement and the Closing Documents shall survive for a period of one
(1) year after the Closing unless a longer or shorter survival period is
expressly provided for in this Agreement.
11.5. INDEMNIFICATION AS SOLE REMEDY. If the Closing has occurred, the sole and exclusive remedy available to a party in the event of a breach by the other party to this Agreement of any representation, warranty, or covenant or other provision of this Agreement or any Closing Document which survives the Closing shall be the indemnifications provided for under Section 3.1(c), Section 10.1, and this Article 11.
ARTICLE 12.
MISCELLANEOUS
12.1. NOTICES. Wherever any notice or other communication is required or permitted hereunder, such notice or other communication shall be in writing and shall be delivered by overnight courier, hand, facsimile transmission, or sent by U.S. registered or certified mail, return receipt requested, postage prepaid, to the addresses or facsimile numbers set out below or at such other addresses as are specified by written notice delivered in accordance herewith:
PURCHASER: 2300 Windy Ridge Parkway Investors LLC
c/o UBS Realty Investors LLC
Director-Acquisitions
242 Trumbull Street
Hartford, Connecticut 06103
Attention: Michael T. Mistretta, Director-Acquisitions
Facsimile: (860) 616-9008
with copies to: 2300 Windy Ridge Parkway Investors LLC
c/o UBS Realty Investors LLC
242 Trumbull Street
Hartford, Connecticut 06103
Attention: Anita Hochstein, Counsel
Facsimile: (860) 616-9004
Sutherland Asbill & Brennan, LLP
999 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Alfred G. Adams, Jr.
Facsimile: (404) 853-8806
SELLER: Wildwood Associates
c/o Cousins Properties Incorporated
2500 Windy Ridge Parkway
Suite 1600
Atlanta, Georgia 30339-5683
Attention: Corporate Secretary
Facsimile: (770) 857-2360
and to: Wildwood Associates
c/o International Business Machines Corporation
Real Estate Asset Management and Investments
IBM Corporate Headquarters
New Orchard Road, Mail Drop 215
Armonk, New York 10504
Attention: Mr. Charles Blowe
Facsimile: 914-499-7804
with a copy to: Troutman Sanders LLP
Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
Attn: John W. Griffin
Facsimile: (404) 962-6577
|
Any notice or other communication (i) mailed as hereinabove provided shall be deemed effectively given or received on the third (3rd) business day following the postmark date of such
notice or other communication, (ii) sent by overnight courier or by hand shall be deemed effectively given or received upon receipt, and (iii) sent by facsimile transmission shall be deemed effectively given or received on the first Business Day after the day of transmission of such notice and confirmation of such transmission.
12.2 POSSESSION. Full and exclusive possession of the Properties, subject to the Permitted Exceptions and the rights of the tenants under the Leases or the Associates Ground Leases, shall be delivered by Seller to Purchaser on the Closing Date.
12.3 TIME PERIODS. If the time period by which any right, option, or election provided under this Agreement must be exercised, or by which any act required hereunder must be performed, or by which the Closing must be held, expires on a Saturday, Sunday, or holiday, then such time period shall be automatically extended through the close of business on the next regularly scheduled Business Day.
12.4 PUBLICITY. The parties agree that, prior to Closing, no party shall, with respect to this Agreement and the transactions contemplated hereby, contact or conduct negotiations with public officials, make any public announcements or issue press releases regarding this Agreement or the transactions contemplated hereby to any third party without the prior written consent of the other party hereto. Seller and Purchaser shall each have the right to approve the press release of the other party issued in connection with the Closing, which approval shall not be unreasonably withheld. No party shall record this Agreement or any notice hereof.
12.5 DISCHARGE OF OBLIGATIONS. The acceptance by Purchaser of the Limited Warranty Deeds of Associates hereunder shall be deemed to constitute the full performance and discharge of each and every warranty and representation made by Seller and Purchaser herein and every agreement and obligation on the part of Seller and Purchaser to be performed pursuant to the terms of this Agreement, except those warranties, representations, covenants and agreements which are specifically provided in this Agreement to survive Closing.
12.6 SEVERABILITY. This Agreement is intended to be performed in accordance with, and only to the extent permitted by, all applicable laws, ordinances, rules and regulations. If any provision of this Agreement, or the application thereof to any person or circumstance, shall, for any reason and to any extent be invalid or unenforceable, the remainder of this Agreement and the application of such provision to other persons or circumstances shall not be affected thereby but rather shall be enforced to the greatest extent permitted by law.
12.7 CONSTRUCTION. This Agreement shall not be construed more strictly against one party than against the other merely by virtue of the fact that this Agreement may have been prepared by counsel for one of the parties, it being mutually acknowledged and agreed that Seller and Purchaser and their respective counsel have contributed substantially and materially to the preparation and negotiation of this Agreement. Accordingly, the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.
12.8 SALE NOTIFICATION LETTERS. Promptly following the Closing, Purchaser shall deliver the Tenant Notices of Sale to each of the respective tenants under the Leases and the
Associates Ground Leases, the Master Declaration Notice to the Declarant under the Master Declaration, the Plaza Declaration Notice to the Declarant under the Plaza Declaration, and the Other Notices of Sale to each service provider and leasing agent, the obligations under whose respective Service Contracts and Commission Agreements Purchaser has assumed at Closing.
12.9 ACCESS TO RECORDS FOLLOWING CLOSING. Purchaser agrees that for a
period of one (1) year following the Closing, Seller shall have the right during
regular business hours, on five (5) days' written notice to Purchaser, to
examine and review at Purchaser's office (or, at Purchaser's election, at the
Properties), the books and records of Seller relating to the ownership and
operation of the Properties which were delivered by Seller to Purchaser at the
Closing. Likewise, Seller agrees that for a period of one (1) year following the
Closing, Purchaser shall have the right during regular business hours, on five
(5) days' written notice to Seller, to examine and review at Seller's office,
all books, records and files, if any, retained by Seller relating to the
ownership and operation by Seller prior to the Closing of the Properties. The
provisions of this Section shall survive the Closing for a period of one (1)
year after the Closing Date.
12.10 SUBMISSION TO JURISDICTION. Each of Purchaser and Seller
irrevocably submits to the jurisdiction of the United States District Court for
the Northern District of Georgia for the purposes of any suit, action or other
proceeding arising out of this Agreement or any transaction contemplated hereby.
Each of Seller and Purchaser also irrevocably submits to the jurisdiction of the
Superior Court of Cobb County, Georgia located in Marietta, Georgia for the
purposes of any suit, action or other proceeding arising out of this Agreement
or any transaction contemplated hereby, but only if the United States District
Court for the Northern District of Georgia would by law not have jurisdiction
with respect to such suit, action or other proceeding, whether because of lack
of diversity or any other reason. Each of Purchaser and Seller further agrees
that service of any process, summons, notice or document by U.S. registered mail
to such party's respective address set forth above shall be effective service of
process for any action, suit or proceeding in Georgia with respect to any
matters to which it has submitted to jurisdiction as set forth above in the two
immediately preceding sentences. Each of Purchaser and Seller irrevocably and
unconditionally waives trial by jury and, subject to the second sentence of this
Section 12.10, irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Agreement
or the transactions contemplated hereby in (a) the Superior Court of Cobb
County, Georgia located in Marietta, Georgia, and (b) the United States District
Court for the Northern District of Georgia, and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought
in an inconvenient forum, but neither party waives its right to seek to remove
to the United States District Court for the Northern District of Georgia any
action, suit or proceeding brought in the Superior Court of Cobb County.
12.11 GENERAL PROVISIONS. No failure of either party to exercise any power given hereunder or to insist upon strict compliance with any obligation specified herein, and no custom or practice at variance with the terms hereof, shall constitute a waiver of either party's right to demand exact compliance with the terms hereof. This Agreement contains the entire agreement of the parties hereto, and no representations, inducements, promises, or agreements, oral or otherwise, between the parties not embodied herein shall be of any force or effect. Any amendment to this Agreement shall not be binding upon Seller or Purchaser unless such
amendment is in writing and executed by Seller and Purchaser. Subject to the provisions of Section 9.1 hereof, the provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, legal representatives, successors, and permitted assigns. Time is of the essence in this Agreement. The headings inserted at the beginning of each paragraph are for convenience only, and do not add to or subtract from the meaning of the contents of each paragraph. This Agreement shall be construed and interpreted under the laws of the State of Georgia. Except as otherwise provided herein, all rights, powers, and privileges conferred hereunder upon the parties shall be cumulative but not restrictive to those given by law. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender shall include all genders, and all references herein to the singular shall include the plural and vice versa.
12.12 ATTORNEY'S FEES. If Purchaser or Seller brings an action at law or equity against the other in order to enforce the provisions of this Agreement or as a result of an alleged default under this Agreement, the prevailing party in such action shall be entitled to recover court costs and reasonable attorney's fees actually incurred from the other.
12.13 COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which when taken together shall constitute one and the same original. To facilitate the execution and delivery of this Agreement, the parties may execute and exchange counterparts of the signature pages by facsimile, and the signature page of either party to any counterpart may be appended to any other counterpart.
12.14 EFFECTIVE AGREEMENT. The submission of this Agreement for examination is not intended to nor shall constitute an offer to sell, or a reservation of, or option or proposal of any kind for the purchase of the Properties. In no event shall any draft of this Agreement create any obligation or liability, it being understood that this Agreement shall be effective and binding only when a counterpart of this Agreement has been executed and delivered by each party hereto.
[Signatures commence on following page]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day, month and year first above written.
SELLER:
WILDWOOD ASSOCIATES,
a Georgia general partnership
By: COUSINS PROPERTIES INCORPORATED,
a Georgia corporation, General Partner
By: /s/ Jack A. LaHue
--------------------------------------
Name: Jack A. LaHue
Title: Senior Vice President
|
By: INTERNATIONAL BUSINESS
MACHINES CORPORATION,
a New York corporation, General Partner
By: /s/ Richard K. Wood, Jr.
--------------------------------------
Name: Richard K. Wood, Jr.
Title: Director, Real Estate Asset
Management and Investments
|
[Signatures continued on following page]
[Signatures continued from following page]
PURCHASER:
2300 WINDY RIDGE PARKWAY INVESTORS
LLC, a Delaware limited liability company
By: UBS Realty Investors LLC,
a Massachusetts limited liability
company, its Manager
By: /s/ Michael T. Mistretta
-------------------------------------
Name: MICHAEL T. MISTRETTA
Title: Director
|
[Signatures continued on following page]
[Signatures continued from previous page]
IN WITNESS WHEREOF, the undersigned Broker has joined in the execution and delivery hereof solely for the purpose of evidencing its rights and obligations under the provisions of Section 10.1 hereof.
BROKER:
EASTDIL REALTY COMPANY, LLC, a New
York limited liability company,
Date of Execution:
August 31, 2004 By: /s/ Randal K. Eves
--------------------------------------
Name: RANDAL K. EVES
Title: MANAGING DIRECTOR
|
EXHIBIT "A-1"
Legal Description
2300 Windy Ridge Parkway
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 941, 985 and 986, 17th District, 2nd Section, Cobb County, Georgia, and being more particularly described as follows:
To find the true POINT OF BEGINNING, begin at the corner common to Land Lots 941, 940, 987 and 986 of the 17th District, 2nd Section, Cobb County, Georgia, and running thence along the north land lot line of said Land Lot 941 (being the south land lot line of said Land Lot 940) North 89 degrees 36 minutes 00 seconds West a distance of 527.94 feet to a point on said common land lot line; thence leaving said common land lot line dividing said Land Lots 941 and 940 and running South 11 degrees 36 minutes 00 seconds East a distance of 730.00 feet to a point located on the northwesterly right-of-way line of Windy Hill Road; thence South 07 degrees 01 minute 30 seconds East a distance of 119.65 feet to a point on the southwesterly right-of-way line of said Windy Hill Road; thence continuing along said right-of-way South 88 degrees 33 minutes 25 seconds East a distance of 86.59 feet to a point; thence along an arc of a curve to the left (which has a radius of 525.00 feet, a central angle of 33 degrees 47 minutes 33 seconds, and a chord distance of 305.17 feet along a chord bearing North 74 degrees 32 minutes 48 seconds East), an arc distance of 309.64 feet to an iron pin set, said iron pin set being the true POINT OF BEGINNING. Thence, continuing along said Windy Hill Road right-of-way (having a variable right-of-way width) along an arc of a curve to the left (which has a radius of 525.00 feet, a central angle of 24 degrees 01 minute 20 seconds, and a chord distance of 218.51 feet along a chord bearing North 45 degrees 38 minutes 22 seconds East), an arc distance of 220.11 feet to a point; thence North 33 degrees 37 minutes 44 seconds East a distance of 152.45 feet to an iron pin set; thence North 50 degrees 57 minutes 00 seconds East a distance of 134.42 feet to an iron pin found; thence leaving said right-of-way of Windy Hill Road South 62 degrees 57 minutes 00 seconds East a distance of 735.00 feet to an iron pin found; thence South 44 degrees 03 minutes 00 seconds West a distance of 295.00 feet to an iron pin found; thence South 09 degrees 03 minutes 00 seconds West a distance of 395.00 feet to an iron pin found; thence South 53 degrees 57 minutes 00 seconds East a distance of 210.00 feet to an iron pin found; thence South 42 degrees 28 minutes 00 seconds East a distance of 100.00 feet to an iron pin set; thence South 03 degrees 11 minutes 06 seconds West a distance of 101.72 feet to an iron pin set on the northerly right-of-way of Windy Ridge Parkway (having a variable right-of-way width); thence running along said right-of-way of Windy Ridge Parkway the following courses and distances: (1) along an arc of a curve to the right (which curve has a radius of 301.00 feet, a central angle of 17 degrees 36 minutes 38 seconds, and a chord distance of 92.15 feet along a chord bearing North 70 degrees 52 minutes 19 seconds West) an arc distance of 92.52 feet to a point; (2) North 62 degrees 04 minutes 00 seconds West a distance of 74.71 feet to a point; (3) along an arc of a curve to the right (which has a radius of 200.00 feet, a central angle of 46 degrees 44 minutes 46 seconds, and a chord distance of 158.69 feet along a chord bearing North 38 degrees 41 minutes 37 seconds West), an arc distance of 163.17 feet to a point; (4) North 15 degrees 19 minutes 15
seconds West a distance of 67.75 feet to a point; (5) along an arc of a curve to the left (which has a radius of 290.00 feet, a central angle of 54 degrees 38 minutes 37 seconds, and a chord distance of 266.21 feet along a chord bearing North 42 degrees 38 minutes 33 seconds West), an arc distance of 276.58 feet to a point; (6) North 69 degrees 57 minutes 51 seconds West a distance of 261.61 feet to a point; (7) along an arc of a curve to the right (which has a radius of 425.00 feet, a central angle of 45 degrees 55 minutes 51 seconds, and a chord distance of 331.65 feet along a chord bearing North 46 degrees 59 minutes 56 seconds West), an arc distance of 340.70 feet to a point; (8) North 24 degrees 02 minutes 00 seconds West a distance of 83.26 feet to an iron pin set; thence leaving said right-of-way North 16 degrees 48 minutes 29 seconds East a distance of 30.08 feet to an iron pin set on the southwesterly right-of-way of Windy Hill Road, and the true POINT OF BEGINNING.
Said tract containing 536,631 square feet or 12.319 acres, more or less, all as shown on that certain As-Built Survey of 2300 Windy Ridge Parkway for Wildwood Associates and Metropolitan Life Insurance Company, prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John E. Norton, G.R.L.S. No. 1848, dated October 25, 1995, last revised December 19, 1995.
TOGETHER WITH non-exclusive easement rights appurtenant to said Property as reserved in Warranty Deed from Lenox Peachtree Incorporated to the United States of America, recorded in Deed Book 2125, page 448, Cobb County, Georgia records; as amended by Easement Modification Agreement, dated September 16, 1982, recorded in Deed Book 2591, page 353, aforesaid records; as further amended by Easement Modification Agreement dated November 28, 1983, recorded in Deed Book 2949, page 52, aforesaid records; as further amended by Easement Modification Agreement dated February 20, 1987, recorded in Deed Book 4367, page 98, records of Cobb County, Georgia.
ALSO TOGETHER WITH easement rights appurtenant to said property as set forth in that certain Declaration and Grant of Easements dated August 7, 1989, by and between Cousins Properties Incorporated as "Declarant" therein, and Wildwood Associates, as "Grantee" therein, recorded in Deed Book 5425, page 1, records of Cobb County, Georgia.
ALSO TOGETHER WITH the rights and easements created and established by virtue of that Master Declaration of Covenants and Cross Easements for Wildwood Office Park by Cousins Properties Incorporated and Wildwood Associates dated as of January 23, 1991, recorded in Deed Book 5992, page 430, aforesaid records; as affected by Quitclaim Deed between Cousins Properties Incorporated and Wildwood Associates dated January 29, 1991, recorded in Deed Book 5996, page 123, aforesaid records; as amended by First Amendment thereto, dated as of June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of
Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
ALSO TOGETHER WITH the easement rights appurtenant to said property as set forth in that certain Declaration and Grant of Easements between Wildwood Associates and Wildwood Office Park, Inc., dated May 29, 1986, recorded in Deed Book 3953, page 164, aforesaid records.
EXHIBIT "A-1"
Legal Description
2401 Windy Ridge Parkway
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 985 of the 17th District, 2nd Section, Cobb County, Georgia, and being more particularly described as follows:
COMMENCING at the northwest terminus of the mitered right-of-way connecting the southeasterly line of the right-of-way of Windy Ridge Parkway (having a variable right-of-way width) and the northeasterly line of the right-of-way of Powers Ferry Road (having a variable right-of-way width); run thence along the southeasterly and southerly line of the right-of-way of Windy Ridge Parkway the following courses and distances: North 02 degrees 11 minutes 10 seconds East a distance of 43.31 feet to a point; thence North 30 degrees 46 minutes 00 seconds East a distance of 42.95 feet to a point; thence along an arc of a curve to the right (said arc being subtended by a chord bearing North 72 degrees 24 minutes 30 seconds East a chord distance of 101.00 feet and having a radius of 76.00 feet) an arc distance of 110.47 feet to a point; thence South 65 degrees 57 minutes 00 seconds East a distance of 105.89 feet to a point; thence along the arc of a curve to the left (said arc being subtended by a chord bearing South 72 degrees 46 minutes 59 seconds East a chord distance of 88.99 feet and having a radius of 374.00 feet) an arc distance of 89.20 feet to a point; thence leaving said southerly line of the right-of-way of Windy Ridge Parkway and run South 03 degrees 11 minutes 06 seconds West a distance of 204.12 feet to a point on the northeasterly line of the right-of-way of Powers Ferry Road; thence run along the northeasterly line of the right-of-way of Powers Ferry Road the following courses and distances: along the arc of a curve to the right (said arc being subtended by a chord bearing North 65 degrees 30 minutes 43 seconds West a chord distance of 203.49 feet and having a radius of 1,216.14 feet) an arc distance of 203.73 feet to a point; thence North 52 degrees 06 minutes 42 seconds West a distance of 11.08 feet to a point; thence North 60 degrees 01 minute 27 seconds West a distance of 93.66 feet to a point at the southeast terminus of the mitered right-of-way connecting the southeasterly line of the right-of-way of Windy Ridge Parkway and the northeasterly line of the right-of-way of Powers Ferry Road; thence run North 31 degrees 40 minutes 08 seconds West along said mitered right-of-way a distance of 28.95 feet to THE POINT OF BEGINNING; said property being designated 2401 Windy Ridge Parkway and being shown as containing 53,301 square feet or 1.224 acres, more or less, on the Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John E. Norton, Georgia Registered Land Surveyor No. 1848, dated July 15, 2002, last revised June 30, 2004.
TOGETHER WITH easement rights appurtenant to said property created and established by the following:
(a) Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as
amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
(b) Declaration and Grant of Easements between Wildwood Associates and Wildwood Office Park, Inc., dated May 29, 1986, recorded in Deed Book 3953, page 164, aforesaid records.
(c) Easement between Wildwood Associates and Wildwood Office Park, Inc., dated May 29, 1986, filed for record May 29, 1986, recorded in Deed Book 3953, page 204, aforesaid records.
(d) Easement created by Limited Warranty Deed from Wildwood Office Park, Inc. to Wildwood Associates dated September 30, 1986, filed for record October 7, 1986, recorded in Deed Book 4148, page 4, aforesaid records.
(e) Easement between Cousins Properties Incorporated and Wildwood Associates dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5424, page 543, aforesaid records.
EXHIBIT "A-1"
Legal Description
3050 Windy Hill Road
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 941 of the 17th District, 2nd Section, Cobb County, Georgia, and being more particularly described as follows:
COMMENCING at the northeast terminus of the mitered right-of-way connecting the southeasterly line of the right-of-way of Windy Hill Road (having a variable right-of-way width) and the northeasterly line of the right-of-way of Powers Ferry Road (having a variable right-of-way width); run thence along the southeasterly line of the right-of-way of Windy Hill Road the following courses and distances: North 67 degrees 21 minutes 30 seconds East a distance of 99.91 feet to a point; thence along an arc of a curve to the right (said arc being subtended by a chord bearing North 79 degrees 24 minutes 05 seconds East a chord distance of 239.92 feet and having a radius of 575.00 feet) an arc distance of 241.70 feet to a point; thence South 88 degrees 33 minutes 25 seconds East a distance of 92.83 feet to a point; thence along the arc of a curve to the left (said arc being subtended by a chord bearing North 85 degrees 25 minutes 31 seconds East a chord distance of 110.08 feet and having a radius of 525.00 feet) an arc distance of 110.28 feet to a point; thence leaving said southeasterly line of the right-of-way of Windy Hill Road and run South 39 degrees 01 minute 06 seconds West a distance of 220.08 feet to a point; thence run South 67 degrees 57 minutes 43 seconds West a distance of 293.69 feet to a point on the northeasterly line of the right-of-way of Powers Ferry Road; thence run along the arc of a curve to the right (said arc being subtended by a chord bearing North 49 degrees 40 minutes 36 seconds West a chord distance of 189.82 feet and having a radius of 594.00 feet) and following the northeasterly line of the right-of-way of Powers Ferry Road an arc distance of 190.63 feet to a point at the southwest terminus of the mitered right-of-way connecting the southeasterly line of the right-of-way of Windy Hill Road and the northeasterly line of the right-of-way of Powers Ferry Road; thence North 19 degrees 47 minutes 06 seconds East along said mitered right-of-way a distance of 73.68 feet to THE POINT OF BEGINNING; said property being designated 3050 Windy Hill Road and being shown as containing 90,551 square feet or 2.079 acres, more or less, on the Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John E. Norton, Georgia Registered Land Surveyor No. 1848, dated April 22, 2002, last revised June 30, 2004.
TOGETHER WITH the easement rights appurtenant to said property created and established by:
(a) Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13,
2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
(b) Declaration and Grant of Easements between Cousins Properties Incorporated and Wildwood Associates dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
EXHIBIT "A-1"
Legal Description
3175 Windy Hill Road
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 987 of the 17th District, 2nd Section of Cobb County, Georgia, and being more particularly described as follows:
TO FIND THE POINT OF BEGINNING, commence at the corner common to Land Lots 939, 940, 987 and 988, said District, Section and County; running thence along the Land Lot line common to Land Lots 940 and 987 south 00 degrees 07 minutes 30 seconds east a distance of 80.00 feet to a point, which point marks the POINT OF BEGINNING; FROM SAID POINT OF BEGINNING AS THUS ESTABLISHED, thence leaving said common Land Lot line and running along the arc of a curve to the left (said arc being subtended by a chord bearing south 82 degrees 56 minutes 28 seconds east a chord distance of 274.30 feet and having a radius of 565.00 feet) an arc distance of 277.07 feet to a point on the westerly right-of-way line of Windy Hill Road (having a 100' right-of-way width); running thence along the westerly right-of-way line of Windy Hill Road south 11 degrees 56 minutes 30 seconds east a distance of 254.55 feet to an iron pin found (1/2" rebar); thence leaving the westerly right-of-way line of Windy Hill Road and running south 89 degrees 52 minutes 30 seconds west a distance of 324.27 feet to a point; running thence north 00 degrees 07 minutes 30 seconds west a distance of 283.45 feet to a point, which point marks the POINT OF BEGINNING; said tract being designated 3175 Windy Hill Road and being shown as containing 75,867 square feet or 1.742 acres, more or less, on Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John Evan Norton, Georgia Registered Land Surveyor No. 1848, dated July 15, 2004, revised July 22, 2004.
TOGETHER WITH a non-exclusive easement for the construction, installation, maintenance and repair of underground utilities, conduits and facilities, and for pedestrian and vehicular access, ingress and egress under, across, over and through the following described property:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 987 of the 17th District, 2nd Section of Cobb County, Georgia, and being more particularly described as follows:
TO FIND THE POINT OF BEGINNING, commence at the corner common to Land Lots 939, 940, 987 and 988, said District, Section and County; running thence along the Land Lot line common to Land Lots 940 and 987 south 00 degrees 07 minutes 30 seconds east a distance of 80.00 feet to a point; thence leaving such common Land Lot line and run along an arc of a curve to the left (said arc being subtended by a chord bearing North 82 degrees 56 minutes 28 seconds West a chord distance of 274.30 feet and having a radius of 565.00 feet) an arc distance of 277.07 feet to a point on the westerly line of the right-of-way of Windy Hill Road, which point marks the POINT OF BEGINNING; FROM SAID POINT OF BEGINNING AS THUS ESTABLISHED, running thence along an arc of a curve to the right (said arc being subtended by a chord bearing South 84 degrees 52 minutes 50 seconds West a chord distance of 36.87 feet and having a radius of 565.00 feet) an arc distance of 36.88 feet to a point; running thence North 33
degrees 48 minutes 16 seconds East a distance of 51.54 feet to a point on the westerly line of the right-of-way of Windy Hill Road; running thence along an arc of a curve to the left (said arc being subtended by a chord bearing South 11 degrees 11 minutes 50 seconds East a chord distance of 23.54 feet and having a radius of 905.95 feet) and following the westerly line of the right-of-way of Windy Hill Road an arc distance of 23.54 feet to a point; running thence South 11 degrees 56 minutes 30 seconds East along the westerly line of the right-of-way of Windy Hill Road a distance of 16.81 feet to THE POINT OF BEGINNING; said tract being shown on Survey of 3175 Windy Hill Road for Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John Evan Norton, Georgia Registered Land Surveyor No. 1848, dated July 15, 2004, last revised July 22, 2004.
AND ALSO TOGETHER WITH the easement rights appurtenant to said first described property created and established by:
(a) Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
(b) Easement Agreement among O'Neill Enterprises, Inc., The Griffin Company, The Powers Ridge Office Park Condominium Association, Inc., and River Properties Incorporated dated March 1, 1984, recorded in Deed Book 3130, page 48, aforesaid records.
(c) Sewer easement reserved in Warranty Deed from River Properties, Incorporated to United States of America dated December 19, 1979, recorded in Deed Book 2125, page 446, aforesaid records.
(d) Sewer easement reserved in Warranty Deed from Lenox Peachtree Incorporated to United States of America dated December 19, 1979, recorded in Deed Book 2125, page 448, aforesaid records, as modified by Easement Modification Agreement dated September 16, 1982, recorded in Deed Book 2591, page 353, aforesaid records, as further modified by Easement Modification Agreement dated November 28, 1983, recorded in Deed Book 2949, page 52, aforesaid records, as further modified by Easement Modification Agreement dated February 20, 1987, recorded in Deed Book 4367, page 98, aforesaid records.
(e) Limited Warranty Deed from Cousins Properties Incorporated to Wildwood Associates dated May 18, 1993, recorded in Deed Book 7362, page 355, aforesaid records.
EXHIBIT "A-1"
Legal Description
3200 Windy Hill Road
TRACT I-A:
All that tract or parcel of land lying and being in Land Lots 939, 987 and 988 of the 17th District, 2nd Section of Cobb County, Georgia, and being more particularly described as follows:
TO FIND THE POINT OF BEGINNING, COMMENCE at a rock found at the corner common to Land Lots 939, 940, 987 and 988 of said District, Section and County; run thence South 89 degrees 03 minutes 22 seconds East a distance of 275.43 feet to a point, which point marks the POINT OF BEGINNING; from said POINT OF BEGINNING as thus established, running thence North 02 degrees 16 minutes 45 seconds West a distance of 250.29 feet to a point; running thence along the arc of a curve to the left (said arc being subtended by a chord bearing North 32 degrees 16 minutes 45 seconds West a chord distance of 40.00 feet and having a radius of 40.00 feet) an arc distance of 41.89 feet to a point; running thence North 62 degrees 16 minutes 45 seconds West a distance of 1,110.69 feet to a point; running thence along the arc of a curve to the left (said arc being subtended by a chord bearing North 84 degrees 22 minutes 24 seconds West a chord distance of 30.09 feet and having a radius of 40.00 feet) an arc distance of 30.85 feet to a point on the southeasterly right-of-way line of Wildwood Parkway; running thence northeasterly and easterly along the southeasterly and southerly right-of-way line of Wildwood Parkway the following courses and distances: North 55 degrees 20 minutes 15 seconds East a distance of 26.65 feet to a point; thence along the arc of a curve to the right (said arc being subtended by a chord bearing North 66 degrees 18 minutes 58 seconds East a chord distance of 180.92 feet and having a radius of 475.00 feet) an arc distance of 182.03 feet to a point; thence North 77 degrees 17 minutes 41 seconds East a distance of 433.00 feet to a point; thence along the arc of a curve to the right (said arc being subtended by a chord bearing North 83 degrees 06 minutes 54 seconds East a chord distance of 181.72 feet and having a radius of 896.00 feet) an arc distance of 182.04 feet to a point (such point being hereinafter referred to as "Point A"); thence North 88 degrees 56 minutes 07 seconds East a distance of 190.50 feet to a point; thence along the arc of a curve to the right (said arc being subtended by a chord bearing South 85 degrees 41 minutes 04 seconds East a chord distance of 234.41 feet and having a radius of 1,250.00 feet) an arc distance of 234.76 feet to a point; thence South 80 degrees 18 minutes 15 seconds East a distance of 107.73 feet to a point; thence along the arc of a curve to the right (said arc being subtended by a chord bearing South 75 degrees 53 minutes 30 seconds East a chord distance of 153.87 feet and having a radius of 1,000.00 feet) an arc distance of 154.02 feet to a point; and South 71 degrees 28 minutes 46 seconds East a distance of 60.06 feet to a point; thence leaving said southerly right-of-way line of Wildwood Parkway and running along the arc of a curve to the left (said arc being subtended by a chord bearing South 52 degrees 02 minutes 33 seconds West a chord distance of 13.41 feet and having a radius of 15.00 feet) an arc distance of 13.90 feet to a point; running thence along the arc of a curve to the right (said arc being subtended by a chord bearing South 38 degrees 21 minutes 53 seconds West a chord distance of
136.52 feet and having a radius of 306.38 feet) an arc distance of 137.68 feet to a point; running thence along the arc of a curve to the right (said arc being subtended by a chord bearing South 54 degrees 28 minutes 47 seconds West a chord distance of 34.64 feet and having a radius of 306.38 feet) an arc distance of 34.66 feet to a point; running thence South 57 degrees 43 minutes 15 seconds West a distance of 338.23 feet to a point; running thence along the arc of a curve to the left (said arc being subtended by a chord bearing South 27 degrees 43 minutes 15 seconds West a chord distance of 40.00 feet and having a radius of 40.00 feet) an arc distance of 41.89 feet to a point; running thence South 02 degrees 16 minutes 45 seconds East a distance of 505.80 feet to a point; running thence along the arc of a curve to the left (said arc being subtended by a chord bearing South 04 degrees 27 minutes 31 seconds East a chord distance of 61.30 feet and having a radius of 805.95 feet) an arc distance of 61.31 feet to a point on the line which forms the terminus of Windy Hill Road; running thence South 83 degrees 21 minutes 43 seconds West along the line which forms the terminus of Windy Hill Road a distance of 79.56 feet to a point; thence leaving the line which forms the terminus of Windy Hill Road and running North 02 degrees 16 minutes 45 seconds West a distance of 7.64 feet to a point on the land lot line common to Land Lots 987 and 988, said District, Section and County, which point marks the POINT OF BEGINNING; being designated Tract I-A and containing 594,942 square feet or 13.658 acres, more or less, as shown on Survey for Teachers Insurance and Annuity Association of America, Wildwood Associates, Chicago Title Insurance Company, Commonwealth Land Title Insurance Company and Lawyers Title Insurance Corporation (2 sheets), dated November 7, 1996, last revised July 6, 2004 (as to Sheet 1 of 2) and last revised November 26, 1996 (as to Sheet 2 of 2).
TOGETHER WITH:
TRACT I-B:
All that tract or parcel of land lying and being in Land Lot 988 of the 17th District, 2nd Section of Cobb County, Georgia, and being more particularly described as follows:
TO FIND THE POINT OF BEGINNING, COMMENCE at "Point A" as defined and
described in the legal description of Tract I-A set forth above and run thence
North 01 degrees 03 minutes 53 seconds West a distance of 84.00 feet to a point
on the northerly right-of-way line of Wildwood Parkway, said point being the
POINT OF BEGINNING; from said POINT OF BEGINNING as thus established, running
thence along the northerly right-of-way line of Wildwood Parkway along the arc
of a curve to the left (said arc being subtended by a chord bearing South 88
degrees 17 minutes 17 seconds West a chord distance of 22.14 feet and having a
radius of 980.00 feet) an arc distance of 22.14 feet to a point on the line
common to Land Lots 939 and 988 of said District, Section and County; running
thence along the land lot line common to Land Lots 939 and 988 of said District,
Section and County, North 00 degrees 08 minutes 05 seconds West a distance of
200.28 feet to a point; thence leaving said common land lot line and running
North 88 degrees 56 minutes 07 seconds East a distance of 279.39 feet to a
point; running thence South 00 degrees 08 minutes 05 seconds East a distance of
200.66 feet to a point on the northerly right-of-way line of Wildwood Parkway;
running thence westerly along the northerly right-of-way line of Wildwood
Parkway along the arc of a curve to the left (said arc being subtended by a
chord bearing South 89 degrees 28 minutes 55 seconds West a chord
distance of 66.79 feet and having a radius of 3,500.00 feet) an arc distance of 66.79 feet to a point; continuing thence South 88 degrees 56 minutes 07 seconds West along the northerly right-of-way line of Wildwood Parkway a distance of 190.46 feet to the POINT OF BEGINNING; being designated as Tract I-B and containing 55,895 square feet or 1.283 acres, more or less, as shown on Survey for Teachers Insurance and Annuity Association of America, Wildwood Associates, Chicago Title Insurance Company, Commonwealth Land Title Insurance Company and Lawyers Title Insurance Corporation (Sheet 1 of 2), dated November 7, 1996, last revised July 6, 2004.
TOGETHER WITH the easements appurtenant to the above-described property contained in the following:
1. Master Declaration of Covenants and Cross Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, Cobb County, Georgia records, as amended by First Amendment thereto dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
2. Declaration of Covenants and Cross Easements for Wildwood Plaza by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 501, aforesaid records, as amended by First Amendment between Cousins Properties Incorporated and Wildwood Associates, dated January 25, 1991, recorded in Deed Book 5994, page 402, aforesaid records, as further amended by Second Amendment dated February 28, 1996, recorded in Deed Book 9441, page 371, aforesaid records, and as further amended by Third Amendment dated April 8, 1996, recorded in Deed Book 9558, page 241, aforesaid records, as further amended by Fourth Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated December 13, 2000, recorded in Deed Book 13316, page 3859, aforesaid records, and as further amended by Fifth Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated June 3, 2004, recorded in Deed Book 13988, page 829, aforesaid records.
3. Sewer easement reserved in Warranty Deed from River Properties, Incorporated to United States of America dated December 19, 1979, recorded in Deed Book 2125, page 446, aforesaid records.
4. Sewer easement reserved in Warranty Deed from Lenox Peachtree Incorporated to United States of America dated December 19, 1979, recorded in Deed Book 2125, page 448, aforesaid records, as modified by Easement Modification Agreement dated
September 16, 1982, recorded in Deed Book 2591, page 353, aforesaid records, as further modified by Easement Modification Agreement dated November 28, 1983, recorded in Deed Book 2949, page 52, aforesaid records, as further modified by Easement Modification Agreement dated February 20, 1987, recorded in Deed Book 4367, page 98, aforesaid records.
EXHIBIT "A-1"
Legal Description
1547 Powers Ferry Road
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 939, 17th District, 2nd Section, Cobb County Georgia, and being more particularly described as follows:
COMMENCING at the northwest terminus of the mitered right-of-way connecting the northerly line of the right-of-way of Wildwood Parkway (having a variable right-of-way width) and the easterly line of the right-of-way of Powers Ferry Road (having a variable right-of-way width); running thence along the easterly line of the right-of-way of Powers Ferry Road along an arc of a curve to the left (said arc being subtended by a chord bearing North 17 degrees 14 minutes 25 seconds West a chord distance of 131.77 feet and having a radius of 1,955.00 feet) an arc distance of 131.80 feet to a point; running thence North 19 degrees 10 minutes 15 seconds West along the easterly line of the right-of-way of Powers Ferry Road a distance of 136.76 feet to a point; thence leaving the easterly line of the right-of-way of Powers Ferry Road and running South 89 degrees 44 minutes 30 seconds East a distance of 249.84 feet to a point; running thence South 29 degrees 53 minutes 33 seconds East a distance of 196.21 feet to a point on the northerly line of the right-of-way of Wildwood Parkway; running thence along the northerly line of the right-of-way of Wildwood Parkway along an arc of a curve to the right (said arc being subtended by a chord bearing South 68 degrees 18 minutes 06 seconds West a chord distance of 224.35 feet and having a radius of 500.00 feet) an arc distance of 226.27 feet to a point; running thence South 81 degrees 15 minutes 58 seconds West along the northerly line of the right-of-way of Wildwood Parkway a distance of 46.27 feet to a point at the southeast terminus of the mitered right-of-way connecting the northerly line of the right-of-way of Wildwood Parkway with the easterly line of the right-of-way of Powers Ferry Road; running thence North 56 degrees 54 minutes 50 seconds West along said mitered right-of-way a distance of 11.31 feet to the POINT OF BEGINNING; said property being designated 1547 Powers Ferry Road and being shown as containing 62,216 square feet or 1.428 acres, more or less, on the survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John E. Norton, Georgia Registered Land Surveyor No. 1848, dated April 22, 2002, last revised June 30, 2004.
TOGETHER WITH the easement rights appurtenant to said property created and established by:
(a) Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of
Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
(b) Easement Agreement between Cousins Properties Incorporated and Wildwood Associates dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 13, aforesaid records.
(c) Easement and Maintenance Agreement between Valencia Hills Condominium Associates, Inc., as Grantor, and Wildwood Office Park, Inc., as Grantee, dated July 26, 1985, recorded in Deed Book 3585, page 469, aforesaid records (as assigned for benefit of subject property pursuant to Easement Agreement referred to above recorded in Deed Book 5425, page 13, aforesaid records).
EXHIBIT "A-1"
Legal Description
1927 Powers Ferry Road
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 941, 942 and 986 of the 17th District, 2nd Section, Cobb County, Georgia, and being more particularly described as follows:
COMMENCING at the southeasterly terminus of the mitered right-of-way connecting the southeasterly line of the right-of-way of Windy Hill Road (having a variable right-of-way width) and the southwesterly line of the right-of-way of Windy Ridge Parkway (having a variable right-of-way width); run thence along the southwesterly line of the right-of-way of Windy Ridge Parkway the following courses and distances: South 27 degrees 20 minutes 21 seconds East a distance of 78.85 feet to a point; thence along an arc of a curve to the left (said arc being subtended by a chord bearing South 39 degrees 56 minutes 27 seconds East a chord distance of 234.75 feet and having a radius of 538.00 feet) an arc distance of 236.65 feet to a point; thence leaving said southwesterly line of the right-of-way of Windy Ridge Parkway and run South 37 degrees 27 minutes 28 seconds West a distance of 89.13 feet to a point; thence run North 65 degrees 29 minutes 16 seconds West a distance of 82.12 feet to a point; thence run South 24 degrees 30 minutes 44 seconds West a distance of 222.71 feet to a point on the northeasterly line of the right-of-way of Powers Ferry Road (having a variable right-of-way width); run thence along the northeasterly line of the right-of-way of Powers Ferry Road the following courses and distances: North 63 degrees 08 minutes 18 seconds West a distance of 420.81 feet to a point; and along the arc of a curve to the right (said arc being subtended by a chord bearing North 61 degrees 27 minutes 30 seconds West a chord distance of 53.62 feet and having a radius of 594.00 feet) an arc distance of 53.63 feet to a point; thence leaving said northeasterly line of the right-of-way of Powers Ferry Road and run North 67 degrees 57 minutes 43 seconds East a distance of 293.69 feet to a point; thence run North 39 degrees 01 minute 06 seconds East a distance of 220.08 feet to a point on the southeasterly line of the right-of-way of Windy Hill Road; thence run along an arc of a curve to the left (said arc being subtended by a chord bearing North 78 degrees 15 minutes 42 seconds East a chord distance of 21.00 feet and having a radius of 525.00 feet) and following the southeasterly line of the right-of-way of Windy Hill Road an arc distance of 21.00 feet to a point at the northwest terminus of the mitered right-of-way connecting the southeasterly line of the right-of-way of Windy Hill Road and the southwesterly line of the right-of-way of Windy Ridge Parkway; thence run South 65 degrees 06 minutes 43 seconds East along said mitered right-of-way a distance of 28.18 feet to THE POINT OF BEGINNING; said property being designated 1927 Powers Ferry Road and being shown as containing 138,206 square feet or 3.173 acres, more or less, on the Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John E. Norton, Georgia Registered Land Surveyor No. 1848, dated April 22, 2002, last revised June 30, 2004.
