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) July 2, 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 Huntsville, Alabama on July 2, 1999. Gallery Shopping Center was
sold to Huntgal, LLC, an unrelated party, for $7,310,000.
The entire net proceeds of the sale were used to pay down the first mortgage
indebtedness of the Partnership which was secured by Gallery Shopping Center as
well as the Partnership's remaining two 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
approximately $4,400,000.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's quarterly report on Form 10-QSB for the quarter ended June 30,
1999.
(c) Exhibits
10.21 Contract of Sale between Registrant and Huntgal, LLC effective July
2, 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:
EXHIBIT 10.21
PURCHASE AND SALE CONTRACT
BETWEEN
U.S. REALTY PARTNERS LIMITED PARTNERSHIP
AS SELLER
AND
HUNTGAL, LLC
AS PURCHASER
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS 1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY 5
ARTICLE 3 PURCHASE PRICE & DEPOSIT 5
ARTICLE 4 FINANCING 6
ARTICLE 5 FEASBILITY PERIOD 7
ARTICLE 6 TITLE 9
ARTICLE 7 CLOSING 13
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
19
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING 23
ARTICLE 10 BROKERAGE 24
ARTICLE 11 POSSESSION 25
ARTICLE 12 DEFAULTS AND REMEDIES 25
ARTICLE 13 RISK OF LOSS OR CASUALTY 26
ARTICLE 14 RATIFICATION 27
ARTICLE 15 EMINENT DOMAIN 27
ARTICLE 16 MISCELLANEOUS 28
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of the
_____ day of April, 1999 (the "Effective Date") by and among U.S. Realty
Partners Limited Partnership, a Delaware limited partnership, having a principal
address at c/o AIMCO, 1873 South Bellaire Street, Suite 1700, Denver, CO 80222
Attention: Tim Works, Harry Alcock, Martha Carlin ("Seller") and HUNTGAL, LLC, a
Kentucky limited liability company, having a principal address at c/o Thomas W.
Mueller, 1300 W. Main Street, Louisville, Kentucky 40203 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to a parcel of real estate more particularly
described in Exhibit A attached hereto and made a part hereof located in the
County of Madison, Alabama on each of which improvements have been constructed.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date as defined in this Purchase Contract the Property will be conveyed
by special warranty or equivalent deed to HUNTGAL, LLC;
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have the
meanings set forth in this Article 1 below.
1.1.1 "Business Day" means any day other than a Saturday or Sunday or Federal
holiday or legal holiday in the State of Alabama.
1.1.2 "CLOSING" means the consummation of the purchase and sale and related
transactions contemplated by this Purchase Contract in accordance with
the terms and conditions of this Purchase Contract.
1.1.3 "CLOSING DATE" means the date on which date the Closing of the conveyance
of the Property is held under the terms and conditions of this Purchase
Contract and on which date full payment of the Purchase Price for the
Property shall have been paid to and received by Seller in immediately
available U.S. funds.
1.1.4 "COMMERCIAL LEASE(S)" means the interest of Seller in and to all leases,
subleases and other occupancy agreements, whether or not of record, which
provide for the use or occupancy of space or facilities on or relating to
the Property and which are in force as of the Opening Date for the
applicable Property.
1.1.5 "PURCHASE CONTRACT" means this Purchase and Sale Purchase Contract by and
between Seller and Purchaser.
1.1.6 "EXCLUDED PERMITS" means those Permits which, under applicable law, are
nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.6, if any, attached hereto.
1.1.7 "FINANCING COMMITMENTS" means the written commitment(s) to finance the
purchase and operation of the Property.
1.1.8 "FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus, appliances
and other articles of personal property now located on the Land or in the
Improvements as of the date of this Purchase Contract and used or usable in
connection with any present or future occupation or operation of all or any part
of the Property. The term "Fixtures and Tangible Personal Property" does not
include (i) equipment leased by Seller and the interest of Seller in any
equipment provided to the Property for use, but not owned or leased by Seller,
or (ii) property owned or leased by Tenants and guests, employees or other
persons furnishing goods or services to the Property or (iii) property and
equipment owned by Seller, which in the ordinary course of business of the
Property is not used exclusively for the business, operation or management of
the Property or (iv) the property and equipment, if any, expressly identified in
Exhibit 1.1.8.
1.1.9 "LAND" means all of that certain tract of land located in Madison,
Alabama commonly known as 4925 University Drive, Huntsville, Alabama,
35816, more particularly described in Exhibit A attached hereto and made
a part hereof and all rights, privileges and appurtenances pertaining
thereto.
