FORM 8-K - CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) February 1, 1999
U.S. REALTY PARTNERS LIMITED PARTNERSHIP
(Exact name of registrant as specified in its charter)
South Carolina 0-15656 57-0814502
(State or other jurisdiction (Commission (I.R.S. Employer
incorporation) File Number) Identification Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(Registrant's telephone number)
(864) 239-1000
N/A
(Former name or former address, if changed since last report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
The Registrant sold one of its investment properties, Gallery Shopping Center,
located in Knox County, Tennessee on February 1, 1999. Gallery Shopping Center
was sold to The Gallery of Knoxville, L.P., an unrelated party, for $9,300,000.
The entire net proceeds of the sale were used to pay down the first mortgage
indebtedness which secured the Property as well as the Partnership's other
properties. Accordingly, there are no net proceeds to be distributed to the
Registrant's partners. As a result, the indebtedness encumbering the
Partnership's properties was reduced to $11,600,000.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's annual report on Form 10-KSB for the year ended December 31, 1998.
(c) Exhibits
10.21 Contract of Sale between Registrant and The Gallery of Knoxville, L.P.,
effective February 1, 1999.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
U.S. REALTY PARTNERS LIMITED PARTNERSHIP
By: U.S. Realty I Corporation
Its General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: February 9, 1999
CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Contract") is made and entered into as of the
Effective Date (as defined in Section 13.13 hereof) by and between U.S. REALTY
PARTNERS LIMITED PARTNERSHIP, a Delaware limited partnership ("Seller"), and
COMMERCIAL & INVESTMENT PROPERTIES CO., a Tennessee corporation, or its
permitted assigns ("Purchaser").
ARTICLE I.
SALE OF THE PROPERTY
1.1 Property. For the consideration and upon and subject to the terms,
provisions and conditions of this Contract, Seller agrees to sell to Purchaser,
and Purchaser agrees to purchase from Seller, Seller's respective rights, titles
and interests in and to all of the following described property (collectively,
the "Property"):
(a) All of Seller's rights, titles and interests in and to that certain
tract or parcel of land (the "Land") located in Knox County, Tennessee, more
particularly described on Exhibit A attached hereto and made a part hereof for
all purposes, together with all improvements, structures and fixtures, if any,
located on the Land (the "Improvements"), and all rights, titles and interests
of Seller appurtenant to the Land and Improvements, including, without
limitation, appurtenant easements, adjacent roads, highways and rights-of-way;
(b) All tangible personal property of any kind (the "Personalty") owned by
Seller and attached to or located on the Land or Improvements.
(c) All of Seller's rights, titles and interests unders any leases or
other agreements demising space in or providing for the use or occupancy of the
Improvements or Land (the "Tenant Leases"), and all unapplied deposits, whether
security or otherwise ("Deposits"), paid by tenants ("Tenants") under the
Tenant Leases; and
(d) All of Seller's rights, titles and interests in and to all service
contracts, warranties, guaranties and bonds in effect at Closing relating to the
Land, the Improvements or the Personalty, to the extent the same are assignable
(the "Contracts").
ARTICLE II.
PURCHASE PRICE
2.1 Purchase Price. The total Purchase Price (herein so called) to be
paid by Purchaser to Seller for the Property shall be Nine Million Three Hundred
Thousand and No/100 Dollars ($9,300,000.00). The Purchase Price shall be
payable in Current Funds (defined ARTICLEaIII.e Closing (hereinafter defined).
3.1 Amount and Timing. EWithin three (3)Obusiness days after the Effective
Date (hereinafter defined), Purchaser shall deliver to Chicago Title Insurance
Company, located at 7616 LBJ Freeway, Suite 300, Dallas, Texas 75251 (the "Title
Company"), One Hundred Thousand Dollars ($100,000.00) (the "Initial Deposit") in
cash or Current Funds, to be held by the Title Company in escrow to be applied
or disposed of by the Title Company as is provided in this Contract. In the
event Purchaser fails to deposit the Initial Deposit with the Title Company as
herein provided, Seller may, at its option, terminate this Contract prior to the
making of the Initial Deposit, in which event neither Seller nor Purchaser shall
have any further rights, liabilities or obligations hereunder except for
provisions of this Contract which expressly survive the termination of this
Contract. Not later than thirty (30) days after the expiration of the
Inspection Period (as hereinafter defined), if Purchaser has not terminated this
Contract pursuant to its rights under Section 5.2 hereof, Purchaser shall
deposit with the Title Company an additional earnest money deposit in the amount
of Fifty Thousand and No/100 Dollars ($50,000.00) (the "Subsequent Deposit") in
cash or Current Funds to be held by the Title Company in escrow to be applied or
disposed of by the Title Company as is provided in this Contract. If the
Purchaser does not properly terminate this Contract pursuant to Section 5.2
hereof and fails to deposit the Subsequent Deposit on or before the thirtieth
(30th) day after the end of the Inspection Period, then Seller may, at its
option, terminate this Contract prior to the making of such Subsequent Deposit,
in which event the Title Company shall pay the Initial Deposit to Seller and
thereafter neither Seller nor Purchaser shall have any further rights,
liabilities or obligations hereunder except for provisions of this Contract
which expressly survive the termination of this Contract. The term "Earnest
Money Deposit", as used in this Contract, shall mean (i) the Initial Deposit
prior to deposit of the Subsequent Deposit, (ii) both the Initial Deposit and
the Subsequent Deposit combined after the deposit of the Subsequent Deposit, and
(iii) the Initial Deposit, the Subsequent Deposit and the Extension Deposit (as
Deposit,iifSapplicable,hineeachccasentogether withdallsinteresteearnedsthereon.
As used in this Contract, the term "Current Funds" shall mean wire transfers,
certified funds or a cashier's check in a form acceptable to the Title Company
which would permit the Title Company to immediately disburse such funds.
3.2 Application and Interest. If the purchase and sale hereunder is
consummated, then the Earnest Money Deposit shall be applied to the Purchase
Price at Closing. In all other events, the Earnest Money Deposit shall be
disposed of by the Title Company as provided in this Contract. The Earnest
Money Deposit shall be invested in an interest-bearing account with a financial
institution and in a manner reasonably acceptable to Purchaser. All interest
earned on the Earnest Money Deposit is part of the Earnest Money Deposit, to be
applied or disposed of in the same manner as the Earnest Money Deposit under
this Contract.
ARTICLE IV.
TITLE AND SURVEY
4.1 Title Commitment. Not later than fifteen (15) days after the
Effective Date, Seller shall cause to be furnished to Purchaser, a current
Commitment for Title Insurance for the Land and Improvements (the "Title
Commitment") issued by the Title Company. The Title Commitment shall set forth
the state of title to the Property, including a list of conditions or exceptions
to title affecting the Property that would appear in an Owner's Policy of Title
Insurance, if one were issued. The Title Commitment shall contain the expressed
commitment of the Title Company to issue the Title Policy (hereinafter defined)
to Purchaser in the amount of the Purchase Price, insuring the title to the
Property specified in the Title Commitment. At such time as the Title
Commitment is furnished to Purchaser, the Title Company also shall furnish to
Purchaser copies of instruments or documents (the "Exception Documents") that
create or evidence conditions or exceptions to title affecting the Property, as
described in the Title Commitment.
4.2 Survey. Not later than fifteen (15) days after the Effective Date,
Seller shall provide to Purchaser a copy of an ALTA/ACSM survey of the Land and
Improvements prepared by Adams Craft Herz Walker, dated not earlier than July
31, 1998 (the "Survey"). If Seller's Survey is not satisfactory to Purchaser or
the Title Company then Purchaser shall pay the cost to update the Survey or to
prepare a survey of the Property that is otherwise sufficient for Purchaser and
the Title Company, and that is certified to Seller, Purchaser and the Title
Company.
4.3 Review of Title and Survey. Purchaser shall have until twenty (20)
days after the Effective Date in which to notify Seller in writing (the "Title
referredntooincthe TitleyCommitment, thecException DocumentstorronsthenSurvey;
provided, that Purchaser shall not object to current real estate taxes and
assessments or to easements, restrictions and exceptions affecting the Property
which do not adversely affect the value of the Property or its current use by
Seller, all of which shall be Permitted Exceptions hereunder. Any title
encumbrances, exceptions or other matters which are set forth in the Title
Commitment, the Exception Documents or on the Survey, and to which Purchaser
does not object within the aforementioned ten (10) day period, shall be deemed
to be permitted exceptions to the status of Seller's title (such encumbrances,
exceptions or other matters, together with such other matters included pursuant
to other provisions of this Contract, shall be referred to as the "Permitted
Exceptions").