TOGETHER WITH the easement rights appurtenant to said property created and established by the following:
(a) Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
(b) Declaration and Grant of Easements between Cousins Properties Incorporated and Wildwood Associates dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
EXHIBIT "A-1"
Legal Description
1931 Powers Ferry Road
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 941, 942, 985 and 986 of the 17th District, 2nd Section, Cobb County, Georgia, and being more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, begin at the corner common to Land Lots
940, 941, 986 and 987 of the 17th District, 2nd Section, Cobb County, Georgia,
and running thence along the North land lot line of said Land Lot 941 (being the
South land lot line of said Land Lot 940) North 89 degrees 36 minutes 00 seconds
West a distance of 527.94 feet to a point on said common land lot line; thence
leaving said common land lot line dividing said Land Lots 941 and 940 and run
South 11 degrees 36 minutes 00 seconds East a distance of 730.00 feet to a point
located on the northerly line of the right-of-way of Windy Hill Road (having a
variable right-of-way width); thence in a westerly direction along the northerly
line of the right-of-way of Windy Hill Road the following courses and distances:
along an arc of a curve to the left (said arc being subtended by a chord bearing
South 80 degrees 04 minutes 40 seconds West a chord distance of 102.26 feet and
having a radius of 1,012.57 feet) an arc distance of 102.30 feet to a point;
thence South 87 degrees 58 minutes 49 seconds West a distance of 49.50 feet to a
point; thence along an arc of a curve to the left (said arc being subtended by a
chord bearing South 71 degrees 39 minutes 50 seconds West a chord distance of
120.37 feet and having a radius of 819.18 feet) an arc distance of 120.48 feet
to a point; thence South 68 degrees 18 minutes 25 seconds West a distance of
29.03 feet to a point; thence South 67 degrees 29 minutes 15 seconds West a
distance of 18.87 feet to a point at the mitered right-of-way connecting the
northerly line of the right-of-way of Windy Hill Road with the easterly line of
the right-of-way of Powers Ferry Road (having a variable right-of-way width);
running thence North 66 degrees 29 minutes 49 seconds West along said mitered
right-of-way a distance of 205.76 feet to a point; thence leaving said mitered
right-of-way and running South 28 degrees 35 minutes 11 seconds East a distance
of 316.15 feet to a point at the southwest terminus of the mitered right-of-way
connecting the southerly line of the right-of-way of Windy Hill Road with the
easterly line of the right-of-way of Powers Ferry Road; continuing thence in a
southerly and southeasterly direction along the easterly and northeasterly line
of the right-of-way of Powers Ferry Road along an arc of a curve to the left
(said arc being subtended by a chord bearing South 52 degrees 15 minutes 58
seconds East a chord distance of 242.61 feet and having a radius of 594.00 feet)
an arc distance of 244.33 feet to a point; thence South 63 degrees 08 minutes 18
seconds East along the northeasterly line of the right-of-way of Powers Ferry
Road a distance of 420.81 feet a point, which point marks THE TRUE POINT OF
BEGINNING; FROM SAID POINT OF BEGINNING AS THUS ESTABLISHED, thence leaving said
northeasterly line of the right-of-way of Powers Ferry Road and running North 24
degrees 30 minutes 44 seconds East a distance of 222.71 feet to a point; running
thence South 65 degrees 29 minutes 16 seconds East a distance of 156.00 feet to
a point; running thence South 24 degrees 30 minutes 44 seconds West a distance
of 228.91 feet to a point on the northeasterly line of the right-of-way of
Powers Ferry Road; running thence along
an arc of a curve to the left (said arc being subtended by a chord bearing North 63 degrees 59 minutes 23 seconds West a chord distance of 13.68 feet and having a radius of 8,855.00 feet) and following the northeasterly line of the right-of-way of Powers Ferry Road an arc distance of 13.68 feet to a point; running thence North 63 degrees 08 minutes 18 seconds West along the northeasterly line of the right-of-way of Powers Ferry Road a distance of 142.44 feet to THE TRUE POINT OF BEGINNING; said property being designated 1931 Powers Ferry Road and being shown as containing 35,241 square feet or 0.809 acre, more or less, on the Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John Evan Norton, Georgia Registered Land Surveyor No. 1848, dated April 22, 2002, last revised June 30, 2004.
TOGETHER WITH the easement rights appurtenant to said property created and established by the following:
(a) Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
(b) Declaration and Grant of Easements between Cousins Properties Incorporated and Wildwood Associates dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
EXHIBIT "A-1"
Legal Description
1935 Powers Ferry Road
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 941, 942, 985 and 986 of the 17th District, 2nd Section, Cobb County, Georgia, and being more particularly described as follows:
TO FIND THE POINT OF BEGINNING, commence at the corner common to Land Lots 940,
941, 986 and 987, said District, Section and County; run thence North 89 degrees
36 minutes 00 seconds West along the land lot line common to Land Lots 940 and
941 a distance of 527.94 feet to a point; thence leaving said common land lot
line and run South 11 degrees 36 minutes 00 seconds East a distance of 730.00
feet to a point on the northwesterly line of the right-of-way of Windy Hill Road
(having a variable right-of-way width); run thence along the northwesterly line
of the right-of-way of Windy Hill Road the following courses and distances:
along the arc of a curve to the left (said arc being subtended by a chord
bearing South 80 degrees 04 minutes 40 seconds West a chord distance of 102.26
feet and having a radius of 1,012.57 feet) an arc distance of 102.30 feet to a
point; thence South 87 degrees 58 minutes 49 seconds West a distance of 49.50
feet to a point; thence along the arc of a curve to the left (said arc being
subtended by a chord bearing South 71 degrees 39 minutes 50 seconds West a chord
distance of 120.37 feet and having a radius of 819.18 feet) an arc distance of
120.48 feet to a point; thence South 68 degrees 18 minutes 25 seconds West a
distance of 29.03 feet to a point; thence South 67 degrees 29 minutes 15 seconds
West a distance of 18.87 feet to a point; thence North 66 degrees 29 minutes 49
seconds West a distance of 205.76 feet to a point on the northeasterly line of
the right-of-way of Powers Ferry Road (having a variable right-of-way width);
run thence along the northeasterly line of the right-of-way of Powers Ferry Road
the following courses and distances: South 28 degrees 35 minutes 11 seconds East
a distance of 316.15 feet to a point; thence along the arc of a curve to the
left (said arc being subtended by a chord bearing South 52 degrees 15 minutes 58
seconds East a chord distance of 242.61 feet and having a radius of 594.00 feet)
an arc distance of 244.33 feet to a point; thence South 63 degrees 08 minutes 18
seconds East a distance of 563.25 feet to a point; thence along the arc of a
curve to the left (said arc being subtended by a chord bearing South 63 degrees
59 minutes 23 seconds East a chord distance of 13.68 feet and having a radius of
8,855.00 feet) an arc distance of 13.68 feet to a point, which point marks THE
POINT OF BEGINNING; FROM SAID POINT OF BEGINNING AS THUS ESTABLISHED, thence
leaving the northeasterly line of the right-of-way of Powers Ferry Road and run
North 24 degrees 30 minutes 44 seconds East a distance of 228.91 feet to a
point; run thence North 65 degrees 29 minutes 16 seconds West a distance of
73.88 feet to a point; run thence North 37 degrees 27 minutes 28 seconds East a
distance of 89.13 feet to a point on the southwesterly line of the right-of-way
of Windy Ridge Parkway (having a variable right-of-way width); run thence along
the southwesterly line of the right-of-way of Windy Ridge Parkway the following
courses and distances: along an arc of a curve to the left (said arc being
subtended by a chord bearing South 61 degrees 14 minutes 53 seconds East a chord
distance of 162.89 feet and having a radius of 538.00 feet) an arc distance of
163.52 feet to
a point; thence South 69 degrees 57 minutes 20 seconds East a distance of 165.25 feet to a point; thence leaving said southwesterly line of the right-of-way of Windy Ridge Parkway and run South 26 degrees 58 minutes 00 seconds West a distance of 327.73 feet to a point on the northeasterly line of the right-of-way of Powers Ferry Road; run thence along an arc of a curve to the left (said arc being subtended by a chord bearing North 63 degrees 06 minutes 22 seconds West a chord distance of 259.49 feet and having a radius of 8,855.00 feet) and following the northeasterly line of the right-of-way of Powers Ferry Road an arc distance of 259.50 feet to THE POINT OF BEGINNING; said property being designated 1935 Powers Ferry Road and being shown as containing 88,373 square feet or 2.029 acres, more or less, on the Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John E. Norton, Georgia Registered Land Surveyor No. 1848, dated April 22, 2002, last revised June 30, 2004.
TOGETHER WITH the easement rights appurtenant to said property created and established by the following:
(a) Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
(b) Access, ingress and egress easement contained in Limited Warranty Deed from Wildwood Office Park, Inc. to International Business Machines Corporation dated May 30, 1985, recorded in Deed Book 3515, page 521, aforesaid records; and Limited Warranty Deed from Wildwood Office Park, Inc. to Wildwood Associates dated May 30, 1985, recorded in Deed Book 3516, page 13, aforesaid records; as expanded by Easement Agreement between Wildwood Associates and Wildwood Office Park, Inc., dated May 29, 1986, recorded in Deed Book 3953, page 209, aforesaid records.
(c) Declaration and Grant of Easements between Cousins Properties Incorporated and Wildwood Associates dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
EXHIBIT "A-1"
Legal Description
1945 Powers Ferry Road
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lots 985 and 986 of the 17th District, 2nd Section, Cobb County, Georgia, and being more particularly described as follows
COMMENCING at a point on the northeasterly line of the right-of-way of Powers Ferry Road (having a variable right-of-way width) at the southwest terminus of the mitered right-of-way connecting the northeasterly line of the right-of-way of Powers Ferry Road and the westerly line of the right-of-way of Windy Ridge Parkway (having a variable right-of-way width); running thence along the northeasterly line of the right-of-way of Powers Ferry Road along an arc of a curve to the left (said arc being subtended by a chord bearing North 62 degrees 12 minutes 46 seconds West a chord distance of 367.20 feet and having a radius of 8,891.31 feet) an arc distance of 367.23 feet to a point; thence leaving the northeasterly line of the right-of-way of Powers Ferry Road and running North 26 degrees 58 minutes 00 seconds East a distance of 327.73 feet to a point on the southwesterly line of the right-of-way of Windy Ridge Parkway; running thence South 69 degrees 57 minutes 20 seconds East along the southwesterly line of the right-of-way of Windy Ridge Parkway a distance of 142.65 feet to a point; running thence along an arc of a curve to the right (said arc being subtended by a chord bearing South 42 degrees 38 minutes 17 seconds East a chord distance of 174.39 feet and having a radius of 190.00 feet) and following the southwesterly line of the right-of-way of Windy Ridge Parkway an arc distance of 181.18 feet to a point; running thence South 15 degrees 19 minutes 15 seconds East along the westerly line of the right-of-way of Windy Ridge Parkway a distance of 169.85 feet to a point; running thence South 30 degrees 46 minutes 00 seconds West along the westerly line of the right-of-way of Windy Ridge Parkway a distance of 134.07 feet to a point at the northeast terminus of the mitered right-of-way connecting the westerly line of the right-of-way of Windy Ridge Parkway and the northeasterly line of the right-of-way of Powers Ferry Road; running thence South 82 degrees 16 minutes 22 seconds West along said mitered right-of-way a distance of 52.67 feet to the POINT OF BEGINNING; said property being designated 1945 Powers Ferry Road and being shown as containing 126,092 square feet or 2.895 acres, more or less, on the survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John E. Norton, Georgia Registered Land Surveyor No. 1848, dated April 22, 2002, last revised June 30, 2004.
TOGETHER WITH the easement rights appurtenant to said property created and established by:
(a) Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of
Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
(b) Access, ingress and egress easement contained in Limited Warranty Deed from Wildwood Office Park, Inc. to International Business Machines Corporation dated May 30, 1985, recorded in Deed Book 3515, page 521, aforesaid records; Limited Warranty Deed from International Business Machines Corporation to Wildwood Associates dated May 30, 1985, recorded in Deed Book 3515, page 554, aforesaid records; and Limited Warranty Deed from Wildwood Office Park, Inc. to Wildwood Associates dated May 30, 1985, recorded in Deed Book 3516, page 13, aforesaid records; as expanded by Easement Agreement between Wildwood Associates and Wildwood Office Park, Inc. dated May 29, 1986, recorded in Deed Book 3953, page 209, aforesaid records.
(c) Declaration and Grant of Easements between Cousins Properties Incorporated and Wildwood Associates dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
(d) Easement between Cousins Properties Incorporated and Wildwood Associates dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5424, page 543, aforesaid records.
EXHIBIT "B"
LIST OF PERSONAL PROPERTY
ASSOCIATES PERSONAL PROPERTY
BUILDING 2300
Building 2300 Holiday Decorations (stored off site with D & S Plants)
QUANTITY INVENTORY # ITEM DESCRIPTION SERIAL # -------- ----------- ---------------- -------- 1 14' Christmas Tree 8 Large Red Bows and garland for Pole Lights 4 Exterior wreaths and red bows hung from bridges. 2 Exterior wall sconces (New) 2 Interior Lobby decorated with wreaths on columns (New) 1 Garland, bow, and flower arrangement on security console. (New) 4 Garland, bows, lights, and ribbon hung from balcony on 2nd and 3rd levels 8 New Horn of Plenty mounted at lobby levels, N & S sides. |
Building 2300 Cafe Equipment (other items in cafe not listed are owned by operator)
QUANTITY INVENTORY # ITEM DESCRIPTION SERIAL # -------- ----------- ---------------- -------- 5 Shelving 2 Walk-In Cooler Freezer 1 Kitchen Shelf 1 Prep. Table 1 Prep. Table with Sink 1 Dishwasher 1 Ice Bin 1 Slicer 1 Walk-In Cooler 1 Freezer 1 4 Comp. Sink 2 Sneeze Guard 1 Exhaust Hood 1 Mobile Stand 1 Rolling Rack 1 Hot Food Warmer 1 Steam Table (needs replacing) 117 Chairs 36 Tables 1 Single Door (must be removed) 2 Ice Pan for Salad Bar 1 Fire Protection |
1 Anvil Bread Warmer 2 Bunn Coffee Makers |
Athletic Club
QUANTITY INVENTORY # ITEM DESCRIPTION TYPE SERIAL # -------- ----------- ---------------- ------- ------------- 1 AB Cruncher Circuit 1 AB Cruncher Circuit 1 AB Cruncher Circuit 1 AB Cruncher Circuit 1 LifeFitness lifecycle 9500 GR Cardio 1 LifeFitness lifecycle 9500 GR Cardio 1 LifeFitness lifecycle 9500 GR Cardio 1 LifeFitness lifecycle 9500 GR Cardio 1 LifeFitness lifecycle 9500 Tan Cardio 1 LifeFitness lifecycles 9500 Tan Cardio 1 LifeFitness lifecycle 9500 Tan Cardio 1 1 Concept II Rowers Cardio 1118023 1 Stairmaster 4400PT Climber Cardio 1 Stairmaster 4400PT Climber Cardio 1 Stairmaster 4400PT Climber Cardio 1 Stairmaster 4600 Climber Cardio 2106054 1 Stairmaster 4600 Climber Cardio 21002091 1 LifeFitness Lifestride treadmill 9100 Cardio 363245 1 LifeFitness Lifestride treadmill 9100 Cardio 363245 1 LifeFitness Lifestride treadmill 9100 Cardio 330641 1 LifeFitness Lifestride treadmill 9100 Cardio 330642 1 LifeFitness Lifestride treadmill 9100 Cardio 330708 1 LifeFitness Lifestride treadmill 9100 Cardio 330709 1 LifeFitness Lifestride treadmill 9100 Cardio 330706 1 LifeFitness Lifestride treadmill 9100 Cardio 337852 1 LifeFitness Lifestride treadmill 9100 Cardio 336002 1 LifeFitness Lifestride treadmill 9100 Cardio 336003 1 LifeFitness Lifestride 9500 HR Cardio 333882 1 LifeFitness Lifestride 9500 HR Cardio 103186 1 LifeFitness Lifestride 9500 HR Cardio 360366 1 LifeFitness lifecycle-Recum-9500 Cardio 1 LifeFitness lifecycle Recum 9500 Cardio 1 LifeFitness lifecycle Recum 9500 Cardio 1 LifeFitness lifecycle-Recum-9500 Cardio 1 LifeFitness lifecycle Recum 9500 Cardio 1 LifeFitness lifecycle Recum 9500 Cardio 1 Precore EFX 544 Elliptical Cardio 1 Precore EFX 544 Elliptical Cardio 1 Precore EFX 544 Elliptical Cardio 1 Precore EFX 546 Elliptical Cardio 4HG13K0005 1 Precore EFX 546 Elliptical Cardio 4HK17K0025 |
1 Precore EFX 546 Elliptical Cardio 4HK17K0030 1 Stairmaster Stepmill Cardio 1 Nordic Track 900T Cardio 1 Nordic Track 900T Cardio 1 Stairmaster Gravitron Cardio 1187 1 Precore Stepper C764 Cardio 1 Stairmaster Stepper 4000PT Cardio 83180811065 1 Stairmaster Stepper 4000PT Cardio C19045 1 Stairmaster Stepper 4000PT Cardio C136070 1 LifeFitness Lifesteps Cardio 1 LifeFitness Lifesteps Cardio 1 LifeFitness Lifesteps Cardio 1 LifeFitness Lifesteps Cardio 1 LifeFitness Cross Trainer Cardio CTG 132458 1 LifeFitness Cross Trainer Cardio CTG 133434 1 LifeFitness Cross Trainer Cardio XTD 100932 1 LifeFitness Cross Trainer Cardio XTD 100933 1 Schwinn Spinner Pro IC Cardio 152104927 1 Schwinn Spinner Pro IC Cardio 152104928 1 Schwinn Spinner Pro IC Cardio 152104929 1 Schwinn Spinner Pro IC Cardio 152104930 1 Schwinn Spinner Pro IC Cardio 0152T05095 1 Schwinn Spinner Pro IC Cardio 0152T05096 1 Schwinn Spinner Pro IC Cardio 152104678 1 Schwinn Spinner Pro IC Cardio 152104624 1 Schwinn Spinner Pro IC Cardio 0152T05097 1 Schwinn Spinner Pro IC Cardio 0152T04625 1 Nautilus leg curl Circuit LCBXXXV07570 1 Nautilus leg curl Circuit LCBXXXV07779 1 Nautilus hip adduction Circuit N15695 1 Nautilus hip abduction Circuit N15693 1 Nautilus back extension Circuit 1 Nautilus leg extension Circuit LEIIXXV06849 1 Nautilus pull over Circuit SPOIIIV01037 1 Nautilus shoulder pull down Circuit TAIIIXV00427 1 Nautilus bench press Circuit BPXXXXV00330 1 Nautilus chest press Circuit MCHXXXV00701 1 Nautilus lateral raise Circuit 1 Nautilus shoulder press Circuit 1 Nautilus rotary torso Circuit 1 Hoist Glut Master Circuit 97-09193 1 Cybex AB Cruncher Circuit 470591V300402 1 Cybex Row/Rear Delt Circuit 452091T369101 1 Cybex Lat Pulldown Circuit 481091V258604 1 Cybex fly machine Circuit 454591V135902 1 Cybex chest press Circuit 450791V294702 1 Cybex back extension Circuit 454091V194404 1 Cybex AB crunch stack Circuit |
1 Cybex arm extension Circuit 454091V313902 1 Cybex Rotary calf Circuit 46209V1575902 1 Cybex arm curl Circuit 453591v313902 1 Polaris squat machine Circuit 9266 1 Paramount squat stack Free 1 Cybex hack squat Free 533091S14139 1 Cybex calf machine Free 545691S13538 1 Paramount shoulder Free 9303-008 1 Cybex arm curl benches Free 546091S30129 1 Cybex arm curl benches Free 546091S30119 1 Cybex Adv shoulder press Free 522191S04199 1 Cybex cable cross over Free 1 Paramount leg press Free 9612-002 1 Flat bench Free 1 Flat bench Free 1 Flat bench Free 1 Flat bench Free 1 Dumbell rack w/15- 5# Free 1 Cybex Adv incline bench Free 5251P025443 1 Cybex incline bench rack Free 1 Cybex chest decline bench Free 1 flat bench press rack Free 536291S09029 1 flat bench press rack Free 536291S08888 1 flat bench press rack Free 536291S08969 1 stack plate tree w/weight x4 Free 1 Cybex incline bench press Free 550291S05799 1 Trotter smith machine Free 9523472 1 adjustable bench Free 9810-022 1 adjustable bench Free 9612-063 1 flat decline bench Free 9503-042 1 Cybex smith machine Free 534191R365006 1 Dumbell rack w/weights x4 Free 1 Paramount AB 4 station Free 1 Life Fitness Smith Machine Free 1 Life Fitness Multi Adjustable Bench Free 1 Life Fitness Cable Crossover Free 1 Hampton Dumbell Racks w/weights x4 Free |
Building 2300
QUANTITY INVENTORY # ITEM DESCRIPTION SERIAL # -------- ----------- ---------------- -------- 1 Eagle Domain statue 8 Large Ficus trees with underplanting 24 New camera system 15 0141-0155 Silver Tables - Back Patio 30 0111-0140 Silver Chairs - Back Patio 2 0156-0157 Trash Receptacle - Back Patio |
2 0176-0177 Lg. Textured Planter - Plaza
2 0178 & 0205 Sm. Textured Planter - Plaza
25 0180-0204 Brown bowl planters - Plaza
6 0158-0163 Silver bowl planters - Lobby
2 406-407 Raised Silver bowl planters - Lobby (front)
10 0164-0173 Chrome polished planters - Lobby (levels 1-3)
2 0220-0221 Old Trash Receptacle - Loading Dock
1 222 Trash Receptacle - Loading Dock
2 0223-0224 Table w/ connected chairs - loading Dock
1 225 Bench - Loading Dock
3 0205-0207 Chrome polished planters - N. Bridge
1 208 New large chrome trash can - N. Bridge (ATM)
1 209 Wooden Flier holder - N. Bridge
1 210 Bench - N. Bridge
1 211 Trash Receptacle - N. Bridge
1 212 Bench - C. Bridge
1 213 Trash Receptacle - C. Bridge
1 214 Bench - S. Bridge
2 0215-0216 Trash Receptacle - S. Bridge
3 0217-0219 Chrome polished planters - S. Bridge
2 0226-0227 Table w/ connected chairs - level 8
3 0228-0230 Old Trash Receptacles - level 8
1 231 Umbrella - level 8
4 0232-0235 Wooden Benches - level 8
1 n/a Console Plant - Console
1 174 Adjustable chair - Console
1 175 Chrome Trash Can - Console
13 0236-0248 Trash Receptacle - Parking Deck
1 249 Trash Receptacle - Parking Deck (Southside 5)
2300 CONFERENCE ROOM
2 249-250 New texture container and silk plants
1 251 New Silk arrangement for table
13 252-264 Tables (24 x 60)
110 265-374 Chairs - Versteel
1 375 Nucraft Lectern w/ mic holder, light, mounted
caddy, casters -
1 376 Technion Mobile Task Board
5 377-381 Trash cans
1 382 Trash can for Kitchen
1 383 New VCR/DVD combo unit (in Lectern)
1 384 Mixer/Amplifier for existing speakers (in Lectern)
1 385 New Sony PX40 Ceiling Mount Projector
1 386 New 6 x 8 front projection screen
1 * Glass 2300 Conference Center Sign (*Number 387
not used in sequence - would not adhere to glass
picture)
1 388 Microphone - hard wired for Cousins
1 389 Microphone - Wireless for tenant's
1 390 Polycom Conference Phone and Case
|
1 391 Table Transport
4 392-395 Chair Trolleys
2 396-397 Lowenstein - "Morgan" Lounge Chairs
1 398 Lowenstein - "Croune" Occasional Table
4 399-402 Framed Prints (3 room and 1 kitchen)
1 403 GE Black 18 c.f. Refrigerator
1 404 Microwave, Black
1 405 Bunn 3 pot Coffee Maker
8 n/a Framed Pictures - By Kathryn Kolb, 1-South Corridor
6 Bronze Reindeer
**Evacuation Chair (Model 6253, Stryker EMS)
(**Evacuation chair shared with other Southside
1 Buildings and kept in Fire Control room at 2300)
|
Building 2300 Engineering
QUANTITY INVENTORY # ITEM DESCRIPTION SERIAL # -------- ----------- ---------------- -------- 1 9023A0001 Red Tool Box (Various Tools) Engineering Shop 1 9023A0002 Vacuum Cups Engineering Shop 1 9023A0003 Rivet Kit Engineering Shop 1 9123A0007 Volt-OHM-Milliammeter Engineering Shop 1 9123A0008 Fluke and Accessories Engineering Shop 1 9123A0009 Fluke 5l Thermometer Engineering Shop 1 9123A0010 Cordless Screwdriver Engineering Shop 1 9023A0011 Slack Tube Manometer Engineering Shop 1 9023A0012 Amprobe Engineering Shop 1 9023A0013 Solderless Terminals Engineering Shop 1 9023A0014 Various Drill Bits Engineering Shop 1 9023A0015 Various Stell Stamps Engineering Shop 1 9123A0016 Cordless Hammer Drill Engineering Shop 1 9123A0017 Cordless Drill Engineering Shop 1 9123A0018 4 1/2 Sander Grinder Engineering Shop 1 9023A0019 Fish Tape Engineering Shop 3 9023A0020 pipe wrench Engineering Shop 1 9023A0021 Skandor Level Engineering Shop 1 9123A0022 Heavy Duty Drain Cleaner Engineering Shop 1 9123A0024 Fluke Multimeter Engineering Shop 1 9023A0025 Sound Level Meter Engineering Shop 1 9123A0026 Microscanner Engineering Shop 1 9023A0027 Heavy Duty Hammer Drill Engineering Shop 1 9023A0028 Coma Long Engineering Shop 1 9023A0029 Yellow Jacket Gages Engineering Shop 1 9023A0030 Red Tool Box w/HVAC Equipment Engineering Shop 1 9023A0031 Plumbing Wrenches Engineering Shop 1 9123A0032 Walton Vice Engineering Shop 1 9223A0033 Bench Grinder Engineering Shop 1 9023A0035 Skill Saw Engineering Shop |
1 9023A0036 Cutting Torch Engineering Shop 1 9023A0038 Supco Service Lagger Engineering Shop 1 9023A0039 Workhorse Lattern Engineering Shop 1 9023A0040 T-Handle Allen Wrenches Engineering Shop 1 9123A0041 UL-38 Man Lift 2300 Building 1 9123A0042 14 piece combo wrenches Engineering Shop 1 9123A0043 1/2 Ratchet Set (26 pcs) Engineering Shop 20 9023A0044 Ladder 2300 Building 1 9023A0045 2 Truck Trailer Oversize Parking 1 9023A0046 2 Truck Trailer Oversize Parking 1 9123A0047 Heavy Duty Drain Cleaner Engineering Office 1 9223A0048 Whirlpool Refrigerator Engineering Office 1 9223A0049 Panasonic Microwave Oven Engineering Office 1 9523A0050 Sampo Computer Engineering Office 8 9523A0052 Chair Engineering Office 4 9523A0053 Desk Engineering Office 5 9523A0054 Cabinet Engineering Office 3 8623A0056 Locker Engineering Office 4 9523A0057 Locker Engineering Office 1 0123A0058 Dremel Electric Engraver Engineering Office 1 0123A0059 Wet Vac Engineering Shop 1 0123A0060 Wet Vac Engineering Shop 1 0123A0061 Wet Vac Engineering Shop 1 0123A0062 4 ft Ladder 5 South AHU Room 1 0123A0063 4 ft Ladder 8 South AHU Room 1 0123A0064 4 ft Ladder 5 North AHU Room 1 0123A0065 4 ft Ladder 8 North AHU Room 1 0123A0066 6ft Ladder 5 South AHU Room 1 0123A0067 6ft Ladder 8 South AHU Room 1 0123A0068 6ft Ladder 5 North AHU Room 1 0123A0069 6ft Ladder 8 North AHU Room 1 0123A0070 Gear Puller Engineering Office 1 0123A0071 Soldering iron & base Engineering shop 1 0123A0072 Utility Pump 2300 7th Level Parking Deck 1 0123A0073 26 piece socket set PM cart PM Cart 1 0123A0074 Raytek InfraRed Thermometer PM Cart 1 0123A0075 Work Center PM Cart 1 0123A0076 Proton 7 piece wrench set PM Cart 1 0123A0078 Droplight PM Cart 1 0223A0079 Air Compressor (Vertical) Lobby Level North Elec Room 1 0223A0080 Air Compressor (Portable) Tool Room 1 0223A0081 Air Dryer (Northside) Uniform Room 1 0223A0082 Lock Out Kit Switchgear Room 1 0223A0083 Full Face Respirator Chemical Testing Station 1 0223A0086 Air Dryer (Southside) Main Chiller Room |
1 0223A0087 Air Dryer (Northside) Basement AHU Room 1 0223A0088 Water Alert Northside Electrical Rooms 1 0223A0089 Portable Air Compressor North Lobby Electrical Room 1 0223A0091 Port Cable Sander Engineering shop 1 0223A0092 Portable Auger Engineering shop 1 0323A0095 Multi Meter Amp Probe Engineering shop 1 0323A0096 Vacuum Pump - 10 Gallon Switchgear Room 1 0323A0097 24" box fans Engineering shop 1 0323A0098 24" box fans Engineering shop 1 0323A0099 10 ft ladder Engineering shop 1 0323A0100 Humidity Temp Reader Engineering shop 1 0323A0101 Steel Fish Tape Engineering shop 1 0323A0102 Hose Reel Engineering shop 1 0323A0103 Infrared Thermometer Engineering shop 1 0323A0104 Infrared Thermometer Engineering shop 1 0323A0105 Electrical Multi Tester Engineering shop 1 0323A0106 Meter Test 2000 OHMS Engineering shop 1 0323A0107 18 volt cordless drill Engineering shop 1 0323A0108 14.4 volt hammer drill Engineering shop 1 0323A0109 Jobber 29 piece drill set Engineering shop 1 0323A0110 1/2" drive-17 piece socket set Engineering shop 1 0323A0111 Screw drive set Engineering shop 1 0323A0112 14 piece wrench set Engineering shop 1 0323A0113 Digital Thermometer Engineering shop 1 0323A0114 Fax Machine Engineering shop 1 0323A0115 Divar Digital Security Camera System Security Desk 1 0323A0116 Divar Digital Security Camera System Security Desk 1 0323A0117 Security Camera Monitor Security Desk 1 0323A0118 Security Camera Computer Chief Engineering Office 1 0323A0119 Computer Tower Engineering office 1 0323A0120 3/8" Heavy Duty Electric Drill Engineering office 1 0423A0121 Ball Peen Engineering office 1 0423A0122 Ball Peen Engineering office 1 0423A0123 Ball Peen Engineering office 1 0423A0124 Duct hole cutter Engineering office 1 9523A0051 Hewlett-Packard Printer Engineering Office 1 9523A0055 EMS System Engineering Office 1 9523A0056 Beverage Air Cooler Engineering office 1 9523A0057 Sunroc Water Dispenser Engineering office 2 95523A0068 Coffee Maker Engineering office 3 95523A0069 H\P Computer IS\Cousins Engineer\Chief Office 24 95523A0070 Philips Security Camera 2300 Building |
BUILDING 3200
Building 3200
QUANTITY INVENTORY # ITEM DESCRIPTION SERIAL #
-------- ----------- ---------------- --------
OUTDOORS
8 0501-0508 Trash Receptacles- Metal outdoor \ Verdis Gris Finish
1 ea. Parking deck lobby, and smoking area.
7 0509-0515 Outdoor Planter/Containers on Plaza - (7) Beige Dura Art
Planters on brick ledges.
5 Assign after Dura Art Planters (Center of Plaza, permanent/attached to deck)
Installation
6 0516-0521 Outdoor Tables with attached benches including smoking area
LOBBY
6 0522-0527 Mahogany Lobby Benches with cushions for seats
2 0528-0529 Triangle Shaped Custom Area Rugs located in lobby
4 0530-0535 Indoor Planters in lobby - Brown cylinder
1 0536 Literature Display Cabinet (oak) in lobby
2 0537-0538 Walk off Mats for rear revolving door entrance
2 0634-0635 Ficus Trees
1 0651 Lg. Trophy Case (but excluding awards in case)
CONSOLE SECURITY DESK
1 0636 Security Console
1 0539 Console Desk - Storage Cabinet
2 0540-0541 Desktop Telephones
4 0542-0545 Security Camera Monitors
1 0546 Console Multiplexer
1 AT&T Phone for Security Desk
SECURITY OFFICE
1 Computer-Compaq 6X1A-JYGZ41ZS
1 Kodak Digital Camera EKR92200209
1 Sampo Monitor S2S70-748J1010
2 Alpha Locks 5873275
1 Docu-Seal Machine NKG 4394
CONFERENCE ROOM
20 0547-0566 Conference Room Tables - Laminates surface tops
31 0567-0597 Conference Room Chairs - Kimball Q95-201 Greenish/Tan (nubby)
15 0619-0633 Conference Room Chairs - Kimball Q95-201 Greenish/Tan (nubby)
1 0598 Podium - Full size, oak
1 0599 Conference Room Artwork - Birch pond I
1 0600 Conference Room Artwork - Birch pond II
1 0601 DSL Modem located in closet of conf. Room (Earthlink)
2 0602-0603 Chrome/gold top waste receptacles
|
1 0641 Sirco TV Security Cabinet w/lock - Mahogany
1 Rubbermaid Utility Cart
1 0642 TV
1 0643 VCR
6TH LEVEL BRIDGE CORRIDOR
6 0604-0609 Indoor Planters - Black Plastic China Bowl
6 0610-0615 Black framed photography of Chattahoochee and Wildwood
LOADING DOCK AREA
2 0616-0617 Rubbermaid Ash/Waste Receptacles
1 0618 Wall display case over sign-in desk
|
Building 3200 Holiday Decorations (stored off site with D & S Plants)
QUANTITY INVENTORY # ITEM DESCRIPTION SERIAL #
-------- ----------- ---------------- --------
2 9.5 Ft. Pencil Trees (With Lights)
2 7.5 Ft. Pencil Trees (With Lights)
2 6.5 Ft. Pencil Trees (With Lights)
1 Cords
24 Assorted velvet gift boxes (red, gold, green))
2 4' gold horn basket wall hanging (white holly/red)
24 Large 4' plastic multi-colored ornaments (hung from
lobby atrium)
1 Large silk arrangement
1 4' gold horn basket wall hanging (white holly/red)
2 Artificial 6' slim tree (no lights) light decor red
1 Artificial wreath 60" (with lights) red bow only
8 Artificial garland 9' pieces (no lights) red bows))
4 Assorted 18" velvet gift packages red, green and gold
4 Assorted 12" velvet gift packages red, green and gold
18 9' pieces garland no lights, bows only (red)
2 Artificial slim trees 7.5' no lights / add light decor
to match the 26.5' slim trees already used in 6th
Parking Tunnel by Elevator End.