1.1.10"PROPERTY" means the Land and Improvements described in the Recitals and
all rights of Seller relating to the Land and the Improvements, including
without limitation, any rights, title and interest of Seller, if any, in
and to (i) any strips and gores adjacent to the Land and any land lying
in the bed of any street, road, or avenue opened or proposed, in front of
or adjoining the Land, to the center line thereof; (ii) any unpaid award
for any taking by condemnation or any damage to the Property by reason of
a change of grade of any street or highway; (iii) all of the easements,
rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible
Personal Property, the right of Seller issued to Property Contracts and
Commercial Leases, Permits other than Excluded Permits and the
Miscellaneous Property Assets owned by Seller which are located on the
Property and used in its operation.
1.1.11"PROPERTY CONTRACTS" means all purchase orders, maintenance, service, or
utility contracts and similar contracts, which relate to the ownership,
maintenance, construction or repair and/or operation of the Property and
which are not cancelable on 90 days' or shorter Notice, except Commercial
Leases.
1.1.12"IMPROVEMENTS" means all buildings and improvements, located on the Land
taken "as is" containing approximately 101,258 gross square feet of
shopping center space.
1.1.13"MISCELLANEOUS PROPERTY ASSETS" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property
and owned by Seller, excluding, however, (i) receivables, (ii) Property
Contracts, (iii) Commercial Leases, (iv) Permits, (v) cash or other
funds, whether in petty cash or house "banks," or on deposit in bank
accounts or in transit for deposit, (vi) refunds, rebates or other
claims, or any interest thereon, for periods or events occurring prior to
the Closing Date, (vii) utility and similar deposits, (viii) insurance or
other prepaid Items or (ix) books and records, except to the extent that
Seller receives a credit on the Closing Statement for any such item.
1.1.14"PERMITS" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned by
Seller or used in or relating to the ownership, occupancy or operation of
the Property or any part thereof not subject to a Commercial Lease.
1.1.15"PERMITTED EXCEPTIONS" means those exceptions or conditions permitted to
encumber the title to the Property in accordance with the provisions of
Section 6.2.
1.1.16"PURCHASE PRICE" means the total consideration to be paid by Purchaser to
Seller for the purchase of the Property.
1.1.17"SURVEY" shall have the meaning ascribed thereto in Section 6.11.
1.1.18"TENANT" means any person or entity entitled to occupy any portion of the
Property under a Commercial Lease.
1.1.19"TITLE COMMITMENT" or "Title Commitments" shall have the meaning ascribed
thereto in Section 6.1.
1.1.20"TITLE INSURER" shall have the meaning set forth in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms
and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be Seven
Million Three Hundred Ten Thousand Dollars ($7,310,000.00) in cash, which
shall be paid by Purchaser, as follows:
3.1.1 Within one (1) business day after receipt of an original of this Contract
that has been executed by Seller, Purchaser shall deliver to Chicago
Title Insurance Company, 7616 LBJ Freeway, Suite 300, Dallas, Texas
75251, Attn: Gloria Ripoll ("Escrow Agent" or the "Title Company") a
deposit in the sum of Two Hundred Fifty Thousand Dollars ($250,000.00) in
cash (such sum, the "Deposit"). Purchaser shall also deliver a quitclaim
deed to the Escrow Agent in the form attached as Exhibit 3.1.1.
Purchaser and Seller each approve the form of Escrow Agreement attached
as Exhibit B.
3.1.2 The Escrow Agent shall hold the Deposit and make delivery of the Deposit
to the party entitled thereto under the terms hereof. Escrow Agent shall
invest the Deposit in such short-term, high-grade securities,
interest-bearing bank accounts, money market funds or accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in
its discretion, deems suitable, (provided that Escrow Agent shall invest
the Deposit as jointly directed by Seller and Purchaser should Seller and
Purchaser each in their respective sole discretion determine to issue
such joint investment instructions to the Escrow Agent) and all interest
and income thereon shall become part of the Deposit and shall be remitted
to the party entitled to the Deposit, as set forth below.
3.1.3 If the sale of the Property is closed, monies held as the Deposit shall
be applied toward the Purchase Price (and paid over to the Seller) on the
Date of Closing. If the sale of the Property is not closed owing to
failure of satisfaction of a condition precedent to Purchaser's
obligations, the Deposit shall be returned and refunded to Purchaser, and
neither party shall have any further liability hereunder, subject to and
except for Purchaser's liability under Section 5.3.
3.1.4.If the sale of the Property is not closed by the date fixed therefor (or
any such extension date) owing to failure of performance by Seller,
Purchaser shall be entitled to the remedies set forth in ARTICLE 12
hereof. If the sale of the Property is not closed owing to failure of
performance by Purchaser, the Deposit shall be forfeited by Purchaser and
the sum thereof shall go to Seller forthwith as liquidated damages for
the lost opportunity costs and transaction expenses incurred by Seller,
as more fully set forth in ARTICLE 12 below.