4.4 Objections to Status of Title and Survey. If Purchaser properly
objects to any item shown or referred to in the Title Commitment, Exception
Documents or Survey within the twenty (20) day period set forth in Section 4.3,
Seller shall be given until ten (10) days after receipt of the Title Objection
Notice to notify Purchaser whether or not Seller will cure, prior to Closing and
at Seller's option and sole discretion but without any obligation to do so, any
objection to the condition of title raised by Purchaser. If Seller notifies
Purchaser that it elects not to cure any such objections, then Purchaser may,
at its option exercisable within five (5) days following the date of receipt by
Purchaser of written notice from Seller stating that Seller is unable or
unwilling to cure such objections, either (a) accept such title as Seller can
deliver, in which case all exceptions to title set forth in the Title
Commitment, Exception Documents and Survey which are not removed shall be deemed
to be Permitted Exceptions, or (b) terminate this Contract by notice in writing
to Seller in which event the Title Company shall return the Earnest Money
Deposit to Purchaser and neither party shall have any further rights, duties or
obligations hereunder, except for provisions of this Contract which expressly
Seller, withinasuch fiveh(5)Cdayrperiod,nthat Purchaserchaseelected to proceed
under either subpart (a) or (b) of the immediately preceding sentence, Purchaser
shall be deemed to have elected to proceed under subpart (a), and this Contract
shall remain in full force and effect. If Seller notifies Purchaser that it
elects to cure any such objections but is unable to cure same by Closing or if
Seller fails to notify Purchaser of its intentions with respect to such
objections and fails to cure same by Closing, then Purchaser may, at its option,
either (x) accept such title as Seller can deliver in which case the parties
shall proceed with Closing and all exceptions to title set forth in the Title
Commitment, Exception Documents and Survey which are not removed shall be deemed
to be Permitted Exceptions, or (y) terminate this Contract by notice in writing
to Seller at Closing, in which event the Title Company shall return the Earnest
Money Deposit to Purchaser and neither party shall have any further rights,
duties or obligations hereunder except for provisions of this Contract which
expressly survive termination of this Contract.
4.5 Other Permitted Exceptions. The Permitted Exceptions shall include
those matters shown in the Title Commitment and the Survey which become
Permitted Exceptions pursuant to sections 4.3 and 4.4 above and, in addition,
the following: (a) the Tenant Leases; (b) taxes and assessments for the year in
which Closing occurs and subsequent years; (c) liens and encumbrances arising
after the date hereof to which Purchaser consents in writing; and (d) any liens
or encumbrances of a definite or ascertainable amount not exceeding $50,000.00,
provided that (i) Seller causes such liens or encumbrances to be insured or
bonded around such that same do not appear as an exception in the Title Policy
issued to Purchaser pursuant to the Commitment, and (ii) Seller agrees to
indemnify Purchaser from all losses incurred by Purchaser as a result of such
liens or encumbrances.
ARTICLE V.
INSPECTION BY PURCHASER
5.1 Inspection Period.Purchaser shall have a period of time commencing
on the Effective Date and expiring at 5:00 p.m., Knoxville, Tennessee, time on
the thirtieth (30th) day thereafter (the "Inspection Period") within which to
examine the Property and to conduct its feasibility study thereof. Seller
agrees that, during the Inspection Period, Seller will allow Purchaser and
Purchaser's agents access to the Property during normal business hours to
conduct soil and engineering, marketing, feasibility, zoning and other studies
or tests and to otherwise determine the feasibility of the Property for
Purchaser's intended use. Notwithstanding the foregoing, (a) the costs and
expenses of Purchaser's investigation shall be borne solely by Purchaser, (b)
prior to the expiration of the Inspection Period, Purchaser shall restore the
Property to the condition which existed prior to Purchaser's entry thereon and
investigation thereof to the extent the condition of the Property was affected
by or as a result of the actions of Purchaser or its agents, contractors or
representatives, (c) Purchaser shall not interfere, interrupt or disrupt the
operation of Seller's business on the Property and, further, such access by
Purchaser and/or its agents shall be subject to the rights of Tenants under
Tenant Leases, (d) in the event the transaction contemplated by this Contract
does not close for any reason, Purchaser shall deliver to Seller a descriptive
listing of all tests, reports and inspections conducted by Purchaser with
respect to the Property and, if Seller so requests, shall deliver copies thereof
to Seller, (e) Purchaser shall not permit any mechanic's or materialman's liens
or any other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted pursuant to this Section 5.1, (f)
Purchaser shall give notice to Seller a reasonable time prior to entry onto the
Property and shall permit Seller to have a representative present during all
investigations and inspections conducted with respect to the Property, (g)
Purchaser shall take all reasonable actions and implement all protections
necessary to ensure that all actions taken in connection with the investigations
generated,tused or broughtponto,thedPropertyiposetnommaterial threatbtoathes
safety of persons or the environment and cause no damage to the Property or
other property of Seller or other persons, and (h) Purchaser shall not conduct
or cause to be conducted, any environmental, asbestos or archeological studies,
surveys or testing without Seller's prior written approval (which shall not be
unreasonably withheld) of the type of testing and the persons conducting same.
This Contract, the terms and conditions of this Contract and all information
made available by Seller to Purchaser in accordance with this Contract or
obtained by Purchaser in the course of its investigations shall be treated as
confidential information by Purchaser, and, prior to the purchase of the
Property by Purchaser, Purchaser shall prevent its agents and employees from
divulging such information to any third parties except as reasonably necessary
to third parties engaged by Purchaser for the limited purpose of analyzing and
investigating such information for the purpose of consummating the transaction
contemplated by this Contract, including Purchaser's attorneys and
representatives, prospective lenders and engineers. Purchaser shall indemnify,
defend and hold Seller harmless for, from and against any and all claims,
liabilities, causes of action, damages, liens, losses, costs and expenses
(including, without limitation, reasonable attorneys' fees) incident to,
resulting from or in any way arising out of any of Purchaser's and its agents',
contractors' and representatives' activities on the Property, including, without
limitation, any tests or inspections conducted by Purchaser or its agents,
contractors or representatives on the Property. The agreements contained in
this Section 5.1 shall survive the Closing and not be merged therein and shall
also survive any termination of this Contract.
5.2 Approval of Inspections. If Purchaser determines at any time prior to
the expiration of the Inspection Period, that the Property is not satisfactory
to Purchaser, then Purchaser may deliver written notice to Seller, within such
Inspection Period, given in accordance with the provisions of Section 13.1
Section 5.2, inrwhichreventttheoTitleiCompanyishalltreturnutheaEarnesthMoney
Deposit to Purchaser and neither party shall have any further rights,
liabilities or obligations hereunder, except for provisions of this Contract
which by their terms expressly survive the termination of this Contract. If
Purchaser does not timely deliver written notice of termination within such
Inspection Period, the conditions of this Section 5.2 shall be deemed satisfied,
and Purchaser shall be deemed to have approved the condition of the Property and
may not thereafter terminate this Contract pursuant to this Section 5.2.
5.3 Matters to be Delivered by Seller. No later than ten (10) days from
the Effective Date (except that the Phase I Environmental Report specified at
item (e) below shall be delivered by Seller on or before September 30, 1998),
Seller shall deliver to Purchaser the following items (collectively, the
"Submission Matters"):
(a) A current rent roll for the Property and delinquency report prepared
in the ordinary course of Seller's business;
(b) A copy of all Tenant Leases with respect to the Property, including
all amendments thereto;
(c) Copies of any and all service, maintenance, management or other
contracts in Seller's possession relating to the ownership and operation of the
Property;
(d) Copies of the most recent real estate and personal property tax
statements in Seller's possession with respect to the Property;
(e) A Phase I Environmental Site Assessment and Preliminary Asbestos
Surve(f)itCopieseof planseandospecifications forVtheGImprovementsaon the Land if
the same are in Seller's possession.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES; DISCLAIMERS AND WAIVERS
6.1 Representations and Warranties of Purchaser. Purchaser and each of
the persons executing this Contract on its behalf represents and warrants to
Seller as of the date hereof and as of the Closing Date as follows (which
representations and warranties shall survive the Closing for a period of 180
days): (a) Purchaser is a corporation duly organized and validly existing under
the laws of the State of Tennessee; (b) Purchaser has full right and authority
to enter into this Contract and to consummate the transactions contemplated
herein; (c) each of the persons executing this Contract on behalf of Purchaser
is authorized to do so; and (d) this Contract constitutes a valid and legally
binding obligation of Purchaser, enforceable in accordance with its terms.
6.2 Representations and Warranties of Seller. Seller represents and
warrants to Purchaser as of the date hereof and as of the Closing Date as
follows: (a) Seller is a limited partnership validly existing and duly
organized under the laws of the State of Delaware; (b) Seller has full right and
authority to enter into this Contract and to consummate the transactions
contemplated herein; (c) each of the persons executing this Contract on behalf
of Seller is authorized to do so; (d) this Contract constitutes a valid and
legally binding obligation of Seller, enforceable in accordance with its terms;
and (e) to the Seller's current actual knowledge, except as may be disclosed in
any of the Submission Matters or any other documents delivered to or obtained by
Purchaser, Seller has not received written notice of any violation of any laws
representationshandrwarrantiescofiSellerihereunderoshall survivevtheaClosingefor
a period of one hundred eighty (180) days.