|
Building 3200 Cafe (other items in cafe not listed are owned by operator)
QUANTITY NVENTORY # ITEM DESCRIPTION SERIAL # -------- ---------- ---------------- -------- 1 1 Double Convection Oven 1001 1 2 Exhaust Hood and Fire Protection System 1002 1 3 Fire Protection System (add to above) 1003 1 4 Eye (6) Range/Oven 1004 1 5 Food Slicer 1005 1 6 Filter - Fryer (together with below) 1006 1 7 Fryer 1007 2 8 Hand Sinks 1008 |
1 9 Hot Food Display 1009
1 10 Hot top / Oven Base 1010
1 11 Ice Machine 1011
1 12 Juice/Water Display 1012
1 13 Pot Sink 1013
1 14 Prep-sink / Work Table 1014
1 15 Reach-in Refrigerator 1015
1 16 Ref. Base or Sandwich Refrigerator 1016
1 17 Salad Bar 1017
1 18 Soup Wells 1018
1 19 Walk in Cooler (fixture) 1019
1 20 Mixer with Stand - In Sophie's (Operational) 1020
2 21 & 22 Cash Registers - 1 Old - 1 New 1021
1 23 Condiment Counter 1022
Multi N/A Serving Decor - (no silver) tongs, spatulas 1023
66 23-111 Dining Room Furniture - Black Chairs Mfg:
Lowenstein Model #HL201 1024
28 112-139 Dining Room Furniture - Formica Top Tables
36"X36" Peacock Best / Model# TN18E 1025
2 140-141 Nine (9) Trash Receptacles 1026
1 142 Cashier's Station 1027
1 143 Cup Dispenser 1028
LOCATION: CAFE'S STORAGE - BASEMENT LEVEL
144 Rotisserie - Operational 1029
145 Sandwich/Pizza Display - Operational 1030
|
Building 3200 Engineering
QUANTITY INVENTORY # ITEM DESCRIPTION LOCATION SERIAL # -------- ----------- ---------------- -------- -------- 1 9532A0001 Ladder 6ft 6th Level Storage 1 9532A0002 Ladder 6ft 6th Level Storage 1 9532A0003 Ladder 6ft 6th Level Storage 1 9532A0004 Ladder 6ft Light Bulb Cart 1 9532A0006 Ladder 12ft 6th Level Storage 1 9532A0007 Ladder 12ft West Penthouse 1 9532A0008 Ladder 8ft 6th Level Storage 1 9532A0009 Ladder 8ft 6th Level Storage 1 9532A0010 Ladder 10ft 6th Level Storage 1 9532A0011 Ladder ext. 24ft Roof - East Tower 1 9532A0012 Fluke multi meter Shop 1 9532A0013 Fluke thermometer Shop 1 9532A0014 Fuke thermometer Can not locate 1 9832A0015 Amprobe amp meter sm Shop 1 0032A0016 Amprobe amp meter digital Shop 1 9532A0017 Ladder 10ft 6th Level Storage 1 9832A0018 Dayton ak/dc arc welder Shop |
1 0032A0019 Poulan chain saw 2300 7th Level Storage 1 0032A0020 Poulan chain saw 2300 7th Level Storage 1 9532A0021 Ridgid elect drain auger Shop 1 9532A0022 Manual drain auger large Shop 1 9532A0023 Fluorescent drop light Shop 1 9532A0024 Skilsaw 7.25" circ saw Shop 1 9532A0025 Rally 2 1/4 tow flr jack hyd Shop 1 9532A0026 Milwaukee elect drill Shop 1 9532A0027 Milwaukee cordless hammer drill Shop 1 9532A0028 Milwaukee drain auger small Engineering office 1 9532A0031 Fanon megaphone mv-108 Shop 1 9532A0032 Fanon megaphone mv-108 Shop 1 9532A0033 Fanon megaphone mv-108 Shop 1 9532A0034 Portable oxy accet tourch Shop 1 9532A0036 Milwaukee sawzall Shop 1 9532A0037 Milwaukee band saw Shop 1 9532A0038 Magna tap & die set Shop 1 9532A0039 Weller soldering gun Shop 1 9532A0040 Dayton pop rive 7 gun Shop 1 9532A0041 Ridgid flaring tool Shop 1 9532A0042 Stanley rivit gun Shop 1 9532A0043 Arrow hot glue gun Shop 1 9532A0044 Speedx key cutter Shop 1 9532A0045 Dayton bench grinder Shop 1 9632A0046 Sleigh Glass Storage Room 2 9632A0046 Reindeer Glass Storage Room 40 9632A0047 Gold Ball Donated 2000 400 9632A0048 Silver Ball Donated 2000 14 9632A0049 Spiked Ornament Donated 2000 1 9632A0050 Christmas Tree w/ Gold & White Bows Donated 2000 1 9632A0051 Hoover Portable Vacuum Engineer Storage 1 94320052 Ray-o-Vac Florescent Work Light Engineer Shop 1 9132A0055 Dayton Engine Hoist Chiller Room 1 9632A0056 Rocking Horse Donated 2000 5 9632A0057 Pine Cone Topiary Donated 2000 4 9532A0058 Desk Engineering Office 14 9532A0059 Chair - Upholstery Engineering Office 1 9532A0060 Clark Back Pac Vacuum Light Bulb Cart 1 9532A0061 Bookcase Engineering office 1 9532A0062 Siemens EMS Sys w/Dot Matrix Printer Engineering office 1 9532A0063 EMS Computer Engineering office 1 9532A0064 Laser Jet Color Printers(HP 950C DeskJet) Engineering office 1 9532A0064 Laser Jet Color Printer (HP 940C DeskJet) Engineering office 6 9532A0066 Black Locker Shop 1 0032A0067 EMS Toshiba Lap Top Computer Engineering office |
1 0032A0068 Spot Cooler Storage Room 1 0032A0069 Motorola Spirit Radio SN# 463HZUF983 Engineering office 1 0032A0070 Gas Detector Engineering office 1 0032A0071 101 Compact Disc Player Shop 1 0032A0072 Bulldog Task Adj Armchair, Dk. Grey Security Console 4 0032A0073 File Cabinet Engineering office 2 0032A0074 Flammable Storage Cabinet Engineer's Shop 1 0032A0075 Halogen Stand Light Shop 1 0032A0077 Motorola Spirit Radio SN# 463HZUG614 Engineering office 1 0032A0078 Gantry Chiller Plant 1 0032A0079 Ridgid Wet Vac Engineer's Shop 1 0032A0080 Ridgid Wet Vac Engineer's Shop 1 0032A0081 Ridgid Wet Vac Engineer's Shop 1 0032A0082 Whirlpool Microwave Shop 1 0032A0083 Tornado Floor Carpet Drier Engineer's Shop 1 0032A0083-A Dickson Temp Humidity Recorder Engineering Shop 1 0232A0084 Tornado Floor Carpet Drier Engineer's Shop 1 0232A0084-A Dickson Infrared Thermo. Engineering Shop 1 9532A0085 Realistic Sound Level Meter Engineer's Shop 1 9532A0085-A Micrometer Gauge Engineering Shop 4 0232A0086 Box - Tylon Flooring Attic Storage 28 9632A0087 Strand of Lights Glass Storage Room 1 0232A0089 Eagle Fire Resistant Storage Cab.-Yellow Engineer Storage 1 0232A0090 Fire Resistant Storage Cab - Yellow Engineer Storage 1 0232A0091 Large Measuring Wheel Engineering office 1 0232A0095 HP 1200 LaserJet Printer Engineering office 2 0232A0096 Rubbermaid 8' White Folding Tables Engineering office 3 0232A0097 6' Rubbermaid White Folding Tables Engineering office 4 0232A0109 Fire Hyd. Hose - 100 ft. Leasable Storage 2 0232A0110 Fire Hyd. Hose - 50 ft. Leasable Storage 1 0232A0111 Flood Pumper Leasable Storage 16 0232A0112 Folding Chairs - Beige s/b mgmt office Leasable Storage 2 0232A0113 Folding Chairs - Brown s/b mgmt office Leasable Storage 3 0232A0114 Wooden Folding Tables Leasable Storage 1 0232A0115 4-Drawer Lateral File Cabinet Leasable Storage 2 0232A0116 Chrome Planter Cylinders Leasable Storage 1 0232A0117 Echo Heat Gun Pre-Alan 1 0232A0118 Skil saw Pre-Alan 1 0232A0119 Dyno Label Maker Pre-Alan 1 0232A0120 Propane Torch - Hand Held Pre-Alan 2 0232A0121 Tensa Barrier w/o strap 1W AHU Room 2 0232A0122 Chrome Easel 1W AHU Room 10 0232A0124 Chrome Stanchion & Rack Glass Storage Room 2 0232A0125 Sign Top for Stanchion Glass Storage Room 1 9632A0126 15 Gingham Bears & Wrapped Package Donated 2000 1 0232A0127 8' Louisville Ladder Lobby AHU Room 1 0232A0128 HP G85xi (3 in 1) SN:SGG25E0212 Engineering office |
1 0232A0129 GE Select Refrigerator Shop 1 0332A0134 Byers Sand Spreader 3200 1 0232A0136 Spanner Wrench 5.25" Long - Width .87 1 0332A0137 SW Bell Digital Freedom Ph w/ans mach Engineering Office 3 0332A0141 Wall-Mount Desk-20"Wx15"dx Leasable Storage 1 0332A0142 Solar Digital Thermometer Chiller Room 20 0332A0143 Wood / Steel Panel Frame Barricade Leasable Storage 1 0432A0144 Supervisor's Safety Meeting Handbook Chief's Office 1 0432A0145 OSHA Handbook Chief's Office 1 0432A0146 Right To Know Handbook Chief's Office |
EXHIBIT "B-1"
LIST OF PROPERTY EXCLUDED FROM ASSOCIATES PERSONAL PROPERTY
BUILDING 2300
QUANTITY INVENTORY # ITEM DESCRIPTION SERIAL #
-------- ----------- ---------------- --------
2 Radio repeaters and auxiliary equipment
located in penthouse and on roof
|
BUILDING 3200
QUANTITY INVENTORY # ITEM DESCRIPTION SERIAL #
-------- ----------- ---------------- --------
LOBBY
0651 Awards located in Lg. Trophy Case
(but excluding Trophy Case)
|
BUILDING 3200
QUANTITY INVENTORY # ITEM DESCRIPTION SERIAL #
-------- ----------- ---------------- --------
1 Art Display Case 1 West Tower -
Loaned art from Vinings' Gallery
CONFERENCE ROOM
13 Conference Room Chairs - (13) Kimball
Imagerie Comet Blue / Property of IBM -
Not included in inventory
1 Wall Phone over sign-in desk / Property
of IBM - Not included in inventory
1 Radio repeater and auxiliary equipment
located in penthouse and on roof
|
MANAGEMENT OFFICE (BUILDING 2300)
QUANTITY INVENTORY # ITEM DESCRIPTION SERIAL #
-------- ----------- ---------------- --------
1 32x52 Indian Motif Art in frame HALLWAY 4120-188
1 45x61 Wall Quilt 4120-201
1 18 x 18 Arch. Photo 4120-204
1 18 x 18 Arch. Photo
14 Award Plaques
1 Community Project - Make A Wish Plaque 0518892
1 Sony Microcassette Transcriber 4120-082
1 Mahogany Credenza 4120-210
1 Mahogany 3 shelf bookcase
1 Planter (silver)
2 Charlotte Co. Mahogany Wood/Cloth Side Chair
|
2 18x24 Fabric Bulletin Board 4120-118
1 6x72 Mahogany desk w/left return JC1739VMW
1 NEC 17" monitor 6008DGT2A642
1 CPU 4862A011
1 Mouse B13990WGA1YQ3E
1 Keypad Green
1 Banker's Lamp MY3BE4Q0T2
1 HP 5650 Printer
1 Executive chair/cloth DL210L
1 Casio Calculator
1 Legal 2 drawer file cabinet
1 Storage Cabinet for supplies Bathroom
1 Planter
1 Kimberly Clark Toilet Seat Cover Dispenser
2 Trash cans, one plastic and one metal 4120-155
1 Computer station (mahogany) 4120-075
1 36x72 Mahogany desk 4120-042
1 Mahogany Credenza
1 Gray Cloth Ex. Chair
1 3 Shelf Cherry wood bookcase
1 14" ceramic planter
Chairs
1 Blackberry TUVFCCEVC1
1 Palm Pilot
1 Mouse 1802158YE
1 17" NEC AccuSync Color Monitor 176010EM000609650732
1 CPU 32660624
1 Keyboard MY04F16030
1 HP 950C Printer 2204409TA
1 NEC Color Monitor 17" 4120-119
1 Mahogany credenza 4120-041
1 36 x 72 mahogany desk 4120-076
1 Black leather ex. Chair
1 Black 3 shelf bookcase
1 15" planter MY4164M07F
1 HP5650 deskjet printer 6X29KN8ZSON6
1 CPU P23 DH
1 Calculator 10660229
1 Keyboard
1 22x28 Framed photo of 3301 Building
1 16x18 framed photo of 3301 Building 4120-249&140
2 Kimball side chair black wood with blue fabric
1 Palm Pilot 605700-039
1 Sensormatic Color Video Multiplexer
1 Sanyo Time Lapse VCR 72H GRC122000CDM
1 Johnson Controls 12V Battery charger 4120-191
1 Whirlpool TimeMaster Microwave Oven 4120-084
|
1 Wood Dinette Table 4120-086&87
2 Dinette Chair GSD600G-01
1 GE Dishwasher P20228
1 Proctor Silex 2 slice toaster
2 Grindmaster stainless coffee carafes VPRO282121
1 Bunn VPR Series Coffee Brewer
Kitchen Utensils//mugs, etc. 4120-258
1 Hotpoint Refrigerator
1 36x36 Fabric Bulletin Board Countertop
1 Mackey Water Cooler (leased) 4120-099
1 36 x 72 Maplewood desk New 01
1 Black metal file cabinet 103-104
2 Brown leather side chairs New 01
1 HP 932C printer
1 Maplewood 2 shelf bookcase 4120-199
1 Maple side table
1 Computer table 4120-100
1 Maplewood Credenza 4120-267
1 Black leather ex. Chair
1 Black rolling file cabinet 78NGXKV-09/01
1 IBM Think Pad
1 Blackberry
6 5 Drawer lateral file cabinets
1 4 Drawer lateral file with top slide panels
2 5 Drawer lateral file with top slide panels 9100
1 3M Overhead projector Model 4600
1 Kodak Slide Projector
1 60" Wooden work table New 01
1 Cannon IR 5000 Copier (LEASED)
1 Fellowes PS40 paper shredder
1 Panasonic KP100 Electric pencil sharpener 5A3-01413
1 Realistic Alert II Weather Radio 8168686
1 Pitney Bowes A900 Postage Meter (LEASED) 0159715
1 Pitney Bowes A500 Postage Scale (LEASED) 10414
1 Speedex Key Maker Machine W12F
1 Premier Paper Cutter 11-302
1 Cosco 2 Step Stool
1 Heavy Duty Hole Puncher
1 36x49 Fabric Bulletin Board 2946U
1 Dell Optiplex GX 1 computer (Irrigation System) AB32-870200154
1 UPS Minuteman 37172-8CA-0633
1 Dell Keyboard (Irrigation System) 8963354
1 Dell 14" Color Monitor (Irrigation System) 9905060005
1 Patton Electronics Short Range Modem (Irrigation System) ZL0018CZ REV A HK195 01
2 Harmon/Kardon Multimedia Speakers
1 Mitel SX2000 Phone System
1 24 x 30 CPI "Topping Out" Framed Picture
|
1 IS Spy Camera 1 Digital Camera 2 Plan Holder flat 5 drawer blue print cabinet DM/SPQ/S/N/16U 1 Dedicated Micros 16 Channel Color 7575-7F 1 Pelco Sequential switcher A2TH00156 1 Panasonic AG-6030 VCR 51017 1 Digi-Spec Video Motion Detector MB63510015 1 19" Panasonic Color Video Monitor 083088 1 Kinyo Video VHS Rewinder . 1 Kimball Mahogany desk 1 4 Shelf Oak Bookcase 1 Kimball Mahogany Credenza 2 Black planter 1 Burgundy Cloth Ex. Chair 1 Black wood and cushion chair K12023910 1 Cannon typewriter (Supply Room) B2B5B0GCPJP4N2 1 NMB Tech. Key Board 1700796TA 1 NEC Color Monitor 1 Scanner 1 Wood Printer stand HP 5EOADZG3G08E 1 CPU 1 4 Drawer lateral file cabinets 1 3 Drawer lateral file cabinets 2 5 Drawer lateral file cabinets 1 Secretarial chair black leather 1 Round oak table with two oak cloth chairs 1 Chrome planter 1 Cubicle desk with 2 file cabinets 02011 1 Electric stapler 0D084192 1 Sharp Calculator 0350654YA 1 NEC Color Monitor B13990WHCIXODH 1 Keyboard S9577206 1 Mouse JPBK025544 1 HP Laser Jet 1200 Printer 3872C784 1 CPU 1 5 Drawer lateral file cabinet 1 Cubical desk 1 Black leather chair 1284-8 1 HP Printer 962C 1 CPU 0350656YA 1 NEC Color Monitor 21770272 1 Keyboard 1088888 1 Mouse 1 Tx. Inst. Calculator 1 24"x36" cloth board 4120-269 1 Mahogany 3 shelf bookcase 1 Oak planter 4120-236 |
1 Kimball Mahogany left return desk 1 Chrome Planter 4120-235 1 Ex. Black leather chair MX83621892 1 HP Color monitor USKC042079 1 HP laser jet 5 printer KTEAB12911 1 Mli699 Speakers S48 1 Mouse US84010774 1 HP PC 4120-180 1 Patton Heater 1 Computer table 1 Oak chair with cloth fabric T15650 1 10 key calculator 703030 1 Panasonic electric pencil sharpener 4120-051 1 Mahogany 3 shelf bookcase 2 Chairs with wood/cloth fabric 4120-089 1 Kimball mahogany desk 1 Kimball mahogany credenza 1202980YE 1 NEC color monitor 4120-044 1 Ex. Black leather chair 1EEE1284-B 1 HP 950C printer 32660651 1 Keyboard 2360657 1 Mouse 6021-DGT2 A017 1 PC 1 Holmes Heater 1 Tree picture 1 Bulletin Board 1 Blackberry 5E0ADZG3G08E 1 PC 1 Bulletin Board MY4164MO98 1 HP 5650 printer 1702828YE 1 NEC 17" Monitor SK2850C 1 Keyboard JNZ201213 1 Mouse 4120-049 1 36x72 mahogany desk 4120-050 1 Mahogany credenza 4120-092 1 Gray Cloth Ex. Chair 4120-132 2 Kimball side chair w/black wood and blue fabric 1 16" chrome planter 1 Mahogany 3 shelf bookcase 1 32x34 framed Indian artwork 4120-048 1 Glass Chrome Table (round) 1 17 x 20 framed photo of 2300 building 4120-073 & 74 2 Chairs 6032 DYSZ L-13 1 PC B21AUOFGAJL8SY 1 Keyboard F22420C5BJ60E2E 1 Mouse CNBRG32781 1 HP 1200 Laser Printer 6x26kn8z-v02j |
1 NEC 17" Monitor U56577J1640102
1 Brother Fax Machine
1 12" Ceramic Burgundy Planter SG75FF30MG
1 HP Office Jet fax machine 21NJ29E7EKHN
1 US Robotics 33.6 fax modem
1 Gray Cloth Ex. Chair 4120-072
1 Round black wood side table 4120-184
1 Pedestal table with green marble top 4120-185
1 39x46 Framed leaf picture 4120-186
1 39x46 framed woods picture
4 Chrome plant woks 4120-035
1 Mahogany credenza 4120-034
1 36X72 Mahogany desk with right return
1 18" Chrome Planter 4120-264
1 36x72 "L" shape Kimball mahogany desk 4120-265
1 Kimball mahogany credenza S00555462H
1 Kimball Mahogany desk hutch S0052404134
1 Mahogany 3 shelf bookcase
1 Mahogany 2 drawer lateral file
1 18" Chrome Planter 71161108
1 Keyboard 04912715
1 Mouse FX32344
1 Laptop by IBM 17" Screen 191258-B22
1 Port for laptop 2.1.2.17
1 Blackberry /Wireless handheld and charger
1 33 X 41 quilted framed art 4120-174
1 Vecta black leather Executive chair 4120-46&47
2 Side chairs with black wood and blue fabric 4120-048
1 Wooden/Marble top table
CONFERENCE ROOM 4120-027
1 Black TV Stand w/Glass doors
1 40 x 60 Photograph of 2300 Building
1 Egan Visual Cherry Wood Wall Mount Board 4120-063
1 42 x 96 Mahogany Conference table 4120-064-69
6 Wilkhahn Black Leather chair 4120-062
1 Mahogany TV stand w/cabinet 3 SB01650111
1 Quasar 19" TV w/VCR & remote 15-1834
1 Radio Shack Color 210 Antenna
1 14" Chrome Planter
1 18" Chrome planter
1 10" Safeco black & chrome trash can 4120-095
1 15" ceramic planter in back office
2 Side Chairs from Janine's office
SUPPLY ROOM
1 Palm V (Issued to Rhonda - in supply room)
|
3 Witches
Plant replacement
1 Easter Rabbit
Award Plaques
Books
1 Label Maker
1 Laminator
12 Desk Sets (tape dispensers, staplers, file trays, etc.)
NOTE:
Pagers are leased, radios (communication), (4) FCC
License agreements (3) for radio communication, one for
irrigation system).
1150 Doughnut Boxes
2 Blankets
2 Rolls of Christmas Paper
10 Marble Frames
|
EXHIBIT "C"
LIST OF COMMISSION AGREEMENTS
2300 Windy Ridge Parkway:
1. Letter agreement between Wildwood Associates, as Owner, and Flagship Group, Inc., as Broker, dated June 13, 1995, fully executed on June 16, 1995, regarding Office Depot, Inc., as Tenant.
2. Letter agreement between Wildwood Associates, as Owner, and The Miller-Richmond Company, as Broker, dated September 7, 1994, as revised April 3, 1995, fully executed on April 24, 1995, regarding Federal Home Loan Mortgage Corporation, as Tenant.
3. Commission Agreement between Wildwood Associates, as Landlord, and AFCO Realty, L.L.C., as Broker, dated September 11, 2003 regarding Assignment of Lease and First Amendment to Lease dated July 31, 2003, between Tenant and Frederick Abeles, D.D.S., P.C., as Tenant.
4. Commission Agreement between Wildwood Associates, as Lessor, and Cushman & Wakefield of Georgia, Inc., as Broker, dated April 25, 1995, fully executed on May 1, 1995, regarding Computer Associates International, Inc., as Tenant.
5. Letter agreement between Wildwood Associates, as Owner, and CK-Atlanta Office Management, Inc. (Childress Klein Properties), dated February 8, 1993, revised February 25, 1993 regarding Stanley D. Lindsey & Associates, Ltd., as Tenant.
6. Letter agreement between Wildwood Associates, as Landlord, and The Galbreath Company, now known as AFCO Realty Services, LLC, as Broker, dated May 4, 1995 and letter dated May 23, 1997, regarding Life Office Management Association, Inc., as Tenant.
7. Letter agreement between Wildwood Associates, as Owner, and Insignia/ESG, as Broker, dated June 29, 2001 regarding Manhattan Associates, Inc., as Tenant.
8. Commission Agreement between Wildwood Associates, as Landlord, and The Fulton Group, Inc., as Broker, dated January 25, 1995 regarding U.S.A. Food Corporation, a/k/a Cafe 2300, as Tenant.
9. Letter agreement between Wildwood Associates, as Owner, and J.P. Associates, as Broker, dated June 5, 1996, fully executed on June 7, 1996, regarding Financial Service Corporation, as Tenant.
10. Letter agreement between Wildwood Associates, as Owner, and Advantis, as Broker, dated May 8, 2001 regarding Scientific Research Corporation, as Tenant.
11. Commission Agreement between Wildwood Associates, as Owner, and Carter & Associates, as Broker, dated June 8, 1998, fully executed on July 17, 1998, regarding The Profit Recovery Group International I, Inc., as Tenant.
12. Commission Agreement between Wildwood Associates, as Owner, and Cushman & Wakefield of Georgia, Inc., as Broker, dated February 27, 2001 regarding International Paper Company, as Tenant.
13. Commission Agreement between Wildwood Associates, as Landlord, and The T.J. Wesley Co., Inc. d/b/a The Wesley Company, as Broker, dated October 6, 2003 regarding Citigroup Global Markets Inc., as Tenant.
2401 Windy Ridge Parkway:
None
3050 Windy Hill Road:
None
3175 Windy Hill Road:
None
3200 Windy Hill Road:
1. Letter agreement between Wildwood Associates, as Owner, and Carter & Associates, L.L.C., as Broker, dated March 10, 2003 regarding Coca-Cola Enterprises Inc., Coca-Cola Bottlers Sales & Service Company and the CBS Joint Venture, as Tenant.
2. Commission Agreement between Wildwood Associates, as Landlord, and Tipps Realty Services, LLC, as Broker, dated on or about April 25, 2003 (undated) regarding Alliance Data Systems Corporation, as Tenant.
3. Letter agreement between Wildwood Associates, as Owner, and Jones Lang LaSalle Financial & Corporate Services, Inc., as Broker, dated March 31, 1999, as revised April 14, 1999 regarding PricewaterhouseCoopers, LLP, as Tenant.
4. Commission Agreement between Wildwood Associates, as Landlord, and Carter & Associates, as Broker, dated February 28, 2003 regarding Envision Communications, Inc., as Tenant (currently Educational Concepts Group, Inc.).
5. Letter agreement between Wildwood Associates, as Owner, and Julien J. Studley, Inc., as Broker, dated October 17, 2001 regarding W. H. Smith, Inc., as Tenant.
6. Commission Agreement between Wildwood Associates, as Landlord, and Cushman & Wakefield of Georgia, Inc., as Broker, dated May 10, 2004, related to General Electric Company, as Tenant, as affected by letter from General Electric Company and Cushman
& Wakefield of Georgia, Inc. to Cousins Properties Incorporated dated May 12, 2004, and response letter from Cousins Properties Incorporated dated May 21, 2004.
1547 Powers Ferry Road:
1. Leasing Commission Agreement between Wildwood Office Park, Inc., as Lessor, and Brannen Goddard Company, as Broker, dated March 1, 1985 regarding First Georgia Bank of Cobb County (now known as Wachovia Bank, N.A.), as Lessee.
1927 Powers Ferry Road:
None
1931 Powers Ferry Road:
None
1935 Powers Ferry Road:
1. Letter agreement between Wildwood Associates, as Owner, and Foremark, Ltd., as Broker, dated July 31, 2002 regarding Famous Daves Ribs, Inc.
1945 Powers Ferry Road:
None
EXHIBIT "D"
FORM OF ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Agreement"), made and entered into this _____ day of __________, 2004, by and among 2300 WINDY RIDGE PARWAY INVESTORS LLC, a Delaware limited liability company (hereinafter referred to as "Purchaser"), WILDWOOD ASSOCIATES, a Georgia general partnership ("Associates" or "Seller") whose sole general partners are Cousins Properties Incorporated, a Georgia corporation, and International Business Machines Corporation, a New York corporation, and FIRST AMERICAN TITLE INSURANCE COMPANY (hereinafter referred to as "Escrow Agent").
W I T N E S S E T H:
WHEREAS, Purchaser and Seller have entered into that certain Purchase and Sale Agreement fully executed August ___, 2004 (hereinafter referred to as the "Contract"); and
WHEREAS, Section 2.4(a) of said Contract provides for Purchaser's payment to Escrow Agent, contemporaneously with Purchaser's execution and delivery of the Contract to Seller, of One Million and No/100 Dollars ($1,000,000.00) as Initial Earnest Money (as defined in the Contract) to be held and applied by said Escrow Agent in accordance with this Agreement; and
WHEREAS, Section 2.4(b) of the Contract provides for Purchaser's payment to Escrow Agent, no later than the expiration of the "Inspection Period" (as defined in the Contract) of certain additional sums as the Additional Earnest Money (as defined in the Contract); and
WHEREAS, the parties hereto desire to set forth the terms and conditions of Escrow Agent's holding, investment and disbursement of the Escrow Funds (as hereinafter defined).
NOW, THEREFORE, for and in consideration of the agreements set forth in the Contract and the mutual covenants set forth herein, the parties hereto, intending to be legally bound, hereby agree as follows:
1. Escrow Agent does hereby acknowledge receipt of a check or wire transfer, payable to the order of Escrow Agent, in the amount of One Million and No/100 Dollars ($1,000,000.00) as the Initial Earnest Money (as defined in the Contract). Said Initial Earnest Money, together with any Additional Earnest Money actually deposited by Purchaser with Escrow Agent pursuant to the terms of the Contract, all interest and other income earned on the Initial Earnest Money, any Additional Earnest Money and interest thereon being herein referred to as the "Escrow Funds". Escrow Agent hereby agrees to hold, administer, and disburse the Escrow Funds pursuant to this Agreement and the Contract. Escrow Agent shall invest the Escrow Funds in a money market account with a national banking association or other bank acceptable to Seller and Purchaser in the Atlanta, Georgia metropolitan area. All interest or other income shall be earned for the account of Purchaser and shall be held, invested and disbursed as a part of the Escrow Funds hereunder. Purchaser's Federal Identification Number for purposes of this Agreement is _____________. Escrow Agent's fee, if any, for services rendered hereunder shall be paid one-half (1/2) by Purchaser and one-half (1/2) by Seller.
2. At such time as Escrow Agent receives written notice from either
Purchaser or Seller, or both, setting forth the identity of the party to whom
such Escrow Funds (or portions thereof) are to be disbursed and further setting
forth the specific section or paragraph of the Contract pursuant to which the
disbursement of such Escrow Funds (or portions thereof) is being requested,
Escrow Agent shall disburse such Escrow Funds pursuant to such notice; provided,
however, that if such notice is given by either Purchaser or Seller but not
both, Escrow Agent shall (i) promptly notify the other party (either Purchaser
or Seller, as the case may be) that Escrow Agent has received a request for
disbursement, and (ii) withhold disbursement of such Escrow Funds for a period
of ten (10) days after receipt of such notice of disbursement and if Escrow
Agent receives written notice from either Purchaser or Seller within said ten
(10) day period which notice countermands the earlier notice of disbursement,
then Escrow Agent shall withhold such disbursement until both Purchaser and
Seller can agree upon a disbursement of such Escrow Funds. Purchaser and Seller
hereby agree to send to the other, pursuant to Paragraph 6 below, a duplicate
copy of any written notice sent to Escrow Agent and requesting any such
disbursement or countermanding a request for disbursement.
3. In performing any of its duties hereunder, Escrow Agent shall not incur any liability to anyone for any damages, losses, or expenses, except for willful default, gross negligence, fraud or breach of trust, and it shall accordingly not incur any such liability with respect to (i) any action taken or omitted in good faith upon advice of its legal counsel given with respect to any questions relating to the duties and responsibilities of Escrow Agent under this Agreement, or (ii) any action taken or omitted in reliance upon any instrument, including any written notice or instruction provided for in this Agreement, not only as to its due execution and the validity and effectiveness of its provisions but also as to the truth and accuracy of any information contained therein, which Escrow Agent shall in good faith believe to be genuine, to have been signed or presented by a proper person or persons, and to conform with the provisions of this Agreement.
4. Notwithstanding the provisions of Paragraph 2 above, in the event of a dispute between Purchaser and Seller sufficient in the sole discretion of Escrow Agent to justify its doing so or in the event that Escrow Agent has not disbursed the Escrow Funds on or before the date which is six (6) months from the date hereof, Escrow Agent shall be entitled to tender the Escrow Funds into the registry or custody of any court of competent jurisdiction, together with such legal pleadings as it may deem appropriate, and thereupon be discharged from all further duties and liabilities under this Agreement. Any such legal action may be brought in such court as Escrow Agent shall determine to have jurisdiction thereof.
5. Purchaser and Seller hereby agree to indemnify and hold Escrow Agent harmless against any and all losses, claims, damages, liabilities, and expenses, including, without limitation, reasonable costs of investigation and legal counsel fees, which may be imposed upon Escrow Agent or incurred by Escrow Agent in connection with the performance of its duties hereunder, including, without limitation, any litigation arising from this Agreement or involving the subject matter hereof.
6. Wherever any notice or other communication is required or permitted hereunder, such notice or other communication shall be in writing and shall be delivered by overnight
courier, hand delivery, or sent by U.S. registered or certified mail, return receipt requested, postage prepaid, to the addresses set out below or at such other addresses as are specified by written notice delivered in accordance herewith:
PURCHASER: 2300 Windy Ridge Parkway Investors LLC
c/o UBS Realty Investors LLC
Director-Acquisitions
242 Trumbull Street
Hartford, Connecticut 06103
Attention: Michael T. Mistretta, Director-Acquisitions
Facsimile: (860) 616-9008
with copies to: UBS Realty Investors, LLC
242 Trumbull Street
Hartford, Connecticut 06103
Attention: Anita Hochstein, Counsel
Facsimile: (860) 616-9004
Sutherland Asbill & Brennan, LLP
999 Peachtree Street, N.E.
Atlanta, Georgia 30309
Attention: Alfred G. Adams, Jr.
Facsimile: (404) 853-8806
SELLER: Wildwood Associates
c/o Cousins Properties Incorporated
2500 Windy Ridge Parkway
Suite 1600
Atlanta, Georgia 30339-5683
Attention: Corporate Secretary
Facsimile: (770) 857-2360
and to: Wildwood Associates
c/o International Business Machines Corporation
Real Estate Asset Management and Investments
IBM Corporate Headquarters
New Orchard Road, Mail Drop 215
Armonk, New York 10504
Attention: Mr. Charles Blowe
Facsimile: 914-499-7804
with a copy to: Troutman Sanders LLP
Suite 5200
600 Peachtree Street, N.E.
Atlanta, Georgia 30308-2216
Attention: John W. Griffin
Facsimile: (404) 962-6577
3
|
ESCROW AGENT: First American Title Insurance Company
101 Huntington Avenue F1 13
Boston, Massachusetts 02199-7601
Attention: ___________________
|
Any notice or other communication (i) mailed as hereinabove provided shall be deemed effectively given or received on the third (3rd) business day following the postmark date of such notice or other communication, (ii) sent by overnight courier or by hand shall be deemed effectively given or received upon receipt, and (iii) sent by facsimile transmission shall be deemed effectively given or received on the first business day after the day of transmission of such notice and confirmation of such transmission.
7. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, executors, administrators, personal representatives, successors, and assigns. Any and all rights granted to any of the parties hereto may be exercised by their agents or personal representatives.
8. Time is of the essence of this Agreement.
9. If proceedings shall be instituted before any court of competent jurisdiction for the resolution of any dispute arising under this Agreement between any parties hereto, then upon final resolution of such dispute, the prevailing party in such dispute shall be promptly paid by the nonprevailing party therein all of such prevailing party's attorneys' fees and expenses, court costs and costs of appeal actually incurred in connection with such proceeding.
10. This Agreement is governed by and is to be construed under the laws of the State of Georgia and may be executed in several counterparts, each of which shall be deemed an original, and all such counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have signed and sealed this Agreement as of the day, month and year first above written.
SELLER:
WILDWOOD ASSOCIATES,
a Georgia general partnership
By: COUSINS PROPERTIES INCORPORATED,
a Georgia corporation,
General Partner
By:__________________________________
Name:________________________________
Title:_______________________________
By: INTERNATIONAL BUSINESS
MACHINES CORPORATION,
a New York corporation, General
Partner
By:__________________________________
Name:________________________________
Title:_______________________________
PURCHASER:
2300 WINDY RIDGE PARKWAY INVESTORS
LLC, a Delaware limited liability company
By: UBS Realty Investors LLC, a
Massachusetts limited liability
company, its Manager
By:__________________________________
Name:________________________________
Title:_______________________________
[Signatures continued on next page]
[Signatures continued from previous page]
ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE
COMPANY
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT "E"
LIST OF EXISTING ENVIRONMENTAL REPORTS
2300 Windy Ridge Parkway Report of Phase I Environmental Site
Assessment dated November 16, 1995,
prepared by LAW Engineering, Inc.
Report of Environmental Evaluation
dated June 23, 1989, prepared by Soil
& Material Engineers.
Report of Phase I Environmental Site
Assessment dated June 30, 2004,
prepared by Nova Engineering and
Environmental, Inc.
2401 Windy Ridge Parkway Report of Environmental Evaluation
(National Bank of Commerce) dated June 23, 1989, by Soil &
(formerly 1929 Powers Ferry Road) Material Engineers.
Report of Phase I Environmental Site
Assessment dated June 30, 2004,
prepared by Nova Engineering and
Environmental, Inc.
3050 Windy Hill Road (Houston's) Report of Phase I Environmental Site
Assessment dated June 30, 2004,
prepared by Nova Engineering and
Environmental, Inc.
3175 Windy Hill Road (Bright Horizons) Report of Phase I Environmental Site
Assessment dated June 30, 2004,
prepared by Nova Engineering and
Environmental, Inc.
3200 Windy Hill Road Report of Phase I Environmental Site
Assessment dated June 30, 2004,
prepared by Nova Engineering and
Environmental, Inc.
1547 Powers Ferry Road (Wachovia) Report of Environmental Evaluation
dated June 23, 1989, prepared by Soil
& Material Engineers.
Report of Phase I Environmental Site
Assessment dated June 30, 2004,
prepared by Nova Engineering and
Environmental, Inc.
|
1927 Powers Ferry Road (Sal Grasso) Report of Phase I Environmental Site
Assessment dated June 30, 2004,
prepared by Nova Engineering and
Environmental, Inc.
1931 Powers Ferry Road (La Madeleine) Report of Phase I Environmental Site
Assessment dated June 30, 2004,
prepared by Nova Engineering and
Environmental, Inc.
1935 Powers Ferry Road (Famous Dave's) Report of Phase I Environmental Site
Assessment dated June 30, 2004,
prepared by Nova Engineering and
Environmental, Inc.
1945 Powers Ferry Road (TGI Friday's) Report of Phase I Environmental Site
Assessment dated June 30, 2004,
prepared by Nova Engineering and
Environmental, Inc.
|
EXHIBIT "F"
LIST OF EXISTING SURVEYS
2300 Windy Ridge Parkway:
As-Built Survey of 2300 Windy Ridge Parkway for Wildwood Associates and Metropolitan Life Insurance Company, prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John E. Norton, G.R.L.S. No. 1848, dated October 25, 1995, last revised December 19, 1995.
2401 Windy Ridge Parkway:
Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John E. Norton, G.R.L.S. No. 1848, dated July 15, 2002, revised June 30, 2004.
3050 Windy Hill Road:
Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John E. Norton, G.R.L.S. No. 1848, dated April 22, 2002, revised June 30, 2004.
3175 Windy Hill Road:
Survey of 3175 Windy Hill Road for Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John Evan Norton, Georgia Registered Land Surveyor No. 1848, dated July 15, 2004, last revised July 22, 2004.
3200 Windy Hill Road:
Survey for Teachers Insurance and Annuity Association of America, Wildwood Associates, Chicago Title Insurance Company, Commonwealth Land Title Insurance Company & Lawyers Title Insurance Corporation (2 sheets), prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John E. Norton, Georgia Registered Land Surveyor No. 1848, dated November 7, 1996, last revised July 6, 2004 (as to Sheet 1 of 2) and last revised November 26, 1996 (as to Sheet 2 of 2).
1547 Powers Ferry Road:
Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John E. Norton, G.R.L.S. No. 1848, dated April 22, 2002, revised June 30, 2004.
1927 Powers Ferry Road:
Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John E. Norton, G.R.L.S. No. 1848, dated April 22, 2002, revised June 30, 2004.
1931 Powers Ferry Road:
Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John E. Norton, G.R.L.S. No. 1848, dated April 22, 2002, revised June 30, 2004.
1935 Powers Ferry Road:
Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John E. Norton, G.R.L.S. No. 1848, dated April 22, 2002, revised June 30, 2004.
1945 Powers Ferry Road:
Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., bearing the seal and certification of John E. Norton, G.R.L.S. No. 1848, dated April 22, 2002, revised June 30, 2004.
EXHIBIT "G"
LIST OF LEASES
2300 Windy Ridge Parkway:
1. Lease Agreement between Wildwood Associates, as Landlord, and Aumund Corporation, as Tenant, dated October 8, 2002, as amended by Letter dated November 30, 2002.
2. Letter of Agreement dated April 1, 1996 between BellSouth Telecommunications, Inc. and Cousins Properties Incorporated and Communications Site Access Agreement between Wildwood Associates and Bell South Mobility Inc., dated February 4, 1997.
3. Lease Agreement between Wildwood Associates, as Landlord, and Casablanca Hair d/b/a Boardroom Barbers at Wildwood, as Tenant, dated October 10, 1995, as amended by First Amendment to Lease between the same parties, dated August 25, 2000.
4. Lease Agreement between Wildwood Associates, as Landlord, and Chevron U.S.A. Inc., as Tenant, dated June 15, 1989, as amended by First Amendment to Lease between the same parties, dated as of May 11, 1990; as further amended by Second Amendment to Lease between the same parties, dated as of December 20, 1990; as further amended by Third Amendment to Lease between the same parties, dated as of August 15, 1991; as evidenced by Memorandum of Lease between the same parties, dated August 28, 1992; as further amended by Fourth Amendment to Lease between the same parties, dated as of September 10, 1992; as further amended by Fifth Amendment to Lease between the same parties, dated as of September 30, 1992; as further amended by Sixth Amendment to Lease between the same parties, dated July 29, 1994; as further amended by Seventh Amendment to Lease between the same parties, dated August 31, 1998.
5. Lease Agreement between Wildwood Associates, as Landlord, and Citigroup Global Markets, Inc., as Tenant, dated October 14, 2003.
6. Lease Agreement between Wildwood Associates, as Landlord, and Coca-Cola Enterprises, Inc., as Tenant, dated August 8, 2002.
7. Lease Agreement between Wildwood Associates, as Landlord, and Computer Associates International, Inc., as Tenant, dated May 9, 1988; as amended by First Amendment to Lease between the same parties, dated August 25, 1988; as further amended by Second Amendment to Lease between the same parties, dated January 27, 1989; as further amended by Third Amendment to Lease between the same parties, dated February 16, 1990; as further amended by Fourth Amendment to Lease between the same parties, dated April 27, 1995.
8. Lease Agreement between Wildwood Associates, as Landlord, and Corporate Sports Unlimited, Inc., as Tenant, dated as of February 1, 1993.
9. Retail Area Lease between Wildwood Associates, as Landlord, and Cousins Management, Inc., as Tenant, dated as of July 31, 1989; as amended by First Amendment to Lease between Wildwood Associates, as Landlord, and Cousins Properties Incorporated, successor in interest to Tenant, dated August 31, 1994; as further amended by Second Amendment to Lease between the same parties, dated as of September 21, 1995; as further amended by Third Amendment to Lease between the same parties, dated November 28, 2000.
10. Lease Agreement between Wildwood Associates, as Landlord, and Mahesh J. Desai d/b/a VIP Cleaners, as Tenant, dated March 31, 2004, as amended by First Amendment to Lease Agreement dated August 18, 2004.
11. Communications License Agreement between Wildwood Associates, as Licensor, and Cypress Communications, Inc., as Licensee, dated June 21, 2000; as amended by First Amendment to Communications License Agreement between the same parties, dated November 1, 2002.
12. Lease Agreement between Wildwood Associates, as Landlord, and Dr. Frederick Abeles, as Tenant, dated October 14, 1993; as assigned and amended by Assignment of Lease and First Amendment to Lease Agreement among Wildwood Associates, as Landlord, Dr. Frederick Abeles, as Current Tenant, and Frederick Abeles, D.D.S., P.C., as Tenant, dated July 31, 2003.
13. Lease Agreement between Wildwood Associates, as Lessor, and Financial Service Corporation, as Lessee, dated March 29, 1990; as amended by First Amendment to Lease between the same parties, dated October 12, 1990; as further amended by Second Amendment to Lease between the same parties, dated as of June 1, 1991; as further amended by Third Amendment to Lease between the same parties, dated September 30, 1993; as further amended by Fourth Amendment to Lease between the same parties, dated December 22, 1993; as further amended by Letter dated December 28, 1994; as further amended by Fifth Amendment to Lease between the same parties, dated May 31, 1996; as further amended by Sixth Amendment to Lease between the same parties, dated July 15, 1996; as further amended by Seventh Amendment to Lease between the same parties, dated August 19, 1996; as further amended by Eighth Amendment to Lease between the same parties, dated September 30, 1996; as further amended by Ninth Amendment to Lease between the same parties, dated October 29, 1996; as further amended by Tenth Amendment to Lease between the same parties, dated September 15, 1997; as further amended by Eleventh Amendment to Lease between the same parties, dated February 1, 1998; as further amended by Twelfth Amendment to Lease between the same parties, dated May 23, 2000; as further amended by Thirteenth Amendment to Lease between the same parties, dated May 31, 2001.
14. Lease Agreement between Wildwood Associates, as Landlord, and Federal Home Loan Mortgage Corporation, as Tenant, dated April 17, 1995; as amended by Letter Agreement dated December 7, 1995; as further amended by Letter Agreement dated January 18, 1996; as further amended by First Amendment to Lease Agreement between the same
parties, dated November 13, 2001; as further amended by Second Amendment to Lease Agreement between the same parties, dated October 8, 2003.
15. Lease Agreement between Wildwood Associates, as Lessor, and Champion International Corporation, as Lessee, dated May 2, 1989; as amended by First Amendment to Lease between the same parties, dated March 29, 1996; as further amended by Second Amendment to Lease between the same parties, dated August 25, 1998; as further amended by Third Amendment to Lease between Wildwood Associates, as Lessor, and International Paper Company as successor-in-interest to Tenant, dated February 26, 2001; as further amended by Fourth Amendment to Lease Agreement between the same parties, dated July 14, 2003.
16. Lease Agreement between Wildwood Associates, as Landlord, and Life Office Management Association, Inc., as Tenant, dated April 3, 1995; as amended by Agreement between the same parties, dated as of April 3, 1995; as further amended by First Amendment to Lease Agreement between the same parties, dated November 10, 1997.
17. Lease Agreement between Wildwood Associates, as Landlord, and Manhattan Associates, LLC, as Tenant, dated June 25, 2001; as further amended by First Amendment to Lease Agreement between the same parties, dated June 10, 2002 as affected by Supplemental Notice dated August 8, 2003.
18. Telecommunications License Agreement between Wildwood Associates, as Licensor, and MCI Metro Access Transmission Services, Inc., as Licensee, dated as of May 10, 1995; as amended by First Amendment to Telecommunications License Agreement between the same parties, dated September 13, 2000.
19. Lease Agreement between Wildwood Associates, as Landlord, and Office Depot, Inc., as Tenant, dated September 26, 1995; as amended by Letter dated September 8, 1995; as further amended by Letters dated March 7, 2000 and March 23, 2000 exercising renewal option.
20. Lease Agreement between Wildwood Associates, as Landlord, and The Profit Recovery Group International I, Inc., as Tenant, dated July 17, 1998.
21. Lease Agreement between Wildwood Associates, as Landlord, and Scientific Research Corporation, as Tenant, dated August 23, 2001; as amended by First Amendment to Lease Agreement between the same parties, dated March 19, 2003.
22. Lease Agreement between Wildwood Associates, as Lessor, and Stanley D. Lindsey & Associates, Ltd., as Lessee, dated March 29, 1993; as amended by First Amendment to Lease between the same parties, dated March 15, 1994; as further amended by Letter dated December 28, 1994; as further amended by Second Amendment to Lease between the same parties, dated January 31, 1996; as further amended by Third Amendment to Lease Agreement between the same parties, dated February 24, 2003.
23. Standard Form ATM Lease between Wildwood Associates, as Landlord, and SunTrust Bank, Atlanta, as Tenant, dated April 27, 1998; as amended by Letter Agreement dated February 16, 2000; as further amended by Letter Agreement dated February 15, 2002; as further amended by First Amendment to Lease between the same parties, dated February 23, 2004.
24. Communications Building Access Agreement between Wildwood Associates, as Landlord, and Teleport Communications, Inc., as User, dated as of September 20, 2000; as further amended by Confirmation Notice dated November 6, 2000.
25. Specialty License Agreement between Wildwood Associates, as Licensor, and Thomas Strickland, as Licensee, dated as of April 11, 2002.
26. Lease Agreement between Wildwood Associates, as Landlord, and U.S.A. Food Corporation, as Tenant, dated January 25, 1995; as amended by First Amendment to Lease between the same parties, dated July 31, 1998; as assigned by Assignment and Assumption of Lease Agreement among Wildwood Associates, as Landlord, U.S.A. Food Corporation, as Assignor, and K & Lee Family, Inc., as Assignee, dated May 31, 2003, effective May 31, 2003.
27. Drop Box Agreement between Wildwood Associates and Airborne Express dated April 26, 1993.
28. Federal Express Placement Agreement between Wildwood Associates and Federal Express Corporation dated April 19, 2002, as amended by FedEx Placement Agreement and Supplier Profile letter dated June 15, 2004.
29. Information Service Agreement dated May 21, 2001, between Captivate Network, Inc. and Wildwood Associates for the building commonly known as 2300 Windy Ridge Parkway, Atlanta, Georgia (10 elevators), as amended by letter agreement dated August 9, 2004.