ARTICLE 4
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement. Purchaser shall place with a lender a mortgage or deed of
trust on the Property paying interest at the repayment schedule established
by Lender's written commitment to Purchaser.
ARTICLE 5
FEASBILITY PERIOD
5.1 Subject to the terms of section 5.3 below, for ten (10) business days
following the actual receipt by Purchaser of (i) an original of this
Contract that has been executed by Seller, and (ii) all items listed on the
Due Diligence Information Checklist ("Checklist"), attached hereto as
Exhibit C which are to be provided Purchaser to the extent they are
available as set forth in the Checklist (the "Feasibility Period"),
Purchaser, and its agents, contractors, engineers, surveyors, attorneys,
and employees ("Consultants") shall have the right from time to time to
enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests, examinations
and inspections, or investigations of or concerning the Property
(including without limitation, engineering and feasibility studies,
evaluation of drainage and flood plain, soil tests for bearing capacity
and percolation and surveys, including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the property for Purchaser's
intended use of the Property.
5.2 Should the results of any of the matters referred to in sub-paragraphs
5.1.1, 5.1.2 and 5.1.3 above appear unsatisfactory to Purchaser for any
reason, then Purchaser shall have the right to terminate this Purchase
Contract by giving written Notice to that effect to Seller on or before
5:00 p.m. EST on the date of expiration of the Feasibility Period. If
Purchaser exercises such right to terminate, this Purchase Contract shall
terminate and be of no further force and effect, subject to and except for
Purchaser's liability under Section 5.3, and Escrow Agent shall forthwith
deliver the Quitclaim Deed of all of Purchaser's right and interest in the
Property to Seller, and then promptly return the Deposit to Purchaser. If
Purchaser fails to provide Seller with written Notice of cancellation prior
to the end of the Feasibility Period in strict accordance with the Notice
provisions of this Purchase Contract, this Purchase Contract shall remain
in full force and effect and Purchaser's obligation to purchase the
Property shall be non-contingent and unconditional except only for
satisfaction of the conditions expressly stated in this ARTICLE 5, ARTICLE
6, ARTICLE 7 and in ARTICLE 9.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property. Purchaser shall indemnify,
defend (with attorneys selected by Seller) and hold Seller harmless from
any and all claims, damages, costs and liability which may arise due to
such entries, surveys, tests, investigations and the like. Seller shall
have the right, without limitation, to disapprove any and all entries,
surveys, tests, investigations and the like that in their reasonable
judgment could result in any injury to the Property or breach of any
agreement, or expose Seller to any liability, costs, liens or violations of
applicable law, or otherwise adversely affect the Property or Seller's
interest therein. No consent by the Seller to any such activity shall be
deemed to constitute a waiver by Seller or assumption of liability or risk
by Seller. Purchaser hereby agrees to restore the Property to the same
condition existing immediately prior to Purchaser's exercise of its rights
pursuant to this ARTICLE 5 at Purchaser's sole cost and expense.
5.4 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 by or for Purchaser.
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. Purchaser shall take all reasonable actions and implement all
protections necessary to ensure that all actions taken in connection with
the investigations and inspections of the Property, and all equipment,
materials and substances generated, used or brought onto the Property pose
no material threat to the safety of persons or the environment and cause no
damage to the Property or other property of Seller or other persons.
5.5 Seller will make available to Purchaser all contracts, leases and real
estate tax bills, the existing title policy, any environmental study, any
survey and any other information requested by Purchaser which is in
Seller's possession and is reasonably related to the Purchaser's due
diligence, including without limitation, all items listed on the Due
Diligence Information Checklist attached hereto as Exhibit C which are to
be made available to Purchaser to the extent they are available as set
forth in the Checklist. All information made available by Seller to
Purchaser in accordance with this Purchase Contract or obtained by
Purchaser in the course of its investigations shall be treated as confiden-
tial information by Purchaser, and, prior to the purchase of the Property
by Purchaser, Purchaser shall use its best efforts to prevent its agents
and employees from divulging such information to any unrelated 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 Purchase Contract, including Purchaser's attorneys and
representatives, prospective lenders and engineers.
ARTICLE 6
TITLE
6.1 Seller shall promptly secure a commitment for title insurance for the
Property in an amount equal to the Purchase Price ("Title Commitment,")
issued by a title insurance company which is licensed to do business in the
jurisdiction in which the Property is located ("Title Insurer") for an
owner's title insurance policy on the most recent standard American Land
Title Association ("ALTA") Policy form, together with legible copies of all
instruments identified as exceptions therein. Seller agrees that it shall
be solely responsible for payment of all costs relating to procurement of
the Title Commitment and any Owner's or Lender's title policies (for
standard coverage only).