As used herein, the term "Seller's current actual knowledge", or similar
terms and phrases, shall mean and refer to only the current actual knowledge of
the Designated Representative (as hereinafter defined) of the Seller and shall
not be construed to refer to the knowledge of any other partner, officer,
director, agent, employee or representative of the Seller, or any affiliate of
the Seller, or to impose upon such Designated Representative any duty to
investigate the matter to which such actual knowledge or the absence thereof
pertains, or to impose upon such Designated Representative any individual
personal liability. As used herein, the term "Designated Representative" shall
refer to Kenneth A. Cobler.
6.3 NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF SELLER. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN SECTION 6.2 OF
THIS CONTRACT OR THE DEED TO BE DELIVERED AT CLOSING, SELLER HAS NOT MADE, AND
SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY, GUARANTY OR REPRESENTATION,
ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING, (a) THE
NATURE AND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON; (b) THE
EXISTENCE, NATURE AND EXTENT OF ANY RIGHT-OF-WAY, LEASE, RIGHT TO POSSESSION OR
USE, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER MATTER
AFFECTING TITLE TO THE PROPERTY; OR (c) WHETHER THE USE OR OPERATION OF THE
PROPERTY COMPLIES WITH ANY AND ALL LAWS, ORDINANCES OR REGULATIONS OF ANY
GOVERNMENT OR OTHER REGULATORY BODY. PURCHASER AGREES TO ACCEPT THE PROPERTY
AND ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE BY
SELLER, ON AN .AS IS, WHERE IS, AND WITH ALL FAULTS. BASIS. PURCHASER EXPRESSLY
ACKNOWLEDGES THAT EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED IN SECTION 6.2 HEREOF
ORDBILLEOF SALEATO BERDELIVEREDTBYLSELLERATOEPURCHASERDATDCLOSING,MSELLER MAKESS
NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED,
OR ARISING BY OPERATION OF LAW, WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER.S
WARRANTY OF TITLE TO BE SET FORTH IN THE DEED), ZONING, TAX CONSEQUENCES,
PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR
PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PREMISES
WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION
(INCLUDING, WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED BY OR ON BEHALF
OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.
PURCHASER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SPECIFIED IN ANY WRITTEN
INSTRUMENT DELIVERED BY SELLER TO PURCHASER, SELLER MAKES NO REPRESENTATION OR
WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY
OPERATION OF LAW REGARDING OR WITH RESPECT TO ANY SUCH INFORMATION (INCLUDING,
WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED OR TO BE PROVIDED BY SELLER
REGARDING THE PROPERTY.
FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THIS
CONTRACT, SELLER HAS MADE AND MAKES NO REPRESENTATION, WARRANTY OR GUARANTY, AND
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR
WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR
BENEATH THE PROPERTY (OR ANY PARCEL IN PROXIMITY THERETO) OF HAZARDOUS
SUBSTANCES OR MATERIALS WHICH ARE CATEGORIZED AS HAZARDOUS OR TOXIC UNDER ANY
LOCAL, STATE OR FEDERAL LAW, STATUTE, ORDINANCE, RULE OR REGULATION PERTAINING
TO ENVIRONMENTAL OR SUBSTANCE REGULATION, CONTAMINATION, CLEANUP OR DISCLOSURE
(INCLUDING, WITHOUT LIMITATION, ASBESTOS) AND SHALL HAVE NO LIABILITY TO
PURCHASER THEREFOR. WITHOUT LIMITATION OF THE PRECEDING SENTENCE, SELLER
SPECIFICALLY DISCLAIMS ANY REPRESENTATION, WARRANTY OR GUARANTY REGARDING THE
ACCURACY OF ANY ENVIRONMENTAL REPORTS WHICH MAY BE INCLUDED WITHIN THE
BYBSELLERNATATHERCLOSING,CPURCHASERFACKNOWLEDGESCTHATDPURCHASER.SOOPPORTUNITYED
FOR INSPECTION AND INVESTIGATION OF THE PROPERTY (AND OTHER PARCELS IN PROXIMITY
THERETO) WILL BE ADEQUATE TO ENABLE PURCHASER TO MAKE PURCHASER.S OWN
DETERMINATION WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR BENEATH THE
PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) OF SUCH HAZARDOUS SUBSTANCES
OR MATERIALS, AND PURCHASER ACCEPTS THE RISK OF THE PRESENCE OR DISPOSAL OF ANY
SUCH SUBSTANCES OR MATERIALS. PURCHASER AGREES THAT SHOULD ANY CLEANUP,
REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL CONDITIONS
ON THE PROPERTY BE REQUIRED AFTER THE DATE OF CLOSING, SUCH CLEAN-UP, REMOVAL OR
REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL BE PERFORMED AT THE SOLE
COST AND EXPENSE OF PURCHASER.
PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER, HEREBY
FULLY RELEASES AND DISCHARGES SELLER, ITS EMPLOYEES, OFFICERS, DIRECTORS,
PARTNERS, REPRESENTATIVES AND AGENTS, AND THEIR RESPECTIVE PERSONAL
REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS FROM ANY COST, LOSS, LIABILITY,
DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TO
ANY CONSTRUCTION DEFECTS, ERRORS, OMISSION, OR OTHER CONDITIONS AFFECTING THE
PROPERTY; PROVIDED, THAT THIS SHALL NOT RELEASE SELLER FROM CLAIMS ARISING, IF
ANY, AS A RESULT OF ANY WRITTEN REPRESENTATION OR WARRANTY OF SELLER BEING FALSE
WHEN MADE. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THIS RELEASE SHALL BE
GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF ITS EXPRESSED TERMS AND
PROVISIONS, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO UNKNOWN AND
SUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION. THIS COVENANT RELEASING SELLER
SHALL BE BINDING UPON PURCHASER, ITS PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS
AND ASSIGNS.
THE PROVISIONS OF THIS SECTION 6.3 (INCLUDING, WITHOUT LIMITATION, THE
WAIVER AND RELEASE OF CLAIMS CONTAINED HEREIN) SHALL SURVIVE THE CLOSING OR
EARLI6.4TENoIRelianceFonHDocuments.T.Except as expressly stated herein or in any
written instrument delivered by Seller to Purchaser in connection herewith,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information (including, without
limitation, the Submission Matters) delivered by Seller to Purchaser in
connection with the transaction contemplated hereby. Purchaser acknowledges and
agrees that all materials, data and information (including, without limitation,
the Submission Matters) delivered by Seller to Purchaser in connection with the
transaction contemplated hereby are provided to Purchaser as a convenience only
and that any reliance on or use of such materials, data or information by
Purchaser shall be at the sole risk of Purchaser.
6.5 Effect of Disclaimers. Seller has informed and hereby does inform
Purchaser that the compensation to be paid to Seller for the Property has been
decreased to take into account that the Property is being sold subject to the
provisions of this Article VI.
ARTICLE VII.
CONDITIONS PRECEDENT TO PURCHASER.S AND
SELLER.S PERFORMANCE
7.1 Conditions to Purchaser's Obligations. Purchaser's obligation under
this Contract to purchase the Property is subject to the fulfillment of each of
the following conditions (any or all of which may be waived by Purchaser):
(a) The representations and warranties of Seller contained herein shall be
true, accurate and correct as of the Closing Date;
(b) Seller shall be ready, willing and able to deliver title to the
Property in accordance with the terms and conditions of this Contract;
(c) The obligations of Seller specified in Section 7.3 hereof shall have
been satisfied; and
(d) Seller shall have delivered all the documents and other items required
pursuant to Section 8.2(a), and shall have performed, in all material respects,
all other covenants, undertakings and obligations, and complied with all
conditions required by this Contract to be performed or complied with by the
Seller at or prior to the Closing.
7.2 Conditions to Seller's Obligations. Seller's obligation under this
Contract to sell the Property to Purchaser is subject to the fulfillment of
each of the following conditions (all or any of which may be waived by Seller):
(a) the representations and warranties of Purchaser contained herein shall
be true, accurate and correct as of the Closing Date; and
(b) Purchaser shall have delivered the funds required hereunder and all
the documents to be executed by Purchaser set forth in Section 8.2(b) and shall
have performed, in all material respects, all other covenants, undertakings and
obligations, and complied with all conditions required by this Contract to be
performed or complied with by Purchaser at or prior to Closing.