3050 Windy Hill Road
1. Ground Lease between Wildwood Associates, as Landlord, and Houston's Restaurants, Inc., as Tenant, dated July 9, 1992; as evidenced by Memorandum of Lease between the same parties, dated as of July 9, 1992, filed for record September 11, 1992, recorded in Deed Book 6839, page 252, Cobb County, Georgia records; as amended by First Amendment to Ground Lease between the same parties, dated as of July 31, 1992; as further amended by Second Amendment to Ground Lease between the same parties, dated May 31, 1993; as further amended by Third Amendment to Ground Lease between the same parties, dated July 15, 1993; as affected by Letter Agreement between the same parties, dated September 2, 1993; as affected by Quitclaim Deed dated August 18, 1995; as amended by letter from Landlord dated January 18, 1995; as further amended by Fourth Amendment to Ground Lease between the same parties, dated as of October 13, 1998.
3175 Windy Hill Road:
1. Lease between Wildwood Associates, as Landlord, and Bright Horizons Children's Centers, Inc., as Tenant, dated April 30, 1993; as evidenced by Memorandum of Lease between the same parties dated May 20, 1993, recorded in Deed Book 7464, page 51, Cobb County, Georgia records; as amended by Agreement regarding terms of Lease undated; as amended by First Amendment to Lease between the same parties, dated May 20, 1993; as affected by Disclosure Statement among Landlord, Tenant and AFCO Realty Associates, Inc., dated November 19, 1993; as affected by Letter from Landlord, dated January 18, 1995; as further amended by Second Amendment to Lease Agreement between the same parties, dated September 12, 2000.
3200 Windy Hill Road:
1. Lease Agreement between Wildwood Associates, as Landlord, and ADS Alliance Data Systems, Inc., as Tenant, dated April 25, 2003.
2. Lease Agreement between Wildwood Associates, as Landlord, and Coca-Cola Bottlers Sales & Service Company, LLC, as Tenant, and Coca-Cola Enterprises, Inc. ("CCE"), dated March 31, 2003; as amended by Agreement Regarding Lease Termination and Replacement Lease among Landlord, Tenant and Coca-Cola Enterprises, Inc., dated as of March 31, 2003; as affected by Lease Agreement between Wildwood Associates, as Landlord, and Coca-Cola Enterprises, Inc., as Tenant, dated March 31, 2003, as amended by Supplemental Notice from Landlord dated November 21, 2003.
3. Lease Agreement between Wildwood Associates, as Landlord, and Coca-Cola Enterprises, Inc., dated March 31, 2003; as amended by First Amendment to Lease Agreement between the same parties, dated June 23, 2003; as further amended by Second Amendment to Lease Agreement between the same parties, dated as of March 1, 2004.
4. Lease Agreement between Wildwood Associates, as Landlord, and Coca-Cola Enterprises, Inc., as Tenant, dated March 31, 2003, as further amended by Supplemental Notice from Landlord, dated May 19, 2003; as further amended by Letter Agreement between the same parties, dated September 30, 2003; as further amended by Letter Agreement between the same parties dated January 30, 2004.
5. Communications License Agreement between Wildwood Associates, as Licensor, and Cypress Communications, Inc., as Licensee, dated June 21, 2000; as amended by First Amendment to Communications License Agreement between the same parties, dated November 1, 2002.
6. Lease Agreement between Wildwood Associates, as Landlord, and Mahesh J. Desai d/b/a VIP Cleaners, dated March 31, 2004, as amended by First Amendment to Lease Agreement dated August 18, 2004.
7. Lease Agreement between Wildwood Associates, as Landlord, and Envision Communications, Inc., as Tenant, dated February 27, 2003; as amended by Indemnity Agreement Related to Tenant Finish Work between the same parties, dated February 6, 2003; as further amended by First Amendment to Lease Agreement between the same parties, dated September 4, 2003; as affected by letter from Landlord dated August 12,
2003; as further amended by Supplemental Notice from Landlord, dated August 13, 2003; as affected by letter from Tenant dated February 15, 2004; as further amended by Second Amendment to Lease Agreement between the same parties, dated March 24, 2004; as partially assigned by Tenant to Educational Concepts Group, Inc. by Assignment and Assumption of Lease Agreement dated March 24, 2004.
8. Lease Agreement between Wildwood Associates, as Landlord, and General Electric Company, as Tenant, dated April 6, 2004, as affected by letter from General Electric Company to Wildwood Associates, dated July 29, 2004.
9. Lease between Wildwood Associates, as Landlord, and International Business Machines Corporation, as Tenant, dated as of December 18, 1989; as amended by Supplemental Agreement between the same parties, dated as of December 18, 1989; as further amended by First Amendment to Lease between the same parties, dated as of August 31, 1990; as further amended by Third Amendment to Lease between the same parties, dated as of October 10, 1991; as amended by letter from Landlord dated December 27, 1994; as further amended by Fourth Amendment to Lease between the same parties, dated as of May 10, 1995; as affected by letter from Tenant dated June 26, 1995; as further amended by Fifth Amendment to Lease between the same parties, dated as of August 23, 1995; as affected by Sublease between Tenant, as Sublessor, and Technology Solutions Company, as Subtenant, dated as of October 1, 1995 with Consent to Sublease by Landlord, dated October 25, 1995; as further amended by Sixth Amendment to Lease between the same parties, dated as of October 31, 1996; as amended by Letter from Tenant, dated September 22, 1997; as further amended by Seventh Amendment to Lease between the same parties, dated as of December 15, 2000; as amended by Letter from Tenant, dated September 20, 2002; as affected by Sublease between Tenant, as Sublessor, and Pricewaterhousecoopers LLP, as Sublessee, dated as of October 1, 2002 with Consent and Agreement among Landlord, Sublessee and Tenant, dated December 12, 2002 as affected by Assignment and Assumption Agreement between Sublessee and PwCC LP dated as of October 1, 2002; as further amended by Eighth Amendment to Lease between Landlord and Tenant, dated February 27, 2003; as further amended by Ninth Amendment to Lease between the same parties, dated as of March 3, 2003; as further amended by Tenth Amendment to Lease between the same parties, dated as of April 1, 2003; as further amended by Eleventh Amendment to Lease between the same parties, dated as of April 4, 2003; as further amended by Twelfth Amendment to Lease between the same parties, dated as of April 7, 2003; as further amended by Thirteenth Amendment to Lease between the same parties, dated as of June 30, 2003; as further amended by Fourteenth Amendment to Lease between the same parties, dated as of July 28, 2003; as affected by Letter from Tenant, dated August 8, 2003; as affected by Letter from Tenant dated October 7, 2003; as affected by Letter from Tenant dated October 28, 2003; as further amended by Fifteenth Amendment to Lease between the same parties, dated March 1, 2004; as further amended by Sixteenth Amendment to Lease between the same parties, dated as of March 30, 2004; as further amended by Seventeenth Amendment to Lease between the same parties, dated as of April 27, 2004.
10. Lease Agreement between Wildwood Associates, as Landlord, and Price Waterhouse, as Tenant, dated November 30, 1992; as amended by First Amendment to Lease between
the same parties, dated April 10, 1998; as further amended by Second Amendment to Lease between Landlord and PricewaterhouseCoopers, LLP, successor in interest to Tenant, dated as of August 12, 1999; as amended by Supplemental Notice between the same parties, dated January 5, 2000; as further amended by Third Amendment to Lease between the same parties, dated April 1, 2000; as affected by Sublease between International Business Machines Corporation, as Sublessor, and Pricewaterhousecoopers LLP, as Sublessee, dated as of October 1, 2002 with Consent and Agreement among Landlord, Sublessee and Tenant, dated December 12, 2002 as affected by Assignment and Assumption Agreement between Sublessee and PwCC LP dated as of October 1, 2002, as further amended by Letter from Tenant, dated October 7, 2003; as further amended by letter from Tenant dated October 28, 2003; as affected by Termination Agreement dated February 23, 2004.
11. Telecommunications License Agreement between Wildwood Associates, as Licensor, and Metrex Corporation d/b/a Metropolitan Fiber Systems of Atlanta, Inc., as Licensee, dated as of January 9, 1995; as amended by First Amendment to Telecommunications License Agreement between the same parties, dated December 6, 2000.
12. Lease Agreement between Wildwood Associates, as Landlord, and Thomas C.
Lim, d/b/a Plaza Newstand, as Tenant, dated May 18, 2004.
13. Communications Site Access Agreement between Wildwood Associates and Radscan of Atlanta, Inc. d/b/a/ AlarmNet, as User, dated November 1, 1996.
14. Communications Site Access Agreement between Wildwood Associates, as Owner, and Southern Communications Services, Inc., as User, dated as of June 13, 1996, as affected by Renewal Letter from Tenant dated December 19, 2001.
15. Communications Building Access Agreement between Wildwood Associates, as Landlord, and Teleport Communications Atlanta, Inc., as User, dated as of September 20, 2000; as affected by Confirmation Notice from Landlord dated November 1, 2000.
16. Lease Agreement between Wildwood Associates, as Landlord, and W. H. Smith Inc., dated May 25, 1992; as affected by undated Supplemental Notice from Landlord; as affected by Letter from Landlord, dated July 28, 1992; as further affected by Letter from Landlord, dated November 24, 1992; as further affected by Letter from Landlord dated February 24, 1993; as further affected by Letter from Landlord, dated June 15, 1993; as further affected by Letter from Landlord, dated August 20, 1993; as amended by First Amendment to Lease between Landlord and Tenant, dated October 26, 1993; as affected by Letter from Landlord, dated July 1, 1994; as affected by Letter from Tenant, dated September 26, 1994; as further amended by Second Amendment to Lease between Landlord and Tenant, dated September 30, 1994; as affected by Letter from Landlord dated December 21, 1994; as further amended by Third Amendment to Lease between Landlord and Tenant, dated October 5, 2000; as further amended by Fourth Amendment to Lease between the same parties, dated August 31, 2001.
17. Lease Agreement between Wildwood Associates, as Landlord, and YHS, Inc. d/b/a Wildwood Cafe, as Tenant, dated April 6, 2004.
18. Letter Center Agreement between Wildwood Associates and United Parcel Service, Inc., dated effective January 1, 2004.
19. Information Service Agreement dated June 6, 2001, between Captivate Network, Inc. and Wildwood Associates for the building commonly known as 3200 Windy Hill Road, Atlanta, Georgia (12 elevators), as amended by letter agreement dated August 9, 2004.
1931 Powers Ferry Road:
1. Lease between Wildwood Associates, as Landlord, and La Madeleine of Georgia, Inc., as Tenant, dated March 7, 1996; as amended by Addendum to Lease between the same parties, dated March 7, 1996; as further amended by Supplemental Agreement undated; as evidenced by Short Form of Lease between the same parties, dated as of March 7, 1996; as further amended by First Amendment to Lease between the same parties, effective March 7, 1996; as further amended by Second Amendment to Lease between the same parties, dated December 10, 1996; as further amended by Third Amendment to Lease between the same parties, dated July 30, 1998.
1935 Powers Ferry Road:
1. Lease Agreement between Wildwood Associates, as Landlord, and Famous Dave's Ribs, Inc., as Tenant, dated October 1, 2002; as amended by Letter Agreement between the same parties, dated December 12, 2002; as amended by Supplemental Agreement between the same parties, dated December 30, 2002; as affected by Sublease Agreement between Tenant and Famous Ribs of Marietta, LLC, as Sublessee, dated as of September 19, 2003, with Consent to Sublease among Landlord, Tenant and Sublessee, dated October 27, 2003.
1945 Powers Ferry Road:
1. Lease between Wildwood Office Park, Inc., as Landlord, and TGI Friday's Inc., as Tenant, dated December 20, 1983; as evidenced by a Memorandum of Lease between the same parties, dated as of March 13, 1984, recorded in Deed Book 3056, page 304, Cobb County, Georgia Records, as amended by First Amendment to Lease between the same parties, dated March 14, 1984; as further amended by Second Amendment to Lease between the same parties, dated June 19, 1984; as further amended by Third Amendment to Lease between the same parties, dated as of September 17, 1984; as further evidenced by Revised and Supplemental Memorandum of Lease between the same parties dated October 3, 1984, recorded in Deed Book 3284, page 242, Cobb County, Georgia records; as affected by letter from Landlord dated January 18, 1995; as amended by letter agreement between the same parties dated September 17, 1999; as affected by Quitclaim Deed dated July 31, 1998; as further amended by Fourth Amendment to Lease between Wildwood Associates, successor to Landlord, and Tenant, dated as of July 31, 1998; as affected by Letter from Tenant dated May 26, 2004.
EXHIBIT "H"
LIST OF LOAN DOCUMENTS
2300 Windy Ridge Parkway:
None
2401 Windy Ridge Parkway:
None
3050 Windy Hill Road:
None
3175 Windy Hill Road:
None
3200 Windy Hill Road:
The Teachers Insurance and Annuity Association of American ("TIAA") Loan Documents:
1. Promissory Note from Wildwood Associates ("WA") to TIAA dated December 16, 1996 in the original principal amount of $70,000,000.00; as amended by First Amendment to Promissory Note between WA and TIAA dated May 22, 1997.
2. Deed to Secure Debt, Assignment of Leases and Rents and Security Agreement between WA and TIAA dated December 16, 1996, recorded in Deed Book 10049, Page 446, Cobb County, Georgia Records.
3. Assignment of Leases and Rents between WA and TIAA dated December 16, 1996, recorded in Deed Book 10049, Page 516, aforesaid records.
4. UCC Financing Statement showing WA, as debtor, and TIAA, as secured party, bearing File No. 033199617331, filed in the Central Indexing Records of Cobb County, Georgia.
5. UCC-2 Notice Filing for UCC Real Estate Related Collateral showing WA, as debtor, and TIAA, as secured party, filed in Deed Book 10049, Page 538, aforesaid records.
6. Environmental Indemnity by Cousins Properties Incorporated ("CPI") and International Business Machines Corporation ("IBM") in favor of TIAA, dated as of December 16, 1996.
7. Equifax Lease Parking Indemnity by CPI and IBM in favor of TIAA, dated December 16, 1996.
8. Lease Brokerage Indemnity by CPI and IBM in favor of TIAA, dated as of December 16, 1996.
9. Owner's Affidavit by Peter A. Tartikoff, Senior Vice President of CPI, managing general partner of WA, dated December 16, 1996.
10. Certificate of WA, dated December 16, 1996 regarding foreign status and FEI Number.
11. Letter from WA dated November 18, 1996 certifying rent roll.
12. Subordination, Non-Disturbance and Attornment Agreement between TIAA and IBM, dated as of December 18, 1996, recorded in Deed Book 10073, Page 327, aforesaid records.
1547 Powers Ferry Road:
None
1927 Powers Ferry Road:
None
1931 Powers Ferry Road:
None
1935 Powers Ferry Road:
None
1945 Powers Ferry Road:
None
EXHIBIT "I"
TITLE EXCEPTIONS
2300 WINDY RIDGE PARKWAY
1. State and county ad valorem taxes subsequent to the year 2003.
2. Master Declaration of Covenants and Cross Easements for Wildwood Office Park by Cousins Properties Incorporated, a Georgia corporation, and by Wildwood Associates, a Georgia general partnership comprised of International Business Machines Corporation and Cousins Properties Incorporated, dated as of January 23, 1991, recorded in Deed Book 5992, page 430, in the Office of the Clerk of the Superior Court of Cobb County, Georgia; as affected by Quitclaim Deed between Cousins Properties Incorporated and Wildwood Associates, dated January 29, 1991, recorded in Deed Book 5996, page 123, aforesaid records; as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
3. General utility easement in favor of Georgia Power Company from Wadley R. Glenn and Wilbur F. Glenn dated August 12, 1969, filed for record January 21, 1970, recorded in Deed Book 1138, page 286, aforesaid records.
4. Easements reserved in Warranty Deed from Lenox Peachtree Incorporated to the United States of America dated December 19, 1979, recorded in Deed Book 2125, page 448, aforesaid records, as amended by Easement Modification Agreement dated September 16, 1982, recorded in Deed Book 2591, page 353, aforesaid records, as further amended by Easement Modification Agreement dated November 28, 1983, recorded in Deed Book 2949, page 52, aforesaid records, as further amended by Easement Modification Agreement dated February 20, 1987, recorded in Deed Book 4367, page 98, aforesaid records.
5. Easement from Wildwood Office Park, Inc. to Georgia Power Company dated June 22, 1983, filed for record December 8, 1983, recorded in Deed Book 2960, page 393, aforesaid records.
6. General utility easement between Wildwood Associates, a joint venture of IBM Corporation and Wildwood Office Park, Inc., and Georgia Power Company, dated October 13, 1986, recorded in Deed Book 4202, page 467, Cobb County, Georgia records.
7. Declaration and Grant of Easements between Wildwood Associates, a Georgia general partnership, and Wildwood Office Park, Inc., dated May 29, 1986, recorded in Deed Book 3953, page 164, aforesaid records.
8. Declaration and Grant of Easements between Cousins Properties Incorporated and Wildwood Associates dated August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
9. Permanent Sidewalk Easement between Wildwood Associates and Cobb County, Georgia, dated March 12, 1998, recorded in Deed Book 11206, page 321, aforesaid records.
10. Rights of tenants in possession of the subject property, as tenants only.
11. Plat of as-built survey prepared for Wildwood Associates and Metropolitan Life Insurance Company by John E. Norton, Georgia Registered Land Surveyor No. 1848, Engineering & Inspection Systems, Inc., dated October 25, 1995, last revised December 19, 1995, reveals the following:
(a) drainage structures crossing from subject property into the rights-of-way of Windy Ridge Parkway and Windy Hill Road;
(b) water meter box located partially on subject property and partially within the right-of-way of Windy Ridge Parkway;
(c) retention area and dam located partially on subject property and partially on property adjoining to the east (being the facilities installed pursuant to the instrument identified in Item 3 hereinabove); and
(d) building setback lines of 50 feet along Windy Hill Road, 40 feet along Windy Ridge Parkway, 30 feet along the eastern boundary of subject property, and 10 feet along the northern boundary of subject property.
2401 WINDY RIDGE PARKWAY
1. All State and County ad valorem taxes subsequent to the year 2003.
2. Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
3. Right-of-Way Easements in favor of Colonial Pipeline Company, as follows:
(a) from Wadley R. Glenn and Wilbur F. Glenn, dated January 9, 1963, recorded in Deed Book 689, page 233, aforesaid records; and
(b) from Lenox Peachtree Incorporated, dated October 27, 1978, recorded in Deed Book 2084, page 376, aforesaid records.
4. Easement Agreement from Wildwood Office Park, Inc. to Atlanta Gas Light Company, dated September 15, 1983, recorded in Deed Book 2884, page 300, aforesaid records.
5. Easements for utility facilities, if any, installed pursuant to general utility easements in favor of Georgia Power Company, as follows:
(a) from Wadley R. Glenn and Wilbur F. Glenn, dated August 12, 1969, filed for record January 21, 1970, recorded in Deed Book 1138, page 286, aforesaid records;
(b) from Wildwood Associates dated April 7, 1987, filed for record May 5, 1987, recorded in Deed Book 4452, page 301, aforesaid records; and
(c) from Cousins Properties Incorporated, dated June 15, 1988, recorded in Deed Book 5101, page 417, aforesaid records.
6. Permit for Anchors and Wires from Oraeiun Munn Wynne and The Fulton National Bank of Atlanta, as Trustees under Trust Agreement dated March 31, 1975 and recorded in Cobb County Records, to Georgia Power Company, dated July 10, 1978, filed for record November 30, 1978, recorded in Deed Book 1950, page 409, aforesaid records.
7. Easement for relocation of right of way in favor of Georgia Power Company from Lenox Peachtree Incorporated, dated July 20, 1978, filed for record November 30, 1978, recorded in Deed Book 1950, page 413, aforesaid records.
8. Declaration and Grant of Easements between Wildwood Associates and Wildwood Office Park, Inc., dated May 29, 1986, filed for record May 29, 1986, recorded in Deed Book 3953, page 164, aforesaid records.
9. Easement between Wildwood Associates and Wildwood Office Park, Inc., dated May 29, 1986, recorded in Deed Book 3953, page 204, aforesaid records.
10. Easement from Cousins Properties Incorporated to Wildwood Associates dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5424, page 543, aforesaid records.
11. Transmission line easement to Georgia Power Company, recorded in Deed Book 5169, page 3, and page 8, aforesaid records.
12. Permanent drainage easement set forth in Right-of-Way Deed from Wildwood Associates, a Georgia general partnership, to Cobb County, Georgia, dated October 23, 1998, recorded in Deed Book 11893, page 10, aforesaid records.
13. Easement Agreement between Wildwood Associates and Georgia Power Company dated October 6, 1999, filed for record December 22, 1999, recorded in Deed Book 13174, page 524, aforesaid records.
14. Rights of the tenant, as tenant only, in possession of the subject property.
15. Those matters depicted on plat of survey of the subject property prepared for Cousins Properties Incorporated and Wildwood Associates by Engineering and Inspection Systems, Inc., dated July 15, 2002, last revised June 30, 2004.
3050 WINDY HILL ROAD
1. All State and County ad valorem taxes subsequent to the year 2003.
2. Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
3. Water Line Easement from Wildwood Office Park, Inc. to Cobb County, Georgia, dated November 28, 1983, filed for record November 28, 1983, recorded in Deed Book 2949, page 48, aforesaid records.
4. Right-of-Way Easement from Wildwood Office Park, Inc. to Southern Bell Telephone and Telegraph Company, dated July 18, 1983, filed for record October 6, 1983, recorded in Deed Book 2902, page 174, aforesaid records.
5. Easement Agreement from Lenox Peachtree Incorporated to Parkside Office Park, Ltd., a Georgia limited partnership, dated October 31, 1979, filed for record November 2, 1979, recorded in Deed Book 2102, page 302, aforesaid records.
6. Easements for utility facilities, if any, installed pursuant to general utility easements in favor of Georgia Power Company as follows:
(a) from Wadley R. Glenn and Wilbur F. Glenn, dated August 12, 1969, filed for record January 21, 1970, recorded in Deed Book 1138, page 286, aforesaid records;
(b) from Lenox Peachtree Incorporated, dated July 20, 1978, filed for record November 30, 1978, recorded in Deed Book 1950, page 413, aforesaid records;
(c) from Wildwood Office Park, Inc., dated June 22, 1983, filed for record December 8, 1983, recorded in Deed Book 2960, page 393, aforesaid records;
(d) from Cousins Properties Incorporated, dated June 15, 1988, filed for record October 6, 1988, recorded in Deed Book 5101, page 417, aforesaid records, for Terrell Mill - Winterthur Transmission Line; and
(e) from Wildwood Associates, dated October 6, 1999, filed for record December 22, 1999, recorded in Deed Book 13174, page 487, aforesaid records.
7. Memorandum of Lease from Wildwood Office Park, Inc. to TGI Friday's Inc., dated March 13, 1984, filed for record March 20, 1984, recorded in Deed Book 3056, page 304, aforesaid records; and Revised and Supplemental Memorandum of Lease between the same parties, dated October 3, 1984, filed for record October 12, 1984, recorded in Deed Book 3284, page 242, aforesaid records. (Note: The Property is included as part of the "Development" as described in the aforesaid Memorandum of Lease and Supplemental Memorandum of Lease, and this exception is limited to the rights granted to the tenant under Section 2.02 and 7.01 of the lease between Wildwood Office Park, Inc. and TGI Friday's Inc. dated December 20, 1983, which provide in relevant part as follows:
[Section 2.02] "Throughout the Demised Term, Tenant and its suppliers, employees, agents, customers, contractors, business invitees, subtenants, licensees and concessionaries shall have (a) the nonexclusive right to use the accessways within the Development in common with Landlord and other tenants of the Development . . ."
[Section 7.01] "Landlord shall not permit any movie theatre or
bowling alley use or any use inconsistent with the customary
character of a first-class retail shopping center or office park
(such as, without limitation, a 'sex', 'head' and 'pawn' shop use)
in the Development during the Demised Term except Landlord may
permit a movie theatre use in the Development so long as Landlord
provides ample parking for such theatre to ensure that the patrons
of such theatre shall not use the parking areas on the Demised
Premises and provided that such theatre does not show "X-rated" (or
similar adult-only rating established by the motion picture
industry) movies."
8. Easement from Cousins Properties Incorporated to Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5424, page 543, aforesaid records.
9. Declaration and Grant of Easements from Cousins Properties Incorporated to Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
10. Transmission line easement to Georgia Power Company, recorded in Deed Book 5169, page 3, and page 8, aforesaid records.
11. Drainage Easement in favor of Cobb County, Georgia conveyed by Right-of-Way Deed from Wildwood Associates to Cobb County, Georgia, dated October 23, 1998, filed for record November 16, 1998, recorded in Deed Book 11893, page 42, aforesaid records.
12. Memorandum of Lease between Wildwood Associates and Houstons Restaurants, Inc., dated July 9, 1992, filed for record September 11, 1992, recorded in Deed Book 6839, page 252, aforesaid records.
13. Those matters depicted on plat of survey of the subject property prepared for Cousins Properties Incorporated and Wildwood Associates by Engineering and Inspection Systems, Inc., dated April 22, 2002, last revised June 30, 2004.
3175 WINDY HILL ROAD
1. All State and County ad valorem taxes subsequent to the year 2003.
2. Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
3. Sewer easement reserved in Warranty Deed from Lenox Peachtree Incorporated to United States of America, dated December 19, 1979, recorded in Deed Book 2125, page 448, aforesaid records, as modified by Easement Modification Agreement dated September 16, 1982, recorded in Deed Book 2591, page 353, aforesaid records, as further modified by Easement Modification Agreement dated November 28, 1983, recorded in Deed Book 2949, page 52, aforesaid records, as further modified by Easement Modification Agreement dated February 20, 1987, recorded in Deed Book 4367, page 98, aforesaid records.
4. The terms of Paragraph 4 of Easement Agreement among O'Neill Enterprises, Inc., The Griffin Company, The Powers Ridge Office Park Condominium Association, Inc., and River Properties Incorporated, dated March 1, 1984, recorded in Deed Book 3130, page 48, aforesaid records.
5. Memorandum of Lease between Wildwood Associates and Bright Horizons Children's Centers, Inc., dated May 20, 1993, recorded in Deed Book 7464, page 51, aforesaid records.
6. Such state of facts as are revealed by plat of survey of subject property prepared for Wildwood Associates by John E. Norton, Georgia Registered Land Surveyor No. 1848, dated July 15, 2004, last revised July 22, 2004.
3200 WINDY HILL ROAD
1. All State and County ad valorem taxes subsequent to the year 2003.
2. Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
3. Declaration of Covenants and Cross-Easements for Wildwood Plaza by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 501, aforesaid records, as amended by First Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza between Cousins Properties Incorporated and Wildwood Associates, dated January 25, 1991, recorded in Deed Book 5994, page 402, aforesaid records, as further amended by Second Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated February 28, 1996, recorded in Deed Book 9441, page 371, aforesaid records, as further amended by Third Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated April 8, 1996, recorded in Deed Book 9558, page 241, aforesaid records, as further amended by Fourth Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated December 13, 2000, recorded in Deed Book 13316, page 3859, aforesaid records, and as further amended by Fifth Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated June 3, 2004, recorded in Deed Book 13988, page 829, aforesaid records.
4. Sewer Easement reserved in Warranty Deed from River Properties, Incorporated to United States of America, dated December 19, 1979, recorded in Deed Book 2125, page 446, aforesaid records.
5. Easements reserved in Warranty Deed from Lenox Peachtree Incorporated to the United States of America dated December 19, 1979, recorded in Deed Book 2125, page 448, aforesaid records, as amended by Easement Modification Agreement dated September 16, 1982, recorded in Deed Book 2591, page 353, aforesaid records, as further amended by Easement Modification Agreement dated November 28, 1983, recorded in Deed Book 2949, page 52, aforesaid records, as further amended by Easement Modification Agreement dated February 20, 1987, recorded in Deed Book 4367, page 98, aforesaid records.
6. Easements reserved in Limited Warranty Deed from Cousins Properties Incorporated to Wildwood Associates, dated January 24, 1991, recorded in Deed Book 5993, page 8, aforesaid records.
7. Easement Agreement between Cousins Properties Incorporated and Southern Bell Telephone and Telegraph Company, dated November 30, 1990, recorded in Deed Book 6024, page 224, aforesaid records, as amended by First Amendment dated April 30, 1991, recorded in Deed Book 6144, page 335, aforesaid records.
8. Easement Agreement between Wildwood Associates and Southern Bell Telephone and Telegraph Company, dated April 30, 1991, recorded in Deed Book 6144, page 339, aforesaid records.
9. Declaration of Covenants between River Properties Incorporated and
Terrell-Mill Estates-Old Mill Trace Homeowners Association, Inc., dated
December 5, 1979, recorded in Deed Book 2118, page 574, aforesaid records.
(Affects Parcel B)
10. Declaration of Covenants between River Properties Incorporated and Valencia Hills Condominium Association, Inc., dated January 25, 1980, recorded in Deed Book 2146, page 382, aforesaid records. (Affects Parcel B)
11. Easement Agreement-Wildwood Plaza between Cousins Properties Incorporated, Wildwood Associates and Georgia Power Company, dated April 7, 1992, recorded in Deed Book 6651, page 445, aforesaid records.
12. Unrecorded Easement Agreement between Cousins Properties Incorporated and Southern Bell Telephone and Telegraph Company, dated May 22, 1992.
13. Such state of facts as are revealed by plat of survey of subject property prepared for Teachers Insurance and Annuity Association of America, Wildwood Associates and Chicago Title Insurance Company by John E. Norton, Georgia Registered Land Surveyor No. 1848, dated November 7, 1996, last revised July 6, 2004 (as to Sheet 1 of 2) and last revised November 26, 1996 (as to Sheet 2 of 2).
14. Easement from Cousins Properties Incorporated and Wildwood Associates to Georgia Power Company dated July 26, 2000, filed for record October 4, 2000, recorded in Deed Book 13297, page 5998, aforesaid records.
15. Rights of tenants, as tenants only, in possession of subject property.
16. Deed to Secure Debt, Assignment and Security Agreement between Wildwood Associates, a Georgia general partnership, and Teachers Insurance and Annuity Association of America, a New York corporation, dated December 16, 1996, recorded in Deed Book 10049, page 441, aforesaid records.
17. Assignment of Leases and Rents between Wildwood Associates, a Georgia general partnership, and Teachers Insurance and Annuity Association of America, a New York
corporation, dated December 16, 1996, filed for record December 16, 1996 at 2:15 p.m., recorded in Deed Book 10049, page 516, aforesaid records.
18. UCC2 Notice Filing for UCC Real Estate Related Collateral between Wildwood Associates, a Georgia general partnership, Debtor, and Teachers Insurance and Annuity Association of America, a New York corporation, filed for record December 16, 1996 at 2:15 p.m., recorded in Deed Book 10049, page 538, aforesaid records.
19. UCC1 Financing Statement No. 033199617331 between Wildwood Associates, a Georgia general partnership, Debtor, and Teachers Insurance and Annuity Association of America, a New York corporation, Secured Party, filed for record December 16, 1996 at 2:16 p.m. in the central filing system for UCC Financing Statements for the State of Georgia.
20. Subordination, Non-Disturbance and Attornment Agreement between Teachers Insurance and Annuity Association of America, a New York corporation (Lender), and International Business Machines Corporation, a New York corporation (Tenant) dated December 18, 1996, filed for record December 30, 1996 at 9:14 o'clock a.m., recorded in Deed Book 10073, page 327, aforesaid records.
1547 POWERS FERRY ROAD
1. All State and County ad valorem taxes subsequent to the year 2003.
2. Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
3. Easements from Mrs. Frank O'Bryan to Georgia Power Company, each dated August 11, 1969, recorded in Deed Book 1138, page 287, and Deed Book 1138, page 288, aforesaid records.
4. Unrecorded Ground Lease between Wildwood Office Park, Inc. and First Georgia Bank of Cobb County, dated February 27, 1985.
5. Express Grant of Subsurface Sewer Easement between Wildwood Associates and Cobb County dated September 27, 2001, recorded in Deed Book 13493, page 3485, aforesaid records.
6. Transmission Line Easement from Cousins Properties Incorporated to Georgia Power Company, dated July 28, 1988, filed for record October 6, 1988, recorded in Deed Book 5101, page 421, aforesaid records.
7. Easement Agreement between Cousins Properties Incorporated and Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 13, aforesaid records.
8. Easement for Terrill Mill-Smyrna Junction Transmission Line in favor of Georgia Power Company from Wildwood Associates, a Georgia general partnership composed of Cousins Properties Incorporated and International Business Machines Corporation (fee owner) and First Union National Bank of Georgia (holder of leasehold interest), dated July 1988, filed for record October 31, 1988, recorded in Deed Book 5130, page 125, aforesaid records, rerecorded in Deed Book 5418, page 264, aforesaid records.
9. Easement and Maintenance Agreement between Valencia Hills Condominium Associates, Inc., as Grantor, and Wildwood Office Park, Inc., as Grantee, dated July 26, 1985, recorded in Deed Book 3585, page 469, aforesaid records.
10. Permanent drainage easement set forth in Right-of-Way Deed from Wildwood Associates, a Georgia general partnership, to Cobb County, Georgia, dated October 23, 1998, recorded in Deed Book 11893, page 83, aforesaid records.
11. Easement Agreement between Wildwood Associates and Municipal Electric Authority of Georgia dated March 11, 1999, recorded in Deed Book 12416, page 226, aforesaid records.
12. Those matters depicted on plat of survey of the subject property prepared for Cousins Properties Incorporated and Wildwood Associates by Engineering and Inspection Systems, Inc., dated April 22, 2002, last revised June 30, 2004.
1927 POWERS FERRY ROAD
1. All State and County ad valorem taxes subsequent to the year 2003.
2. Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
3. Right-of-Way Easement from Wildwood Office Park, Inc. to Southern Bell Telephone and Telegraph Company, dated July 18, 1983, filed for record October 6, 1983, recorded in Deed Book 2902, page 174, aforesaid records.
4. Easements in favor of Georgia Power Company created by the following instruments:
(a) from Wadley R. Glenn and Wilbur F. Glenn, dated August 12, 1969, filed for record January 21, 1970, recorded in Deed Book 1138, page 286, aforesaid records;
(b) from Lenox Peachtree Incorporated, dated July 20, 1978, filed for record November 30, 1978, recorded in Deed Book 1950, page 413, aforesaid records;
(c) from Wildwood Office Park, Inc., dated June 22, 1983, filed for record December 8, 1983, recorded in Deed Book 2960, page 393, aforesaid records; and
(d) from Cousins Properties Incorporated, dated June 15, 1988, filed for record October 6, 1988, recorded in Deed Book 5101, page 417, aforesaid records, for Terrell Mill - Winterthur Transmission Line.
5. Transmission line easement to Georgia Power Company, recorded in Deed Book 5169, page 3, and page 8, aforesaid records.
6. Memorandum of Lease from Wildwood Office Park, Inc. to TGI Friday's Inc., dated March 13, 1984, filed for record March 20, 1984, recorded in Deed Book 3056, page 304, aforesaid records; and Revised and Supplemental Memorandum of Lease between the same parties, dated October 3, 1984, filed for record October 12, 1984, recorded in Deed Book 3284, page 242, aforesaid records. (Note: The Property is included as part of the
"Development" as described in the aforesaid Memorandum of Lease and Supplemental Memorandum of Lease, and this exception is limited to the rights granted to the tenant under Section 2.02 and 7.01 of the lease between Wildwood Office Park, Inc. and TGI Friday's Inc. dated December 20, 1983, which provide in relevant part as follows:
[Section 2.02] "Throughout the Demised Term, Tenant and its suppliers, employees, agents, customers, contractors, business invitees, subtenants, licensees and concessionaries shall have (a) the nonexclusive right to use the accessways within the Development in common with Landlord and other tenants of the Development . . ."
[Section 7.01] "Landlord shall not permit any movie theatre or
bowling alley use or any use inconsistent with the customary
character of a first-class retail shopping center or office park
(such as, without limitation, a 'sex', 'head' and 'pawn' shop use)
in the Development during the Demised Term except Landlord may
permit a movie theatre use in the Development so long as Landlord
provides ample parking for such theatre to ensure that the patrons
of such theatre shall not use the parking areas on the Demised
Premises and provided that such theatre does not show "X-rated" (or
similar adult-only rating established by the motion picture
industry) movies."
7. Easement from Cousins Properties Incorporated to Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5424, page 543, aforesaid records.
8. Declaration and Grant of Easements from Cousins Properties Incorporated to Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
9. Access, ingress and egress easement contained in Limited Warranty Deed from Wildwood Office Park, Inc. to International Business Machines Corporation dated May 30, 1985, recorded in Deed Book 3515, page 521, aforesaid records; and Limited Warranty Deed from Wildwood Office Park, Inc. to Wildwood Associates dated May 30, 1985, recorded in Deed Book 3516, page 13, aforesaid records; as expanded by Easement Agreement between Wildwood Associates and Wildwood Office Park, Inc. dated May 29, 1986, recorded in Deed Book 3953, page 209, aforesaid records.
10. Easement Agreement between Wildwood Associates and BellSouth Telecommunications, Inc., dated July 12, 1993, filed for record October 12, 1993, recorded in Deed Book 7683, page 235, aforesaid records.
11. Judgment of Court in Civil Action File No. 99-1-2162-99, dated April 22, 1999, filed for record April 27, 1999, recorded in Deed Book 12432, page 475, aforesaid records.
12. Easement Agreement between Wildwood Associates and Georgia Power Company dated October 6, 1999, filed for record December 22, 1999, recorded in Deed Book 13174, page 499, aforesaid records.
13. Those matters depicted on plat of survey of the subject property prepared for Cousins Properties Incorporated and Wildwood Associates by Engineering and Inspection Systems, Inc., dated April 22, 2002, last revised June 30, 2004.
14. Short Form Lease between Wildwood Associates and California Pizza Kitchen, Inc., filed for record October 11, 1994, recorded in Deed Book 8528, page 120, aforesaid records.
15. Rights of the tenant, as tenant only, in possession of the subject property.
1931 POWERS FERRY ROAD
1. All State and County ad valorem taxes subsequent to the year 2003.
2. Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
3. Easements in favor of Georgia Power Company created by the following instruments:
(a) from Wadley R. Glenn and Wilbur F. Glenn, dated August 12, 1969, filed for record January 21, 1970, recorded in Deed Book 1138, page 286, aforesaid records;
(b) from Lenox Peachtree Incorporated, dated July 20, 1978, filed for record November 30, 1978, recorded in Deed Book 1950, page 413, aforesaid records; and
(c) from Cousins Properties Incorporated, dated June 15, 1988, filed for record October 6, 1988, recorded in Deed Book 5101, page 417, aforesaid records, for Terrell Mill - Winterthur Transmission Line.
4. Memorandum of Lease from Wildwood Office Park, Inc. to TGI Friday's Inc., dated March 13, 1984, filed for record March 20, 1984, recorded in Deed Book 3056, page 304, aforesaid records; and Revised and Supplemental Memorandum of Lease between the same parties, dated October 3, 1984, filed for record October 12, 1984, recorded in Deed Book 3284, page 242, aforesaid records. (Note: The Property is included as part of the "Development" as described in the aforesaid Memorandum of Lease and Supplemental Memorandum of Lease, and this exception is limited to the rights granted to the tenant under Section 2.02 and 7.01 of the lease between Wildwood Office Park, Inc. and TGI Friday's Inc. dated December 20, 1983, which provide in relevant part as follows:
[Section 2.02] "Throughout the Demised Term, Tenant and its suppliers, employees, agents, customers, contractors, business invitees, subtenants, licensees and concessionaries shall have (a) the nonexclusive right to use
the accessways within the Development in common with Landlord and other tenants of the Development . . ."
[Section 7.01] "Landlord shall not permit any movie theatre or
bowling alley use or any use inconsistent with the customary
character of a first-class retail shopping center or office park
(such as, without limitation, a 'sex', 'head' and 'pawn' shop use)
in the Development during the Demised Term except Landlord may
permit a movie theatre use in the Development so long as Landlord
provides ample parking for such theatre to ensure that the patrons
of such theatre shall not use the parking areas on the Demised
Premises and provided that such theatre does not show "X-rated" (or
similar adult-only rating established by the motion picture
industry) movies."
5. Easement from Cousins Properties Incorporated to Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5424, page 543, aforesaid records.
6. Declaration and Grant of Easements from Cousins Properties Incorporated to Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
7. Access, ingress and egress easement contained in Limited Warranty Deed from Wildwood Office Park, Inc. to International Business Machines Corporation dated May 30, 1985, recorded in Deed Book 3515, page 521, aforesaid records; and Limited Warranty Deed from Wildwood Office Park, Inc. to Wildwood Associates dated May 30, 1985, recorded in Deed Book 3516, page 13, aforesaid records; as expanded by Easement Agreement between Wildwood Associates and Wildwood Office Park, Inc., dated May 29, 1986, recorded in Deed Book 3953, page 209, aforesaid records.
8. Transmission line easement to Georgia Power Company, recorded in Deed Book 5169, page 3, and page 8, aforesaid records.
9. Easement Agreement between Wildwood Associates and BellSouth Telecommunications, Inc., dated July 12, 1993, filed for record October 12, 1993, recorded in Deed Book 7683, page 235, aforesaid records.
10. Drainage and guardrail easements in favor of Cobb County, Georgia conveyed by Right-of-Way Deed from Wildwood Associates to Cobb County, Georgia, dated October 23, 1998, filed for record November 16, 1998, recorded in Deed Book 11893, page 31, aforesaid records.
11. Easement Agreement between Wildwood Associates and Georgia Power Company dated October 6, 1999, filed for record December 22, 1999, recorded in Deed Book 13174, page 506, aforesaid records.
12. Those matters depicted on plat of survey of the subject property prepared for Cousins Properties Incorporated and Wildwood Associates by Engineering and Inspection Systems, Inc., dated April 22, 2002, last revised June 30, 2004.