6.2 Purchaser agrees to accept title to the Land and Improvements, so long as
the same is insurable at ordinary rates and any conveyance by special
warranty or equivalent deed pursuant to this Purchase Contract shall be
subject to the following, all of which shall be deemed "Permitted
Exceptions" and Purchaser agrees to accept the deed and title subject
thereto:
6.2.1 All exceptions shown in the Title Commitment (other than mechanics' liens
and taxes due and payable in respect of the period preceding Closing) and
all exceptions noted in Exhibit 6.2.1 attached hereto; and
6.2.2 Such exceptions and matters as the Title Company shall be willing to omit
as exceptions to coverage; and
6.2.3 All Commercial Leases and any other occupancy, residency, lease, tenancy
and similar agreements entered into in the ordinary course of business;
and
6.2.4 All Property Contracts and any other existing contracts created in the
ordinary course of business by Seller, which are not identified for
termination by Purchaser during the Feasibility Period; and
6.2.5 Real estate and property taxes to the extent not due and payable; and
6.2.6 Defects and exceptions which do not materially and adversely affect the
condition of title to the Property and its use as of the Effective Date.
6.3 The existence of other mortgages, liens, or encumbrances shall not be
objections to title, provided that properly executed instruments in
recordable form necessary to satisfy and remove the same of record are
delivered to the Purchaser at Closing or, in the alternative, with respect
to any mortgage or deed of trust liens, that payoff letters from the holder
of the mortgage or deed of trust liens shall have been delivered to and
accepted by the Title Insurer (sufficient to remove the same from the
policy issued at Closing), together in either case, with recording and/or
filing fees.
6.4 Unpaid liens for taxes, charges, and assessments shall not be objections to
title, but the amount thereof plus interest and penalties thereon shall be
deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser, subject to the provisions for
apportionment of taxes and charges contained herein.
6.5 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the Property or
otherwise against Purchaser or its affiliates, and provided further that
the Title Insurer agrees to omit such taxes as exceptions to coverage with
respect to any lender's mortgagee insurance policy.
6.6 If on the Closing Date there shall be conditional bills of sale or Uniform
Commercial Code financing statements that were filed on a day more than
Five (5) years prior to such Closing, and such financing statements have
not been extended by the filing of UCC-3 continuation statements within the
past Five (5) years prior to such Closing, such financing statements shall
not be deemed to be an objection to title.
6.7 If on the Closing Date, the state of title is other than in accordance with
the requirements set forth in this Purchase Contract or if any condition to
be fulfilled by Seller shall not be satisfied, Purchaser shall provide
Seller with written Notice thereof at such time, or such title objection or
unfulfilled condition shall be deemed waived by Purchaser in which case
Purchaser and Seller shall proceed to consummate the Closing on the Closing
Date. If Purchaser timely gives Seller such Notice, Seller at its sole
option and within Seven (7) calendar days following receipt of such Notice
may elect to cure such objection or unfulfilled condition for up to Ninety
(90) calendar days. Should Seller be able to cure such title objection or
condition, or should Seller be able to cause title insurance over the same
by the Closing Date or any postponed Closing Date, or should Purchaser
waive such objection or condition within such period for cure, then the
Closing shall take place on or before thirty (30) calendar days after
Notice of such cure or waiver.
6.8 If during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such title objection or cause a title
insurance company to insure over such matter or satisfy such unfulfilled
condition, Seller shall give Purchaser written Notice thereof, and if
Purchaser does not waive such objection by written Notice delivered to
Seller and the title company issuing the Title Commitment on or before
Seven (7) calendar days following the date Seller gives such Notice, then
this Purchase Contract shall automatically terminate, in which event
Purchaser shall release and quitclaim all of Purchaser's right and interest
in such Property to Seller, and the parties hereto shall have no further
obligations to each other.
6.9 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance (other than Commercial Leases and Property Contracts in the
ordinary course of business) to attach to the Property between the date of
this Purchase Contract and the Closing Date; any such monetary lien or
encumbrance so attaching by voluntary act of Seller shall be discharged by
the Seller at or prior to Closing on the Closing Date or any postponed
Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance,
security interest, exception, objection or other matter, to make any
expenditure of money or institute litigation or any other judicial or
administrative proceeding and Seller may elect not to discharge the same.
6.10 Anything to the contrary notwithstanding, Purchaser shall not have any
right to terminate this Purchase Contract or object to any lien,
encumbrance, exception or other matter that is a Permitted Exception.