7.3 Estoppel Certificates. Prior to Closing, Seller shall use reasonable
efforts to obtain and deliver to Purchaser Estoppel Certificates (herein so
called), in the form attached hereto as Exhibit F, with such changes thereto as
are reasonably acceptable to Purchaser, executed by Tenants occupying at least
eighty percent (80%) of the leased area of the Property, in the aggregate, and
from all Tenants which have leases (i) for more than 10,000 rentable square feet
in the Property and (ii) with a remaining term of more than one (1) year after
CertificatesDcontemplated hereunderoonoorebefore the Closing Date,sthen,lat
closing, Seller shall provide Purchaser with a certificate (herein called the
"Seller's Certificate"), setting forth Seller's certification that, with respect
to each of the Leases for which a Tenant did not deliver an Estoppel
Certificate, (i) the copy of such Lease (and all amendments and modifications
thereto) previously provided by Seller to Purchaser is true, correct and
complete, (ii) Seller has not received any rent thereunder for more than one
month in advance, and (iii) Seller has neither received nor given any written
notice of default under such Lease (or, if so, describing the nature thereof).
ARTICLE VIII.
CLOSING
8.1 Time and Place. The consummation of the purchase and sale of the
Property (the "Closing") shall take place at the office of the Title Company (it
being contemplated that the Closing will occur by the delivery of Closing
documents into escrow with the Title Company) on the sixtieth (60th) day after
the end of the Inspection Period, or at such earlier date and time as Purchaser
and Seller may mutually agree (the "Closing Date"); provided, that Purchaser
may, at its option, extend the Closing Date for thirty (30) days by delivery to
Seller, on or before the fiftieth (50th) day after the end of the Inspection
Period, of a written notice (the "Extension Notice") that Purchaser has elected
to extend the Closing Date for thirty (30) days; provided, further, however,
that if such Extension Notice is given, it shall not be effective and shall be
void and of no effect unless Purchaser also delivers to the Title Company, on or
before the fiftieth (50th) day after the end of the Inspection Period, an
additional earnest money deposit in the amount of Fifty Thousand and No/100
Dollars ($50,000.00) (the "Extension Deposit") in cash or Current Funds to be
held by the Title Company in escrow to be applied or disposed of by the Title
Company as is provided in this Contract.
8.2 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver, or cause to be
delivered, to the Title Company for recording or delivery to Purchaser, as
applicable, each of the following items:
(i) A standard form ALTA Owner Policy of Title Insurance dated no earlier
than the date of the filing of the deed described in Section 8.2(a)(ii) hereof,
issued by the Title Company, and insuring Purchaser's title in the amount of the
Purchase Price, subject only to the Permitted Exceptions (the "Title Policy").
(ii) A Special Warranty Deed duly executed and acknowledged by Seller in
the form attached hereto as Exhibit B and made a part hereof for all purposes
(with such reasonable changes thereto as may be required by the Title Company in
order to comply with the laws of the State of Tennessee) sufficient to convey to
Purchaser good and indefeasible title to the Land and Improvements free and
clear of all liens and encumbrances except for the Permitted Exceptions.
(iii) An Assignment and Assumption of Leases (the "Assignment of
Leases") duly executed and acknowledged by Seller in the form attached hereto as
Exhibit C and made a part hereof for all purposes.
(iv) A Blanket Conveyance, Bill of Sale and Assignment ("Bill of Sale")
duly executed by Seller in the form attached hereto as Exhibit D and made a part
hereof for all purposes.
(v) The Estoppel Certificates and/or Seller's Certificates as required
pursuant to Section 7.3 hereof.
(vi) All original Tenant Leases that are in Seller's possession together
with letters addressed to the Tenants of the Property (the "Notice Letters") in
the form attached hereto as Exhibit G and made a part hereof for all purposes,
or in such other form as may be mutually agreed upon by Seller and Purchaser.
(vii) Original counterparts of all service contracts that are in
Seller's possession and which are to be assumed by Purchaser.
(viii) A Non-Foreign Affidavit in the form attached hereto as Exhibit E
and made a part hereof for all purposes.
(ix) All amounts owing to Purchaser by Seller under Article IX hereof.
(x) Evidence satisfactory to Purchaser and the Title Company that the
person or persons executing this Contract and the closing documents on behalf of
Seller have full right, power and authority to do so.
(xi) A rent roll prepared with respect to the Property in the form normally
prepared by Seller which shall be certified, to Seller's knowledge, as being
true and correct in all material respects as of a date not more than ten (10)
business days prior to Closing.
(xii) Other items reasonably requested by the Title Company for the
sale of the Property in accordance with this Contract or for administrative
requirements for consummating the Closing.
(b) Purchaser. At the Closing, Purchaser shall deliver to the Title
Company, for recording or delivery to Seller, as applicable, each of the
following items:
(i) The Purchase Price in Current Funds.
(ii) The Assignment of Leases, duly executed and acknowledged by Purchaser.
(iii)The Bill of Sale, duly executed by Purchaser.
(iv) Such additional funds in cash or Current Funds, as may be necessary to
cover Purchaser's share of the closing costs and prorations hereunder.
(v) Evidence satisfactory to Seller and the Title Company that the person
or persons executing this Contract and the closing documents on behalf of
Purchaser have full right, power and authority to do so.
(vi) The Notice Letters duly executed by Purchaser.
(vii) Other items reasonably requested by the Title Company for the
sale of the Property in accordance with this Contract or for administrative
requirements for consummating the Closing.
8.3 Costs of Closing. Except as otherwise herein provided, the escrow
fees of the Title Company, any and all recording costs, documentary stamp
taxes, deed taxes, transfer taxes or other similar taxes, fees or assessments,
and any and all premiums and other costs relating to the Title Policy shall all
be paid equally by Seller and Purchaser. Purchaser shall pay (i) any and all
costs and expenses (including, without limitation, recording costs, loan fees
and attorneys' fees, title insurance premiums, documentary or stamp taxes,
transfer taxes, intangible taxes, mortgage taxes or other similar taxes, fees or
assessments) relating to or incurred in connection with any loans or other
financing obtained by the Purchaser in connection with its purchase of the
Property, and (ii) the cost of obtaining any endorsements or extended or
additional coverage with respect to the Title Policy to be delivered to
premiumsrpayablesasga resultrofhthe prepaymenteatyClosingeof anyaindebtedness
currently secured by the Property. All other expenses incurred by Seller and
Purchaser with respect to the Closing, including, but not limited to, the
attorneys' fees and costs and expenses incurred in connection with negotiating,
preparing and Closing the transaction contemplated by this Contract, shall be
borne and paid exclusively by the party incurring same, unless otherwise
expressly provided in this Contract. The provisions of this Section 8.3 shall
survive the Closing or the termination of this Contract.
8.4 Prorations. All normal and customarily proratable items, including,
without limitation, rents (including, without limitation, base rents, additional
rents, percentage rents and common area maintenance charges), operating
expenses, tenant improvement costs and leasing commissions, other operating
expenses and fees, and payments relating to any agreements affecting the
Property which survive the Closing, shall be prorated as of the Closing Date,
Seller being charged and credited for all of same attributable to the period up
to the Closing Date (and credited for any amounts paid by Seller attributable to
the period on or after the Closing Date) and Purchaser being responsible for,
and credited or charged, as the case may be, for all of same attributable to the
period on and after the Closing Date; provided, that notwithstanding the
foregoing, percentage rents (including, without limitation, all rents, however
designated, which are determined based upon sales or income of any Tenant or
other occupant, licensee, concessionaire or other user of any portion of the
Property) which are payable under any Tenant Leases with respect to the calendar
year in which the Closing occurs shall be prorated effective as of the Closing
Date (based upon the number of days in such year that the Property is owned by
Seller and Purchaser, respectively), but shall be determined after appropriate
information is received from the respective Tenants and shall be paid by
Purchaser to Seller as and when the same are received by Purchaser, and
Purchaser shall deliver to Seller, upon request, at any time and from time to
receivedebytPurchasergafter,thepClosing Date,etogether withsPurchaser'sbanalysis
of the portions thereof which are payable to Seller and Purchaser, respectively.
Purchaser agrees to use its best efforts to diligently and promptly collect all
such percentage rents as and when due under the Tenant Leases. All leasing
commissions payable with respect to existing Tenant Leases for lease terms which
have commenced (but excluding leasing commissions which are payable with respect
to renewal terms which have not yet commenced) prior to the Closing Date shall
be paid by Seller at or prior to Closing, and Purchaser shall be responsible for
and shall pay all leasing commissions payable with respect to renewal terms
which have not commenced as of the Closing Date. In the event any new Tenant
Lease with a term which commences after the end of the Inspection Period is
approved by Purchaser, Purchaser shall, at Closing, pay, or reimburse Seller
for, all leasing commissions with respect thereto. All unapplied Deposits under
Tenant Leases, if any, shall be transferred by Seller to Purchaser at the
Closing. Any real estate ad valorem or similar taxes for the Property, or any
installment of assessments payable in installments which installment is payable
in the year of Closing, shall be prorated to the date of Closing, based upon
actual days involved. In connection with the proration of real property taxes
or installments of assessments, such proration shall be based upon the assessed
valuation and tax rate figures for the year in which the Closing occurs to the
extent the same are available; provided, that in the event that actual figures
(whether for the assessed value of the Property or for the tax rate) for the
year of Closing are not available at the Closing Date, the proration shall be
made using figures from the preceding year for the figures which are unavailable
for the year of Closing. The proration shall be final and unadjustable except
as provided in the following paragraph.