13. Rights of the tenant, as tenant only, in possession of the subject property.
1935 POWERS FERRY ROAD
1. All State and County ad valorem taxes subsequent to the year 2003.
2. Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
3. Easements in favor of Georgia Power Company created by the following instruments:
(a) from Wadley R. Glenn and Wilbur F. Glenn, dated August 12, 1969, filed for record January 21, 1970, recorded in Deed Book 1138, page 286, aforesaid records;
(b) from Lenox Peachtree Incorporated, dated July 20, 1978, filed for record November 30, 1978, recorded in Deed Book 1950, page 413, aforesaid records;
(c) from Cousins Properties Incorporated, dated June 15, 1988, filed for record October 6, 1988, recorded in Deed Book 5101, page 417, aforesaid records, for Terrell Mill - Winterthur Transmission Line; and
(d) from Wildwood Associates, dated October 6, 1999, recorded in Deed Book 13174, page 512, aforesaid records.
4. Memorandum of Lease from Wildwood Office Park, Inc. to TGI Friday's Inc., dated March 13, 1984, filed for record March 20, 1984, recorded in Deed Book 3056, page 304, aforesaid records; and Revised and Supplemental Memorandum of Lease between the same parties, dated October 3, 1984, filed for record October 12, 1984, recorded in Deed Book 3284, page 242, aforesaid records. (Note: The Property is included as part of the "Development" as described in the aforesaid Memorandum of Lease and Supplemental Memorandum of Lease, and this exception is limited to the rights granted to the tenant under Section 2.02 and 7.01 of the lease between Wildwood Office Park, Inc. and TGI Friday's Inc. dated December 20, 1983, which provide in relevant part as follows:
[Section 2.02] "Throughout the Demised Term, Tenant and its suppliers, employees, agents, customers, contractors, business invitees, subtenants,
licensees and concessionaries shall have (a) the nonexclusive right to use the accessways within the Development in common with Landlord and other tenants of the Development . . ."
[Section 7.01] "Landlord shall not permit any movie theatre or
bowling alley use or any use inconsistent with the customary
character of a first-class retail shopping center or office park
(such as, without limitation, a 'sex', 'head' and 'pawn' shop use)
in the Development during the Demised Term except Landlord may
permit a movie theatre use in the Development so long as Landlord
provides ample parking for such theatre to ensure that the patrons
of such theatre shall not use the parking areas on the Demised
Premises and provided that such theatre does not show "X-rated" (or
similar adult-only rating established by the motion picture
industry) movies."
5. Transmission line easement to Georgia Power Company, recorded in Deed Book 5169, page 3, and page 8, aforesaid records.
6. Easement from Cousins Properties Incorporated to Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5424, page 543, aforesaid records.
7. Declaration and Grant of Easements from Cousins Properties Incorporated to Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
8. Access, ingress and egress easement contained in Limited Warranty Deed from Wildwood Office Park, Inc. to International Business Machines Corporation dated May 30, 1985, recorded in Deed Book 3515, page 521, aforesaid records; and Limited Warranty Deed from Wildwood Office Park, Inc. to Wildwood Associates dated May 30, 1985, recorded in Deed Book 3516, page 13, aforesaid records; as expanded by Easement Agreement between Wildwood Associates and Wildwood Office Park, Inc., dated May 29, 1986, recorded in Deed Book 3953, page 209, aforesaid records.
9. Easement Agreement between Wildwood Associates and BellSouth Telecommunications, Inc., dated July 12, 1993, filed for record October 12, 1993, recorded in Deed Book 7683, page 235, aforesaid records.
10. Permanent drainage easement set forth in Right-of-Way Deed from Wildwood Associates to Cobb County, Georgia, dated October 23, 1998, filed for record November 16, 1998, recorded in Deed Book 11893, page 21, aforesaid records.
11. Easement from Wildwood Associates to BellSouth Telecommunications, Inc., dated January 14, 2000, recorded in Deed Book 13239, page 1419, aforesaid records.
12. Rights of the tenant, as tenant only, in possession of the subject property.
13. Those matters depicted on plat of survey of the subject property prepared for Cousins Properties Incorporated and Wildwood Associates by Engineering and Inspection Systems, Inc., dated April 22, 2002, last revised June 30, 2004.
1945 POWERS FERRY ROAD
1. All State and County ad valorem taxes subsequent to the year 2003.
2. Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records.
3. Grant of Easement from Wildwood Office Park, Inc. to Cobb County, Georgia, dated May 17, 1985, filed for record May 22, 1985, recorded in Deed Book 3508, page 334, aforesaid records.
4. Easements for utility facilities, if any, installed pursuant to general utility easements in favor of Georgia Power Company as follows:
(a) from Wadley R. Glenn and Wilbur F. Glenn, dated August 12, 1969, filed for record January 21, 1970, recorded in Deed Book 1138, page 286, aforesaid records;
(b) from Lenox Peachtree Incorporated, dated July 20, 1978, filed for record November 30, 1978, recorded in Deed Book 1950, page 413, aforesaid records;
(c) from Cousins Properties Incorporated, dated June 15, 1988, filed for record October 6, 1988, recorded in Deed Book 5101, page 417, aforesaid records, for Terrell Mill - Winterthur Transmission Line;
(d) from Wildwood Office Park, Inc., dated May 16, 1984, recorded in Deed Book 3156, page 399, aforesaid records; and
(e) from Wildwood Office Park, Inc., dated March 28, 1984, recorded in Deed Book 3156, page 402, aforesaid records.
5. Transmission line easement to Georgia Power Company, recorded in Deed Book 5169, page 3, and page 8, aforesaid records.
6. Memorandum of Lease from Wildwood Office Park, Inc. to TGI Friday's Inc., dated March 13, 1984, filed for record March 20, 1984, recorded in Deed Book 3056, page 304,
aforesaid records; and Revised and Supplemental Memorandum of Lease between the same parties, dated October 3, 1984, filed for record October 12, 1984, recorded in Deed Book 3284, page 242, aforesaid records.
7. Easement between Wildwood Associates and Wildwood Office Park, Inc., dated May 29, 1986, filed for record May 29, 1986, recorded in Deed Book 3953, page 204, aforesaid records.
8. Easement from Cousins Properties Incorporated to Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5424, page 543, aforesaid records.
9. Declaration and Grant of Easements from Cousins Properties Incorporated to Wildwood Associates, dated August 7, 1989, filed for record August 7, 1989, recorded in Deed Book 5425, page 1, aforesaid records.
10. Access, ingress and egress easement contained in Limited Warranty Deed from Wildwood Office Park, Inc. to International Business Machines Corporation dated May 30, 1985, recorded in Deed Book 3515, page 521, aforesaid records; and Limited Warranty Deed from Wildwood Office Park, Inc. to Wildwood Associates dated May 30, 1985, recorded in Deed Book 3516, page 13, aforesaid records; as expanded by Easement Agreement between Wildwood Associates and Wildwood Office Park, Inc. dated May 29, 1986, recorded in Deed Book 3953, page 209, aforesaid records.
11. Permanent drainage easement set forth in Right-of-Way Deed from Wildwood Associates, a Georgia general partnership, to Cobb County, Georgia, dated October 23, 1998, recorded in Deed Book 11893, page 17, aforesaid records.
12. Easement Agreement between Wildwood Associates and Georgia Power Company dated October 6, 1999, filed for record December 22, 1999, recorded in Deed Book 13174, page 518, aforesaid records.
13. Those matters depicted on plat of survey of the subject property prepared for Cousins Properties Incorporated and Wildwood Associates by Engineering and Inspection Systems, Inc., dated April 22, 2002, last revised June 30, 2004.
EXHIBIT "J"
EXCEPTION SCHEDULE
1. Reference is made to the Lease Agreement between Wildwood Associates and International Business Machines Corporation dated as of December 18, 1989, as amended, with respect to premises at 3200 Windy Hill Road (the "3200 IBM Lease"). Pursuant to Article 21 of the 3200 IBM Lease, the tenant has been granted certain rights to purchase 3200 Windy Hill Road, but Article 21 of the 3200 IBM Lease does not apply to any transfer by Wildwood Associates during any period of time that International Business Machines Corporation or any affiliate thereof is the "Landlord" or a partner of Landlord.
2. Reference is made to the 1927 Ground Lease. Pursuant to Section 18.25 of the 1927 Ground Lease, the tenant has been granted certain rights to purchase 1927 Powers Ferry Road, but Section 18.25 of the 1927 Ground Lease does not apply to any sale or transfer made in conjunction with the sale or transfer by the Landlord under the 1927 Ground Lease of Landlord's fee interest in any other real property.
3. W. H. Smith, Inc. is in material default under its Lease with respect to Premises at 3200 Windy Hill Road.
EXHIBIT "K"
LIST OF SERVICE CONTRACTS
2300 Windy Ridge Parkway:
1. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and ABR Fire Protection, Inc., as Contractor, dated December 24, 2003 for sprinkler inspection.
2. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and AllGood Services, as Contractor, dated November 19, 2002, as amended by letter dated June 25, 2004 for termite services.
3. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and AllGood Services, as Contractor, dated November 19, 2002, as amended by letter dated June 25, 2004 for pest control services.
4. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Allied International Cleaning Services, Inc., as Contractor, dated as of January 1, 2003, as amended by letter dated May 8, 2003, as further amended by letter dated June 22, 2004 for janitorial service.
5. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and American Office Paper Recycling, as Contractor, dated January 21, 2004 for paper and cardboard recycling.
6. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Arborguard Tree Specialists, as Contractor, dated January 5, 2004 for tree pruning and fertilization.
7. Service Contract between Cousins Properties Incorporated, as Managing Member for Wildwood Associates, Owner, and Barton Protective Services Inc., dated July 15, 2004 for security.
8. Letter Agreement between CFC Refimax LLC and Cousins Properties Incorporated, dated September 22, 2003 for refrigerant banking renewal.
9. Service Contracts between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Cummins South, as Contractor, dated April 1, 2004 for generator service.
10. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, and D. & S. Plants Unlimited, as Contractor, dated August 25, 2003 for Christmas decorations.
11. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and D & S Plants Unlimited, as Contractor, dated December 9, 2002, as amended by memo dated April 23, 2004, for interior plant maintenance and color.
12. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Essex Engineering Corporation, as Contractor, dated November 4, 2001, as amended by Memo dated November 6, 2001 for environmental evaluation.
13. Contract for Fixed Pricing Alternative between Wildwood Associates, as Owner, and Georgia Power Company, effective October 1, 2002 for electric rates, and Master Contract, dated June 1, 1994, for electrical service, and EnerLink Agreement for remote kwh reading, dated December 9, 1997.
14. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, as Owner, and Georgia Trane Service Company, as Contractor, dated December 10, 1997; as amended by Letter dated September 2, 2003 for HVAC maintenance.
15. Service Contract between Cousins Properties Incorporated, Manager for Wildwood Associates, as Owner, and Gibbs Landscape Company, as Contractor, dated January 22, 2002, as amended by Letter dated June 26, 2002, as amended by Letter dated September 15, 2003 for exterior landscape maintenance, pinestraw labor, weed control and seasonal color.
16. Service Agreement between Cousins Properties Incorporated, as Manager for Wildwood Associates, as Owner, and Gibbs Landscape Company dated May 11, 2004 for exterior landscape and seasonal color services.
17. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Mid America Metals, as Contractor, dated April 8, 2004 for architectural metal maintenance.
18. Service Contract between Wildwood Associates, as Owner, and National Elevator Inspection Services, as Contractor, dated January 8, 2002 for elevator inspections.
19. Contract between Wildwood Associates by Cousins Management, Inc., Managing Agent, and Otis Elevator Company dated October 20, 1988, amended by Extended Coverage Maintenance Agreement dated March 29, 1994, as amended by Contract Addendum dated November 21, 1997, as further amended by Contract Addendum dated December 6, 2002, and Letter dated August 5, 2003, for elevator maintenance. (Note: Cousins Management, Inc. National Agreement with Otis Elevator Company effective October 1, 1991, specifies quantity discount for the number of elevators Cousins has under maintenance agreement with Otis.)
20. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Syscon, dated December 17, 2003 for fire alarm system inspection.
21. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Syscon, dated December 17, 2003 for fire alarm system monitoring.
22. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Power Systems Group, Inc., dated June 23, 2003 for sewer credits.
23. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and United Waste Service, Inc., dated December 31, 2003 for trash removal.
24. Service Contract between Valcourt Building Services, Inc., as Contractor, and Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, dated as of January 2, 2003, as amended by Letter dated May 8, 2003 for window cleaning.
25. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, as Owner, and Watt Commercial Sweeping, Incorporated, as Contractor, signed September 17, 1997, as amended by renewal letters dated January 10, 2001, November 14, 2002, and June 23, 2004, for parking lot and deck sweeping.
26. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Williamson Restoration Incorporated, as Contractor, dated December 11, 2003 for wood maintenance.
2401 Windy Ridge Parkway:
None
3050 Windy Hill Road:
None
3175 Windy Hill Road:
None
3200 Windy Hill Road:
1. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and ABR Fire Protection, Inc., as Contractor, dated April 12, 2004 for sprinkler inspection.
2. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and AllGood Services, as Contractor, dated November 19, 2002, as amended by letters dated May 8, 2003 and June 25, 2004 for termite services.
3. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and AllGood Services, as Contractor, dated November 19, 2002, as amended by letter dated June 25, 2004 for pest control services.
4. Service Contract between Allied International Cleaning Services, Inc., as Contractor, and Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, dated as of January 1, 2003, as amended by letters dated May 8, 2003 and June 22, 2004, for janitorial service.
5. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and American Office Paper Recycling, as Contractor, dated January 21, 2004 for paper and cardboard recycling.
6. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Arborguard Tree Specialists, as Contractor, dated January 5, 2004, for tree pruning and fertilization.
7. Service Contract between Cousins Properties Incorporated, as Managing Member for Wildwood Associates, Owner, and Barton Protective Services Inc., dated July 15, 2004 for security.
8. Letter agreement between CFC Refimax LLC and Cousins Properties Incorporated dated September 22, 2003 for refrigerant banking renewal.
9. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Convergint Technologies LLC, dated April 9, 2003, as amended by Addendum dated March 15, 2004, for fire alarm system inspection.
10. Service Contract between Cousins Properties Incorporated, as Owner, and Convergint Technologies, LLC, as Contractor, dated December 23, 2003, for emergency monitoring.
11. Service Contracts between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Cummins South, as Contractor, dated April 1, 2004 for generator service.
12. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, and D. & S. Plants Unlimited, as Contractor, dated August 25, 2003 for Christmas decorations, installation and storage.
13. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and D & S Plants Unlimited, as Contractor, dated December 9, 2002 for interior plant maintenance and color.
14. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Essex Engineering Corporation, as Contractor, dated November 4, 2001, as amended by Memo dated November 6, 2001 for environmental evaluation.
15. Contract for Fixed Pricing Alternative between Wildwood Associates, as Owner, and Georgia Power Company, effective October 1, 2002 for electric rates, and Addendum to Premise Exhibit for Meter Totalization, dated May 1997 for 3200, 4100 and 4300 Buildings and a master contract for Wildwood Associates dated June 1, 1994 for electrical service.
16. Service Contract between Cousins Properties Incorporated, Manager for Wildwood Associates, as Owner, and Georgia Trane Service Company, as Contractor, dated December 10, 1997; as amended by Letter dated September 2, 2003 for HVAC maintenance.
17. Service Contract between Cousins Properties Incorporated, Manager for Wildwood Associates, as Owner, and Gibbs Landscape Company, as Contractor, dated January 22, 2002, as amended by Letter dated June 26, 2002, as further amended by Letter dated September 15, 2003 for exterior landscape maintenance, pinestraw labor, weed control and seasonal color.
18. Service Agreement between Cousins Properties Incorporated, as Manager for Wildwood Associates, as Owner, and Gibbs Landscape Company dated May 11, 2004 for exterior landscape and seasonal color services.
19. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Mid America Metals, as Contractor, dated April 8, 2004 for architectural metal maintenance.
20. Extended Coverage Maintenance Contract between Wildwood Associates by Cousins Management, Inc., Managing Agent, and Otis Elevator Company, dated August 26, 1991, as amended by letter dated September 5, 1991, as amended by Addendum to Contract dated July 20, 1995, as amended by Contract Addendum dated November 21, 1997, further amended by Contract Addendum dated December 6, 2002, and as further amended by Contract Addendum dated January 7, 2004.
21. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Power Systems Group, Inc., dated June 23, 2003 for sewer credits.
22. Service Agreement between Cousins Property Management and Siemens Building Technologies, Inc., dated January 31, 2001 for HVAC controls and technical support program for energy management system.
23. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Siemens Building Technologies, dated January 31, 2002, as amended by letters dated November 5, 2003 and July 16, 2004 for building automation service.
24. Letter Center Agreement between Wildwood Associates and United Parcel Service, Inc., dated effective January 1, 2004 for installation and maintenance of Air Service Letter Center.
25. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and United Waste Service, Inc., dated December 31, 2003 for trash removal.
26. Service Contract between Valcourt Building Services, Inc., as Contractor, and Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, dated as of January 2, 2003, as amended by Letter dated May 8, 2003 for window cleaning.
27. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, as Owner, and Watt Commercial Sweeping, Incorporated, as Contractor, signed February 11, 2001, as amended by renewal letters dated November 14, 2002 and June 23, 2004, for parking lot and deck sweeping.
28. Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Williamson Restoration Incorporated, as Contractor, dated December 11, 2003 for wood maintenance.
Special Services Contracts for 3200 Windy Hill Road:
29. Siemens for IBM - Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Siemens Building Technologies, as Contractor, dated January 31, 2002.
30. Trane for GE - Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Georgia Trane Service Company, as Contractor, dated January 10, 2003.
31. Millicare for GE - Service Contract between Cousins Properties Incorporated, as Manager for Wildwood Associates, Owner, and Millicare Environmental Services, as Contractor, dated January 31, 2002, as amended by letter dated January 5, 2004.
1547 Powers Ferry Road:
None
1927 Powers Ferry Road:
None
1931 Powers Ferry Road:
None
1935 Powers Ferry Road:
None
1945 Powers Ferry Road:
None
EXHIBIT "L-1"
FORM OF TENANT ESTOPPEL CERTIFICATE
_______________, 200__
Wildwood Associates
2500 Windy Ridge Parkway
Suite 1600
Atlanta, Georgia 30339-5683
Attn: Corporate Secretary
RE: LEASE: LEASE DATED ______________ BETWEEN ____________________,
AS ORIGINAL OR SUCCESSOR LANDLORD ("LANDLORD"), AND _________
("TENANT"), AS THE SAME MAY HAVE BEEN AMENDED (COPY
ATTACHED AS EXHIBIT "A")
PREMISES: ______________________________________________
COMMENCEMENT DATE: _______________
EXPIRATION DATE: _______________
CURRENT MONTHLY BASE RENT: $______________
CURRENT MONTHLY ADDITIONAL RENT $______________
SECURITY DEPOSIT: $______________
MONTHLY BASE RENT PAID THROUGH: _______________, 200__
MONTHLY ADDITIONAL RENT PAID THROUGH: _______________, 200__
|
Ladies and Gentlemen:
We are the Tenant under the lease described above. We give you this certificate to permit you, your successors or assigns and any mortgagee to rely on it as conclusive evidence of the matters stated below, in evaluating and completing the purchase by you or your assignee of, and a possible loan secured by, the property known as ___________________ in Atlanta, Georgia, which includes the Premises. We certify to you, your successors and assigns and your mortgagee as follows:
1. We are the Tenant at the Premises and, except as may be set forth on Exhibit "B" hereto, are in sole possession of and are occupying the Premises. Except as may be set forth on
Exhibit "B" hereto, Tenant has not subleased all or any part of the Premises or assigned the Lease, or otherwise transferred its interest in the Lease or the Premises.
2. The attached Lease is currently in effect and constitutes the entire agreement between Landlord and Tenant. The Lease has not been amended, modified, or changed, whether in writing or orally, except as may be stated in the copy of the Lease attached.
3. The Commencement Date and Expiration Date of the term of the Lease are correctly stated above. Tenant has no options or rights and has not exercised any options or rights to renew, extend, amend, modify, or change the term of the Lease, except as may be stated in the copy of the Lease attached.
4. The current monthly Base Rent under the Lease and the current monthly Additional Rent under the Lease are correctly stated above. Monthly Base Rent and monthly Additional Rent have been paid through the respective dates stated above. No rent has been prepaid for more than one month. Tenant has not been given any free rent, partial rent, rebates, rent abatements, or rent concessions of any kind, except as may be stated in the copy of the Lease attached.
5. Tenant has deposited the Security Deposit stated above with Landlord, and except as may be set forth on Exhibit "B" hereto none of the Security Deposit has been applied by Landlord to the payment of rent or any other amounts due under the Lease.
6. Any construction, build-out, improvements, alterations, or additions to the Premises required under the Lease have been fully completed in accordance with the plans and specifications described in the Lease. There are no unfunded allowances payable to Tenant under the Lease, except as set forth on Exhibit "B" hereto.
7. To Tenant's knowledge, Landlord has fully performed all of its obligations under the Lease and is not in default under any term of the Lease. In addition, to Tenant's knowledge, no circumstances exist under which Landlord may be deemed in default merely upon service of notice or passage of time.
8. Tenant does not currently assert and, to Tenant's knowledge, has no defenses, set-offs, or counterclaims to the payment of rent and all other amounts due from Tenant to Landlord under the Lease.
9. Tenant has not been granted and has not exercised any options or rights of expansion, purchase, or first refusal concerning the Lease or the Premises, except as may be stated in the copy of the Lease attached.
10. Tenant has not filed and is not the subject of any filing for bankruptcy or reorganization under federal bankruptcy laws.
11. The address for notices to Tenant under the Lease is correctly set forth in the Lease.
12. The person signing this letter on behalf of Tenant is duly authorized to execute and deliver this certificate for and on behalf of the Tenant.
Sincerely,
[NAME OF TENANT]
By:______________________________________ Its:_____________________________________
EXHIBIT "A"
COPY OF LEASE AND ALL LEASE AMENDMENTS
EXHIBIT "B"
1. DESCRIPTION OF SUBLEASES AND/OR ASSIGNMENTS OF TENANT'S INTEREST (IF NONE, THEN STATE NONE)
2. AMOUNTS OF THE SECURITY DEPOSIT WHICH HAVE BEEN APPLIED BY LANDLORD (IF NONE, THEN STATE NONE)
3. UNFUNDED ALLOWANCES PAYABLE TO TENANT UNDER THE LEASE (IF NONE, THEN STATE
NONE)
EXHIBIT "L-2"
FORM OF TENANT ESTOPPEL CERTIFICATE (GROUND LEASE)
_______________, 200__
Wildwood Associates
2500 Windy Ridge Parkway
Suite 1600
Atlanta, Georgia 30339-5683
Attn: Corporate Secretary
RE: LEASE: LEASE DATED ______________ BETWEEN ____________________,
AS ORIGINAL OR SUCCESSOR LANDLORD ("LANDLORD"), AND __________________________________("TENANT"), AS THE SAME MAY HAVE BEEN AMENDED (COPY ATTACHED AS EXHIBIT "A")
PREMISES: ______________________________________________
COMMENCEMENT DATE:
EXPIRATION DATE: _______________
CURRENT MONTHLY BASE RENT: _______________
CURRENT MONTHLY ADDITIONAL RENT $______________
MONTHLY BASE RENT PAID THROUGH: $______________
MONTHLY ADDITIONAL RENT PAID THROUGH: _______________, 200__
_______________, 200__
|
Ladies and Gentlemen:
We are the Tenant under the lease described above. We give you this certificate to permit you, your successors or assigns and any mortgagee to rely on it as conclusive evidence of the matters stated below, in evaluating and completing the purchase by you or your assignee of, and a possible loan secured by, the property known as ___________________ in Atlanta, Georgia, which includes the Premises. We certify to you, your successors and assigns and your mortgagee as follows:
1. We are the Tenant at the Premises and, except as may be set forth on Exhibit "B" hereto, are in sole possession of and are occupying the Premises. Except as may be set forth on Exhibit "B" hereto, Tenant has not subleased all or any part of the Premises or assigned the Lease, or otherwise transferred its interest in the Lease or the Premises.
2. The attached Lease is currently in effect and constitutes the entire agreement between Landlord and Tenant. The Lease has not been amended, modified, or changed, whether in writing or orally, except as may be stated in the copy of the Lease attached.
3. The Commencement Date and Expiration Date of the term of the Lease are correctly stated above. Tenant has no options or rights and has not exercised any options or rights to renew, extend, amend, modify, or change the term of the Lease, except as may be stated in the copy of the Lease attached.
4. The current monthly Base Rent under the Lease and the current monthly Additional Rent under the Lease are correctly stated above. Monthly Base Rent and monthly Additional Rent have been paid through the respective dates stated above. No rent has been prepaid for more than one month. Tenant has not been given any free rent, partial rent, rebates, rent abatements, or rent concessions of any kind, except as may be stated in the copy of the Lease attached.
5. Any construction, build-out, improvements, alterations, or additions to the Premises required under the Lease have been fully completed in accordance with the plans and specifications described in the Lease. There are no unfunded allowances payable to Tenant under the Lease, except as set forth on Exhibit "B" hereto.
6. To Tenant's knowledge, Landlord has fully performed all of its obligations under the Lease and is not in default under any term of the Lease. In addition, to Tenant's knowledge, no circumstances exist under which Landlord may be deemed in default merely upon service of notice or passage of time.
7. Tenant does not currently assert and, to Tenant's knowledge, has no defenses, set-offs, or counterclaims to the payment of rent and all other amounts due from Tenant to Landlord under the Lease.
8. Tenant has not been granted and has not exercised any options or rights of expansion, purchase, or first refusal concerning the Lease or the Premises, except as may be stated in the copy of the Lease attached.
9. Tenant has not filed and is not the subject of any filing for bankruptcy or reorganization under federal bankruptcy laws.
10. There is no security deposit under the Lease.
11. The address for notices to Tenant under the Lease is correctly set forth in the Lease.
12. The person signing this letter on behalf of Tenant is duly authorized to execute and deliver this certificate for and on behalf of the Tenant.
Sincerely,
[NAME OF TENANT]
By:______________________________________ Its:_____________________________________
EXHIBIT "A"
COPY OF LEASE AND ALL LEASE AMENDMENTS
EXHIBIT "B"
1. DESCRIPTION OF SUBLEASES AND/OR ASSIGNMENTS OF TENANT'S INTEREST (IF NONE, THEN STATE NONE)
2. UNFUNDED ALLOWANCES PAYABLE TO TENANT UNDER THE LEASE (IF NONE, THEN STATE
NONE)
EXHIBIT "M"
MASTER DECLARATION ESTOPPEL CERTIFICATE
_______________, 2004
RE: Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, and as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records (the "Master Declaration")
Ladies and Gentlemen:
The undersigned, as Declarant under the Master Declaration, hereby certifies the statements set forth below to ______________________ ("Purchaser"), with the understanding that Purchaser is authorized to rely on the statements hereinafter made in connection with the acquisition by Purchaser from Wildwood Associates of that certain improved real property commonly known as 2300 Windy Ridge Parkway, 3050 Windy Hill Road, 3175 Windy Hill Road, 3200 Windy Hill Road, 1931 Powers Ferry Road, 1935 Powers Ferry Road, and 1945 Powers Ferry Road, and the land and the reversionary interest of Wildwood Associates in improvements commonly known as 2401 Windy Ridge Parkway, 1547 Powers Ferry Road, and 1927 Powers Ferry Road. Any term not otherwise defined herein shall have the meaning ascribed to such term in the Master Declaration. Accordingly, the undersigned hereby certifies to Purchaser with respect to the Master Declaration as of the date hereof as follows:
1. The Master Declaration is unmodified and is in full force and effect as of the date hereof.
2. Wildwood Associates, as an Owner as defined in the Master Declaration, is not in default under the Master Declaration, and to the best knowledge and belief of the undersigned, no events have occurred or circumstances exist which, but for the giving of notice or the passage of time, or both, would create or constitute an event of default by Wildwood Associates, as Owner, under the Master Declaration.
3. There are no outstanding liens or unpaid assessments or other amounts under the Master Declaration against 2300 Windy Ridge Parkway, 2401 Windy Ridge Parkway, 3175 Windy Hill Road, 3050 Windy Hill Road, 3200 Windy Hill Road, 1547 Powers Ferry Road, 1927 Powers Ferry Road, 1931 Powers Ferry Road, 1935 Powers Ferry Road, 1945 Powers Ferry Road, or payable by Wildwood Associates, as Owner as defined in the Master Declaration, and to the best knowledge and belief of the undersigned, there are no claims under the Master Declaration which, with the passage of time or the giving of notice or otherwise, could become liens against such properties.
4. Attached hereto as SCHEDULE "A" are a true and correct copy of the current estimated Shared Costs budget of the calendar year 2004, and true and correct copies of the actual Shared Costs statements for the previous two (2) calendar years. Pursuant to Paragraph 4.2 of the Master Declaration, each Owner (as defined in the Master Declaration) pays to Declarant such Owner's pro rata share of Shared Costs under the Master Declaration. Estimated Shared Costs are paid monthly. The monthly payments of Shared Costs next due the undersigned as Declarant from Wildwood Associates under Paragraph 4.2 of the Master Declaration are set forth on SCHEDULE "A". The amounts, if any, due from Wildwood Associates under Paragraph 7 of the Master Declaration are set forth on SCHEDULE "A".
5. To the best knowledge and belief of the undersigned, the undersigned, as Declarant under the Master Declaration, is not in default of any of its obligations under the Master Declaration, nor has the undersigned as such Declarant received written notice from any Owner or any other person or entity (including any governmental entity) of any demand, default or claim of nonperformance by the undersigned as such Declarant of its obligations under the Master Declaration.
This _____ day of __________, 2004.
Very truly yours,
COUSINS PROPERTIES INCORPORATED
By:________________________________________________ Name:______________________________________________ Its: ______________________________________________
Schedule "A"
Budgets and Amounts due from Cousins and from Associates under Paragraphs 4.2 and 7 of Master Declaration
EXHIBIT "N"
PLAZA DECLARATION ESTOPPEL CERTIFICATE
__________, 2004
RE: Declaration of Covenants and Cross-Easements for Wildwood Plaza by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 501, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza between Cousins Properties Incorporated and Wildwood Associates, dated January 25, 1991, recorded in Deed Book 5994, page 402, aforesaid records, as further amended by Second Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated February 28, 1996, recorded in Deed Book 9441, page 371, aforesaid records, as further amended by Third Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated April 8, 1996, recorded in Deed Book 9558, page 241, aforesaid records, as further amended by Fourth Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated December 13, 2000, recorded in Deed Book 13316, page 3859, aforesaid records, and as further amended by Fifth Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza dated June 3, 2004, recorded in Book 13988, page 829, aforesaid records (the "Plaza Declaration")
Ladies and Gentlemen:
The undersigned, as Declarant under the Plaza Declaration, hereby certifies the statements set forth below to ______________________ ("Purchaser"), with the understanding that Purchaser is authorized to rely on the statements hereinafter made in connection with the acquisition by Purchaser from Wildwood Associates of that certain improved real property commonly known as 3200 Windy Hill Road. Any term not otherwise defined herein shall have the meaning ascribed to such term in the Plaza Declaration. Accordingly, the undersigned hereby certifies to Purchaser with respect to the Plaza Declaration as of the date hereof as follows:
1. The Plaza Declaration is unmodified and is in full force and effect as of the date hereof.
2. Wildwood Associates, as an Owner as defined in the Plaza Declaration, is not in default under the Plaza Declaration, and to the best knowledge and belief of the undersigned, no
events have occurred or circumstances exist which, but for the giving of notice or the passage of time, or both, would create or constitute an event of default by Wildwood Associates, as Owner, under the Plaza Declaration.
3. Wildwood Associates, as Owner of Phase One (as defined in the Plaza Declaration) is currently obligated for 100% of the costs incurred under Paragraphs 4.1, 4.2, 4.3 and 4.4 of the Plaza Declaration.
4. Pursuant to Paragraph 7 of the Plaza Declaration, there are no outstanding liens in favor of, or unpaid assessments or other amounts due, the undersigned as Declarant under the Plaza Declaration against 3200 Windy Hill Road or payable by Wildwood Associates, as Owner as defined in the Plaza Declaration, and to the best knowledge and belief of the undersigned, there are no claims under the Plaza Declaration which, with the passage of time or the giving of notice or otherwise, could become liens against such property.
5. No amounts are currently due the undersigned, as Declarant, from Wildwood Associates under Paragraph 7 of the Plaza Declaration.
6. To the best knowledge and belief of the undersigned, the undersigned, as Declarant under the Plaza Declaration, is not in default of any of its obligations under the Plaza Declaration, nor has the undersigned as such Declarant received written notice from any Owner or any other person or entity (including any governmental entity) of any demand, default or claim of nonperformance by the undersigned as such Declarant of its obligations under the Plaza Declaration.
This _____ day of __________, 2004.
Very truly yours,
COUSINS PROPERTIES INCORPORATED
By:________________________________________________ Name:______________________________________________ Its: ______________________________________________
EXHIBIT "O"
PROPERTY TAX APPEALS
2004 tax assessment notices for 2300 Windy Ridge Parkway and 3200 Windy Hill Road have been appealed to the Superior Court of Cobb County.
EXHIBIT "P"
UNPAID TENANT INDUCEMENT COSTS AND LEASING COMMISSIONS
1. 3200 Windy Hill Road; Lease with General Electric Company
Capitalized terms used in this Paragraph 1 and not otherwise defined in this Agreement shall have the meaning given to such terms in that certain Lease Agreement between Associates and General Electric Company dated as of January 1, 2004 (executed April 6, 2004) for premises located within 3200 Windy Hill Road (the "3200 GE Lease").
The respective responsibilities of Associates and Purchaser for unfunded Improvement Allowance amounts under the 3200 GE Lease are set forth and described in Exhibit "R" attached to this Agreement.
Seller and Purchaser acknowledge that Seller, as Landlord under the 3200 GE Lease, has received written notice from General Electric Company notifying Seller that General Electric Company will not be leasing any of the Premises C space. Associates shall retain, and Purchaser shall not assume, the obligations to pay unpaid leasing commission to CWG and Cousins for Premises A and Premises B, comprising an aggregate of 130,693 square feet of Rentable Floor Area (i.e., 80,593 square feet of Rentable Floor Area in Premises A and 50,100 square feet of Rentable Floor Area in Premises B). The leasing commission amounts attributable to the 3200 GE Lease heretofore paid to CWG and Cousins are $444,091.63 and $0.00, respectively. Associates and Purchaser acknowledge that, pursuant to Article 48 of the 3200 GE Lease, upon written request and direction from both Tenant and CWG, any unpaid portion of the commission otherwise payable by Landlord to CWG shall, upon such commission amount becoming due and payable to CWG, (i) be disbursed by Landlord in payment of the cost of the Layout Work, or (ii) be disbursed by Landlord to Tenant's specified vendor(s) providing furniture or equipment for installation within the Demised Premises, or (iii) be applied as a credit to Rent due under the 3200 GE Lease, or (iv) be paid to GE Realty, Inc. Associates agrees that any unpaid portion of the commission payable by Associates to CWG shall be paid by Associates in accordance with the written directions from Tenant and CWG as provided in Article 48 of the 3200 GE Lease, and if Tenant and CWG elect for any portion of such commission payable by Associates to CWG to be applied as a credit to Rent due under the 3200 GE Lease, such commission amount payable by Associates which is to be applied as a credit against Rent shall be paid by Associates to Purchaser.
2. 3200 Windy Hill Road; Lease with W. H. Smith, Inc.
The unused allowance payable to W. H. Smith, Inc. under its Lease is in the amount of $45,434.00. To date, W. H. Smith has not qualified for payment of this unused allowance amount. Purchaser shall not assume the obligation to pay this unused allowance amount, and Purchaser shall not receive a credit at Closing for all or any portion of this unpaid allowance amount. Instead, if and when W. H. Smith shall qualify for funding or other credit of all or any portion of this unused allowance amount, Associates shall pay the applicable allowance amount
to Purchaser for further funding or application as provided in this Lease. The obligation of Associates to fund such unused allowance amount shall survive the Closing for the entire remaining term of this Lease.
3. 2300 Windy Ridge Parkway; Lease with Financial Services Corporation
There is currently an unfunded improvement allowance in the amount of $32,302.00 available for funding by the Landlord under this Lease. Purchaser shall not assume the obligation to pay this unfunded allowance amount, and Purchaser shall not receive a credit at Closing for all or any portion of this unfunded allowance amount. Instead, if and when Financial Services Corporation shall qualify for funding or other credit of all or any portion of this unfunded allowance amount, Associates shall pay the applicable allowance to Purchaser for further funding or application as provided in this Lease. The obligation of Associates to fund such unfunded allowance amount shall survive the Closing for the entire remaining term of this Lease.
4. 2300 Windy Ridge Parkway; Lease with Scientific Research Corp. ("SRC")
There is currently an unfunded improvement allowance in the amount of $154,194.00 available for funding by the Landlord under this Lease. Purchaser shall not assume the obligation to pay this unfunded allowance amount, and Purchaser shall not receive a credit at Closing for all or any portion of this unfunded allowance amount. Instead, if and when SRC shall qualify for funding or other credit of all or any portion of this unfunded allowance amount, Associates shall pay the applicable allowance to Purchaser for further funding or application as provided in this Lease. The obligation of Associates to fund such unfunded allowance amount shall survive the Closing for the entire remaining term of this Lease.
5. 2300 Windy Ridge Parkway; Lease with Smith Barney Inc.
There is currently an unfunded improvement allowance in the amount of $643,685.00 payable under this Lease. This unfunded allowance is payable to Smith Barney Inc. upon receipt from this Tenant of back-up information relating to expenses incurred by this Tenant. If any of such unfunded improvement allowance has not been paid or applied as of the Closing, Purchaser shall assume the obligation to provide the unfunded portion of this improvement allowance as of the Closing, and Purchaser shall receive a credit against the Purchase Price at Closing for the amount of such unpaid allowance.
6. 2300 Windy Ridge Parkway; Lease with Dr. Frederick Abeles
There is currently an unfunded improvement allowance in the amount of $12,551.00 available for funding by Landlord under this Lease. This Lease requires the improvement allowance to be used for recarpeting and/or repainting the premises and to be funded within forty-five (45) days of receipt of paid invoices submitted by the Tenant under this Lease. This Lease provides that any portion of this improvement allowance as to which the Tenant under this Lease has not qualified for funding by December 1, 2005 shall be forfeited by the Tenant. Purchaser shall not assume the obligation to pay this unfunded allowance amount, and Purchaser
shall not receive a credit at Closing for all or any portion of this unfunded allowance amount. Instead, if and when Dr. Abeles shall qualify for funding or other credit of all or any portion of this unfunded allowance, Associates shall pay the applicable allowance to Purchaser for further funding or application as provided in this Lease. The obligation of Associates to fund such unfunded allowance amount shall survive the Closing for the entire remaining term of this Lease.
7. 2300 Windy Ridge Parkway; Lease with Chevron U.S.A. Inc. ("Chevron")
The Tenant under this Lease currently leases 51,415 square feet of
rentable floor area located on the 8th floor of the building through March 31,
2005. Associates and the Tenant under this Lease have been negotiating the terms
of a lease proposal pursuant to which (i) Tenant will assign to Landlord the
current sublease agreement with Manhattan Associates for Suite 820 consisting of
5,448 square feet of rentable floor area and having a sublease term through
March 31, 2005 (Note: effective April 1, 2005, this space is covered under the
direct lease between Associates and Manhattan Associates), (ii) Tenant's lease
with respect to the remaining space on the 8th floor of the building containing
45,967 square feet of rentable floor area will terminate on November 30, 2004,
(iii) Tenant will lease approximately 11,000 square feet of rentable floor area
on the 5th floor of the building commencing on December 1, 2004 at a net annual
rental rate of $15.25 per square foot, increasing 3.0% per annum, for a term
expiring on November 30, 2010, (iv) Landlord will be obligated to make available
to Tenant a tenant improvement allowance with respect to the space leased by the
Tenant on the 5th floor of the building in the amount of $15.00 per square foot
of rentable floor area, and (v) Landlord will be obligated to pay leasing
commissions to the Tenant's broker and to the Landlord's inside leasing agent,
Cousins, attributable to the leasing by Tenant of the space on the 5th floor of
the building. In the event the lease transactions described in this Paragraph 7
are consummated prior to or within two (2) months after Closing, Purchaser shall
assume and be responsible for the payment of the tenant improvement allowance
with respect to the space leased by this Tenant on the 5th floor of the
building, and Seller shall retain, and Purchaser shall not assume, the
obligation to pay the leasing commissions to the Tenant's broker and to Cousins
attributable to the leasing by Tenant of up to 11,000 square feet of rentable
floor area on the 5th floor of the building for a term commencing no earlier
than December 1, 2004 and extending no later than November 30, 2010. The
foregoing commission payment obligation of Associates shall survive Closing for
a period of two (2) years thereafter.
8. 2300 Windy Ridge Parkway; Lease with Live Office Management Association, Inc. ("LOMA")
The Tenant under this Lease currently leases 56,652 square feet of rentable floor area located on the 6th floor of the building through October 31, 2005. Associates and the Tenant under this Lease have been negotiating the terms of a lease proposal pursuant to which (i) Tenant will assign to Landlord the current sublease agreement with Manhattan Associates for Suite 685 consisting of 7,028 square feet of rentable floor area and having a sublease term through October 31, 2005 (Note: effective November 1, 2005, this space is covered under the direct lease between Associates and Manhattan Associates); (ii) Tenant's lease with respect to its premises on the 6th floor of the building containing 56,652 square feet of rentable floor area will be amended effective October 31, 2004, (iii) commencing November 1, 2004, Tenant will lease
49,624 square feet of rentable floor area on the 6th floor of the building at a full service rental rate of $20.05 per square foot per year, increasing 3.0% per annum, for a term expiring on November 30, 2015, (iv) the premises on the 6th floor will be leased in "as-is, where-is" condition, and therefore, Landlord will not be obligated to make available to Tenant a tenant improvement allowance, and (v) Landlord will be obligated to pay leasing commissions to the Tenant's broker and to the Landlord's inside leasing agent, Cousins, attributable to the leasing by Tenant of the space on the 6th floor of the building. In the event the lease transactions described in this Paragraph 8 are consummated prior to or within two (2) months after Closing, Purchaser shall assume and be responsible for the payment of the tenant improvement allowance with respect to the space leased by this Tenant on the 6th floor of the building, and Seller shall retain, and Purchaser shall not assume, the obligation to pay the leasing commissions to the Tenant's broker and to Cousins attributable to the leasing by Tenant of up to 49,624 square feet of rentable floor on the 6th floor of the building for a term commencing no earlier than November 1, 2004 and extending no later than October 31, 2015. The foregoing commission payment obligation of Associates shall survive Closing for a period of two (2) years thereafter.
