|
Exhibit 10.1
PURCHASE AND SALE AGREEMENT
Between
WELLS TIMBERLAND OPERATING PARTNERSHIP, L.P.
and
WELLS REAL ESTATE FUNDS, INC.
December 18th, 2008
PURCHASE AND SALE
AGREEMENT
THIS AGREEMENT is made as of December 18th, 2008 between
Wells Timberland Operating Partnership L.P. (" Wells
Partnership "), a Delaware limited partnership, as the sole
member and hereinafter referred to as " Seller " of Wells
Timberland Acquisition, LLC , a Delaware limited liability
company (" Company "), and Wells Real Estate Funds,
Inc. , a Georgia corporation (" Buyer "), which
cumulatively shall be referred to as the " Parties " or
independently as a " Party ."
Statement of Background Information
A. Seller owns all of the membership interests in Company.
B. Company currently owns all the membership interests in MWV
SPE, LLC (" SPE ") and Timberlands II, LLC .
C. Company and Seller will execute an Assignment and Assumption
Agreement in substantially the form as set forth in Exhibit
A attached hereto (the " Assignment Agreement ") whereby
Company will distribute to Seller all of its membership interests
in Timberlands II, LLC.
D. Seller wishes to sell and Buyer wishes to purchase all of
Seller’s membership interests in Company (the " Membership
Interests ").
E. This Purchase and Sale Agreement (the " Agreement ")
is dependent upon, and is to be executed concurrently with, the
execution of the Assignment Agreement and the transactions
contemplated by the Assignment Agreement and this Agreement shall
be deemed to occur simultaneously.
F. Seller is transferring its interest in Company so that its
parent, Wells Timberland REIT, Inc. , may qualify as a real
estate investment trust as defined in Section 856 of the
Internal Revenue Code.
Statement of Agreement
NOW, THEREFORE, to effect such transactions and in consideration
of the mutual covenants, representations, warranties and agreements
hereinafter set forth and other good and valuable consideration,
the receipt of which is hereby acknowledged by each Party, and
intending to be legally bound hereby, the Parties hereto agree as
follows:
Article I
Purchase and Sale; Terms of Payment
Section 1.01 Purchase and Sale of Membership
Interests . Upon the terms and subject to the conditions set
forth in this Agreement, Seller hereby sells, assigns and
transfers, and Buyer hereby purchases, all of Seller’s right,
title and interest in and to the Membership Interests.
Section 1.01 Payment of Purchase Price .
Concurrent with the execution of this Agreement, Buyer shall
deliver to Seller as the purchase price for the Membership
Interests Two Million Thirteen Thousand and Two Hundred Sixty Four
Dollars (U.S. $2,013,264) (the " Purchase Price ").
Article II
Representations and Warranties
Regarding the Company
Seller hereby represents and warrants to Buyer as follows:
Section 2.01 Organization and Good Standing .
Company is a limited liability company duly organized, validly
existing and in good standing under the laws of the State of
Delaware.
Section 2.02 Due Authorization . The
execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of
Seller. This Agreement has been duly executed and delivered by
Seller, and is a legal, valid and binding obligation of Seller
enforceable against Seller in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles
and, except as expressly contemplated herein, Seller does not need
to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions
contemplated by this Agreement.
Section 2.03 Noncontravention . The
execution, delivery and performance of this Agreement by Seller
does not and shall not (a) conflict with, result in any breach
of or constitute a default (or an event which, with the giving of
notice or passage of time, or both, would constitute a default)
under, any term or provision of the organizational documents of
Seller or the Company or any material agreement (including, without
limitation, the LLC agreement of SPE (" LLC Agreement "),
the Purchase Agreement dated August 3, 2007 between the
Company and MeadWestvaco Coated Board, Inc. (" MWV Purchase
Agreement ") and any agreements
2
contemplated by the MWV Purchase Agreement),
order, decree or other material instrument to which Seller or
Company is party or by which Seller or Company is bound or
(b) violate any provision of any law, rule or regulation
applicable to Seller or the Company of any regulatory body,
administrative agency or other governmental instrumentality having
jurisdiction over Seller or the Company or their respective
properties. No consent, license, approval or authorization from, or
registration or declaration with, any governmental body, agency or
authority, nor any consent, approval, waiver or notification of any
creditor or lessor is required in connection with the execution,
delivery and performance by Seller of this Agreement except such as
have been obtained and are in full force and effect.