If any of the items subject to proration under the foregoing provisions of
this Section 8.4 cannot be prorated at the Closing because of the unavailability
of the information necessary to compute such proration, or if any errors or
thesClosing, or,pwithgrespectitoscommoneareasmaintenancecandrsimilareitems,tif
the prorations at Closing are determined to be incorrect based upon subsequent
year-end adjustments made with Tenants with respect to such amounts for the year
in which the Closing occurs, then such item shall be reapportioned and such
errors and omissions corrected as soon as practicable after the Closing Date and
the proper party reimbursed, which obligation shall survive the Closing for a
period (the "Proration Period") from the Closing Date until sixteen (16) months
after the Closing Date. Neither party hereto shall have the right to require a
recomputation of a Closing proration or a correction of an error or omission in
a Closing proration unless within the Proration Period one of the parties hereto
(i) has obtained the previously unavailable information or has discovered the
error or omission, and (ii) has given notice thereof to the other party together
with a copy of its good faith recomputation of the proration and copies of all
substantiating information used in such recomputation. The failure of a party
to obtain any previously unavailable information or discover an error or
omission with respect to an item subject to proration hereunder and to give
notice thereof as provided above within the Proration Period shall be deemed a
waiver of its right to cause a recomputation or a correction of an error or
omission with respect to such item after the Closing Date. Any common area
maintenance charges and other rent items (other than percentage rents, which
shall be prorated and paid as provided in the preceding paragraph) that have
accrued, but have not yet been paid shall be prorated in accordance with
estimates based upon the prior years' information (or reasonable estimates of
Seller if no such prior years' information is available), and shall be
subsequently readjusted and reapportioned upon receipt. Purchaser shall pay
Seller for common area maintenance charges and other rent items that have
accrued, but are not yet due and payable, at Closing.
8.5 Possession and Closing. Possession of the Property shall be delivered
to Purchaser by Seller at the Closing, subject to the Permitted Exceptions and
the rights of the Tenants. Purchaser shall make its own arrangements for the
provision of public utilities to the Property and Seller shall terminate its
contracts with such utility companies that provide services to the Property.
8.6 Delinquent Rent.
(a) Application of Delinquent Rent. If on the Closing Date any Tenant is
in arrears in the payment of any rent under any Tenant Lease (the 'Delinquent
Rent') payable by it, any Delinquent Rent received by Purchaser and Seller from
such Tenant after the Closing shall be applied to amounts due and payable by
such Tenant during the following periods in the following order of priority: (A)
first, to the period of time after the Closing Date, and (B) second, to the
period of time on or before the Closing Date. If Delinquent Rent or any portion
thereof received by Seller or Purchaser after the Closing are due and payable to
the other party by reason of this allocation, the appropriate sum, less a
proportionate share of any reasonable attorneys' fees and costs and expenses
expended in connection with the collection thereof, shall be promptly paid to
the other party. The provisions of this Section 8.6(a) shall survive the
Closing.
(b) Collection of Delinquent Rent. After the Closing, Seller shall
continue to have the right, in its own name, to demand payment of and to collect
Delinquent Rent owed to Seller by any Tenant, which right shall include, without
limitation, the right to continue or commence legal actions or proceedings
against any Tenant, and the delivery of the Assignment of Leases [as defined in
Section 8.2(a)(iii)] shall not constitute a waiver by Seller of such right;
provided, however, that Seller may only continue legal actions against Tenants
with respect to which it has commenced legal action or sent a demand letter
Sellertshall continueDtoehaveothetright,iin its ownename,,tofdemandepaymentgof
and to collect all percentage rents due and owing with respect to any time
period prior to the Closing Date, which right shall include, without limitation,
the right to continue or commence legal actions or proceedings against any
Tenant, and the delivery of the Assignment of Leases shall not constitute a
waiver by Seller of such right. Purchaser agrees to cooperate with Seller, to
the extent reasonably necessary but at no cost to Purchaser, in connection with
all efforts by Seller to collect such Delinquent Rent and percentage rents and
to take all steps, whether before or after the Closing Date, as may be necessary
to carry out the intention of the foregoing, including, without limitation, the
delivery to Seller, upon demand, of any relevant books and records (including,
without limitation, rent statements, receipted bills and copies of tenant checks
used in payment of such rent), the execution of any and all consents or other
documents, and the undertaking of any act reasonably necessary for the
collection of such Delinquent Rent and percentage rents by Seller. The
provisions of this Section 8.6(b) ARTICLEuIX.ve the Closing.
CONDEMNATION OR CASUALTY
9.1 Condemnation.
(a) In the event that all or any substantial portion of the Property is
condemned or taken by eminent domain or conveyed by deed in lieu thereof, or if
any condemnation proceeding is commenced for all or any substantial portion of
the Property, prior to Closing, either party may elect to terminate this
Contract by written notice thereof to the other party within ten (10) days after
(i) in the case of Seller, Seller becomes aware of such condemnation, taking or
deed in lieu, or institution of any such condemnation proceeding, or (ii) in the
case of Purchaser, Seller notifies Purchaser of the condemnation, taking or deed
in lieu or institution of such condemnation proceeding. If neither party
terminates this Contract as aforesaid, then both parties shall proceed to close
the transaction contemplated herein pursuant to the terms hereof, in which event
Seller shall deliver to Purchaser at the Closing any proceeds actually received
by Seller attributable to the Property from such condemnation, eminent domain
proceeding or deed in lieu thereof or assign its interest in and to any such
proceeds, and there shall be no reduction in the Purchase Price.
(b) For the purpose of this Section 9.1(a), a "substantial portion" of the
Property shall be deemed to be any portion of the Property with either a fair
market value or replacement cost in an amount equal to or greater than
$500,9.2.0Casualty.ovisions of this Section 9.1 shall survive the Closing.
9.2 Casualty
(a) In the event that all or any substantial portion of the Property shall
be damaged or destroyed by fire or other casualty prior to Closing, either party
may terminate this Contract by written notice thereof to the other party within
ten (10) days after (i) in the case of Seller, Seller becomes aware of such
casualty, or (ii) in the case of Purchaser, Seller notifies Purchaser of the
casualty. If neither party terminates this Contract as aforesaid, then both
parties shall proceed to close the transaction contemplated herein pursuant to
the terms hereof, in which event Seller shall deliver to Purchaser at the
Closing any insurance proceeds actually received by Seller attributable to the
Property from such casualty (except for proceeds previously used to repair the
Property) and assign to Purchaser all of Seller's right, title and interest in
and to any claims which Seller may have under the insurance policies covering
the Property, and there shall be no reduction in the Purchase Price. In the
event less than a substantial portion of the Property shall be damaged or
destroyed by fire or other casualty prior to Closing, then the parties shall
proceed in accordance with the second sentence in this Section 9.2(a).
(b) For the purposes of Section 9.2(a), a "substantial portion" of the
Property shall be deemed to be any portion of the Property with either a fair
market value or replacement cost in an amount equal to or greater than
$500,000.00. The provisions of this Section 9.2 shall survive the Closing.
ARTICLE X.
DEFAULTS AND REMEDIES
10.1 Default by Purchaser. If Seller shall not be in default hereunder and
Purchaser refuses or fails to consummate the Closing under this Contract for
reasons other than as expressly set forth in Section 4.4, Section 5.2 or Article
IX hereof or other than due to a failure of a condition precedent to Purchaser's
obligation to close as set forth in Section 7.1 hereof, Seller shall, as its
sole and exclusive remedy, terminate this Contract in which event neither party
shall have any further rights, duties, or obligations hereunder except for
provisions of this Contract which expressly survive the termination hereof, and
Seller shall be entitled to receive and retain the Earnest Money Deposit as
liquidated damages (Seller and Purchaser hereby acknowledging that the amount of
damages in the event of Purchaser's default is difficult or impossible to
ascertain but that such amount is a fair estimate of such damage).
Notwithstanding anything contained in this Section to the contrary, in the event
of any other default by Purchaser under this Contract, including, without
limitation, breach of any covenant, representation or indemnity, which survives
the Closing or termination of this Contract, Seller shall have any and all
rights and remedies available at law or in equity by reason of such default.