9. 2300 Windy Ridge Parkway; Lease with Computer Associates International, Inc.
The Tenant under this Lease currently leases 62,445 square feet of rentable floor area located on the 10th floor of the building through June 30, 2005. Associates and the Tenant under this Lease have been negotiating the terms of a lease proposal pursuant to which (i) the Tenant will lease 52,175 square feet of rentable floor area on the 9th floor of the building commencing on or before July 1, 2005, (ii) from the date of Tenant's occupancy of the aforesaid space on the 9th floor of the building through December 31, 2005, Tenant will only be obligated to pay its pro rata share of operating expenses and taxes with respect to such space occupied by Tenant on the 9th floor of the building, (iii) commencing January 1, 2006, Tenant will be obligated to pay an annual net rental rate of $14.50 per square foot of rentable floor area, increasing 3.0% per annum, for a term expiring on December 31, 2015, (iv) Landlord will be obligated to make available to Tenant a tenant improvement allowance with respect to the space leased by the Tenant on the 9th floor of the building in the amount of $45.00 per square foot of rentable floor area, and (v) Landlord will be obligated to pay leasing commissions to the Tenant's broker and to the Landlord's inside leasing agent, Cousins, attributable to the leasing by Tenant of the space on the 9th floor of the building. In the event the lease transaction as described in this Paragraph 9 is consummated prior to or within six (6) months after Closing, Purchaser shall assume and be responsible for the payment of the tenant improvement allowance with respect to the space leased by this Tenant on the 9th floor of the building, and Seller shall retain, and Purchaser shall not assume, the obligation to pay the leasing commissions to the Tenant's broker and to Cousins attributable to the leasing by Tenant of up to 52,175 square feet of rentable floor area on the 9th floor of the building for a term extending no later than December 31, 2015. The foregoing commission payment obligation of Associates shall survive Closing for a period of two (2) years thereafter.
EXHIBIT "Q"
INTENTIONALLY OMITTED
EXHIBIT "R"
ASSOCIATES POST CLOSING TENANT IMPROVEMENT OBLIGATIONS
1. Layout Work under Lease with General Electric Company for Premises at 3200 Windy Hill Road. Capitalized terms used in this Paragraph 1 and not otherwise defined in this Agreement shall have the meaning given to such terms in that certain Lease Agreement between Associates and General Electric Company dated as of January 1, 2004 (executed April 6, 2004) for premises located within 3200 Windy Hill Road (the "3200 GE Lease"). With respect to the 3200 GE Lease, upon the sale of the 3200 Windy Hill Road Property to Purchaser, except as herein provided, Associates shall expressly retain, and Purchaser shall not assume, all rights and obligations of the Landlord under the Work Letter attached to the 3200 GE Lease with respect to the construction and installation of the Layout Work, including, without limitation, the following rights and obligations:
(i) the right and obligation to approve the MEP consultant utilized by Tenant or Tenant's Architect as provided in Paragraph 3(a) of the Work Letter;
(ii) the obligation to pay up to $15,000 of the fees due to Landlord's MEP consultant as provided in Paragraph 3(a) of the Work Letter;
(iii) the right and obligation to approve the proposed Plans and Specifications for the Layout Work as provided in Paragraph 3(b) of the Work Letter, including any changes in such Plans and Specifications;
(iv) the obligation to provide and fund the Improvement Allowance for Premises A and Premises B, comprising an aggregate of 130,693 square feet (i.e., 80,593 square feet of Rentable Floor Area in Premises A and 50,100 square feet of Rentable Floor Area in Premises B), all as required by Paragraph 4 of the Work Letter;
(v) the obligation to obtain and submit pricing information as provided in Paragraph 4(a) of the Work Letter;
(vi) the right and obligation to collect from Tenant and retain for its own account any costs incurred by Landlord in connection with the Layout Work in excess of the amount of the Improvement Allowance, and the right and obligation to collect from Tenant and retain for its own account Landlord's fee for coordinating and managing the Layout Work as provided in Paragraphs 4(a) and 5(a) of the Work Letter;
(vii) the right and obligation to coordinate and manage the performance of the Layout Work as provided in Paragraph 5(a) of the Work Letter, including Exhibit "D-2" attached to the Work Letter;
(viii) the right and obligation to approve proposed revisions to the Plans and Specifications as contemplated in Paragraph 5(b) of the Work Letter;
(ix) the right and obligation to manage and coordinate the completion of the Punch List Items as contemplated in Paragraph 5(c) of the Work Letter;
(x) intentionally omitted;
(xi) the right to approve the contractors selected by Tenant for the Tenant's Work and the obligation to cooperate with Tenant in connection with the Tenant's Work, all as contemplated in Paragraph 7(a) of the Work Letter;
(xii) the obligation to provide access to reasonable water, electricity, and unmanned freight elevator service to the Demised Premises in connection with and during the performance of the Tenant's Work (at Tenant's cost), all as provided in Paragraph 7(b) of the Work Letter; and
(xiii) the obligations of Landlord under Paragraph 9 of the Work Letter with respect to the performance of the initial telecommunications cabling work to be performed as part of the Layout Work.
Associates and Purchaser hereby further agree that if there remains any unapplied portion of the Improvement Allowance allocated to Premises A and Premises B after the payment of all costs of the final phase of the Layout Work for Premises A and Premises B, and (A) if Tenant elects under Paragraph 4(b)(i) of the Work Letter to credit such unapplied portion to Rent next thereafter becoming due and payable under the 3200 GE Lease, Associates shall pay to Purchaser the amount of such credit as and when such credit is actually taken or effectuated against Rent by Tenant, but only up to the portion of the unapplied Improvement Allowance which is the responsibility of Associates under subparagraph (iv) above; (B) if Tenant elects under Paragraph 4(b)(ii) of the Work Letter to receive such unapplied portion in reimbursement of the costs actually incurred by Tenant in moving Tenant's furniture and equipment to Premises B from Tenant's premises at the 4300 Wildwood Building and the 1000 Parkwood Building, Associates shall pay to Tenant the amount of such unapplied portion of the Improvement Allowance in reimbursement of such costs as and when due and payable by Landlord under the Work Letter, but only up to the portion of the unapplied Improvement Allowance which is the responsibility of Associates under subparagraph (iv) above; and (C) if Tenant elects under Paragraph 4(b)(iii) of the Work Letter to receive such unapplied portion in reimbursement of costs actually incurred by Tenant in connection with the purchase and installation within Premises B of new furniture and equipment, Associates shall pay to Tenant the amount of such unapplied portion of the Improvement Allowance in reimbursement of such costs as and when due and payable by Landlord under the Work Letter, but only up to the portion of the unapplied Improvement Allowance which is the responsibility of Associates under subparagraph (iv) above.
Associates further agrees that if Tenant is entitled to and elects to make payment to third parties under Paragraph 4(c) of the Work Letter and offsets the amounts so paid, plus interest,
against the next installment(s) of Rent due under the 3200 GE Lease, Associates shall promptly pay to Purchaser the amount so credited by Tenant against Rent (up to the unpaid amount of the Improvement Allowance which is the responsibility of Associates under subparagraph (iv) above, plus interest thereon, as provided in Paragraph 4(c) of the Work Letter).
Associates and Purchaser hereby further agree that if any amounts shall become due and payable by Landlord to Tenant under Article 5.4(a) of the 3200 GE Lease as a result of Landlord Delays not caused by Purchaser, Associates shall be responsible for making such payments to Tenant when due and payable.
The obligations of the parties under this Paragraph 1 shall survive Closing for a period of two (2) years thereafter.
EXHIBIT "S"
ASSOCIATES BENEFITED PROPERTY
All that tract or parcel of unimproved real property located in Land Lots 939, 940, 987 and 988 of the 17th District, 2nd Section, Cobb County, Georgia, fronting on the westerly and southwesterly line of the extension of Windy Hill Road and also being adjacent to and north of the improved property known as 3175 Windy Hill Road, and being designated Site F-3A on the Property Plat for Wildwood, prepared by Engineering & Inspection Systems, Inc., dated July 29, 1998, bearing a progress printing date of March 11, 2004, and all that tract or parcel of unimproved real property located in Land Lot 941 of the 17th District, 2nd Section, Cobb County, Georgia, and being designated Site F-17 on the aforesaid Plat. [NOTE: LEGAL DESCRIPTIONS OF SUCH PROPERTIES SHALL BE PREPARED PRIOR TO CLOSING FOR INSERTION AS EXHIBITS INTO THE APPROPRIATE DEEDS.]
EXHIBIT "T"
COUSINS BENEFITED PROPERTY
Those certain tracts or parcels of unimproved real property located in Land Lots 939, 1004, 1005, 1006, 987, 940, 941, 986, 985, and 1008 of the 17th District, 2nd Section, Cobb County, Georgia, and being designated Sites F-1, F-5, F-6, F-7, F-18A, F-15A, F-16, F-18A and F-19 as shown on the Property Plat for Wildwood prepared by Engineering & Inspection Systems, Inc., dated July 29, 1998, bearing a progress printing date of March 11, 2004. [NOTE: LEGAL DESCRIPTIONS OF SUCH PARCELS SHALL BE PREPARED PRIOR TO CLOSING FOR INSERTION AS EXHIBITS INTO THE APPROPRIATE DEEDS.]
EXHIBIT "U"
COVENANT TO BE INCLUDED IN ASSOCIATES LIMITED
WARRANTY DEED CONVEYING 2300 WINDY RIDGE PARKWAY
Grantee hereby agrees (i) that all employees of the tenant(s) under the 2500 CCE Lease and the 3200 CCE Leases (as such terms are hereinafter defined) who maintain an office in Wildwood Office Park shall be entitled to use of the health club located in the building known as 2300 Windy Ridge Parkway, Atlanta, Georgia on terms and conditions no less favorable than the most favorable terms and conditions (including rate) offered to employees of International Business Machines Corporation or any of the other major tenants in Wildwood Office Park, and (ii) that the initiation fee with respect to such health club shall be waived for all of the employees of the tenant(s) under the 2500 CCE Lease and the 3200 CCE Leases who maintain an office in Wildwood Office Park and who join such health club. The foregoing covenants shall be covenants running with the land and shall be binding upon Grantee, as owner of the property known as 2300 Windy Ridge Parkway, Atlanta, Georgia, and its successors-in-title, and shall inure to the benefit of and be enforceable by any owner of a building within Wildwood Office Park who has leased space to such tenant(s) under the 2500 CCE Lease and the 3200 CCE Leases. As used herein, the term 2500 CCE Lease shall mean the lease between Wildwood Associates and Coca-Cola Enterprises, Inc. dated August 8, 2002, as amended, for premises in the building known as 2500 Windy Ridge Parkway, Atlanta, Georgia, and the term 3200 CCE Leases shall mean the leases between Wildwood Associates and Coca-Cola Enterprises, Inc. dated March 31, 2003, and March 31, 2003, respectively, as amended, for premises in the building known as 3200 Windy Hill Road, Atlanta, Georgia.
EXHIBIT "V"
COVENANT TO BE INCLUDED IN ASSOCIATES LIMITED WARRANTY DEED CONVEYING 2401 WINDY RIDGE PARKWAY, 3050 WINDY HILL ROAD, 1547 POWERS FERRY ROAD, 1927 POWERS FERRY ROAD, 1931 POWERS FERRY ROAD, 1935 POWERS FERRY ROAD AND 1945 POWERS FERRY ROAD
Grantee hereby agrees that Grantee shall pay to the Declarant under the Master Declaration (as hereinafter defined) a share of the "Shared Costs" (as defined in the Master Declaration) with respect to the Applicable Parcels (as hereinafter defined). Grantee acknowledges that its share of the Shared Costs with respect to the Applicable Parcels shall be determined as provided in this paragraph and not pursuant to the terms of the Master Declaration. "Applicable Parcels" shall mean the property identified on Exhibit "A" hereto as 2401 Windy Ridge Parkway, 3050 Windy Hill Road, 1547 Powers Ferry Road, 1927 Powers Ferry Road, 1931 Powers Ferry Road, 1935 Powers Ferry Road, and 1945 Powers Ferry Road. "Applicable Parcel" shall mean any one of the Applicable Parcels. Grantee's share of the "Shared Costs" under the Master Declaration for each of the Applicable Parcels shall be computed by multiplying the total Shared Costs by a fraction, the numerator of which shall be the number of acres in such Applicable Parcel and the denominator of which shall be the total number of developed acres existing from time to time within the "Entire Property" (as defined in the Master Declaration). For purposes of determining Grantee's share of the "Shared Costs" with respect to the Applicable Parcels pursuant to the formula in the preceding sentence, solely with respect to the Applicable Parcel identified on Exhibit "A" as 3050 Windy Hill Road, the acreage contained in the common entrance area and the common drainage and water retention area within such Applicable Parcel shall be deducted from the acreage contained in such Applicable Parcel, and solely with respect to the Applicable Parcel identified on Exhibit "A" as 1927 Powers Ferry Road, the acreage contained in the common drainage and water retention area within such Applicable Parcel shall be deducted from the acreage contained in such Applicable Parcel. Also notwithstanding the foregoing to the contrary, during the term of the existing lease with TGI Friday's Inc. with respect to the Applicable Parcel identified on Exhibit "A" as 1945 Powers Ferry Road, Atlanta, Georgia, such Applicable Parcel's share of the Shared Costs shall be limited to an amount equal to five percent (5%) of the costs of ongoing landscaping maintenance and other maintenance of the right-of-way of Windy Ridge Parkway and the adjoining shoulders of Windy Ridge Parkway, exclusive of capital expenditures (it being understood that replacement of worn signs or dead plants shall not be considered capital expenditures). The foregoing covenants shall be covenants running with the land and shall be binding upon Grantee, as owner of the Applicable Parcels, and its successors-in-title, and shall inure to the benefit of and be enforceable by the "Declarant" and the other "Owners" under the Master Declaration. As used in this paragraph, the term "Master Declaration" shall mean the Master Declaration of Covenants and Cross Easements for Wildwood Office Park dated January 23, 1991, recorded in Deed Book 5992, Page 430, Cobb County, Georgia records, as amended. The foregoing obligations are in addition to and not in limitation of the obligations of Grantee to pay to the Declarant under the Master Declaration a share of the Shared Costs with respect to other properties within the Entire Property from time to time owned by Grantee.
SCHEDULE 1-A
FORM OF LIMITED WARRANTY DEED
Transfer Tax:
STATE OF GEORGIA
COUNTY OF COBB
LIMITED WARRANTY DEED
THIS INDENTURE is made as of the ______day of _________________, 2004, by and between __________________________________, a _________________________ ("Grantor"), and ________________________, a ________________________ ("Grantee"). The words "Grantor" and "Grantee" shall include their respective successors and assigns where the context requires or permits.
W I T N E S S E T H:
GRANTOR, for and in consideration of the sum of Ten and No/100 Dollars ($10.00), and other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged by Grantor, has granted, bargained, sold, aliened, conveyed and confirmed and does hereby grant, bargain, sell, alien, convey and confirm unto Grantee the following real property described on Exhibit "A" attached hereto and by reference made a part hereof (the "Land"), together with all plants, trees, shrubbery and improvements thereon (hereinafter collectively referred to as the "Property"):
TO HAVE AND TO HOLD the Property, together with all and singular the rights, members and appurtenances thereto, to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoof of Grantee forever in FEE SIMPLE.
AND GRANTOR WILL WARRANT and forever defend the right and title to the Property unto Grantee against the lawful claims of all persons owning, holding or claiming by, through or under Grantor, but not otherwise.
This conveyance and foregoing warranty of title are expressly subject to those matters more particularly set forth on Exhibit "B" attached hereto and by this reference made a part hereof.
By acceptance of this deed, Grantee agrees, for the benefit of Grantor, its successors in title and assigns, and for the benefit of the property of Grantor and Cousins Properties Incorporated ("Cousins") described on Exhibit "C" attached hereto and made a part hereof (the "Benefited Property"), that Grantee, its successors in title and assigns, shall not object directly or indirectly to, and shall not assist others in objecting to, and shall not take any action or make any statements, public or private (and specifically including but not limited to statements to the media), in opposition to any application for rezoning or variances to a residential classification, or rezoning or variances to increase the height of the buildings but not the density, with respect to the Benefited Property or any portion thereof. The foregoing covenant and agreement shall run with the land, as a burden on the Property and as a benefit to the Benefited Property, and shall be binding on Grantee, its successors in title and assigns, and shall inure to the benefit of Grantor and Cousins and their respective successors-in-title and assigns, for a term of ten (10) years after the date of this deed; provided, however, if fee simple title to the Property or any portion thereof shall be sold and conveyed to any person or entity not affiliated with Grantee, the foregoing covenant and agreement shall expire and be of no further force or effect as to the purchaser of the Property or the applicable portion thereof (and such purchaser's successors-in-title) on the date which is seven (7) years after the date of this deed. Cousins shall be deemed a third party beneficiary of the foregoing covenant and agreement.
[INSERT ADDITIONAL COVENANT, IF APPLICABLE]
IN WITNESS WHEREOF, Grantor has signed and sealed this deed, the day and year first above written.
Signed, sealed and delivered GRANTOR:
in the presence of:
________________________________
a_____________
__________________________________
Witness
By:_____________________________
__________________________________ Name:___________________________
Notary Public Title:__________________________
Commission Expiration Date: (CORPORATE SEAL)
_________________________
|
(NOTARY SEAL)
EXHIBIT "A"
LEGAL DESCRIPTIONS
EXHIBIT "B"
PERMITTED ENCUMBRANCES
EXHIBIT "C"
BENEFITED PROPERTY
SCHEDULE 1-B
FORM OF LIMITED WARRANTY DEED (GROUND LEASE)
Transfer Tax:
STATE OF GEORGIA
COUNTY OF COBB
LIMITED WARRANTY DEED
THIS INDENTURE is made as of the ______day of _________________, 2004, by and between __________________________________, a _________________________ ("Grantor"), and ________________________, a ________________________ ("Grantee"). The words "Grantor" and "Grantee" shall include their respective successors and assigns where the context requires or permits.
W I T N E S S E T H:
GRANTOR, for and in consideration of the sum of Ten and No/100 Dollars ($10.00), and other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged by Grantor, has granted, bargained, sold, aliened, conveyed and confirmed and does hereby grant, bargain, sell, alien, convey and confirm unto Grantee the following real property described on Exhibit "A" attached hereto and by reference made a part hereof (the "Land"), together with the reversionary interest of Grantor in the improvements on the Land pursuant to the lease(s) identified on Exhibit "B" attached hereto and by reference made a part hereof (the Land together with such reversionary interest hereinafter collectively referred to as the "Property"):
TO HAVE AND TO HOLD the Property, together with all and singular the rights, members and appurtenances thereto, to the same being, belonging, or in anywise appertaining, to the only proper use, benefit and behoof of Grantee forever in FEE SIMPLE.
AND GRANTOR WILL WARRANT and forever defend the right and title to the Property unto Grantee against the lawful claims of all persons owning, holding or claiming by, through or under Grantor, but not otherwise.
This conveyance and foregoing warranty of title are expressly subject to those matters more particularly set forth on Exhibit "B" attached hereto and by this reference made a part hereof.
By acceptance of this deed, Grantee agrees, for the benefit of Grantor, its successors in title and assigns, and for the benefit of the property of Grantor and Cousins Properties Incorporated ("Cousins") described on Exhibit "C" attached hereto and made a part hereof (the "Benefited Property"), that Grantee, its successors in title and assigns, shall not object directly or indirectly to, and shall not assist others in objecting to, and shall not take any action or make any statements, public or private (and specifically including but not limited to statements to the media), in opposition to any application for rezoning or variances to a residential classification, or rezoning or variances to increase the height of the buildings but not the density, with respect to the Benefited Property or any portion thereof. The foregoing covenant and agreement shall run with the land, as a burden on the Property and as a benefit to the Benefited Property, and shall be binding on Grantee, its successors in title and assigns, and shall inure to the benefit of Grantor and Cousins and their respective successors-in-title and assigns, for a term of ten (10) years after the date of this deed; provided, however, if fee simple title to the Property or any portion thereof shall be sold and conveyed to any person or entity not affiliated with Grantee, the foregoing covenant and agreement shall expire and be of no further force or effect as to the purchaser of the Property or the applicable portion thereof (and such purchaser's successors-in-title) on the date which is seven (7) years after the date of this deed. Cousins shall be deemed a third party beneficiary of the foregoing covenant and agreement.
[INSERT ADDITIONAL COVENANT, IF APPLICABLE]
IN WITNESS WHEREOF, Grantor has signed and sealed this deed, the day and year first above written.
Signed, sealed and delivered GRANTOR:
in the presence of:
___________________________
a_______________
__________________________________
Witness
By:_____________________________
__________________________________ Name:___________________________
Notary Public Title:__________________________
Commission Expiration Date: (CORPORATE SEAL)
_________________________
|
(NOTARY SEAL)
EXHIBIT "A"
LEGAL DESCRIPTIONS
EXHIBIT "B"
PERMITTED ENCUMBRANCES
EXHIBIT "C"
BENEFITED PROPERTY
SCHEDULE 2
FORM OF ASSIGNMENT AND ASSUMPTION OF LEASES
AND SECURITY DEPOSITS AND LEASING
COMMISSION OBLIGATIONS ARISING AFTER CLOSING
ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS ("ASSIGNMENT") is made and entered into as of the _____ day of __________, 200__, by and between ___________________, a ________________ ("ASSIGNOR"), and _________________________, a _______________ ("ASSIGNEE").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution hereof, Assignor has conveyed to Assignee certain real property located in Atlanta, Cobb County, Georgia, and more particularly described on EXHIBIT "A" attached hereto (the "PROPERTY") ; and
WHEREAS, in connection with said conveyance, Assignor desires to transfer and assign to Assignee all of Assignor's right, title and interest in and to certain leases affecting the Property, together with the security deposits and future leasing commission obligations associated therewith, and, subject to the terms and conditions hereof, Assignee desires to assume Assignor's obligations in respect of said leases, security deposits and leasing commission obligations;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid to Assignor by Assignee, Assignee's purchase of the Property and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged by Assignor and Assignee, Assignor and Assignee hereby covenant and agree as follows:
1. Assignor hereby unconditionally and absolutely assigns, transfers, sets over and conveys to Assignee, without warranty or representation of any kind, express or implied, except as set forth below and except for any warranty or representation contained in that certain Purchase and Sale Agreement dated August __, 2004, between Wildwood Associates and Assignee (the "CONTRACT"), applicable to the property assigned herein, all of Assignor's right, title and interest in, to and under (a) those certain leases set forth on EXHIBIT "B" attached hereto and by this reference made a part hereof affecting or relating to the Property or the improvements thereon (the "LEASES"), (b) those certain tenant deposits presently held by Assignor and enumerated on EXHIBIT "B" attached hereto (the "SECURITY DEPOSITS"), and (c) those certain leasing commission agreements more particularly described on EXHIBIT "C" attached hereto and made a part hereof (the "COMMISSION AGREEMENTS"), subject to the matters more particularly described on EXHIBIT "D" attached hereto and made a part hereof.
2. Assignee, by acceptance hereof, hereby assumes and agrees to perform all of Assignor's duties and obligations under the Leases arising from and after the date hereof, including, without limitation, Assignor's obligations to pay leasing commissions due and payable in respect of any renewal or expansion of any of the existing Leases, or any new lease with a tenant under any of the Leases, after the date hereof pursuant to the Commission Agreements, provided that any renewal or expansion of any of the existing Leases, or any new lease with a tenant under any of the Leases that was entered into after the Effective Date of the Contract (as defined therein) and prior to the date hereof was approved (or deemed approved) by Purchaser as required in the Contract.
3. Notwithstanding the foregoing to the contrary, Assignor shall perform the Associates Post Closing Tenant Improvement Obligations (as defined in the Contract).
4. This Assignment shall inure to the benefit of and be binding upon Assignor and Assignee, their respective legal representatives, successors and assigns. This Assignment may be executed in counterparts, each of which shall be deemed an original and all of such counterparts together shall constitute one and the same Assignment.
IN WITNESS WHEREOF, the duly authorized representatives of Assignor and Assignee have caused this Assignment to be properly executed under seal as of this day and year first above written.
ASSIGNOR:
_____________________,
a____________________
By:_____________________________
Name:___________________________
Its:____________________________
ASSIGNEE:
_____________________,
a____________________
By:_____________________________
Name:___________________________
Title:__________________________
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
LIST OF LEASES AND SECURITY DEPOSITS
EXHIBIT C
LEASE COMMISSION AGREEMENTS
EXHIBIT D
PERMITTED EXCEPTIONS
SCHEDULE 3
FORM OF BILL OF SALE TO PERSONAL PROPERTY
BILL OF SALE
THIS BILL OF SALE ("BILL OF SALE") is made and entered into as of the _____ day of ______________, 200__, by _________________________, a ____________ ("SELLER"), for the benefit of __________________________________, a __________________________ ("PURCHASER").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution hereof, Seller has conveyed to Purchaser certain improved real properties located in Atlanta, Cobb County, Georgia, and more particularly described on EXHIBIT "A-1" attached hereto (hereinafter, together with all buildings, structures and improvements now situated on such lands, including without limitation, all parking areas and facilities, improvements and fixtures located on such lands, referred to as the "IMPROVED PROPERTIES"); and
WHEREAS, contemporaneously with the execution hereof, Seller has conveyed to Purchaser certain lands (excluding the improvements) described on EXHIBIT "A-2" attached hereto and the reversionary interests of the landlord under the Associates Ground Leases in the improvements located on such lands (such lands and such reversionary interests are collectively referred to as the "GROUND LEASE PROPERTIES") (the Improved Properties and the Ground Lease Properties are collectively referred to as the "PROPERTY"); and
WHEREAS, in connection with said conveyance, Seller desires to transfer and convey to Purchaser all of Seller's right, title and interest in and to certain tangible personal property, inventory and fixtures located in and used exclusively in connection with the ownership, maintenance or operation of the Property;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid to Seller by Purchaser, the premises and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged by Seller and Purchaser, it is hereby agreed as follows:
1. All capitalized terms not defined herein shall have the meanings ascribed to such terms as set forth in that certain Purchase and Sale Agreement dated as of August __, 2004, between Wildwood Associates and Purchaser (the "SALES CONTRACT").
2. Seller hereby unconditionally and absolutely transfers, conveys and sets over to Purchaser all right, title and interest of Seller in any and all furniture (including common area furnishings and interior landscaping items), carpeting, draperies, appliances, personal property (excluding any computer software which either is licensed to Seller or Seller deems proprietary), machinery, apparatus and equipment owned by Seller and currently used exclusively in the
operation, repair and maintenance of the Property, including, without limitation, all of Seller's right, title and interest in and to those items of tangible personal property set forth on EXHIBIT "B" attached hereto and all non-confidential books, records and files (excluding any appraisals, strategic plans for the Property, internal analyses, information regarding the marketing of the Property for sale, submissions relating to Seller's obtaining of corporate authorization, attorney and accountant work product, attorney-client privileged documents, or other information in the possession or control of Seller which Seller deems proprietary) relating to the Property (the "PERSONAL PROPERTY"); provided, however, the property described on EXHIBIT "B-1" attached hereto and made a part hereof is expressly excluded from the definition of Personal Property. The Personal Property does not include any property owned by tenants, contractors or licensees.
3. Seller hereby warrants that it is the owner of the Personal Property listed on EXHIBIT "B" attached hereto; that the Personal Property listed on EXHIBIT "B" is free and clear of all liens, claims and encumbrances, except as described on EXHIBIT "C"; that it has the partnership power to execute this Bill of Sale and to transfer the Personal Property as provided herein; and it has taken all partnership action necessary to authorize the execution and delivery of this Bill of Sale and the transfer of the Personal Property to Purchaser as provided herein.
4. EXCEPT FOR THE WARRANTIES CONTAINED IN THE PRECEDING PARAGRAPH 3 AND THE REPRESENTATIONS CONTAINED IN THE SALES CONTRACT, THE PERSONAL PROPERTY IS TRANSFERRED TO PURCHASER "AS IS" AND "WHERE IS" AND WITH ALL FAULTS, DEFECTS OR OTHER ADVERSE MATTERS. SELLER SPECIFICALLY DISCLAIMS ALL WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE (INCLUDING WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR USE OR ACCEPTABILITY FOR THE PURPOSE INTENDED BY PURCHASER) WITH RESPECT TO THE PERSONAL PROPERTY OR ITS CONDITION, EXCEPT AS OTHERWISE PROVIDED IN THE PRECEDING PARAGRAPH 3 OR THE SALES CONTRACT.
5. The Personal Property is hereby transferred and conveyed subject to those certain matters more particularly described on EXHIBIT "C" attached hereto and made a part hereof.
6. This Bill of Sale shall inure to the benefit of Purchaser, and be binding upon Seller, and their respective legal representatives, transfers, successors and assigns.
IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed under seal as of this day and year first above written.
By:_____________________________ Name:___________________________ Title:__________________________
EXHIBIT "A-1"
LEGAL DESCRIPTION
EXHIBIT "A-2"
GROUND LEASE LAND LEGAL DESCRIPTION
EXHIBIT "B"
LIST OF PERSONAL PROPERTY
EXHIBIT "B-1"
LIST OF PROPERTY EXCLUDED FROM PERSONAL PROPERTY
EXHIBIT "C"
PERMITTED ENCUMBRANCES
SCHEDULE 4
INTENTIONALLY OMITTED
SCHEDULE 5
STATE OF __________
COUNTY OF __________
TRANSFEREE'S AFFIDAVIT AS TO BROKER'S LIENS
PERSONALLY APPEARED before me, the undersigned attesting officer, ____________________, who after being duly sworn according to law, deposes and says on oath to the undersigned's knowledge as follows:
1. That deponent is the ______________________ of _________________________, a _______________ (hereinafter referred to as "Transferee"), which is the transferee of that certain tract or parcel of real property described on Exhibit "A" attached hereto and by this reference made a part hereof (hereinafter referred to as the "Property"), and as such officer, is in a position to have personal knowledge of the facts sworn to in this Affidavit;
2. That except as herein provided, no broker's services have been engaged by Transferee with regard to the management, sale, purchase, lease, option or other conveyance of any interest in the Property by Transferee and that no notices of lien for any such services has been received by Transferee. Transferee has on this date engaged Cousins Properties Incorporated as manager and leasing agent of the Property from and after the date hereof.
This Affidavit is made to induce national title insurance companies to insure title to the Property without exception for any possible liens or claims or rights to liens against the Property arising under the Commercial Real Estate Broker Lien Act (O.C.G.A. Section 44-14-600 et seq.).
My Commission Expires:
(NOTARIAL SEAL)
SCHEDULE 6
FORM OF ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS ("ASSIGNMENT") is made and entered into as of the _____ day of __________, 200__, by and between ______________, a ___________ ("ASSIGNOR") and ____________________, a _______________ ("ASSIGNEE").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution hereof, Assignor has conveyed to Assignee certain real property located in Atlanta, Cobb County, Georgia, and more particularly described on EXHIBIT "A" attached hereto (the "PROPERTY"); and
WHEREAS, in connection with said conveyance, Assignor desires to transfer and assign to Assignee, to the extent assignable, all of Assignor's right, title and interest in and to certain service contracts related to the Property, and to the extent assignable, all guaranties and warranties given in connection with the operation, construction, improvement, alteration or repair of the Property; and Assignee desires to assume Assignor's obligations under said service contracts;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid to Assignor by Assignee, the Premises and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged by Assignor and Assignee, Assignor and Assignee hereby covenant and agree as follows:
1. Assignor hereby unconditionally and absolutely assigns, transfers, sets over and conveys to Assignee, to the extent assignable, and without warranty or representation of any kind, express or implied, except as set forth below and except for any warranty or representation contained in that certain Purchase and Sale Agreement dated August __, 2004, between Wildwood Associates and Assignee (the "CONTRACT") applicable to the property assigned herein, all of Assignor's right, title and interest in, to and under those certain contracts set forth on EXHIBIT "B" attached hereto and by this reference made a part hereof (the "SERVICE CONTRACTS"), subject to the matters set forth on EXHIBIT "C" attached hereto and by this reference made a part hereof.
2. Assignee, by acceptance hereof, hereby assumes and agrees to perform all of Assignor's duties and obligations under the Service Contracts arising from and after the date hereof.
3. This Assignment shall inure to the benefit and be binding upon Assignor and Assignee and their respective legal representatives, successors and assigns.
IN WITNESS WHEREOF, the duly authorized representatives of Assignor and Assignee have caused this Assignment to be properly executed under seal as of this day and year first above written.
ASSIGNOR:
_____________________,
a____________________
By:_____________________________
Name:___________________________
Title:__________________________
ASSIGNEE:
_____________________,
a____________________
By:_____________________________
Name:___________________________
Title:__________________________
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
ASSIGNED CONTRACTS
EXHIBIT C
PERMITTED EXCEPTIONS
SCHEDULE 7
FORM OF GENERAL ASSIGNMENT OF
SELLER'S INTEREST IN INTANGIBLE PROPERTY
GENERAL ASSIGNMENT
THIS GENERAL ASSIGNMENT ("ASSIGNMENT") is made and entered into as of the _____ day of __________, 200__ by __________________, a ________________ ("ASSIGNOR") to _________________________, a _______________ ("ASSIGNEE").
W I T N E S S E T H:
WHEREAS, contemporaneously with the execution hereof, Assignor has conveyed to Assignee certain real property located in Atlanta, Cobb County, Georgia, and more particularly described on EXHIBIT "A" attached hereto and made a part hereof (the "PROPERTY"); and
WHEREAS, in connection with said conveyance, Assignor desires to transfer and assign to Assignee all of Assignor's right, title and interest (if any) in and to all assignable tradenames, entitlements and other intangible property used and owned by Assignor (if any) in connection with the Property, subject to the matters set forth on EXHIBIT "B" attached hereto and made a part hereof;
NOW, THEREFORE, for and in consideration of the sum of Ten and No/100 Dollars ($10.00) in hand paid to Assignor by Assignee, the premises and other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby acknowledged by Assignor and Assignee, Assignor and Assignee hereby covenant and agree as follows:
1. Assignor hereby unconditionally and absolutely assigns, transfers, sets over and conveys to Assignee, to the extent assignable, and without warranty or representation of any kind, express or implied, except as set forth below and except for any warranty or representation contained in that certain Purchase and Sale Agreement dated as of August __, 2004, between Wildwood Associates and Assignee (the "CONTRACT") applicable to the property assigned herein, all of Assignor's right, title and interest (if any) in and to all intangible property, if any, owned by Assignor related to the real property and improvements constituting the Property (excluding any computer software which either is licensed to Assignor or Assignor deems proprietary), including, without limitation, Assignor's rights and interests in and to the following (i) the names "2300 Windy Ridge Parkway", "3200 Windy Hill Road", "2401 Windy Ridge Parkway", "3050 Windy Hill Road", "3175 Windy Hill Road", "1547 Powers Ferry Road", "1927 Powers Ferry Road", "1931 Powers Ferry Road", "1935 Powers Ferry Road", and "1945 Powers Ferry Road", (ii) all assignable plans and specifications and other architectural and engineering drawings for the Associates Land and Associates Improvements (as defined in the Contract); (iii) all assignable warranties or guaranties given or made in respect of the Associates Improvements or Associates Personal Property (as defined in the Contract); (iv) all transferable consents, authorizations, variances or waivers, licenses, permits and approvals from any governmental or quasi-governmental agency, department, board, commission, bureau or other entity or
instrumentality solely in respect of the Associates Land or Associates Improvements, and (v) only with respect to the property known as 3200 Windy Hill Road, the non-exclusive right and interest in and to the name "Wildwood Plaza," to be shared in common with Assignor and Cousins Properties Incorporated and their respective successors and assigns.
2. This Assignment shall inure to the benefit and be binding upon Assignor and Assignee and their respective legal representatives, successors and assigns.
IN WITNESS WHEREOF, the duly authorized representative of Assignor has caused this Assignment to be properly executed under seal as of this day and year first above written.
ASSIGNOR:
_____________________,
a____________________
By:_____________________________
Name:___________________________
Title:__________________________
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
PERMITTED EXCEPTIONS
SCHEDULE 8
FORM OF SELLER'S AFFIDAVIT
(FOR PURCHASER'S TITLE INSURANCE PURPOSES)
SELLER'S AFFIDAVIT
STATE OF __________
COUNTY OF __________
Personally appeared before me, the undersigned deponent who being duly sworn, deposes and says on oath the following to the best of his knowledge and belief:
1. That the undersigned is the _______________ of Cousins Properties Incorporated, a Georgia corporation, a general partner of Wildwood Associates, a Georgia general partnership (hereinafter referred to as "Owner") and as such officer of such general partner of the Owner, the undersigned has personal knowledge of the facts sworn to in this Affidavit.
2. That Owner is the owner of certain real property located in Cobb County, Georgia, being described on EXHIBIT A, attached hereto and made a part hereof (hereinafter referred to as the "Property"), subject to those matters set forth on EXHIBIT B, attached hereto and made a part hereof.
3. That Owner is in possession of the Property, and to the best knowledge and belief of the undersigned, no other parties have any claim to possession of the Property, except as set forth on EXHIBIT B hereto.
4. That the undersigned is not aware of and has received no notice of any pending suits, proceedings, judgments, bankruptcies, liens or executions against the Owner which affect title to the Property except for any matters set forth on EXHIBIT B-1 hereto.
5. That except as may be set forth on EXHIBIT B hereto, there are no unpaid or unsatisfied security deeds, mortgages, claims of lien, special assessments for sewer or streets, or ad valorem taxes which constitute a lien against the Property or any part thereof.
6. That, except as may be set forth on EXHIBIT C attached hereto and made a part hereof, no improvements or repairs have been made upon the Property at the instance of Owner within the ninety-five (95) days immediately preceding the date hereof for which the cost has not been paid; and, except as may be set forth on EXHIBIT C hereto, there are no outstanding bills for labor or materials used in making improvements or repairs on the Property at the instance of Owner or for services of architects, surveyors, or engineers incurred in connection therewith at the instance of Owner.
7. That, except as provided in the next following sentence, no broker's services have been engaged by Owner with regard to the management, sale, purchase, lease, option or other conveyance of any interest in the Property by Owner and that no notices of lien for any such services have been received by Owner. Owner has engaged Eastdil Realty Company, LLC as Owner's agent in connection with the sale of the Property to ____________________, and Owner has engaged Cousins Properties Incorporated as Owner's manager and leasing agent in connection with the Property.
8. That Owner is not a foreign person, a foreign corporation, foreign partnership, foreign trust or foreign estate, as those terms are defined in the Internal Revenue Code. Owner is not a disregarded entity as defined in Section 1.1445-2(b)(2)(iii) of the Income Tax Regulations. The federal employer identification number of the Owner is 58-1622107 and Owner's address is 2500 Windy Ridge Parkway, Suite 1600, Atlanta, Georgia 30339-5683. This statement is made by the undersigned in compliance with Section 1445 of the Internal Revenue Code to exempt any transferee of the Property from withholding the tax required upon a foreign transferor's disposition of a U.S. real property interest
9. That to Owner's knowledge there are no boundary disputes affecting the Property.
10. That this Affidavit is made to induce ____________________ Title Insurance Company to insure title to the Property, without exception other than as set forth on EXHIBIT B hereto, relying on information in this document.
My Commission Expires:
(NOTARIAL SEAL)
EXHIBIT A
Legal Description
EXHIBIT B
Existing Encumbrances
EXHIBIT B-1
List of any Pending Actions regarding Tenant Matters
EXHIBIT C
List of any Contractors, Materialmen or Suppliers Not Yet Paid in Full
SCHEDULE 9
FORM OF SELLER'S CERTIFICATE
(AS TO SELLER'S REPRESENTATIONS AND WARRANTIES)
SELLER'S CERTIFICATE AS TO REPRESENTATIONS
THIS SELLER'S CERTIFICATE AS TO REPRESENTATIONS (this "CERTIFICATE") is given and made by __________________, a ______________ ("SELLER"), this ___ day of ______________, 200__, for the benefit of _________________________, a _______________ ("PURCHASER").
Pursuant to the provisions of that certain Purchase and Sale Agreement , dated as of August __, 2004, between Wildwood Associates and Purchaser (the "CONTRACT"), for the purchase and sale of certain real property commonly known as 2300 Windy Ridge Parkway, 3050 Windy Hill Road, 3175 Windy Hill Road, 3200 Windy Hill Road, 1931 Powers Ferry Road, 1935 Powers Ferry Road, and 1945 Powers Ferry Road, the land and the reversionary interest of Wildwood Associates in improvements commonly known as 2401 Windy Ridge Parkway, 1547 Powers Ferry Road, and 1927 Powers Ferry Road, located in Atlanta, Cobb County, Georgia, and more particularly described on EXHIBIT "A" attached hereto and made a part hereof (the "PROPERTY"), Seller certifies that except as may be set forth to the contrary in EXHIBIT "B" attached hereto and made a part hereof, all of the representations and warranties of Seller contained in Section 4.1 of the Contract remain true and correct in all material respects as of the date hereof.
The representations and warranties contained herein and in Section 4.1 of the Contract shall survive for the period specified in Section 11.4 of the Contract, and upon the expiration of the applicable survival period, such representations and warranties of Seller shall be of no further force or effect except that with respect to any particular alleged breach, Purchaser shall give Seller written notice prior to the expiration of the survival period of such alleged breach with reasonable detail as to the nature of such breach and files an action against Seller with respect thereto within sixty (60) days after the giving of such notice.