6.11 Seller, at Seller's sole cost and expense, has had prepared by Gilbert
Engineering Company an ALTA/ACSM Land Title Survey (the "Survey") dated
March 5, 1999. Seller shall deliver an original stamped print of the
Survey to Purchaser which Purchaser shall have seven (7) business days to
review and comment on. In the event the perimeter legal description of the
Property contained in the Survey differs from that contained in the deed or
deeds by which Seller took title to the Property, the latter description
shall be used in the special warranty deed delivered to Purchaser at
Closing, and the Survey legal shall be used in a quitclaim deed to the
Property which also shall be delivered to Purchaser at Closing.
6.11.1Should such Survey disclose conditions that give rise to a title
exception other than a Permitted Exception, Purchaser shall have the
right to object thereto within the Feasibility Period in accordance with
the procedures set forth in ARTICLE 5 above.
ARTICLE 7
CLOSING
7.1 DATES, PLACES OF CLOSING, PRORATIONS, AND DELINQUENT RENT.
7.1.1 The Closing shall take place thirty (30) calendar days after the
expiration of the Feasibility Period in the offices of the Escrow Agent
located at 7616 LBJ Freeway, Suite 300, Dallas, Texas 75251, or such
other place as the parties shall mutually agree upon at a time mutually
agreed upon on the Closing Date. If requested by Seller, Purchaser shall
agree to conduct closing through a pre-closing, an escrow or other
arrangement reasonably requested by Seller, whereby the Seller and its
attorneys need not be physically present at the Closing and may deliver
documents by overnight air courier or other means.
7.1.2 The Closing Date may be extended by Seller for up to Forty-Five (45) days
after the end of the Feasibility Period if required by the beneficiary of
the mortgage encumbering the Property to satisfy Seller's obligation to
provide prior notice of prepayment of the note secured by said mortgage.
The Closing Date also may be extended without penalty at the option of
Seller to a date not later than thirty (30) Days following the Closing
Date specified above to satisfy a condition to be satisfied by Seller, or
such later date as is mutually acceptable to Seller and Buyer.
7.1.3 By written Notice provided to Seller prior to the Closing Date but after
the expiration of the Feasibility Period, Purchaser may extend the
Closing Date for an additional thirty (30) Days by submitting to the
Escrow Agent, in advance, an additional One Hundred Thousand Dollars
($100,000.00) which shall be added to and become part of the Deposit.
Purchaser may not extend the Closing Date more than once.
7.1.4 All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal
property taxes, real property taxes other operating expenses and fees,
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. All unapplied deposits,
taxes, insurance, and maintenance fees under Tenant leases, if any, shall
be transferred by Seller to Purchaser at the Closing. Purchaser shall
assume at Closing the obligation to pay any accrued but unpaid tenant
improvement allowances and leasing commissions, together with any
payments due parties to other agreements affecting the Property which
survive Closing, provided that such obligations are disclosed to
Purchaser in the items listed on the Checklist. 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. The proration of real property taxes or install-
ments of assessments 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. The proration shall
be final and unadjustable except as provided in the following paragraph.
For purposes of this Section and Section 7.1.5 and Section 7.1.6 the
terms "Rent" and "Rents" shall include, without limitation, base rents,
additional rents, percentage rents and common area maintenance charges.
The provisions of this Section shall apply during the Proration Period
(as defined below).
7.1.5 If any of the items subject to proration hereunder cannot be prorated at
the Closing because the information necessary to compute such proration
is unavailable, or if any errors or omissions in computing prorations at
the Closing are discovered subsequent to the Closing, 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 one (1) year 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 Rents
that have accrued, but have not yet been paid, shall be apportioned upon
receipt.
7.1.6 If on the Closing Date any Tenant is in arrears in any Rent payment under
any Tenant lease (the "Delinquent Rent"), 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: (i) first, to the period of time before
the Closing Date, and (ii) second, to the period of time after 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. After the Closing, Seller shall
continue to have the right, but not the obligation, 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
(provided, that Seller shall not commence any legal actions or
proceedings against any Tenant which continues as a Tenant at the
Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the
Assignment as defined in Section 7.2.1.3 shall not constitute a waiver by
Seller of such right. Purchaser agrees to cooperate with Seller at no
cost or liability to Purchaser in connection with all efforts by Seller
to collect such Delinquent Rent and to take all steps, whether before or
after the Closing Date, as may be necessary to carry out the intention of
the foregoing.
7.2 ITEMS TO BE DELIVERED PRIOR TO OR AT CLOSING.
7.2.1 SELLER. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1 Special warranty or equivalent deed in the form attached as Exhibit
7.2.1.1 to HUNTGAL, LLC. The acceptance of the deed at Closing, shall
be deemed to be full performance of, and discharge of, every agreement
and obligation on Seller's part to be performed under this Purchase
Contract, except for those that this Purchase Contract specifically
provides shall survive Closing.