10.2 Default by Seller. If Purchaser shall not be in default hereunder and
if Seller refuses or fails to consummate the Closing under this Contract other
than due to a termination permitted hereunder or a failure of a condition
precedent to Seller's obligation to close as set forth in Section 7.2 hereof,
Purchaser may, at Purchaser's sole option and as its sole and exclusive
remedies, either (a) terminate this Contract in which event neither party shall
have any further rights, duties or obligations hereunder except for provisions
of this Contract which expressly survive the termination hereof, and Purchaser
specific performance ofrthisdContractEagainstMSeller.poIntnooevent shallcSeller
be liable to Purchaser for any damages, including, without limitation, any
actual, punitive, speculative or consequential damages or damages for loss of
opportunity or lost profit.
10.3 Attorneys' Fees. If it shall be necessary for either Purchaser or
Seller to employ an attorney to enforce its rights pursuant to this Contract,
the non-prevailing party shall reimburse the prevailing party for its reasonable
attorneys. fees.
ARTICLE XI.
BROKERAGE COMMISSIONS
11.1 Brokerage Commission. Seller and Purchaser represent each to the
other that each has had no dealings with any broker, finder or other party
concerning the purchase of the Property except David Huddleston & Associates
(the "Broker"). Seller hereby agrees to pay to Broker at Closing a commission
equal to 1.7% of the Purchase Price paid at Closing; provided, however, that
Seller's obligation to pay, and Broker's right to receive, this commission or
any other amount with respect to this Contract or the Property is expressly
conditioned upon Closing the sale of the Property and Seller's receipt of the
Purchase Price under this Contract. Broker shall have no right to receive this
commission or any other amount with respect to this Contract or the Property
unless and until Closing shall be final and fully consummated and Seller shall
have received the Purchase Price as provided in this Contract. Seller agrees to
indemnify Purchaser and hold Purchaser harmless from any loss, liability,
damage, cost or expense (including, without limitation, reasonable attorneys'
fees) arising out of or paid or incurred by Purchaser by reason of any claim to
any broker's, finder's or other fee in connection with this transaction by any
party claiming by, through or under Seller (including, without limitation, the
Broker). Purchaser agrees to indemnify Seller and hold Seller harmless from any
loss, liability, damage, cost or expense (including, without limitation,
reasonable attorneys' fees) arising out of or paid or incurred by Seller by
reason of any claim to any broker's, finder's or other fee in connection with
this transaction by any party claiming by, through or under Purchaser.
Notwithstanding anything to the contrary contained herein, the indemnities set
forth in this Article XI shall survive the closing.
ARTICLE XII.
OPERATION OF THE PROPERTY PRIOR TO THE CLOSING
Between the Effective Date and the Closing Date, Seller shall (a) lease,
operate, maintain, manage and enter into contracts with respect to the Property,
in the same manner done by Seller prior to the date hereof [provided, however,
that without the prior consent of Purchaser, (i) Seller shall not enter into any
service contract that cannot be terminated with thirty (30) days notice; (ii)
Seller shall not amend existing Tenant Leases in a manner that reduces the
Tenant's obligations (financial or otherwise) or increases the landlord's
obligations thereunder; and (iii) after the Inspection Period, Seller shall not
enter into any new Tenant Lease, however, if Purchaser refuses to grant its
consent to any new Tenant Lease which is proposed by Seller (and if Purchaser
fails to notify Seller in writing of its approval or disapproval of such
proposed Tenant Lease within five (5) days after Seller's delivery of notice of
such proposed Tenant Lease, Purchaser shall be deemed to have approved such
Tenant Lease), then Seller may, at its option, terminate this Contract by notice
to Purchaser, in which event the Earnest Money Deposit shall be refunded to
Purchaser and the parties shall have no further rights, duties or obligations
hereunder except for provisions of this Contract which expressly survive the
termination hereof]; and (b) advise Purchaser of the commencement of any
litigation, condemnation or other judicial or administrative proceedings
affecting the Property of which Seller has current actual knowledge.
Notwithstanding the foregoing, if, after the Inspection Period, Seller proposes
to enter into a new Tenant Lease, and Purchaser refuses to grant its consent to
such new Tenant Lease, Seller may not terminate this Contract pursuant to
subpart (a)(iii) of this Article XII if, simultaneously with Purchaser's notice
to Seller that it will not grant its consent to such Tenant Lease, Purchaser
notifies the Title Company and Seller in writing that the Title Company is to
immediately and unconditionally deliver to Seller the Earnest Money Deposit and
that such Earnest Money Deposit shall thereafter be non-refundable to Purchaser
unless Purchaser is otherwise entitled to a refund of such Earnest Money Deposit
pursuant to Section 10.2 of this Contract.
ARTICLE XIII.
MISCELLANEOUS
13.1 Notices. Any notice provided or permitted to be given under this
Contract must be in writing and may be served by (a) depositing same in the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, (b) delivering the same
in person to such party via a hand delivery service, Federal Express or any
other nationally recognized courier service that provides a return receipt
showing the date of actual delivery of same to the addressee thereof, or (c)
facsimile transmission with confirmation of receipt to the party sending same,
if a copy is deposited in the United States Mail as provided in 13.1(a) above.
Notice given in accordance herewith shall be effective upon receipt at the
address of the addressee. For purposes of notice, the addresses of the parties
shall be as follows:
If to Seller: U.S. Realty Partners Limited Partnership
c/o Insignia Financial Group
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attention: Kenneth A. Cobler
Facsimile No.: 864/239-1558
With a copy to: TelepLiechty.& McGinnis,1P.C.
10440 North Central Expressway, Suite 1100
Dallas, Texas 75231
Attention: Lorne O. Liechty, Esq.
Facsimile No.: 214/265-0615
Telephone No.: 214/265-0008
If to Purchaser: Commercial & Investment Properties Co.
5500 Lonas Road, Suite 360
Knoxville, Tennessee 37909
Attention: Nicholas C. Cazana
Facsimile No.: 423/584-4317
Telephone No.: 423/584-3967
With a copy to: Long, Ragsdale & Waters
1111 Northshore Drive, Suite 700 South
Knoxville, Tennessee 37919
Attention: Dennis Ragsdale, Esq.
Facsimile No.: 423/584-6084
Telephone No.: 423/584-4040
If to Title
Company: Chicago Title Insurance Company
7616 LBJ Freeway, Suite 300
Dallas, Texas 75251
Attention: Sharon L. Cooper
Facsimile No.: 972/404-8731
Telephone No.: 972/663-0419
13.2 GOVERNING LAW. THIS CONTRACT IS BEING EXECUTED AND DELIVERED, AND IS
SHALLDGOVERNBTHEEVALIDITY,NCONSTRUCTION,FENFORCEMENT AND INTERPRETATIONCOFSTHIS
CONTRACT.
13.3 Entirety and Amendments. This Contract embodies the entire agreement
between the parties and supersedes all prior agreements and understandings, if
any, relating to the transaction described herein, and may be amended or
supplemented only by an instrument in writing executed by the party against whom
enforcement is sought.
13.4 Parties Bound. Subject to the provisions of Section 13.5 hereof, this
Contract shall be binding upon and inure to the benefit of Seller and Purchaser,
and their respective heirs, personal representatives, successors and assigns.
13.5 Assignment. Purchaser may assign its rights under this Contract to an
entity controlling, controlled by, or under common control with Purchaser
without the prior written consent of Seller. Except as expressly provided in
the preceding sentence, this Contract may not be assigned in whole or in part by
Purchaser without the prior written consent of Seller, which consent may be
granted or withheld by Seller in Seller's sole and absolute discretion. In the
event of an assignment of this Contract by Purchaser, Purchaser shall not be
released from any liability or obligations hereunder, and Purchaser shall
promptly deliver to Seller a copy of the instrument effecting such assignment.
Subject to the foregoing, this Contract shall be binding upon and inure to the
benefit of Seller and Purchaser and their respective heirs, personal
representatives, successors and assigns.
13.6 Headings. Headings used in this Contract are used for reference
purposes only and do not constitute substantive matter to be considered in
const13.7gSurvival.s Exceptsasootherwise expressly provided herein, no
representations, warranties, covenants, acknowledgments or agreements contained
in this Contract shall survive the Closing of this Contract and the delivery of
the Special Warranty Deed by Seller to Purchaser.
13.8 Interpretation. The parties acknowledge that each party and its
counsel have reviewed this Contract, and the parties hereby agree that 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 Contract or any amendments or exhibits hereto. In case any one or more
of the provisions contained in this Contract shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and this Contract
shall be construed as if such invalid, illegal or unenforceable provisions had
never been contained herein. When the context in which words are used in this
Contract indicates that such is the intent, words in the singular number shall
include the plural and vice versa, and words in the masculine gender shall
include the feminine and neuter genders and vice versa.
13.9 Exhibits. All references to "Exhibits" contained herein are
references to exhibits attached hereto, all of which are hereby made a part
hereof for all purposes.
13.10 Time of Essence. It is expressly agreed by the parties hereto
that time is of the essence with respect to this Contract and Closing hereunder.