IN WITNESS WHEREOF, Seller has caused this Certificate to be executed by its duly authorized representative as of the day and year first above written.
_____________________, a____________________
By:_____________________________ Name:___________________________ Title:__________________________
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
SCHEDULE 10
FORM OF SELLER'S FIRPTA AFFIDAVIT
CERTIFICATION OF NON-FOREIGN STATUS
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. For U.S. tax purposes (including Section 1445), the owner of a disregarded entity (which has legal title to a U.S. real property interest under local law) will be the transferor of the property and not the disregarded entity. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest by Wildwood Associates, a Georgia general partnership (the "Seller"), the Seller hereby certifies as follows:
1. The Seller is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);
2. Seller is not a disregarded entity as defined in Section 1.1445-2(b)(2)(iii) of the Income Tax Regulations;
3. The Seller's U.S. employer identification number is 58-1622107; and
4. The Seller's office address is 2500 Windy Ridge Parkway, Suite 1600, Atlanta, Georgia 30339-5683.
The undersigned understands that this Certification may be disclosed to the Internal Revenue Service by transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
This Certificate is made with the knowledge that ____________________________, a________________________, will rely upon this Certificate in purchasing that certain real property from Seller more particularly described on EXHIBIT A attached hereto.
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, and I further declare that I have authority to sign this document on behalf of the Seller.
Date: ________________, 200__
__________________________(Seal)
By:_____________________________
THIS CERTIFICATION MUST BE RETAINED UNTIL THE END OF THE FIFTH TAXABLE YEAR FOLLOWING THE TAXABLE YEAR IN WHICH THE TRANSFER TAKES PLACE.
SCHEDULE 11
FORM OF PURCHASER'S CERTIFICATE
(AS TO PURCHASER'S REPRESENTATIONS AND WARRANTIES)
PURCHASER'S CERTIFICATE AS TO REPRESENTATIONS
THIS PURCHASER'S CERTIFICATE AS TO REPRESENTATIONS (this "CERTIFICATE") is given and made by _________________________ ("PURCHASER"), this ___ day of ______________, 200__, for the benefit of WILDWOOD ASSOCIATES, a Georgia general partnership whose sole general partners are Cousins Properties Incorporated and International Business Machines Corporation ("SELLER").
Pursuant to the provisions of that certain Purchase and Sale Agreement, dated as of August __, 2004, between Seller and Purchaser (the "CONTRACT"), for the purchase and sale of certain real property commonly known as 2300 Windy Ridge Parkway, 3050 Windy Hill Road, 3175 Windy Hill Road, 3200 Windy Hill Road, 1931 Powers Ferry Road, 1935 Powers Ferry Road, and 1945 Powers Ferry Road, the land and the reversionary interest of Wildwood Associates in improvements commonly known as 2401 Windy Ridge Parkway, 1547 Powers Ferry Road, and 1927 Powers Ferry Road, located in Atlanta, Cobb County, Georgia, and more particularly described on EXHIBIT "A" attached hereto (the "PROPERTY"), Purchaser certifies that except as may be set forth to the contrary in EXHIBIT "B" attached hereto and made a part hereof, all of the representations and warranties of Purchaser contained in Section 4.4 of the Contract remain true and correct in all material respects as of the date hereof.
The representations and warranties contained herein and in Section 4.4 of the Contract shall survive for the period specified in Section 11.4 of the Contract, and upon the expiration of the applicable survival period, such representations and warranties of Purchaser shall be of no further force or effect except that with respect to any particular alleged breach, Seller shall give Purchaser written notice prior to the expiration of the survival period of such alleged breach with reasonable detail as to the nature of such breach and files an action against Purchaser with respect thereto within sixty (60) days after the giving of such notice.
IN WITNESS WHEREOF, Purchaser has caused this Certificate to be executed by its duly authorized representative as of the day and year first above written.
"PURCHASER"
_____________________,
a____________________
By:_____________________________
Name:___________________________
Title:__________________________
(CORPORATE SEAL)
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
EXCEPTIONS TO REPRESENTATIONS AND WARRANTIES
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "Second Amendment"), made and entered into this 8th day of October, 2004, by and between WILDWOOD ASSOCIATES, a Georgia general partnership ("Seller" or "Associates"), whose sole general partners are Cousins Properties Incorporated and International Business Machines Corporation, and 2300 WINDY RIDGE PARKWAY INVESTORS LLC, a Delaware limited liability company ("Purchaser").
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement dated August 31, 2004 as amended by that certain First Amendment to Purchase and Sale Agreement dated September 23, 2004 among Seller, Purchaser and Cousins Properties Incorporated (collectively, the "Agreement"), relating to the purchase and sale of certain improved real properties located within Wildwood Office Park, Atlanta, Cobb County, Georgia, more particularly described in the Agreement; and
WHEREAS, Seller and Purchaser desire to modify and amend the Agreement in certain respects as hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises, the mutual agreements contained herein, the sum of Ten and No/100 Dollars ($10.00) in hand paid by each of the parties hereto to the other at and before the sealing and delivery of these presents, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby expressly acknowledged by the parties hereto, the parties hereto do hereby covenant and agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have the same respective meaning given to such terms in the Agreement.
2. Additional Earnest Money. Section 2.4(b) of the Agreement is hereby amended by deleting the words "on or before the last day of the Inspection Period" appearing in the first sentence thereof and the words "prior to the expiration of the Inspection Period" in the second sentence thereof and the substitution in lieu thereof in each case the words "on or before October 13, 2004".
3. Purchase Price. The allocation of the Purchase Price among the Properties set forth in Section 2.5 of the Agreement is hereby deleted in it entirety. Seller and Purchaser agree that Purchaser shall have the right to make reasonable allocations of the Purchase Price among the Properties by giving written notice of such allocations to Seller on or before October 18, 2004.
4. Additional Credit Against Purchase Price. Section 2.5(c) of the Agreement is hereby amended by adding the following to the end thereof:
"Seller shall also provide to Purchaser at Closing a credit in the amount of $3,500,000 against the Purchase Price allocated to 2300 Windy Ridge Parkway as a capital cost credit for capital repair items with respect to 2300 Windy Ridge Parkway."
5. Amendment to 3200 IBM Lease. Seller and Purchaser agree that the
amendment to the 3200 IBM Lease referred to in the last grammatical paragraph of
Section 4.3(a) of the Agreement shall provide for the deletion of Article 20 of
the 3200 IBM Lease (in addition to the deletion of Article 21 thereof), thereby
causing the rights granted to the tenant under both Articles 20 and 21 of the
3200 IBM Lease to be of no further force or effect. Seller and Purchaser further
agree that at the time the amendment to the 3200 IBM Lease reflecting the
deletion of Articles 20 and 21 thereof is fully executed, a reference to such
amendment shall be added to Exhibit "G".
6. Concession Allowance. A new Section 5.4 (j) is hereby added to the Agreement to read as follows:
"(j) Concession Allowance Under 2300 Windy Ridge Parkway Lease with Corporate Sports Unlimited, Inc. All accrued unpaid amounts of the Concession Allowance (as that term is defined in the Lease Agreement dated February 1, 1993 between Seller and Corporate Sports Unlimited, Inc.) as of the Closing Date will be a credit to Purchaser with respect to the Purchase Price."
7. Loan Assumption. Section 6.1(f) is hereby amended to provide that as an additional condition to Purchaser's obligation to consummate the transactions contemplated by the Agreement, Purchaser shall have obtained from Lender a consent to Purchaser's request that the applicable Loan Documents be modified to reflect (1) the identity of the Purchaser's assignee 3200 Windy Hill Road Investors LLC ("3200 Investors") as the borrower; (2) that a one (1) time transfer of membership interest in 3200 Investors will be a "Permitted Transfer" which will not require Lender's approval, provided that the Loan is not in default, and that the beneficial ownership of the membership interests of 3200 Investors remains controlled by the Real Estate Separate Account or its beneficiaries, and that UBS Realty Investors LLC remains the non-member manager of 3200 Investors; (3) Lender's agreement to a subsequent one (1) time transfer of 3200 Windy Hill Road to an unaffiliated buyer provided that the unaffiliated buyer meets Lender's requirements, and further provided that Lender is paid a transfer fee of one percent (1%) of the then outstanding principal balance, plus its out of pocket expenses, and (4) that Lender will accept environmental insurance in lieu of an environmental indemnity, and will accept 3200 Investors as the sole party having liability for the non-recourse carve-outs in the Loan Documents and the obligations under the Lease Brokerage Indemnity.
8. Substitution of Exhibits.
(a) That portion of EXHIBIT "A-1" to the Agreement identified as 3175 Windy Hill Road is hereby deleted in its entirety and replaced with Exhibit "A-1" attached hereto.
(b) EXHIBIT "C" to the Agreement is hereby deleted in its entirety and replaced with EXHIBIT "C" attached hereto.
(c) EXHIBIT "G" to the Agreement is hereby deleted in its entirety and replaced with EXHIBIT "G" attached hereto.
(d) EXHIBIT "P" to the Agreement is hereby deleted in its entirety and replaced with EXHIBIT "P" attached hereto.
9. Health Club Lease. Purchaser desires for the Lease Agreement with Corporate Sports Unlimited, Inc. dated February 1, 1993 with respect to premises in 2300 Windy Ridge Parkway to be converted to a month-to-month lease effective as of January 1, 2005, which month-to-month lease shall be terminable by Landlord on not more than sixty (60) days notice and otherwise on the terms set forth in such Lease Agreement. Seller hereby agrees that prior to Closing, Seller shall make no commitments or agreements with the tenant under such Lease which would be inconsistent with Purchaser's desire to convert such Lease to a month-to-month lease effective as of January 1, 2005.
10. Approval of Forms of Management Agreement and Leasing Agreement. Purchaser and Seller agree that their mutual approval, on or before October 13, 2004, of the terms of the Management Agreement and the Leasing Agreement shall be conditions precedent to the obligations of Seller and Purchaser to consummate the transactions contemplated by the Agreement. Purchaser and Seller each agree to act reasonably and in good faith to agree upon the terms of the Management Agreement and the Leasing Agreement on or before October 13, 2004.
11. W.H. Smith Termination Payment. Seller and Purchaser hereby
acknowledge and agree that pursuant to Section 4.3(a) of the Agreement the
termination payment (the "Termination Payment") previously paid to Seller by W
H. Smith, Inc. shall be retained by Seller without any adjustment to the
Purchase Price. Notwithstanding the foregoing, Seller agrees that if the Lender
requires the Termination Payment to be paid to Lender in reduction of the Loan
(and without imposition of any prepayment provision or penalty), Seller shall
pay the Termination Payment to Lender in reduction of the Loan prior to Closing
(thereby reducing the amount of the credit against the Purchase Price under
Section 2.5(b) of the Agreement), and Purchaser consents to such prepayment.
Seller and Purchaser further agree that if the Lender requires as additional
security for the Loan until such time as the space previously leased by W. H.
Smith, Inc., has been re-leased, that any portion of the Termination Payment be
deposited in escrow (the "Escrow"), Seller shall deposit such funds in the
Escrow, and in such case, Seller shall transfer and assign to Purchaser at
Closing all of Seller's right, title and interest in and to the Escrow, and
Seller shall receive a credit at Closing in the amount equal to the balance of
the proceeds in the Escrow as of the date of Closing.
12. Title and Survey. Except as a result of Seller's failure to cure Monetary Objections or to comply with Seller's obligations under Section 5.1 of the Agreement, Purchaser hereby waives any right to terminate the Agreement under Section 3.4 thereof as a result of any title or survey objections set forth in the letter from Sutherland Asbill & Brennan LLP to Seller dated October 6, 2004, which letter constitutes the "First Title Notice" pursuant to Section 3.4 of the Agreement. The foregoing shall in no event limit or affect Purchaser's right to give a Subsequent Title Notice to Seller from time to time as provided in Section 3.4 of the Agreement, such right being hereby expressly reserved by Purchaser.
13. Inspection Period. Purchaser does hereby waive any right to terminate the Agreement under Section 3.6 thereof. Notwithstanding the foregoing, if Purchaser terminates this Agreement pursuant to this Second Amendment, the Escrow Agent shall pay the Earnest Money to Purchaser.
14. Estoppel Certificates. Purchaser acknowledges that Purchaser has received all Tenant Estoppel Certificates required to be delivered to Purchaser under Section 6.1(c) of the Agreement except for the Tenant Estoppel Certificate from General Electric Company with respect to its Lease at 3200 Windy Hill Road and that upon the receipt by Purchaser of the required Tenant Estoppel Certificate from General Electric Company with respect to its Lease at 3200 Windy Hill Road, the condition set forth in Section 6.1(c) of the Agreement shall be satisfied.
15. Binding Effect, Governing Law and Counterparts. This Second Amendment shall be binding upon and shall inure to the benefit of Seller and Purchaser and their respective successors and assigns. This Second Amendment shall be governed by and construed in accordance with the laws of the State of Georgia. This Second Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Each party shall be entitled to rely upon the facsimile receipt of this Second Amendment signed by the other party, and the facsimile copy of the executed signature pages of any counterpart hereof may be appended or attached to any other counterpart, and, provided that both parties hereto shall have executed a counterpart hereof, this Second Amendment shall be valid and binding upon the parties notwithstanding the fact that the execution of both parties may not be reflected upon any one single counterpart. Except as amended hereby, the Agreement is and shall remain unmodified and in full force and effect.
[Signatures commence on following page]
IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment as of the day, month and year first above written.
SELLER:
WILDWOOD ASSOCIATES,
a Georgia general partnership
By: Cousins Properties Incorporated,
a Georgia corporation, General Partner
By: /s/ Jack A. LaHue ----------------------------------------- Name: Jack A. LaHue Title: Senior Vice President |
By: International Business Machines Corporation, a New York corporation, General Partner
By: /s/ Richard K. Wood, Jr.
--------------------------------------------
Name: Richard K. Wood, Jr.
Title: Director Real Estate Asset
Management and Investments
|
PURCHASER:
2300 WINDY RIDGE PARKWAY INVESTORS
LLC, a Delaware limited liability company
By: UBS Realty Investors LLC, a Massachusetts
limited liability company, its Manager
By: /s/ Michael T. Mistretta -------------------------------------------- Name: MICHAEL T. MISTRETTA Title: Director |
EXHIBIT "A-1"
3175 Windy Hill Road
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 987 of the 17th District, 2nd Section of Cobb County, Georgia, and being more particularly described as follows:
TO FIND THE POINT OF BEGINNING, commence at the corner common to Land Lots 939, 940, 987 and 988, said District, Section and County; running thence along the Land Lot line common to Land Lots 940 and 987 south 00 degrees 07 minutes 30 seconds east a distance of 80.00 feet to a point, which point marks the POINT OF BEGINNING; FROM SAID POINT OF BEGINNING AS THUS ESTABLISHED, thence leaving said common Land Lot line and running along the arc of a curve to the left (said arc being subtended by a chord bearing south 82 degrees 56 minutes 28 seconds east a chord distance of 274.30 feet and having a radius of 565.00 feet) an arc distance of 277.07 feet to a point on the westerly right-of-way line of Windy Hill Road (having a varying right-of-way width); running thence along the westerly right-of-way line of Windy Hill Road south 11 degrees 56 minutes 30 seconds east a distance of 254.55 feet to an iron pin found (1/2" rebar); thence leaving the westerly right-of-way line of Windy Hill Road and running south 89 degrees 52 minutes 30 seconds west a distance of 324.27 feet to a point; running thence north 00 degrees 07 minutes 30 seconds west a distance of 283.45 feet to a point, which point marks the POINT OF BEGINNING; said tract being designated 3175 Windy Hill Road and being shown as containing 75,867 square feet or 1.742 acres, more or less, on Survey for Cousins Properties Incorporated and Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John Evan Norton, Georgia Registered Land Surveyor No. 1848, dated July 15, 2004, revised July 22, 2004.
TOGETHER WITH a permanent non-exclusive easement for the construction, installation, maintenance and repair of underground utilities, conduits and facilities, and for pedestrian and vehicular access, ingress and egress under, across, over and through the following described property:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 987 of the 17th District, 2nd Section of Cobb County, Georgia, and being more particularly described as follows:
TO FIND THE POINT OF BEGINNING, commence at the corner common to Land Lots 939, 940, 987 and 988, said District, Section and County; running thence along the Land Lot line common to Land Lots 940 and 987 South 00 degrees 07 minutes 30 seconds East a distance of 80.00 feet to a point; thence leaving such common Land Lot line and run along an arc of a curve to the left (said arc being subtended by a chord bearing South 82 degrees 56 minutes 28 seconds East a chord distance of 274.30 feet and having a radius of 565.00 feet) an arc distance of 277.07 feet to a point on the westerly line of the right-of-way of Windy Hill Road, which point marks the POINT OF BEGINNING; FROM SAID POINT OF BEGINNING AS THUS ESTABLISHED, running thence along an arc of a curve to the right (said arc being subtended by a chord bearing South 84 degrees 52 minutes 50 seconds West a chord distance of 36.87 feet and having a radius of 565.00 feet) an arc distance of 36.88 feet to a point; running thence North 33 degrees 48 minutes 16 seconds East a distance of 51.54 feet to a point on the westerly line of the
right-of-way of Windy Hill Road; running thence along an arc of a curve to the left (said arc being subtended by a chord bearing South 11 degrees 11 minutes 50 seconds East a chord distance of 23.54 feet and having a radius of 905.95 feet) and following the westerly line of the right-of-way of Windy Hill Road an arc distance of 23.54 feet to a point; running thence South 11 degrees 56 minutes 30 seconds East along the westerly line of the right-of-way of Windy Hill Road a distance of 16.81 feet to THE POINT OF BEGINNING; said tract being shown on Survey of 3175 Windy Hill Road for Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John Evan Norton, Georgia Registered Land Surveyor No. 1848, dated July 15, 2004, last revised July 22, 2004.
ALSO TOGETHER WITH a temporary (for the term hereinafter provided) non-exclusive easement for the construction, installation, maintenance and repair of underground utilities, conduits and facilities, and for pedestrian and vehicular access, ingress and egress under, across, over and through the following described property:
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 987 of the 17th District, 2nd Section of Cobb County, Georgia, and being more particularly described as follows:
TO FIND THE POINT OF BEGINNING, commence at the corner common to Land Lots 939, 940, 987 and 988, said District, Section and County; running thence along the land lot line common to Land Lots 940 and 987 South 00 degrees 07 minutes 30 seconds East a distance of 80.00 feet to a point, which point marks the POINT OF BEGINNING; FROM SAID POINT OF BEGINNING AS THUS ESTABLISHED, thence leaving said common land lot line and running North 21 degrees 06 minutes 27 seconds East a distance of 30.00 feet to a point; running thence along the arc of a curve to the left (said arc being subtended by a chord bearing South 83 degrees 32 minutes 23 seconds East a chord distance of 270.57 feet and having a radius of 535.00 feet) an arc distance of 273.54 feet to a point; running thence along the arc of a curve to the left (said arc being subtended by a chord bearing South 04 degrees 57 minutes 53 seconds East a chord distance of 12.32 feet and having a radius of 1,480.00 feet) an arc distance of 12.32 feet to a point on the northerly right-of-way line of Windy Hill Road; running thence along the northerly right-of-way line of Windy Hill Road South 78 degrees 03 minutes 30 seconds West a distance of 12.24 feet to a point on the westerly right-of-way line of Windy Hill Road; running thence along the westerly right-of-way line of Windy Hill Road South 11 degrees 56 minutes 30 seconds East a distance of 16.81 feet to a point; thence leaving the westerly right-of-way line of Windy Hill Road and running along an arc of a curve to the right (said arc being subtended by a chord bearing North 82 degrees 56 minutes 28 seconds West a chord distance of 274.30 feet and having a radius of 565.00 feet) an arc distance of 277.07 feet to a point, which point marks the POINT OF BEGINNING; said tract being shown on Survey of Bright Horizons Children's Center for Wildwood Associates, prepared by Engineering & Inspection Systems, Inc., certified by John Evan Norton, Georgia Registered Land Surveyor No. 1848, dated April 14, 1993, revised May 18, 1993.
LESS AND EXCEPT from the foregoing described temporary easement area the portion thereof within the boundaries of the permanent easement area described above.
This temporary easement shall expire and be of no further force or effect upon the earlier of (i) June 30, 2009 or (ii) the termination of the existing lease between Wildwood Associates and
Bright Horizons Children's Centers, Inc., dated April 30, 1993, as amended by First Amendment to Lease between Wildwood Associates and Bright Horizons Children's Centers, Inc., dated May 20, 1993, and as further amended by Second Amendment to Lease between Wildwood Associates and Bright Horizons Children's Centers, Inc., dated September 12, 2000, it being understood and agreed that this temporary easement is granted to Grantee solely for the purpose of providing to Grantee an easement which, when combined with the permanent easement described above, corresponds to the easement heretofore granted to the tenant under the aforesaid existing lease. Grantee's utilization of this temporary easement and exercise of its rights of construction, installation, maintenance and repair under this temporary easement shall be limited solely to the circumstances that will allow Grantee to satisfy the obligations of the "Lessor" under the aforesaid existing lease.
AND ALSO TOGETHER WITH the easement rights appurtenant to said first described property created and established by:
(a) Master Declaration of Covenants and Cross-Easements for Wildwood Office Park by Cousins Properties Incorporated, dated January 23, 1991, recorded in Deed Book 5992, page 430, in the office of the Clerk of the Superior Court of Cobb County, Georgia, as amended by First Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park dated June 26, 1992, recorded in Deed Book 6839, page 241, aforesaid records, as further amended by Second Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 13, 2000, filed for record December 20, 2000, recorded in Deed Book 13316, page 3847, aforesaid records, as further amended by Third Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of December 18, 2001, filed for record December 21, 2001, recorded in Deed Book 13465, page 958, aforesaid records, as further amended by Fourth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 30, 2003, recorded in Deed Book 13879, page 942, aforesaid records, and as further amended by Fifth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park, dated as of September 20, 2004, recorded in Deed Book 14045, page 4872, aforesaid records.
(b) Easement Agreement among O'Neill Enterprises, Inc., The Griffin Company, The Powers Ridge Office Park Condominium Association, Inc., and River Properties Incorporated dated March 1, 1984, recorded in Deed Book 3130, page 48, aforesaid records.
(c) Sewer easement reserved in Warranty Deed from River Properties, Incorporated to United States of America dated December 19, 1979, recorded in Deed Book 2125, page 446, aforesaid records.
(d) Sewer easement reserved in Warranty Deed from Lenox Peachtree Incorporated to United States of America dated December 19, 1979, recorded in Deed Book 2125, page 448, aforesaid records, as modified by Easement Modification Agreement dated September 16, 1982, recorded in Deed Book 2591, page 353, aforesaid records, as further modified by Easement Modification Agreement dated November 28, 1983, recorded in Deed Book 2949, page 52, aforesaid records, as further modified by Easement
Modification Agreement dated February 20, 1987, recorded in Deed Book 4367, page 98, aforesaid records.
(e) Limited Warranty Deed from Cousins Properties Incorporated to Wildwood Associates dated May 18, 1993, recorded in Deed Book 7362, page 355, aforesaid records.
EXHIBIT "C"
LIST OF COMMISSION AGREEMENTS
2300 Windy Ridge Parkway:
1. Letter agreement between Wildwood Associates, as Owner, and Flagship Group, Inc., as Broker, dated June 13, 1995, fully executed on June 16, 1995, regarding Office Depot, Inc., as Tenant.
2. Letter agreement between Wildwood Associates, as Owner, and The Miller-Richmond Company, as Broker, dated September 7, 1994, as revised April 3, 1995, fully executed on April 24, 1995, regarding Federal Home Loan Mortgage Corporation, as Tenant.
3. Commission Agreement between Wildwood Associates, as Landlord, and AFCO Realty, L.L.C., as Broker, dated September 11, 2003 regarding Assignment of Lease and First Amendment to Lease dated July 31, 2003, between Tenant and Frederick Abeles, D.D.S., P.C., as Tenant.
4. Commission Agreement between Wildwood Associates, as Lessor, and Cushman & Wakefield of Georgia, Inc., as Broker, dated April 25, 1995, fully executed on May 1, 1995, regarding Computer Associates International, Inc., as Tenant.
5. Letter agreement between Wildwood Associates, as Owner, and CK-Atlanta Office Management, Inc. (Childress Klein Properties), dated February 8, 1993, revised February 25, 1993 regarding Stanley D. Lindsey & Associates, Ltd., as Tenant.
6. Letter agreement between Wildwood Associates, as Landlord, and The Galbreath Company, now known as AFCO Realty Services, LLC, as Broker, dated May 4, 1995 and letter dated May 23, 1997, regarding Life Office Management Association, Inc., as Tenant.
7. Letter agreement between Wildwood Associates, as Owner, and Insignia/ESG, as Broker, dated June 29, 2001 regarding Manhattan Associates, Inc., as Tenant.
8. Commission Agreement between Wildwood Associates, as Landlord, and The Fulton Group, Inc., as Broker, dated January 25, 1995 regarding U.S.A. Food Corporation, a/k/a Cafe 2300, as Tenant.
9. Letter agreement between Wildwood Associates, as Owner, and J.P. Associates, as Broker, dated June 5, 1996, fully executed on June 7, 1996, regarding Financial Service Corporation, as Tenant.
10. Letter agreement between Wildwood Associates, as Owner, and Advantis, as Broker, dated May 8, 2001 regarding Scientific Research Corporation, as Tenant.
11. Commission Agreement between Wildwood Associates, as Owner, and Carter &
Associates, as Broker, dated June 8, 1998, fully executed on July 17,
1998, regarding The Profit Recovery Group International I, Inc., as
Tenant.
12.A Commission Agreement between Wildwood Associates, as Owner, and Cushman &
Wakefield of Georgia, Inc., as Broker, dated February 27, 2001 regarding
International Paper Company, as Tenant.
12.B Letter Agreement between Wildwood Associates and Carter and Associates
dated May 10, 1989 regarding Champion International Paper.
12.C Letter Agreement between Wildwood Associates and Corporate Property
Consultants dated February 29, 1996 regarding Champion International Corp.
13. Commission Agreement between Wildwood Associates, as Landlord, and The
T.J. Wesley Co., Inc. d/b/a The Wesley Company, as Broker, dated October
6, 2003 regarding Citigroup Global Markets Inc., as Tenant.
|
2401 Windy Ridge Parkway:
None
3050 Windy Hill Road:
None
3175 Windy Hill Road:
None
3200 Windy Hill Road:
1. Letter agreement between Wildwood Associates, as Owner, and Carter & Associates, L.L.C., as Broker, dated March 10, 2003 regarding Coca-Cola Enterprises Inc., Coca-Cola Bottlers Sales & Service Company and the CBS Joint Venture, as Tenant.
2. Commission Agreement between Wildwood Associates, as Landlord, and Tipps Realty Services, LLC, as Broker, dated on or about April 25, 2003 (undated) regarding Alliance Data Systems Corporation, as Tenant.
3. Letter agreement between Wildwood Associates, as Owner, and Jones Lang LaSalle Financial & Corporate Services, Inc., as Broker, dated March 31, 1999, as revised April 14, 1999 regarding PricewaterhouseCoopers, LLP, as Tenant.
4. Commission Agreement between Wildwood Associates, as Landlord, and Carter & Associates, as Broker, dated February 28, 2003 regarding Envision Communications, Inc., as Tenant (currently Educational Concepts Group, Inc. is tenant as to 2,534 RSF and Envision Communications is tenant as to 11,131 RSF).
5. Commission Agreement between Wildwood Associates, as Landlord, and Cushman & Wakefield of Georgia, Inc., as Broker, dated May 10, 2004, related to General Electric Company, as Tenant, as affected by letter from General Electric Company and Cushman & Wakefield of Georgia, Inc. to Cousins Properties Incorporated dated May 12, 2004, and response letter from Cousins Properties Incorporated dated May 21, 2004.
1547 Powers Ferry Road:
1. Leasing Commission Agreement between Wildwood Office Park, Inc., as Lessor, and Brannen Goddard Company, as Broker, dated March 1, 1985 regarding First Georgia Bank of Cobb County (now known as Wachovia Bank, N.A.), as Lessee.
1927 Powers Ferry Road:
None
1931 Powers Ferry Road:
None
1935 Powers Ferry Road:
1. Letter agreement between Wildwood Associates, as Owner, and Foremark, Ltd., as Broker, dated July 31, 2002 regarding Famous Dave's Ribs, Inc.
1945 Powers Ferry Road:
None
EXHIBIT "G"
LIST OF LEASES
2300 Windy Ridge Parkway:
1. Lease Agreement between Wildwood Associates, as Landlord, and Aumund Corporation, as Tenant, dated October 8, 2002, as amended by Letter dated November 30, 2002.
2. Letter of Agreement dated April 1, 1996 between BellSouth Telecommunications, Inc. and Cousins Properties Incorporated and Communications Site Access Agreement between Wildwood Associates and Bell South Mobility Inc., dated February 4, 1997.
3. Lease Agreement between Wildwood Associates, as Landlord, and Casablanca Hair d/b/a Boardroom Barbers at Wildwood, as Tenant, dated October 10, 1995, as amended by First Amendment to Lease between the same parties, dated August 25, 2000.
4. Lease Agreement between Wildwood Associates, as Landlord, and Chevron U.S.A. Inc., as Tenant, dated June 15, 1989, as amended by First Amendment to Lease between the same parties, dated as of May 11, 1990; as further amended by Second Amendment to Lease between the same parties, dated as of December 20, 1990; as further amended by Third Amendment to Lease between the same parties, dated as of August 15, 1991; as evidenced by Memorandum of Lease between the same parties, dated August 28, 1992; as further amended by Fourth Amendment to Lease between the same parties, dated as of September 10, 1992; as further amended by Fifth Amendment to Lease between the same parties, dated as of September 30, 1992; as further amended by Sixth Amendment to Lease between the same parties, dated July 29, 1994; as further amended by Seventh Amendment to Lease between the same parties, dated August 31, 1998; as further amended by Standard Sublease Agreement with Manhattan Associates, Inc. dated November 20, 2000 and Consent to Sublease dated November 20, 2000.
5. Lease Agreement between Wildwood Associates, as Landlord, and Citigroup Global Markets, Inc., as Tenant, dated October 14, 2003.
6. Lease Agreement between Wildwood Associates, as Landlord, and Coca-Cola Enterprises, Inc., as Tenant, dated August 8, 2002.
7. Lease Agreement between Wildwood Associates, as Landlord, and Computer Associates International, Inc., as Tenant, dated May 9, 1988; as amended by First Amendment to Lease between the same parties, dated August 25, 1988; as further amended by Second Amendment to Lease between the same parties, dated January 27, 1989; as further amended by Third Amendment to Lease between the same parties, dated February 16, 1990; as further amended by Fourth Amendment to Lease between the same parties, dated April 27, 1995.
8. Lease Agreement between Wildwood Associates, as Landlord, and Corporate Sports Unlimited, Inc., as Tenant, dated as of February 1, 1993.
9. Retail Area Lease between Wildwood Associates, as Landlord, and Cousins Management, Inc., as Tenant, dated as of July 31, 1989; as amended by First Amendment to Lease between Wildwood Associates, as Landlord, and Cousins Properties Incorporated, successor in interest to Tenant, dated August 31, 1994; as further amended by Second Amendment to Lease between the same parties, dated as of September 21, 1995; as further amended by Third Amendment to Lease between the same parties, dated November 28, 2000.
10. Lease Agreement between Wildwood Associates, as Landlord, and Mahesh J. Desai d/b/a VIP Cleaners, as Tenant, dated March 31, 2004, as amended by First Amendment to Lease Agreement dated August 18, 2004.
11. Communications License Agreement between Wildwood Associates, as Licensor, and Cypress Communications, Inc., as Licensee, dated June 21, 2000; as amended by First Amendment to Communications License Agreement between the same parties, dated November 1, 2002.
12. Lease Agreement between Wildwood Associates, as Landlord, and Dr. Frederick Abeles, as Tenant, dated October 14, 1993; as assigned and amended by Assignment of Lease and First Amendment to Lease Agreement among Wildwood Associates, as Landlord, Dr. Frederick Abeles, as Current Tenant, and Frederick Abeles, D.D.S., P.C., as Tenant, dated July 31, 2003.
13. Lease Agreement between Wildwood Associates, as Lessor, and Financial Service Corporation, as Lessee, dated March 29, 1990; as amended by First Amendment to Lease between the same parties, dated October 12, 1990; as further amended by Second Amendment to Lease between the same parties, dated as of June 1, 1991; as further amended by Third Amendment to Lease between the same parties, dated September 30, 1993; as further amended by Fourth Amendment to Lease between the same parties, dated December 22, 1993; as further amended by Letter dated December 28, 1994; as further amended by Fifth Amendment to Lease between the same parties, dated May 31, 1996; as further amended by Sixth Amendment to Lease between the same parties, dated July 15, 1996; as further amended by Seventh Amendment to Lease between the same parties, dated August 19, 1996; as further amended by Eighth Amendment to Lease between the same parties, dated September 30, 1996; as further amended by Ninth Amendment to Lease between the same parties, dated October 29, 1996; as further amended by Tenth Amendment to Lease between the same parties, dated September 15, 1997; as further amended by Eleventh Amendment to Lease between the same parties, dated February 1, 1998; as further amended by Twelfth Amendment to Lease between the same parties, dated May 23, 2000; as further amended by Supplemental Agreement between the same parties dated May 23, 2000; as further amended by Thirteenth Amendment to Lease between the same parties, dated May 31, 2001.
14. Lease Agreement between Wildwood Associates, as Landlord, and Federal Home Loan Mortgage Corporation, as Tenant, dated April 17, 1995; as amended by Letter Agreement dated December 7, 1995; as further amended by Letter Agreement dated January 18, 1996; as further amended by First Amendment to Lease Agreement between the same
parties, dated November 13, 2001; as further amended by Second Amendment to Lease Agreement between the same parties, dated October 8, 2003.
15. Lease Agreement between Wildwood Associates, as Lessor, and Champion International Corporation, as Lessee, dated May 2, 1989; as amended by First Amendment to Lease between the same parties, dated March 29, 1996; as further amended by Second Amendment to Lease between the same parties, dated August 25, 1998; as further amended by Third Amendment to Lease between Wildwood Associates, as Lessor, and International Paper Company as successor-in-interest to Tenant, dated February 26, 2001; as further amended by Fourth Amendment to Lease Agreement between the same parties, dated July 14, 2003.
16. Lease Agreement between Wildwood Associates, as Landlord, and Life Office Management Association, Inc., as Tenant, dated April 3, 1995; as amended by Agreement between the same parties, dated as of April 3, 1995; as further amended by First Amendment to Lease Agreement between the same parties, dated November 10, 1997; as further amended by that certain Sublease with Manhattan Associates, Inc. dated October __, 2000 and Consent to Sublease dated October 25, 2000.
17. Lease Agreement between Wildwood Associates, as Landlord, and Manhattan Associates, LLC, as Tenant, dated June 25, 2001; as further amended by First Amendment to Lease Agreement between the same parties, dated June 10, 2002 as affected by Supplemental Notice dated August 8, 2003.
18. Telecommunications License Agreement between Wildwood Associates, as Licensor, and MCI Metro Access Transmission Services, Inc., as Licensee, dated as of May 10, 1995; as amended by First Amendment to Telecommunications License Agreement between the same parties, dated September 13, 2000.
19. Lease Agreement between Wildwood Associates, as Landlord, and Office Depot, Inc., as Tenant, dated September 26, 1995; as amended by Letter dated September 8, 1995; as further amended by Letters dated March 7, 2000 and March 23, 2000 exercising renewal option.
20. Lease Agreement between Wildwood Associates, as Landlord, and The Profit Recovery Group International I, Inc., as Tenant, dated July 17, 1998.
21. Lease Agreement between Wildwood Associates, as Landlord, and Scientific Research Corporation, as Tenant, dated August 23, 2001; as amended by First Amendment to Lease Agreement between the same parties, dated March 19, 2003.
22. Lease Agreement between Wildwood Associates, as Lessor, and Stanley D. Lindsey & Associates, Ltd., as Lessee, dated March 29, 1993; as amended by First Amendment to Lease between the same parties, dated March 15, 1994; as further amended by Letter dated December 28, 1994; as further amended by Second Amendment to Lease between the same parties, dated January 31, 1996; as further amended by Third Amendment to Lease Agreement between the same parties, dated February 24, 2003.
23. Standard Form ATM Lease between Wildwood Associates, as Landlord, and SunTrust Bank, Atlanta, as Tenant, dated April 27, 1998; as amended by Letter Agreement dated February 16, 2000; as further amended by Letter Agreement dated February 15, 2002; as further amended by First Amendment to Lease between the same parties, dated February 23, 2004.
24. Communications Building Access Agreement between Wildwood Associates, as Landlord, and Teleport Communications, Inc., as User, dated as of September 20, 2000; as further amended by Confirmation Notice dated November 6, 2000.
25. Specialty License Agreement between Wildwood Associates, as Licensor, and Thomas Strickland, as Licensee, dated as of April 11, 2002.
26. Lease Agreement between Wildwood Associates, as Landlord, and U.S.A. Food Corporation, as Tenant, dated January 25, 1995; as amended by First Amendment to Lease between the same parties, dated July 31, 1998; as assigned by Assignment and Assumption of Lease Agreement among Wildwood Associates, as Landlord, U.S.A. Food Corporation, as Assignor, and K & Lee Family, Inc., as Assignee, dated May 31, 2003, effective May 31, 2003.
27. Drop Box Agreement between Wildwood Associates and Airborne Express dated April 26, 1993.
28. Federal Express Placement Agreement between Wildwood Associates and Federal Express Corporation dated April 19, 2002, as amended by FedEx Placement Agreement and Supplier Profile letter dated June 15, 2004.
29. Information Service Agreement dated May 21, 2001, between Captivate Network, Inc. and Wildwood Associates for the building commonly known as 2300 Windy Ridge Parkway, Atlanta, Georgia (10 elevators), as amended by letter agreement dated August 9, 2004.
3050 Windy Hill Road
1. Ground Lease between Wildwood Associates, as Landlord, and Houston's Restaurants, Inc., as Tenant, dated July 9, 1992; as evidenced by Memorandum of Lease between the same parties, dated as of July 9, 1992, filed for record September 11, 1992, recorded in Deed Book 6839, page 252, Cobb County, Georgia records; as amended by First Amendment to Ground Lease between the same parties, dated as of July 31, 1992; as further amended by Second Amendment to Ground Lease between the same parties, dated May 31, 1993; as further amended by Third Amendment to Ground Lease between the same parties, dated July 15, 1993; as affected by Letter Agreement between the same parties, dated September 2, 1993; as affected by Quitclaim Deed dated August 18, 1995; as amended by letter from Landlord dated January 18, 1995; as further amended by Fourth Amendment to Ground Lease between the same parties, dated as of October 13, 1998.
3175 Windy Hill Road:
1. Lease between Wildwood Associates, as Landlord, and Bright Horizons Children's Centers, Inc., as Tenant, dated April 30, 1993; as evidenced by Memorandum of Lease between the same parties dated May 20, 1993, recorded in Deed Book 7464, page 51, Cobb County, Georgia records; as amended by Agreement regarding terms of Lease undated; as amended by First Amendment to Lease between the same parties, dated May 20, 1993; as affected by Disclosure Statement among Landlord, Tenant and AFCO Realty Associates, Inc., dated November 19, 1993; as affected by Letter from Landlord, dated January 18, 1995; as further amended by Second Amendment to Lease Agreement between the same parties, dated September 12, 2000.
3200 Windy Hill Road:
1. Lease Agreement between Wildwood Associates, as Landlord, and ADS Alliance Data Systems, Inc., as Tenant, dated April 25, 2003.
2. Lease Agreement between Wildwood Associates, as Landlord, and Coca-Cola Bottlers Sales & Service Company, LLC, as Tenant, and Coca-Cola Enterprises, Inc. ("CCE"), dated March 31, 2003; as amended by Agreement Regarding Lease Termination and Replacement Lease among Landlord, Tenant and Coca-Cola Enterprises, Inc., dated as of March 31, 2003; as affected by Lease Agreement between Wildwood Associates, as Landlord, and Coca-Cola Enterprises, Inc., as Tenant, dated March 31, 2003, as amended by Supplemental Notice from Landlord dated November 21, 2003.
3. Lease Agreement between Wildwood Associates, as Landlord, and Coca-Cola Enterprises, Inc., dated March 31, 2003; as amended by First Amendment to Lease Agreement between the same parties, dated June 23, 2003; as further amended by Second Amendment to Lease Agreement between the same parties, dated as of March 1, 2004.
4. Lease Agreement between Wildwood Associates, as Landlord, and Coca-Cola Enterprises, Inc., as Tenant, dated March 31, 2003, as further amended by Supplemental Notice from Landlord, dated May 19, 2003; as further amended by Letter Agreement between the same parties, dated September 30, 2003; as further amended by Letter Agreement between the same parties dated January 30, 2004.
5. Communications License Agreement between Wildwood Associates, as Licensor, and Cypress Communications, Inc., as Licensee, dated June 21, 2000; as amended by First Amendment to Communications License Agreement between the same parties, dated November 1, 2002.
6. Lease Agreement between Wildwood Associates, as Landlord, and Mahesh J. Desai d/b/a VIP Cleaners, dated March 31, 2004, as amended by First Amendment to Lease Agreement dated August 18, 2004.
7. Lease Agreement between Wildwood Associates, as Landlord, and Envision Communications, Inc., as Tenant, dated February 27, 2003; as amended by Indemnity Agreement Related to Tenant Finish Work between the same parties, dated February 6,
2003; as further amended by First Amendment to Lease Agreement between the same parties, dated September 4, 2003; as affected by letter from Landlord dated August 12, 2003; as further amended by Supplemental Notice from Landlord, dated August 13, 2003; as affected by letter from Tenant dated February 15, 2004; as further amended by Second Amendment to Lease Agreement between the same parties, dated March 24, 2004; as partially assigned by Tenant to Educational Concepts Group, Inc. by Assignment and Assumption of Lease Agreement dated March 24, 2004.