7.2.1.2 A Bill of Sale in the form attached as Exhibit 7.2.1.2 covering all
Property Contracts, Commercial Leases, Permits (other than Excluded
Permits) and Fixtures and Tangible Personal Property required to be
transferred to Purchaser with respect to such Property and any
required consents to assignment. Purchaser shall countersign the same
so as to effect an assumption by Purchaser, including, without
limitation, of Seller's obligations thereunder from the date of
closing.
7.2.1.3 An Assignment (to the extent assignable and in force and effect)
without recourse or warranty in the form attached as Exhibit 7.2.1.3
of all of Seller's right, title and interest in and to the
Miscellaneous Property Assets, and any required consents to
assignment. Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, of Seller's
obligations thereunder from the date of closing.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A vendor's affidavit or at Seller's option an indemnity, as
applicable, in the customary form reasonably acceptable to Seller to
enable Title Insurer to delete the standard exceptions, (other than
matters constituting any Permitted Exceptions to the title insurance
policy set forth in this Purchase Contract and matters which are to be
completed or performed post-Closing) to be issued pursuant to the
Title Commitments.
7.2.1.6 A Tenant Estoppel Certificate in the form attached hereto as
Exhibit D; provided, however, if and to the extent Seller is not able
to obtain a Tenant Estoppel Certificate, then, at closing, Seller
shall provide Purchaser with a certificate ("Seller's Certificate")
setting forth Seller's certification in the same form and containing
the same information as the Tenant Estoppel Certificate with respect
to each of the leases for which a Tenant did not deliver a Tenant
Estoppel Certificate. Purchaser shall not be required to accept
Seller's Certificates in lieu of executed Tenant Estoppel Certificates
from more than thirty percent (30%)of the total number of Tenants.
7.2.1.7 A letter signed by Seller to each Tenant giving notice of the
Transfer.
7.2.1.8 A certification of Seller's non-foreign status pursuant to Section
1445 of the Internal Revenue Code of 1986, as amended.
7.2.2 PURCHASER. At Closing, Purchaser shall deliver to Seller the following
items with respect to each Property being conveyed or transferred by
merger at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3 hereof plus or minus
the adjustments or prorations required by this Purchase Contract. If
at Closing there are any liens or encumbrances on the Property that
Seller is obligated or elects to pay and discharge, Seller may use any
portion of the Purchase Price for the Property to satisfy the same,
provided that Seller shall have delivered to Purchaser, or to
Purchaser's designee, on such Closing instruments in recordable form
sufficient to satisfy such liens and encumbrances of record (or, as to
any mortgages or deeds of trust, appropriate payoff letters,
acceptable to the Title Insurer), together with the cost of recording
or filing such instruments.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale in the form attached
as Exhibit 7.2.1.2.
7.2.2.4 A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
7.2.2.5 Such other instruments, documents or certificates as are required to
be delivered by Purchaser to Seller in accordance with any of the
other provisions of this Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the
following as of the Effective Date and as of the Closing Date:
8.1.1.1 Seller identified in the Recitals is a limited partnership lawfully
and duly organized, and in good standing under the laws of the state
of its formation set forth in the initial paragraph of this Purchase
Contract; and has or at Closing shall have the power and authority to
sell and convey the Property and to execute the documents to be
executed by Seller and prior to Closing will have taken as applicable,
all corporate, partnership, limited liability company or equivalent
entity actions required for the execution and delivery of this
Purchase Contract, and the consummation of the transactions
contemplated by this Purchase Contract. The compliance with or
fulfillment of the terms and conditions hereof will not conflict with,
or result in a breach of, the terms, conditions or provisions of, or
constitute a default under, any Purchase Contract to which Seller is a
party or by which Seller is otherwise bound. Seller has not made any
other Purchase Contract for the sale of, or given any other person the
right to purchase, all or any part of any of the Property applicable
to the foregoing representation;
8.1.1.2 Seller owns insurable, fee title to the Property, including all real
property contained therein required to be sold to Purchaser, subject
only to the Permitted Exceptions;
8.1.1.3 There are no adverse or other parties in possession of the Property,
except for occupants, guests and tenants under the Commercial Leases.