13.11 Multiple Counterparts. This Contract may be executed in a number
of identical counterparts. If so executed, each of such counterparts is to be
deemed an original for all purposes, and all such counterparts shall,
itlshallvnot,beonecessaryoto producenor account forimorerthanoonehsuchontract,
counterpart.
13.12 Risk of Loss. Risk of loss or damage to the Property, or any
part thereof, by fire or any other casualty from the date this Contract is fully
executed up to the time of delivering the Special Warranty Deed transferring
title to the Property to the Purchaser will be on the Seller and, thereafter,
will be on the Purchaser.
13.13 Effective Date. As used herein, the term "Effective Date" shall
mean for all purposes in this Contract the date on which the Title Company
acknowledges receipt of an original of the Contract executed by Purchaser and
Seller with all changes, if any, to the printed portion of this Contract
initialed by Purchaser and Seller.
13.14 Business Days. All references to "business days" contained
herein are references to normal working business days, i.e., Monday through
Friday of each calendar week, exclusive of federal and national bank holidays.
In the event that any event hereunder is to occur, or a time period is to
expire, on a date which is not a business day, such event shall occur or such
time period shall expire on the next succeeding business day.
13.15 No Recordation of Contract. In no event shall this Contract or
any memorandum hereof be recorded in the public records of the place in which
the Property is situated, and any such recordation or attempted recordation
shall constitute a breach of this Contract by the party responsible for such
recorINtWITNESSaWHEREOF, theoundersigned have executed this Contract effective
as of the Effective Date.
SELLER:
U.S. REALTY PARTNERS LIMITED PARTNERSHIP,
a Delaware limited partnership
By: U.S. Realty I Corporation,
a South Carolina corporation
By:_______________________________________
Its:_____________________________
Dated:____________________________________
PURCHASER:
COMMERCIAL & INVESTMENT PROPERTIES CO.,
a Tennessee corporation
By:_____________________________________________
Its:___________________________________________
Dated:____________________________________
RECEIPT OF EARNEST MONEY DEPOSIT
AND AGREEMENT OF TITLE COMPANY
Chicago Title Insurance Company (the "Title Company"), located at 7616 LBJ
Freeway, Suite 300, Dallas, Texas 75251, hereby acknowledges the receipt of one
(1) fully signed and executed copy of this Contract.
Upon receipt, the Title Company agrees to hold the Earnest Money Deposit in
escrow as escrow agent for the benefit of Seller and Purchaser and to dispose of
the Earnest Money Deposit in strict accordance with the terms and provisions of
this Contract.
CHICAGO TITLE INSURANCE COMPANY
By:____________________________________
Name:__________________________________
Title:___________________________________
Dated:____________________________________
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description of the Property]
EXHIBIT B
This Instrument Prepared By:
LIECHTY & McGINNIS, P.C.
10440 N. Central Expressway, Suite 1100
Dallas, Texas 75231
214/265-0008
SPECIAL WARRANTY DEED
ADDRESS NEW OWNER AS FOLLOWS: SEND TAX BILLS TO:
MAP & PARCEL NO:
____________________________________, a ____________________ (hereinafter
called "Grantor"), for and in consideration of the sum of TEN AND No/100 Dollars
($10.00) and other good and valuable consideration in hand paid by
_________________________, a ______________ (hereinafter called "Grantee"),
whose mailing address is ______________________________________, the receipt and
sufficiency of which are hereby acknowledged, has GRANTED, SOLD AND CONVEYED and
by these presents does GRANT, SELL AND CONVEY unto Grantee that certain tract or
parcel of land situated in ______________ County, _____________, and more
particularly described on Exhibit A attached hereto and made a part hereof for
all purposes, together with Grantor's rights and interests in all improvements,
structures and fixtures located thereon and all rights, titles and interests of
Grantor appurtenant thereto (all of the above-described properties being
hereinafter collectively referred to as the "Property"). This conveyance is
made and accepted subject to (a) general real estate taxes on the Property for
the current year which Grantee assumes and agrees to pay, (b) zoning laws and
regulations and ordinances of municipal and other governmental authorities, if
any, affecting the Property, and (c) the matters set forth on Exhibit B attached
hereto and made a part hereof for all purposes (all of the foregoing being
hereinafter collectively referred to as the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances thereto in anywise belonging unto Grantee, its successors and
assigns forever, and Grantor does hereby bind itself, its successors and
assigns, to WARRANT AND FOREVER DEFEND all and singular the Property unto
Grantee, its successors and assigns, against every person whomsoever lawfully
claiming or to claim the same or any part thereof, by, through or under Grantor,
but not otherwise, subject, however, to the Permitted Exceptions.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTOR HAS NOT MADE, AND GRANTOR
HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY, GUARANTY OR REPRESENTATION AS TO,
OR CONCERNING THE PROPERTY EXCEPT FOR ANY WARRANTY OF TITLE EXPRESSLY CONTAINED
IN THIS DEED; PROVIDED, HOWEVER, THAT THIS SHALL NOT BE DEEMED TO LIMIT THE
OFPSALENBYTANDSBETWEENNGRANTOR,AASESELLER,CANDNCOMMERCIAL &HINVESTMENT CONTRACT
PROPERTIES CO., A TENNESSEE CORPORATION, AS PURCHASER. GRANTEE ACCEPTS THE
PROPERTY, AND ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY TO GRANTEE IS
MADE BY GRANTOR, ON AN .AS IS, WHERE IS, AND WITH ALL FAULTS. BASIS.
GRANTEE.S AGREEMENT TO, AND ACKNOWLEDGMENT OF, THE VARIOUS MATTERS
SPECIFIED IN THIS SPECIAL WARRANTY DEED SHALL BE CONCLUSIVELY EVIDENCED BY
GRANTEE.S ACCEPTANCE HEREOF.
Current ad valorem taxes on the Property having been prorated, Grantee
hereby assumes the payment thereof.
IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor to
be effective for all purposes as of the _____ day of _____________, 199__.
GRANTOR:
_________________________________________
By:______________________________________
Its:_____________________________________
Dated:___________________________________
STATE OF ____________
COUNTY OF __________
This instrument was acknowledged before me on this _____ day of
_____________, 199__, by _______________________________,
_________________________________ of _________________________________________,
a ____________________________, acting in its capacity as general partner of
_________________________________________, a ___________________________, known
to me to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said ____________________.
_________________________________________
Notary Public, State of ____________
My Commission Expires:
____________________ _____________________________________________
Printed Name of Notary Public
STATE OF
:ss
COUNTY OF
The actual consideration or value, whichever is greater, for this transfer
is $______________.
__________________________________________
AFFIANT
Subscribed and sworn to before me, this _____ day of _____________, 1998.
__________________________________________
Notary Public
My Commission Expires:
____________________
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description of the Property]
EXHIBIT B
PERMITTED EXCEPTIONS
[Attach list of Permitted Exceptions created
in accordance with the terms of the Contract]
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF LEASES
STATE OF ____________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF __________
That, _________________________________________, a ________________________
("Assignor"), for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, to Assignor in hand paid, the receipt and
legal sufficiency of which are hereby acknowledged, hereby transfers, assigns
and sets over unto ______________ ________________, a __________________________
("Assignee"), all of the right, title and interest of Assignor in and to all
leases of, and security deposits and prepaid rents relating to space in
(together, the "Leases") the real property described on Exhibit A, attached
hereto and made a part hereof for all purposes.
TO HAVE AND TO HOLD the Leases, together with any and all of the rights and
appurtenances thereto in anywise belonging to Assignor (excluding the right to
receive rents paid under the Leases and which accrued before the date of this
Assignment), unto Assignee and Assignee's successors and assigns forever, and
Assignor does hereby bind Assignor and Assignor's legal representatives and
successors, to WARRANT AND FOREVER DEFEND all and singular the Leases unto
Assignee and Assignee's successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof, by, through or under
Assignor, but not otherwise.
In consideration of the foregoing assignment, Assignee hereby assumes, and
agrees to perform all of the obligations of Assignor under the Leases,
andlthenpaymentnof anyideferredtleasinggcommissionsfthatabecomeupayablepafter
the date of this Assignment with respect to any of the Leases, and indemnifies
Assignor and holds Assignor harmless from all loss, cost, liability and expense
arising out of or in connection with the Leases to the extent the same arises on
or after the date hereof. Assignee takes the Leases subject to any existing
defaults thereunder, but, to the extent required by that certain Contract of
Sale dated _____________, 199__, between Assignor and ______________ (the "Sales
Contract"), shall pay to Assignor monies collected from tenants who owe
delinquent rents that have accrued as of the date of this Assignment until all
of such delinquent rents have been paid. Assignor hereby agrees to indemnify
and hold Assignee harmless from all loss, cost, liability and expense arising
out of or in connection with the Leases to the extent the same arises prior to
the date hereof.