Section 2.04 Litigation . There are no
(i) civil or criminal actions, suits, claims, investigations
or legal or administrative or arbitration (or other binding
alternative dispute resolution) proceedings pending or, to the
Knowledge of Seller, threatened against the Company, or
(ii) orders, writs, judgments, injunctions, decrees, awards or
similar commands of any court, any government agency or other
governmental body, or any arbitration tribunal or panel, by which
the Company is bound.
Section 2.05 Capitalization of the Company .
The Membership Interests represent all of the outstanding ownership
interests of any kind in Company and there are no options,
warrants, agreements or other rights outstanding to acquire an
ownership interest in Company.
Section 2.06 Execution of Contribution Agreement
. Concurrently with the execution of this Agreement, Seller
shall cause Buyer to execute the Contribution Agreement (as defined
in Section 3.04) and deliver a counterpart of the Contribution
Agreement, executed by Buyer, to Company.
Article III
Representations and Warranties of Buyer
Buyer hereby represents and warrants to Seller as follows:
Section 3.01 Organization and Good Standing .
Buyer is a corporation duly organized, validly existing and in good
standing under the laws of the State of Georgia.
Section 3.02 Due Authorization . The
execution, delivery and performance of this Agreement, and the
consummation of the transactions contemplated hereby, have been
duly authorized by all necessary corporate action on the part of
Buyer. This Agreement has been duly executed and delivered by
Buyer, and is a legal, valid and binding obligation of Buyer
enforceable against Buyer in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or
affecting creditors’ rights and to general equity principles
and, except as expressly contemplated herein, Buyer does not need
to give any notice to, make any filing with, or obtain any
authorization, consent, or approval of any government or
governmental agency in order to consummate the transactions
contemplated by this Agreement.
3
Section 3.03 Noncontravention
. The execution, delivery and performance of this Agreement
does not and shall not (a) conflict with, result in any breach
of or constitute a default (or an event which, with the giving of
notice or passage of time, or both, would constitute a default)
under, any term or provision of the organizational documents of
Buyer or any material agreement, order, decree or other material
instrument to which Buyer is party or by which Buyer is bound,
(b) violate any provision of any law, rule or regulation
applicable to Buyer of any regulatory body, administrative agency
or other governmental instrumentality having jurisdiction over
Buyer or its properties, or (c) result in a violation of any
order, writ, injunction, judgment, decree, law, statute, rule or
regulation to which Buyer is a Party. No consent, license, approval
or authorization from, or registration or declaration with, any
governmental body, agency or authority, nor any consent, approval,
waiver or notification of any creditor or lessor is required in
connection with the execution, delivery and performance by Buyer of
this Agreement except such as have been obtained and are in full
force and effect.
Section 3.04 Execution of Contribution Agreement
. Concurrently with the execution of this Agreement, Buyer
shall execute a Contribution Agreement with Company ("
Contribution Agreement "), whereby Buyer agrees to
contribute to Company up to U.S. $8,755,538 plus any accrued
and unpaid interest on the Member Note (as such term is defined in
the LLC Agreement) to the extent such unpaid interest together with
the principal of the Member Note exceeds $8,755,538, in the event
Company must pay its obligation under the Member Note and does not
have sufficient assets with which to satisfy its liability under
the Member Note or fails, for whatever reason, to pay all or part
of the Member Note that has become due and payable. Immediately
upon execution of this Agreement, Buyer shall deliver a true and
correct copy of the fully executed Contribution Agreement to
SPE.
Section 3.05 Maintenance of Sufficient Net Worth
. Buyer covenants that as of the date of this Agreement it has
and shall thereafter maintain, for so long as it owns Company, a
net worth of at least U.S. $ 25,000,000, excluding its
ownership interest in Company. Upon the reasonable request of the
Board of Managers of SPE (including the Special Manager), Buyer
shall provide information as is reasonably sufficient to verify
that it has a net worth of at least U.S. $25,000,000.
Section 3.06 Acknowledgement of Pledge Agreement
. Buyer acknowledges that pursuant to a Pledge Agreement dated
October 9, 2007, as amended, among Grantors (as defined in
such Pledge Agreement) and Wachovia Bank National Associa
|