8.1.1.4 The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely to Purchaser at Closing, or
to fulfill Seller's obligations and Seller has all necessary right and
authority to convey and assign to Purchaser all contract rights and
warranties required to be conveyed and assigned to Purchaser
hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes for Seller pursuant
to the Foreign Investors Real Property Tax Act of 1980, as amended;
8.1.1.6 To Seller's knowledge, there are no actions, proceedings, litigation
or governmental investigations or condemnation actions either pending
or threatened against the Property, as applicable;
8.1.1.7 There are no claims for labor performed, materials furnished or
services rendered in connection with constructing, improving or
repairing any of the Property, as applicable, caused by Seller and
which remain unpaid beyond the date for which payment was due and in
respect of which liens may or could be filed against any of the
Property, as applicable;
8.1.2 Except for the representations and warranties expressly set forth above
in Subsection 8.1.1, the Property is expressly purchased and sold "AS
IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price and the terms
and conditions set forth herein are the result of arm's-length bargaining
between entities familiar with transactions of this kind.
8.1.3 Seller and Purchaser agree that those representations contained in
Section 8.1 shall survive Closing for a period of One (1) year (that is,
any proceeding based on the breach of a representation contained in
Section 8.1 that survives Closing must be commenced within One (1) year
subsequent to the date of such representation). In the event that Seller
breaches any representation contained in Section 8.1 and at or prior to
closing Purchaser had actual knowledge of such breach, Purchaser shall be
deemed to have waived any right of recovery and Seller shall not have any
liability in connection therewith.
8.1.4 Representations and warranties above made to the knowledge of Seller
shall not be deemed to imply any duty of inquiry.
8.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER
8.2.1 For the purpose of inducing Seller to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance
herewith, Purchaser represents and warrants to Seller the following as of
the Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1 HUNTGAL, LLC is a Kentucky limited liability company duly organized,
validly existing and in good standing under the laws of Kentucky.
8.2.2.2 Purchaser, acting through any of its or their duly empowered and
authorized officers or members, has all necessary power and authority
to own and use its properties and to transact the business in which it
is engaged, and has full power and authority to enter into this
Purchase Contract, to execute and deliver the documents and
instruments required of Purchaser herein, and to perform its
obligations hereunder; and no consent of any of Purchaser's officers
or members are required to so empower or authorize Purchaser.
8.2.2.3 No pending or, to the knowledge of Purchaser, threatened litigation
exists which if determined adversely would restrain the consummation
of the transactions contemplated by this Purchase Contract or would
declare illegal, invalid or non-binding any of Purchaser's obligations
or covenants to Seller.
8.2.2.4 Purchaser is duly authorized to execute and deliver, acting through
its duly empowered and authorized officers and members, respectively,
and perform this Purchase Contract and all documents and instruments
and transactions contemplated hereby or incidental hereto, and such
execution, delivery and performance by Purchaser does not (i) violate
any of the provisions of their respective certificates of
incorporation or bylaws, (ii) violate any provision of any law,
governmental rule or regulation currently in effect, (iii) violate any
judgment, decree, writ, injunction, award, determination or order
currently in effect that names or is specifically directed at
Purchaser or its property, and (iv) require the consent, approval,
order or authorization of, or any filing with or notice to, any court
or other governmental authority.
8.2.2.5 The joinder of no person or entity other than Purchaser is necessary
to consummate the transactions to be performed by Purchaser and
Purchaser has all necessary right and authority to perform such acts
as are required and contemplated by this Purchase Contract.
8.2.3 Purchaser has not dealt with any broker, finder or any other person, in
connection with the purchase of or the negotiation of the purchase of the
Property that might give rise to any claim for commission against Seller
or lien or claim against the Property.
8.2.4 Purchaser has received a binding Financing Commitment from a lender which
is in full force and effect and Purchaser has not defaulted on any
obligation with respect to such commitment.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser at
each Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
9.1.2 Each of the representations and warranties of Seller contained herein
shall be true in all material respects as of each Closing Date;
9.1.3 Seller shall have complied with, fulfilled and performed in all material
respects each of the covenants, terms and conditions to be complied with,
fulfilled or performed by Seller hereunder;
9.1.4 The signing of a new lease with Q-Zar, or a similar tenant, at a rent of
$9.00 per square foot and full passthrough of tenant's pro-rata share of
CAM, insurance and real estate taxes;
9.1.5 At Closing, the Property shall be in the same condition as on the
effective date of this purchase contract;
9.1.6 Notwithstanding anything to the contrary, there are no other conditions
on Purchaser's obligation to Close except as expressly set forth above
and in ARTICLE 5, ARTICLE 6, ARTICLE 7 and ARTICLE 9.
9.2 Without limiting any of the rights of Seller elsewhere provided for in this
Purchase Contract, Seller's obligation to close with respect to conveyance
of a particular Property under this Purchase Contract shall be subject to
and conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this Purchase
Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the
Closing Date and as of the Effective Date as though such representations
and warranties were made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be
performed or complied with by it at or prior to Closing including,
without limitation, payment in full of the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined
adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or
nonbinding any of the covenants or obligations of the Purchaser.