8. Lease Agreement between Wildwood Associates, as Landlord, and General Electric Company, as Tenant, dated April 6, 2004, as affected by letter from General Electric Company to Wildwood Associates, dated July 29, 2004.
9. Lease between Wildwood Associates, as Landlord, and International Business Machines Corporation, as Tenant, dated as of December 18, 1989; as amended by First Amendment to Lease between the same parties, dated as of August 31, 1990; as further amended by Supplemental Agreement between the same parties, dated as of May 9, 1991; as further amended by Third Amendment to Lease between the same parties, dated as of October 10, 1991; as amended by letter from Landlord dated December 27, 1994; as further amended by Fourth Amendment to Lease between the same parties, dated as of May 10, 1995; as affected by letter from Tenant dated June 26, 1995; as further amended by Fifth Amendment to Lease between the same parties, dated as of August 23, 1995; as affected by Sublease between Tenant, as Sublessor, and Technology Solutions Company, as Subtenant, dated as of October 1, 1995 with Consent to Sublease by Landlord, dated October 25, 1995; as further amended by Sixth Amendment to Lease between the same parties, dated as of October 31, 1996; as amended by Letter from Tenant, dated September 22, 1997; as further amended by Seventh Amendment to Lease between the same parties, dated as of December 15, 2000; as amended by Letter from Tenant, dated September 20, 2002; as further amended by Eighth Amendment to Lease between Landlord and Tenant, dated February 27, 2003; as further amended by Ninth Amendment to Lease between the same parties, dated as of March 3, 2003; as further amended by Tenth Amendment to Lease between the same parties, dated as of April 1, 2003; as further amended by Eleventh Amendment to Lease between the same parties, dated as of April 4, 2003; as further amended by Twelfth Amendment to Lease between the same parties, dated as of April 7, 2003; as further amended by Thirteenth Amendment to Lease between the same parties, dated as of June 30, 2003; as further amended by Fourteenth Amendment to Lease between the same parties, dated as of July 28, 2003; as affected by Letter from Tenant, dated August 8, 2003; as affected by Letter from Tenant dated October 28, 2003; as further amended by Fifteenth Amendment to Lease between the same parties, dated March 1, 2004; as further amended by Sixteenth Amendment to Lease between the same parties, dated as of March 30, 2004; as further amended by Seventeenth Amendment to Lease between the same parties, dated as of April 27, 2004.
10. Lease Agreement between Wildwood Associates, as Landlord, and Price Waterhouse, as Tenant, dated November 30, 1992; as amended by First Amendment to Lease between the same parties, dated April 10, 1998; as further amended by Second Amendment to Lease between Landlord and PricewaterhouseCoopers, LLP, successor in interest to Tenant, dated as of August 12, 1999; as amended by Supplemental Notice between the
same parties, dated January 5, 2000; as further amended by Third Amendment to Lease between the same parties, dated April 1, 2000; as affected by Sublease between International Business Machines Corporation, as Sublessor, and Pricewaterhousecoopers LLP, as Sublessee, dated as of October 1, 2002 with Consent and Agreement among Landlord, Sublessee and Tenant, dated December 12, 2002 as affected by Assignment and Assumption Agreement between Sublessee and PwCC LP dated as of October 1, 2002, as further amended by Letter from Tenant, dated October 7, 2003; as further amended by letter from Tenant dated October 28, 2003; as affected by Termination Agreement dated February 23, 2004.
11. Telecommunications License Agreement between Wildwood Associates, as Licensor, and Metrex Corporation d/b/a Metropolitan Fiber Systems of Atlanta, Inc., as Licensee, dated as of January 9, 1995; as amended by First Amendment to Telecommunications License Agreement between the same parties, dated December 6, 2000.
12. Lease Agreement between Wildwood Associates, as Landlord, and Thomas C.
Lim, d/b/a Plaza Newstand, as Tenant, dated May 18, 2004.
13. Communications Site Access Agreement between Wildwood Associates and Radscan of Atlanta, Inc. d/b/a/ AlarmNet, as User, dated November 1, 1996.
14. Communications Site Access Agreement between Wildwood Associates, as Owner, and Southern Communications Services, Inc., as User, dated as of June 13, 1996, as affected by Renewal Letter from Tenant dated December 19, 2001.
15. Communications Building Access Agreement between Wildwood Associates, as Landlord, and Teleport Communications Atlanta, Inc., as User, dated as of September 20, 2000; as affected by Confirmation Notice from Landlord dated November 1, 2000.
16. Lease Agreement between Wildwood Associates, as Landlord, and YHS, Inc. d/b/a Wildwood Cafe, as Tenant, dated April 6, 2004.
17. Letter Center Agreement between Wildwood Associates and United Parcel Service, Inc., dated effective January 1, 2004.
18. Information Service Agreement dated June 6, 2001, between Captivate Network, Inc. and Wildwood Associates for the building commonly known as 3200 Windy Hill Road, Atlanta, Georgia (12 elevators), as amended by letter agreement dated August 9, 2004.
1931 Powers Ferry Road:
1. Lease between Wildwood Associates, as Landlord, and La Madeleine of Georgia, Inc., as Tenant, dated March 7, 1996; as amended by Addendum to Lease between the same parties, dated March 7, 1996; as further amended by Supplemental Agreement undated; as evidenced by Short Form of Lease between the same parties, dated as of March 7, 1996; as further amended by First Amendment to Lease between the same parties, effective March 7, 1996; as further amended by Second Amendment to Lease between the same parties, dated December 10, 1996; as further amended by Third Amendment to
Lease between the same parties, dated July 30, 1998; as affected by Landlord's Agreement Regarding Equipment executed by Wildwood Associates on September 24, 2004.
1935 Powers Ferry Road:
1. Lease Agreement between Wildwood Associates, as Landlord, and Famous Dave's Ribs, Inc., as Tenant, dated October 1, 2002; as amended by Letter Agreement between the same parties, dated December 12, 2002; as amended by Supplemental Agreement between the same parties, dated December 30, 2002; as affected by Sublease Agreement between Tenant and Famous Ribs of Marietta, LLC, as Sublessee, dated as of September 19, 2003, with Consent to Sublease among Landlord, Tenant and Sublessee, dated October 27, 2003.
1945 Powers Ferry Road:
1. Lease between Wildwood Office Park, Inc., as Landlord, and TGI Friday's Inc., as Tenant, dated December 20, 1983; as evidenced by a Memorandum of Lease between the same parties, dated as of March 13, 1984, recorded in Deed Book 3056, page 304, Cobb County, Georgia Records, as amended by First Amendment to Lease between the same parties, dated March 14, 1984; as further amended by Second Amendment to Lease between the same parties, dated June 19, 1984; as further amended by Third Amendment to Lease between the same parties, dated as of September 17, 1984; as further evidenced by Revised and Supplemental Memorandum of Lease between the same parties dated October 3, 1984, recorded in Deed Book 3284, page 242, Cobb County, Georgia records; as affected by letter from Landlord dated January 18, 1995; as amended by letter agreement between the same parties dated September 17, 1999; as affected by Quitclaim Deed dated July 31, 1998; as further amended by Fourth Amendment to Lease between Wildwood Associates, successor to Landlord, and Tenant, dated as of July 31, 1998; as affected by Letter from Tenant dated May 26, 2004.
EXHIBIT "P"
UNPAID TENANT INDUCEMENT COSTS AND LEASING COMMISSIONS
1. 3200 Windy Hill Road; Lease with General Electric Company
Capitalized terms used in this Paragraph 1 and not otherwise defined in this Agreement shall have the meaning given to such terms in that certain Lease Agreement between Associates and General Electric Company dated as of January 1, 2004 (executed April 6, 2004) for premises located within 3200 Windy Hill Road (the "3200 GE Lease").
The respective responsibilities of Associates and Purchaser for unfunded Improvement Allowance amounts under the 3200 GE Lease are set forth and described in Exhibit "R" attached to this Agreement.
Seller and Purchaser acknowledge that Seller, as Landlord under the 3200 GE Lease, has received written notice from General Electric Company notifying Seller that General Electric Company will not be leasing any of the Premises C space. Associates shall retain, and Purchaser shall not assume, the obligations to pay unpaid leasing commission to CWG and Cousins for Premises A and Premises B, comprising an aggregate of 130,693 square feet of Rentable Floor Area (i.e., 80,593 square feet of Rentable Floor Area in Premises A and 50,100 square feet of Rentable Floor Area in Premises B). The leasing commission amounts attributable to the 3200 GE Lease heretofore paid to CWG and Cousins are $444,091.63 and $0.00, respectively. Associates and Purchaser acknowledge that, pursuant to Article 48 of the 3200 GE Lease, upon written request and direction from both Tenant and CWG, any unpaid portion of the commission otherwise payable by Landlord to CWG shall, upon such commission amount becoming due and payable to CWG, (i) be disbursed by Landlord in payment of the cost of the Layout Work, or (ii) be disbursed by Landlord to Tenant's specified vendor(s) providing furniture or equipment for installation within the Demised Premises, or (iii) be applied as a credit to Rent due under the 3200 GE Lease, or (iv) be paid to GE Realty, Inc. Associates agrees that any unpaid portion of the commission payable by Associates to CWG shall be paid by Associates in accordance with the written directions from Tenant and CWG as provided in Article 48 of the 3200 GE Lease, and if Tenant and CWG elect for any portion of such commission payable by Associates to CWG to be applied as a credit to Rent due under the 3200 GE Lease, such commission amount payable by Associates which is to be applied as a credit against Rent shall be paid by Associates to Purchaser.
2. Intentionally Omitted
3. 2300 Windy Ridge Parkway; Lease with Financial Services Corporation
There is currently an unfunded improvement allowance in the amount of $32,302.00 available for funding by the Landlord under this Lease. Purchaser shall not assume the obligation to pay this unfunded allowance amount, and Purchaser shall not receive a credit at Closing for all or any portion of this unfunded allowance amount. Instead, if and when Financial
Services Corporation shall qualify for funding or other credit of all or any portion of this unfunded allowance amount, Associates shall pay the applicable allowance to Purchaser for further funding or application as provided in this Lease. The obligation of Associates to fund such unfunded allowance amount shall survive the Closing for the entire remaining term of this Lease.
4. 2300 Windy Ridge Parkway; Lease with Scientific Research Corp. ("SRC")
There is currently an unfunded improvement allowance in the amount of $154,194.00 available for funding by the Landlord under this Lease. Purchaser shall not assume the obligation to pay this unfunded allowance amount, and Purchaser shall not receive a credit at Closing for all or any portion of this unfunded allowance amount. Instead, if and when SRC shall qualify for funding or other credit of all or any portion of this unfunded allowance amount, Associates shall pay the applicable allowance to Purchaser for further funding or application as provided in this Lease. The obligation of Associates to fund such unfunded allowance amount shall survive the Closing for the entire remaining term of this Lease.
5. 2300 Windy Ridge Parkway; Lease with Citigroup Global Markets, Inc.
There is currently an unfunded improvement allowance in the amount of $643,721.80 payable under this Lease. This unfunded allowance is payable to Citigroup Global Markets, Inc. upon receipt from this Tenant of back-up information relating to expenses incurred by this Tenant. If any of such unfunded improvement allowance has not been paid or applied as of the Closing, Purchaser shall assume the obligation to provide the unfunded portion of this improvement allowance as of the Closing, and Purchaser shall receive a credit against the Purchase Price at Closing for the amount of such unpaid allowance. To the extent that the unfunded tenant improvement allowance under this Lease exceeds $643,721.80, Seller shall pay the balance to the tenant under this Lease upon demand by Purchaser.
6. 2300 Windy Ridge Parkway; Lease with Dr. Frederick Abeles
There is currently an unfunded improvement allowance in the amount of $12,551.00 available for funding by Landlord under this Lease. This Lease requires the improvement allowance to be used for recarpeting and/or repainting the premises and to be funded within forty-five (45) days of receipt of paid invoices submitted by the Tenant under this Lease. This Lease provides that any portion of this improvement allowance as to which the Tenant under this Lease has not qualified for funding by December 1, 2005 shall be forfeited by the Tenant. Purchaser shall not assume the obligation to pay this unfunded allowance amount, and Purchaser shall not receive a credit at Closing for all or any portion of this unfunded allowance amount. Instead, if and when Dr. Abeles shall qualify for funding or other credit of all or any portion of this unfunded allowance, Associates shall pay the applicable allowance to Purchaser for further funding or application as provided in this Lease. The obligation of Associates to fund such unfunded allowance amount shall survive the Closing for the entire remaining term of this Lease.
7. 2300 Windy Ridge Parkway; Lease with Chevron U.S.A. Inc. ("Chevron")
The Tenant under this Lease currently leases 51,415 square feet of
rentable floor area located on the 8th floor of the building through March 31,
2005. Associates and the Tenant under this Lease have been negotiating the terms
of a lease proposal pursuant to which (i) Tenant will assign to Landlord the
current sublease agreement with Manhattan Associates for Suite 820 consisting of
5,448 square feet of rentable floor area and having a sublease term through
March 31, 2005 (Note: effective April 1, 2005, this space is covered under the
direct lease between Associates and Manhattan Associates), (ii) Tenant's lease
with respect to the remaining space on the 8th floor of the building containing
45,967 square feet of rentable floor area will terminate on November 30, 2004,
(iii) Tenant will lease approximately 12,624 square feet of rentable floor area
on the 5th floor of the building commencing on December 1, 2004 at a net annual
rental rate of $15.25 per square foot, increasing 3.0% per annum, for a term
expiring on November 30, 2010, (iv) Landlord will be obligated to make available
to Tenant a tenant improvement allowance with respect to the space leased by the
Tenant on the 5th floor of the building in the amount of $15.00 per square foot
of rentable floor area, and (v) Landlord will be obligated to pay leasing
commissions to the Tenant's broker and to the Landlord's inside leasing agent,
Cousins, attributable to the leasing by Tenant of the space on the 5th floor of
the building. In the event the lease transactions described in this Paragraph 7
are consummated prior to or within two (2) months after Closing, Purchaser shall
assume and be responsible for the payment of the tenant improvement allowance
with respect to the space leased by this Tenant on the 5th floor of the
building, and Seller shall retain, and Purchaser shall not assume, the
obligation to pay the leasing commissions to the Tenant's broker and to Cousins
attributable to the leasing by Tenant of up to 12,624 square feet of rentable
floor area on the 5th floor of the building for a term commencing no earlier
than December 1, 2004 and extending no later than November 30, 2010. The
foregoing commission payment obligation of Associates shall survive Closing for
a period of two (2) years thereafter.
8. 2300 Windy Ridge Parkway; Lease with Life Office Management Association, Inc. ("LOMA")
The Tenant under this Lease currently leases 56,652 square feet of rentable floor area located on the 6th floor of the building through October 31, 2005. Associates and the Tenant under this Lease have been negotiating the terms of a lease proposal pursuant to which (i) Tenant will assign to Landlord the current sublease agreement with Manhattan Associates for Suite 685 consisting of 7,028 square feet of rentable floor area and having a sublease term through October 31, 2005 (Note: effective November 1, 2005, this space is covered under the direct lease between Associates and Manhattan Associates); (ii) Tenant's lease with respect to its premises on the 6th floor of the building containing 56,652 square feet of rentable floor area will be amended effective October 31, 2004, (iii) commencing November 1, 2004, Tenant will lease 49,624 square feet of rentable floor area on the 6th floor of the building at a full service rental rate of $20.25 per square foot per year, increasing 3.0% per annum, for a term expiring on November 30, 2015, (iv) the premises on the 6th floor will be leased in "as-is, where-is" condition, and therefore, Landlord will not be obligated to make available to Tenant a tenant improvement allowance, and (v) Landlord will be obligated to pay leasing commissions to the Tenant's broker and to the Landlord's inside leasing agent, Cousins, attributable to the leasing by
Tenant of the space on the 6th floor of the building. In the event the lease transactions described in this Paragraph 8 are consummated prior to or within two (2) months after Closing, Purchaser shall assume and be responsible for the payment of the tenant improvement allowance with respect to the space leased by this Tenant on the 6th floor of the building, and Seller shall retain, and Purchaser shall not assume, the obligation to pay the leasing commissions to the Tenant's broker and to Cousins attributable to the leasing by Tenant of up to 49,624 square feet of rentable floor on the 6th floor of the building for a term commencing no earlier than November 1, 2004 and extending no later than October 31, 2015. The foregoing commission payment obligation of Associates shall survive Closing for a period of two (2) years thereafter.
9. 2300 Windy Ridge Parkway; Lease with Computer Associates International, Inc.
The Tenant under this Lease currently leases 62,445 square feet of
rentable floor area located on the 10th floor of the building through June 30,
2005. Associates and the Tenant under this Lease have been negotiating the terms
of a lease proposal pursuant to which (i) the Tenant will lease 52,175 square
feet of rentable floor area on the 9th floor of the building commencing on or
before July 1, 2005, (ii) from the date of Tenant's occupancy of the aforesaid
space on the 9th floor of the building through December 31, 2005, Tenant will
only be obligated to pay its pro rata share of operating expenses and taxes with
respect to such space occupied by Tenant on the 9th floor of the building, (iii)
commencing January 1, 2006, Tenant will be obligated to pay an annual net rental
rate of $14.50 per square foot of rentable floor area, increasing 3.0% per
annum, for a term expiring on December 31, 2015, (iv) Landlord will be obligated
to make available to Tenant a tenant improvement allowance and moving allowance
with respect to the space leased by the Tenant on the 9th floor of the building
in the aggregate amount of $45.00 per square foot of rentable floor area, and
(v) Landlord will be obligated to pay leasing commissions to the Tenant's broker
and to the Landlord's inside leasing agent, Cousins, attributable to the leasing
by Tenant of the space on the 9th floor of the building. In the event the lease
transaction as described in this Paragraph 9 is consummated prior to or within
six (6) months after Closing, Purchaser shall assume and be responsible for the
payment of the tenant improvement allowance and moving allowance with respect to
the space leased by this Tenant on the 9th floor of the building, and Seller
shall retain, and Purchaser shall not assume, the obligation to pay the leasing
commissions to the Tenant's broker and to Cousins attributable to the leasing by
Tenant of up to 52,175 square feet of rentable floor area on the 9th floor of
the building for a term extending no later than December 31, 2015. The foregoing
commission payment obligation of Associates shall survive Closing for a period
of two (2) years thereafter.
10. 3200 Windy Hill Road; Lease with Coca-Cola Enterprises, Inc.
There is currently an unfunded improvement allowance in the amount of $846,511.78 available for funding by the Landlord under this Lease. If any of such unfunded improvement allowance has not been paid or applied as of the Closing, Purchaser shall assume the obligation to provide the unfunded portion of the this improvement allowance as of the Closing, and Purchaser shall receive a credit against the Purchase Price at Closing for the amount of such unpaid allowance. To the extent that the current unfunded improvement allowance under this Lease exceeds $846,511.78, Seller shall pay such balance to the tenant under this Lease upon demand by Purchaser.
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (the "First Amendment"), made and entered into this 23rd day of September, 2004, by and between WILDWOOD ASSOCIATES, a Georgia general partnership ("Seller" or "Associates"), whose sole general partners are Cousins Properties Incorporated and International Business Machines Corporation, and 2300 WINDY RIDGE PARKWAY INVESTORS LLC, a Delaware limited liability company ("Purchaser"), and joined in by COUSINS PROPERTIES INCORPORATED, a Georgia corporation ("Cousins") for the purpose set forth in Paragraph 11 hereof.
W I T N E S S E T H:
WHEREAS, Seller and Purchaser entered into that certain Purchase and Sale Agreement dated August 31, 2004 (the "Agreement"), relating to the purchase and sale of certain improved real properties located within Wildwood Office Park, Atlanta, Cobb County, Georgia, more particularly described in the Agreement; and
WHEREAS, Seller and Purchaser desire to modify and amend the Agreement in certain respects as hereinafter provided.
NOW, THEREFORE, for and in consideration of the premises, the mutual agreements contained herein, the sum of Ten and No/100 Dollars ($10.00) in hand paid by each of the parties hereto to the other at and before the sealing and delivery of these presents, and for other good and valuable consideration, the receipt, adequacy and sufficiency of which are hereby expressly acknowledged by the parties hereto, the parties hereto do hereby covenant and agree as follows:
1. Defined Terms. Capitalized terms used but not defined herein shall have the same respective meaning given to such terms in the Agreement.
2. Extension of Inspection Period and Closing Date. Seller and Purchaser
hereby agree that the last day of the Inspection Period (as defined in Article 1
of the Agreement) is hereby extended from Friday, September 24, 2004 until
Friday, October 8, 2004; provided, however, Purchaser hereby agrees that on or
before 4:00 p.m. (local Atlanta time) on September 30, 2004, Purchaser shall
present to Seller for Seller's review a written description of all additional
modifications to the terms of the Agreement requested by Purchaser, if any,
including diligence issues or concerns that may be addressed with an adjustment
to or credit against the Purchase Price, together with copies of any third-party
reports and cost estimates obtained by Purchaser relating to such issues or
concerns (without any representations or warranties by Purchaser as to such
reports and estimates). Seller and Purchaser further agree that the Closing Date
shall be Thursday, October 21, 2004, and Section 2.8 of the Agreement is amended
accordingly. As a result of the extension of the Closing Date as provided in the
preceding sentence, clause (iii) of the first sentence of Section 6.1(c) of the
Agreement is hereby deleted and the following is substituted in lieu thereof:
"(iii) to be dated within forty-five (45) days prior to October 12, 2004 (the
original Closing Date),".
3. Notice of Effectiveness. The last sentence of Section 12.1 is hereby deleted in its entirety and the following sentence is hereby inserted in lieu thereof.
Any notice or other communication (i) mailed as hereinabove provided shall be deemed effectively given or received on the third (3rd) Business Day following the postmark date of such notice or other communication, (ii) sent by overnight courier or by hand shall be deemed effectively given or received upon receipt, and (iii) sent by facsimile transmission shall be deemed effectively given or received on the day of transmission of such notice or other communication and confirmation of such transmission if transmitted and confirmed prior to 6:00 p.m. local Atlanta, Georgia time on a Business Day and otherwise shall be deemed effectively given or received on the first Business Day after the day of transmission of such notice and confirmation of such transmission.
4. No Material Environmental Defect. Purchaser acknowledges and agrees that Purchaser's environmental inspections of the Properties have been completed and such environmental inspections do not reveal any Material Environmental Defect as to any of the Properties.
5. Joint Service Contracts. Notwithstanding anything contained in Section 3.5 of the Agreement to the contrary, the Joint Service Contracts shall be included with the other Service Contracts that are assigned to and assumed by Purchaser at Closing, but the Joint Service Contracts shall be assigned to and assumed by Purchaser solely with respect to particular such Properties covered thereby, and as to the Joint Service Contracts, Seller and Purchaser agree to work together with the providers thereunder to cause such Joint Service Contracts to be terminated as to the applicable Properties, and new contracts covering the applicable Properties to be entered into directly between such providers (or with other providers as selected by Purchaser) and Purchaser, as soon as reasonably practicable after Closing.
6. Amendment to Master Declaration. Prior to Closing, Seller shall cause the Master Declaration to be amended by that certain Fifth Amendment to Master Declaration of Covenants and Cross-Easements for Wildwood Office Park substantially in the form attached hereto as Exhibit "A" and by reference made a part hereof (the "Fifth Master Declaration Amendment"), and the Fifth Master Declaration Amendment shall be deemed to be a Permitted Exception under the Agreement. Seller and Purchaser acknowledge that the terms of the Fifth Master Declaration Amendment shall supersede the covenant set forth on Exhibit "V" to the Purchase Agreement, and accordingly, the last sentence of Section 5.1(a) of the Purchase Agreement and Exhibit "V" to the Purchase Agreement are hereby deleted from the Purchase Agreement.
7. Amendment to Plaza Declaration. Prior to Closing, Seller shall cause the Plaza Declaration to be amended by that certain Sixth Amendment to Declaration of Covenants and Cross-Easements for Wildwood Plaza substantially in the form attached hereto as Exhibit "B" and by reference made a part hereof (the "Sixth Plaza Declaration Amendment"), and the Sixth Plaza Declaration Amendment shall be deemed to be a Permitted Exception under the Agreement. Seller and Purchaser acknowledge that the aforesaid forms of the Fifth Master
Declaration Amendment and the Sixth Plaza Declaration Amendment are approved by such parties for purposes of Section 5.1(f) of the Agreement.
8. Termination of Lease with WH Smith Airports, Inc. Seller and Purchaser acknowledge that in accordance with Section 4.3(a) of the Agreement, the Lease with WH Smith Airports, Inc., f/k/a W.H. Smith, Inc., relating to premises within the building at 3200 Windy Hill Road, has been terminated by Seller and the tenant and that such Lease is of no further force or effect.
9. Addition to Exhibit "P". The following is added as new Paragraph 10 to Exhibit "P" attached to the Purchase Agreement:
10. 3200 Windy Hill Road; Lease with Coca-Cola Enterprises, Inc.
There is currently an unfunded improvement allowance in the amount of $846,511.78 available for funding by the Landlord under this Lease. If any of such unfunded improvement allowance has not been paid or applied as of the Closing, Purchaser shall assume the obligation to provide the unfunded portion of this improvement allowance as of the Closing, and Purchaser shall receive a credit against the Purchase Price at Closing for the amount of such unpaid allowance. To the extent that the current unfunded improvement allowance under this Lease exceeds $846,511.78, Seller shall pay such balance to the tenant under this Lease upon demand by Purchaser.
10. Errata. The Agreement is hereby amended to reflect the following clarifications and corrections:
(a) The "Major Tenant" with respect to 1927 Powers Ferry Road is Taco Bell Corp., successor by merger to CPK Acquisition Corp.
(b) The "Major Tenant" with respect to 1931 Powers Ferry Road is La Madeleine of Georgia, Inc.
(c) The "Major Tenant" with respect to 1935 Powers Ferry Road is Famous Dave's Ribs, Inc.
11. Addition to Master Declaration. By virtue of the Fifth Master Declaration Amendment, the property described on Exhibit "C" attached hereto and by this reference made a part hereof was released from the force and effect of the Master Declaration. By joining in this First Amendment in its individual capacity, Cousins hereby agrees that if any of the property described on Exhibit "C" attached hereto (the "Residential Tract") shall be sold or conveyed by Cousins for the development thereof for any use other than residential use, or if such property shall be developed by Cousins for any use other than residential use, Cousins shall, prior to such sale, conveyance or development by Cousins, cause such portion of the Residential Tract to be added to the property subjected to and benefited from the Master Declaration (as contemplated by Paragraphs 2 and 9 of the Fifth Master Declaration Amendment). The obligations of Cousins
under this Paragraph 11 shall survive the Closing until the expiration of any statute of limitations.
12. Binding Effect, Governing Law and Counterparts. This First Amendment shall be binding upon and shall inure to the benefit of Seller and Purchaser and their respective successors and assigns. Paragraph 11 of this First Amendment shall be binding upon Cousins and shall inure to the benefit of Purchaser. This First Amendment shall be governed by and construed in accordance with the laws of the State of Georgia. This First Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. Each party shall be entitled to rely upon the facsimile receipt of this First Amendment signed by the other party, and the facsimile copy of the executed signature pages of any counterpart hereof may be appended or attached to any other counterpart, and, provided that both parties hereto shall have executed a counterpart hereof, this First Amendment shall be valid and binding upon the parties notwithstanding the fact that the execution of both parties may not be reflected upon any one single counterpart. Except as amended hereby, the Agreement is and shall remain unmodified and in full force and effect.
[Signatures commence on following page]
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of the day, month and year first above written.
SELLER:
WILDWOOD ASSOCIATES,
a Georgia general partnership
By: Cousins Properties Incorporated,
a Georgia corporation, General Partner
By: /s/ Jack A. LaHue
----------------------------------------
Name: Jack A. LaHue
Title: Senior Vice President
|
By: International Business Machines Corporation, a New York corporation, General Partner
By: /s/ Richard K. Wood, Jr.
----------------------------------------
Name: Richard K. Wood, Jr.
Title: Director, Real Estate Asset
Management and Investments
|
[Signatures continued on following page]
[Signatures continued from previous page]
PURCHASER:
2300 WINDY RIDGE PARKWAY INVESTORS
LLC, a limited liability company
By: UBS Realty Investors LLC, a Massachusetts
limited liability company, its Manager
By:____________________________________________ Name:__________________________________________ Title:_________________________________________
COUSINS:
COUSINS PROPERTIES INCORPORATED,
a Georgia corporation
By: /s/ Jack A. LaHue
-------------------------------------------
Name: Jack A. LaHue
Title: Senior Vice President
|
EXHIBIT "A"
FIFTH AMENDMENT TO MASTER DECLARATION OF
COVENANTS AND CROSS-EASEMENTS FOR WILDWOOD OFFICE PARK
EXHIBIT "B"
SIXTH AMENDMENT TO DECLARATION OF
COVENANTS AND CROSS-EASEMENTS FOR WILDWOOD PLAZA
EXHIBIT "C"
LEGAL DESCRIPTION OF RESIDENTIAL TRACT
ALL THAT TRACT OR PARCEL OF LAND lying and being in Land Lot 940, 986 and 987, 17th District, 2nd Section, Cobb County, Georgia, being more particularly described as follows:
TO FIND THE TRUE POINT OF BEGINNING, commence at the intersection of the southeast corner of Land Lot 940, the northeast corner of Land Lot 941, the southwest corner of Land Lot 987 and the northwest corner of Land Lot 986; thence leaving said Land Lot corner, northwesterly along the north Land Lot line of said Land Lot 941, North 89 degrees 36 minutes 00 seconds West, a distance of 246.61 feet to a point; thence, leaving said land lot line, North 00 degrees 08 minutes 30 seconds East, a distance of 330.06 feet to a point; thence, North 89 degrees 33 minutes 30 seconds West, a distance of 77.35 feet to a point; thence, North 00 degrees 08 minutes 30 seconds East, a distance of 150.00 feet to a point, said point being located North 00 degrees 08 minutes 30 seconds East, a distance of 4.4 feet, more or less from a point in the centerline of a creek, said point also being the end of a traverse line, and THE TRUE POINT OF BEGINNING. Thence, leaving said traverse point; South 89 degrees 33 minutes 30 seconds East, a distance of 323.96 feet to a point, said point being located on the west land lot line of Land Lot 987; thence, northeasterly, along said land lot line, North 00 degrees 08 minutes 30 seconds East, a distance of 178.80 feet to a point; thence, leaving said land lot line, South 89 degrees 49 minutes 30 seconds East, a distance of 371.62 feet to a point, said point being located on the west right-of-way of Windy Hill Road; thence, southeasterly, along said Windy Hill Road right-of-way, South 11 degrees 56 minutes 30 seconds East, a distance of 371.89 feet to a point; thence, along the right-of-way of said Windy Hill Road, along an arc of curve to the right (which has a radius of 450.00 feet, a central angle of 41 degrees 04 minutes 30 seconds and a chord distance of 315.74 feet, along a bearing of South 08 degrees 35 minutes 46 seconds East), an arc distance of 322.60 feet to a point, said point being the beginning of a traverse line, the end of which was first mentioned above; thence, southwesterly, along said right-of-way 5.0 feet, more or less, to the center of a creek, said creek centerline, and the meanderings thereof being the property line; thence, from said traverse point last mentioned above, the traverse line is described as follows: North 76 degrees 14 minutes 59 seconds West, a distance of 380.99 feet; North 15 degrees 38 minutes 36 seconds West, a distance of 112.65 feet; North 47 degrees 08 minutes 35 seconds West, a distance of 443.78 feet to a point, said point being the traverse point first mentioned above, and being the end of said end of said traverse line, and THE TRUE POINT OF BEGINNING.
Said tract of land containing 317,500 square feet, or 7.289 acres, more or less, and being more particularly described on a survey for Cousins Properties Incorporated, by Engineering & Inspection Systems, Inc., dated July 02, 2004.
EXHIBIT 12
COUSINS PROPERTIES INCORPORATED
STATEMENT REGARDING COMPUTATION OF EARNINGS TO COMBINED
FIXED CHARGES AND PREFERRED DIVIDENDS
($ IN THOUSANDS)
2004 2003 2002 2001 2000
--------- --------- -------- -------- --------
Earnings:
Pre-tax income (loss) from continuing operations,
adjusted for equity investees and minority interests $ 2,065 $ (1,759) $ (7,243) $ 9,842 $ 17,160
Add:
Gain on sale of investment property, net of
applicable income tax provision 118,056 100,558 6,254 23,496 11,937
Distributed income of equity investees 247,532 58,488 36,036 44,978 32,538
Amortization of capitalized interest 1,084 631 631 575 598
Fixed charges 37,083 35,984 33,437 27,994 23,262
Subtract:
Capitalized interest (14,028) (9,684) (5,934) (9,712) (15,285)
Preferred dividends (8,042) (3,358) - - -
--------- --------- -------- -------- --------
EARNINGS $ 383,750 $ 180,860 $ 63,181 $ 97,173 $ 70,210
========= ========= ======== ======== ========
Fixed charges:
Interest expense $ 14,622 $ 22,576 $ 27,041 $ 17,852 $ 7,680
Capitalized interest 14,028 9,684 5,934 9,712 15,285
Interest component of rental expense (30%) 391 366 462 430 297
--------- --------- -------- -------- --------
29,041 32,626 33,437 27,994 23,262
Preferred stock dividends 8,042 3,358 - - -
--------- --------- -------- -------- --------
FIXED CHARGES $ 37,083 $ 35,984 $ 33,437 $ 27,994 $ 23,262
========= ========= ======== ======== ========
RATIO OF EARNINGS TO COMBINED FIXED CHARGES
AND PREFERRED STOCK DIVIDENDS 10.35 5.03 1.89 3.47 3.02
========= ========= ======== ======== ========
|
EXHIBIT 21
COUSINS PROPERTIES INCORPORATED AND CONSOLIDATED ENTITIES
SUBSIDIARIES OF THE REGISTRANT
DECEMBER 31, 2004
At December 31, 2004, the Registrant had the following 100% owned subsidiaries:
Cousins, Inc.; subsidiary includes Cousins/Daniel, LLC*
Cousins Austin GP, Inc.
Cousins Austin, Inc.
Cousins Properties Waterview LP
Cousins Real Estate Corporation and subsidiaries; subsidiaries include
Cousins
MarketCenters, Inc., New Land Realty, LLC, Cedar Grove Lakes, LLC,
CREC Alabama Inc., Pine Mountain Ventures, LLC (subsidiary includes
Longleaf Realty, LLC), Cousins Real Estate Development, Inc.,
Cousins Development, Inc., Cousins Properties Services, Inc.,
Cousins Properties Services LP and CS Texas Inc. (each 100% owned by
Cousins Real Estate Corporation)
Cousins Texas GP Inc.
Cousins Waterview LLC
Cousins Waterview GP LLC
Presidential MarketCenter LLC
TreePeach Holdings, LLC
At December 31, 2004, the financial statements of the following entities were consolidated with those of the Registrant in the Consolidated Financial Statements incorporated herein:
Carriage Avenue, LLC*
Cousins Aircraft Associates, LLC (99% owned by Registrant and 1% owned
by Cousins Real Estate Corporation)
Cousins/Myers Second Street Partners, L.L.C.*
Cousins/Myers II, LLC*
Cousins Properties Texas LP (76.24% owned by Registrant and 23.76%
owned by Cousins Real Estate Corporation)
Cousins Texas LLC (76% owned by Registrant and 24% owned by Cousins
Real Estate Corporation)
CP Venture Three LLC (88.50% owned by Registrant and 11.50% owned by
Prudential)
50 Biscayne Venture, LLC (88.25% owned by Cousins Real Estate
Corporation; wholly-owned subsidiary includes Columbus Development
LLC)
Gipson/Cousins Holdings, LLC (45% owned by Cousins Real Estate
Corporation)
Perimeter Expo Associates, L.P. (90% owned by Registrant and 10% owned
by Cousins MarketCenter, Inc.)
*Minority member receives a portion of residual cash flow and capital proceeds after a preferred return to Registrant.
At December 31, 2004, the Registrant and its consolidated entities had the following significant unconsolidated subsidiaries which were not 100% owned:
285 Venture, LLC (50% owned by Registrant)
Brad Cous Golf Venture, Ltd. (50% owned by Registrant)
CC-JM II Associates (50% owned by Registrant)
Charlotte Gateway Village, LLC (50% owned by Registrant)
C-H Associates, Ltd. (49% owned by Cousins Texas LLC)
CL Realty, L.L.C. (50% owned by Cousins Real Estate Corporation;
wholly- owned subsidiaries includes CL Texas I, LLC; CL Texas I GP,
LLC and CL Texas, L.P.)
Cousins LORET Venture, L.L.C. (50% owned by Registrant)
CPI/FSP I, L.P. (50% owned by Registrant)
CP Venture LLC (50% owned by Registrant)
CP Venture Two LLC (11.50% owned by Registrant)
Crawford Long - CPI, LLC (50% owned by Registrant)
CSC Associates, L.P. (50% owned by Registrant)
Handy Road Associates, LLC (50% owned by Cousins Real Estate
Corporation)
905 Juniper Venture, LLC (72% owned by Cousins Real Estate
Corporation)
Nonami Aircraft Facility Associates (50% owned by Registrant)
Pine Mountain Builders, LLC (50% owned by Cousins Real Estate
Corporation)
Ten Peachtree Place Associates (50% owned by Registrant)
Temco Associates LLC (50% owned by Cousins Real Estate Corporation;
wholly- owned subsidiary is Bentwater Links, LLC)
Verde Group, L.L.C. (less than 10% owned by Cousins Real Estate
Corporation)
Wildwood Associates (50% owned by Registrant)
Note: The names of certain subsidiaries are omitted pursuant to Item 601(b)(21)(ii) of Regulation S-K.
EXHIBIT 23
We consent to the incorporation by reference in Registration Statements Nos. 33-41927, 33-56787, 333-42007, 333-67887, 333-92089, 333-68010, 333-106937, 333-98487, 333-46674, and 333-120918 on Form S-8 and Registration Statements Nos. 33-60350, 333-48841, 333-12031, 333-46676, 333-106401, 33-69476 and 333-120612 on Form S-3 of Cousins Properties Incorporated of our reports dated March 23, 2005, relating to the financial statements and financial statement schedule of Cousins Properties Incorporated and management's report of the effectiveness of internal control over financial reporting, appearing in this Annual Report on Form 10-K of Cousins Properties Incorporated for the year ended December 31, 2004.
DELOITTE & TOUCHE LLP
Atlanta, Georgia
March 23, 2005
EXHIBIT 31.1
CERTIFICATION OF CHIEF EXECUTIVE OFFICER
I, Thomas D. Bell, Jr., certify that:
1. I have reviewed this Annual Report on Form 10-K of Cousins Properties Incorporated;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:
a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. evaluated the effectiveness of the Registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. disclosed in this report any change in the Registrant's internal control over financial reporting that occurred during the Registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Registrant's internal control over financial reporting; and
5. The Registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant's auditors and the audit committee of the Registrant's board of directors (or persons performing the equivalent functions):
a. all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant's ability to record, process, summarize and report financial information; and
b. any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant's internal control over financial reporting.
/s/ Thomas D. Bell, Jr. ---------------------------------- Thomas D. Bell, Jr. President, Chief Executive Officer and Vice Chairman of the Board Date: March 23, 2005 |
EXHIBIT 31.2
CERTIFICATION OF CHIEF FINANCIAL OFFICER
I, James A. Fleming, certify that:
1. I have reviewed this Annual Report on Form 10-K of Cousins Properties Incorporated;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the Registrant as of, and for, the periods presented in this report;
4. The Registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the Registrant and have:
a. designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the Registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. evaluated the effectiveness of the Registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. disclosed in this report any change in the Registrant's internal control over financial reporting that occurred during the Registrant's most recent fiscal quarter that has materially affected, or is reasonably likely to materially affect, the Registrant's internal control over financial reporting; and
5. The Registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the Registrant's auditors and the audit committee of the Registrant's board of directors (or persons performing the equivalent functions):
a. all significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the Registrant's ability to record, process, summarize and report financial information; and
b. any fraud, whether or not material, that involves management or other employees who have a significant role in the Registrant's internal control over financial reporting.
/s/ James A. Fleming ---------------------------------------------------- James A. Fleming Executive Vice President and Chief Financial Officer Date: March 23, 2005 |
EXHIBIT 32.1
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and in connection with the Annual Report on Form 10-K of Cousins Properties Incorporated (the "Corporation") for the year ended December 31, 2004, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), the undersigned, the President and Chief Executive Officer of the Corporation and the Vice Chairman of the Board, certifies that to his knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Corporation.
/s/ Thomas D. Bell, Jr.
----------------------------------
Thomas D. Bell, Jr.
President, Chief Executive Officer
and Vice Chairman of the Board
March 23, 2005
|
A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to Cousins Properties Incorporated and will be retained by Cousins Properties Incorporated and furnished to the Securities and Exchange Commission or its staff upon request.
EXHIBIT 32.2
CERTIFICATION PURSUANT TO 18 U.S.C. SECTION 1350,
AS ADOPTED PURSUANT TO SECTION 906 OF THE
SARBANES-OXLEY ACT OF 2002
Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 and in connection with the Annual Report on Form 10-K of Cousins Properties Incorporated (the "Corporation") for the year ended December 31, 2004, as filed with the Securities and Exchange Commission on the date hereof (the "Report"), the undersigned, the Executive Vice President and Chief Financial Officer of the Corporation, certifies that to his knowledge:
(1) The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Corporation.
/s/ James A. Fleming
----------------------------------------------------
James A. Fleming
Executive Vice President and Chief Financial Officer
March 23, 2005
|
A signed original of this written statement required by Section 906, or other document authenticating, acknowledging, or otherwise adopting the signature that appears in typed form within the electronic version of this written statement required by Section 906, has been provided to Cousins Properties Incorporated and will be retained by Cousins Properties Incorporated and furnished to the Securities and Exchange Commission or its staff upon request.