Notwithstanding anything to the contrary herein, Assignor hereby reserves
and retains its rights with respect to any percentage rents which are payable
under the Leases with respect to the period prior to the date hereof. Assignor
and Assignee hereby agree that such percentage rents shall be payable to
Assignor in accordance with the terms and provisions of the Sales Contract and
that such Sales Contract shall govern the rights of the Assignor and Assignee
with respect to such percentage rents
EXECUTED effective as of this_____ day of _________, 199__.
ASSIGNOR:
________________________________________
By:_____________________________________
Its:____________________________________
Dated:__________________________________
ASSIGNEE:
___________________________________________
STATE OF ____________ Dated:____________________________________
COUNTY OF __________
This instrument was acknowledged before me on this _____ day of
_____________, 199__, by _______________________________,
_________________________________ of _________________________________________,
a ____________________________, acting in its capacity as general partner of
_________________________________________, a ___________________________, known
to me to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said ____________________.
________________________________________
Notary Public, State of ____________
My Commission Expires:
____________________ _____________________________________________
Printed Name of Notary Public
STATE OF ____________
COUNTY OF __________
This instrument was acknowledged before me on this _____ day of
_____________, 199__, by _______________________________,
_________________________________ of _________________________________________,
a ____________________________, acting in its capacity as general partner of
_________________________________________, a ___________________________, known
to me to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said ____________________.
_____________________________________________
Notary Public, State of ____________
My Commission Expires:
____________________ _____________________________________________
Printed Name of Notary Public
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description of the Property]
EXHIBIT D
BLANKET CONVEYANCE, BILL OF SALE AND ASSIGNMENT
STATE OF ____________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF __________
By a Special Warranty Deed (the "Deed") of even date with the date hereof,
____________________________________, a __________________________ ("Seller"),
conveyed to ________________________, a _______________ ("Purchaser"), the real
property (the "Real Property") described on Exhibit A attached hereto and made a
part hereof for all purposes, together with all improvements located thereon.
As consideration for (a) the conveyance of the Real Property, (b) the
conveyance of the personal property described herein, and (c) the assignments
contained herein, Purchaser has paid the sum of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration to the Seller.
NOW, THEREFORE, for the consideration above specified, the receipt and
sufficiency of which are expressly acknowledged:
1. The Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER and
DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER, SET-
OVER and DELIVER unto the Purchaser, all of Seller's right, title and interest
in and to all items of tangible personal property located on or attached to the
Real Property including, without limitation, all items of personal property
described on Exhibit B hereto (all of the property described in this paragraph 1
is hereinafter referred to as the "Personal Property") (the Real Property and
Perso2.l PTheeSellermhasmASSIGNED,tTRANSFERREDrandtSET-OVER,aandhby"theserty").
presents does ASSIGN, TRANSFER and SET-OVER unto the Purchaser (to the extent
they are assignable) all of its right, title and interest in and to all service
contracts listed on Exhibit C hereto, all bonds, warranties and guaranties in
Seller's possession which relate to the Real Property or Personal Property.
PURCHASER ACCEPTS THE PROPERTY DESCRIBED IN THIS DOCUMENT (THE .PROPERTY.),
AND ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY TO PURCHASER IS MADE BY
SELLER, ON AN .AS IS, WHERE IS, AND WITH ALL FAULTS. BASIS. PURCHASER EXPRESSLY
ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH IN THE CONTRACT OF SALE BETWEEN
SELLER AND ______________ DATED _____________, 199__, OR ANY DOCUMENTS DELIVERED
PURSUANT THERETO, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, ORAL
OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW WITH RESPECT TO
THE PROPERTY REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES
OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER.S WARRANTY OF TITLE SET FORTH IN THE DEED
DELIVERED TO PURCHASER), ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL
CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL
APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH,
ACCURACY OR COMPLETENESS OF ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER
TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.
Purchaser hereby assumes and agrees to perform from the effective date
hereof forward all of the covenants and obligations contained in the contracts
assigned hereunder (to the extent such contracts are listed on Exhibit C hereto)
which are to be performed by Seller and hereby indemnifies Seller and agrees to
hold Seller harmless from and against all liability, cost, loss, damage or
expense, including reasonable attorneys' fees, suffered or incurred by Seller as
a result of any alleged failure of Purchaser to perform such covenants or
obligThisnBlanket Conveyance, Bill of Sale and Assignment is binding and shall
inure to the benefit of the parties hereto, and their respective successors and
assigns.
TO HAVE AND TO HOLD the Property unto Purchaser, its successors and assigns
forever, and Seller does hereby bind itself, its successors and assigns, to
forever WARRANT AND DEFEND the title to the Property unto Purchaser, its
successors and assigns, against any person whomsoever lawfully claiming, or to
claim the same or any part thereof, by, through or under Seller, but not
otherwise.
EXECUTED effective as of the ______ day of __________, 199__.
SELLER:
_________________________________________
By:______________________________________
Its:_____________________________________
Dated:___________________________________
PURCHASER:
_________________________________________
Dated___________________________
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description of the Property]
EXHIBIT B
NON-FOREIGN AFFIDAVIT
STATE OF ____________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF __________
On this date, ______________________________, a ___________________________
("Seller"), has sold and conveyed certain real property situated in
______________ County, _____________, to _______________________, a
______________ ("Purchaser"). Section 1445 of the Internal Revenue Code of
1986, as amended, provides that a transferee of a U.S. Real Property Interest
must withhold tax if the transferor is a foreign person. To inform Purchaser
that withholding of tax is not required upon the disposition of a U.S. Real
Property Interest by Seller, the undersigned hereby certifies the following on
behalf of Seller:
1. 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's U.S. Employer Identification
Number is _______________________; and
3. Seller's office
address is
_____________________________________________
Seller_understands_that_this_certification may be disclosed to the Internal
Revenue Service by Purchaser and that any false statement contained herein could
be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Seller.
Executed this ______ day of ______________, 199__.
SELLER:
_______________________________________
By:____________________________________
Its:___________________________________
STATE OF ____________ Dated:_________________________________
COUNTY OF __________
This instrument was acknowledged before me on this _____ day of
_____________, 199__, by _______________________________,
_________________________________ of _________________________________________,
a ____________________________, acting in its capacity as general partner of
_________________________________________, a ___________________________, known
to me to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said ____________________.
____________________________________
Notary Public, State of ____________
My Commission Expires:
____________________ _____________________________________________
Printed name of Notary Public
EXHIBIT F
TENANT ESTOPPEL CERTIFICATE
The undersigned __________________________, a ___________________
("Tenant"), hereby certifies as follows:
1. __________________________ ("Landlord"), as landlord, and Tenant, as
tenant, are parties to that certain lease dated _____________, 199__ (the
"Lease"), demising certain premises more fully described therein and designated
as Suite _______ in the building known as "__________________" and having an
address of _____________________________________, _____________, _____________
(the "Building"). Landlord is the current owner of the Premises and Tenant is
the current tenant under the Lease.
2. The Lease is in full force and effect and has not been modified,
amended or supplemented in any way, except as follows (insert dates of all
modifications, amendments or supplements; if none, write
"None"):_________________________________________________
______________________________________________________________________________
_____________________________________________________________________________.
3. There are no other representations, warranties, agreements,
commitments or understanding between Landlord and Tenant regarding the Premises
other than as set forth in the Lease or paragraph 2 above.
4. The initial term of the Lease commenced on ______________, 199__, will
expire on _______________, 199__. Tenant has ___________ options to renew the
initi5. teFixed monthlysrentais currentlyipayable_at_the_rate ofa$__________ per
month. All fixed monthly rent due as of _____________, 199__, has been paid.
Tenant has paid in full all other sums presently due and payable under the
Lease.
6. Tenant has taken possession of and occupying the Premises. All work
required under the Lease to be performed by Landlord has been completed to the
satisfaction of Tenant, except as follows (insert description of any work to be
completed by Landlord; if none, write "None"):____
______________________________________________________________________________
_____________________________________________________________________________.
7. There are no defaults on the part of Tenant or, to the best of
Tenant's knowledge, Landlord under the Lease.
8. Tenant has paid to Landlord a security deposit of $__________, which
security deposit has not been applied in whole or in part to any of Tenant's
obligations under the Lease.
9. Tenant presently has no charge, lien, claim, defense, set-off or
counterclaim against Landlord or the performance of Tenant's obligations under
the lease.
10. Tenant has been advised that ___________________ or assignee thereof
("Buyer"), will acquire the Building and that ___________________ ("Lender")
will provide financing to Buyer in connection therewith. Tenant agrees that the
foregoing certifications shall inure to the benefit of and may be relied upon by
Landlord, Buyer and Lender, and their respective successors and assigns.
Date:________________, 199__
TENANT:
_______________________________________,
a _________________
By:____________________________________
Name:__________________________________
Title:_________________________________