9.2.4 Purchaser shall have produced evidence reasonably satisfactory to Seller
of Purchaser's compliance with Hart-Scott-Rodino Act requirements or of
the non-applicability thereof to the transactions contemplated by this
Purchase Contract.
ARTICLE 10
BROKERAGE
10.1 Seller and Purchaser each represents and warrants to the other that other
than David Huddleston & Associates, and Insignia/ESG, Inc. ("Brokers") and
Lawrence A. Shapin & Associates, it has not dealt with or utilized the
services of any other real estate broker, sales person or finder in
connection with this Purchase Contract, and each party agrees to indemnify
the other party from and against all claims for brokerage commissions and
finder's fees arising from or attributable to the acts of omissions of the
indemnifying party.
10.2 Seller agrees to pay the Brokers a commission equal to 1.7% of the Purchase
Price, such commission to be paid at Closing and to be divided equally
between the Brokers. The Brokers shall not be deemed parties to or third
party beneficiaries of this Purchase Contract. Seller shall not be
responsible for any commission to be paid to Lawrence A. Shapin &
Associates.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller
or Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of
entry for inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 In the Event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey
the Property as required by this Purchase Contract, or defaults hereunder
prior to the Closing Date and consummation of the Closing does not occur by
reason of such termination or default by Purchaser, Seller and Purchaser
agree that it would be impractical and extremely difficult to estimate the
damages which Seller may suffer. Therefore, Seller and Purchaser hereby
agree that, except for the Purchaser's obligations to Seller under Section
5.3, the reasonable estimate of the total net detriment that Seller would
suffer in the event that Purchaser terminates this Purchase Contract or
defaults hereunder prior to the Closing Date is and shall be, as Seller's
sole remedy (whether at law or in equity), the right to receive from the
Escrow Agent and retain the full amount of the Deposit. The payment and
performance of the above as liquidated damages is not intended as a
forfeiture or penalty within the meaning of applicable law and is intended
to settle all issues and questions about the amount of damages suffered by
Seller in the applicable event, except only for damages under Section 5.3
above, irrespective of the time when the inquiry about such damages may
take place. Upon any such failure by Purchaser hereunder, this Purchase
Contract shall be terminated, and neither party shall have any further
rights or obligations hereunder, each to the other, except for the
Purchaser's obligations to Seller under Section 5.3 above, and the right of
Seller to collect such liquidated damages to the extent not theretofore
paid by Purchaser.
12.2 If the Closing does not occur as a result of Seller's default hereunder,
Purchaser's sole remedy shall be to elect to terminate this Purchase
Contract and receive reimbursement of the Deposit (or so much thereof as
has been received by Escrow Agent) or to seek specific performance of this
Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 The risk of loss or damage to the Property by fire or other casualty until
the deed of conveyance is recorded is assumed by the Seller. Should the
Improvements at the Property be destroyed or damaged prior to Closing,
Seller shall give immediate notice to Purchaser, and if a material portion
of the Improvements are affected, either Seller or Purchaser may terminate
this Purchase Contract without any liability to the other, and upon written
notice to the other, this Purchase Contract will terminate upon receipt of
said notice. Unless Seller or Purchaser exercises the right of termination
under this subsection, Seller shall, at Seller's sole cost and expense,
promptly restore such Improvements to their condition before the casualty;
and in that event, the Closing Date shall be reasonably extended
accordingly.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser on or before April 22, 1999, and by Seller on or before May 21,
1999.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property is
(or has previously been) acquired, or is about to be acquired, by authority
of any governmental agency in purchase in lieu thereof (or in the event
that at such time there is any notice of any such acquisition by any such
governmental agency), Purchaser shall have the right, at Purchaser's
option, to terminate this Purchase Contract by giving written Notice within
Fifteen (15) days from notice of the occurrence of such event and recover
the Deposit hereunder, or to settle in accordance with the terms of this
Purchase Contract for the full Purchase Price and receive the full benefit
or any condemnation award. It is expressly agreed between the parties
hereto that this paragraph shall in no way apply to customary dedications
for public purposes which may be necessary for the development of the
Property.
ARTICLE 16
MISCELLANEOUS
16.1 EXHIBITS AND SCHEDULES
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
16.2 ASSIGNABILITY
This Purchase Contract is not assignable without first obtaining the
prior written approval of the non-assigning party.
16.3 BINDING EFFECT
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and
permitted assigns.
16.4 CAPTIONS
The captions, headings, and arrangements used in this Purchase Contract
are for convenience only and do not in any way affect, limit, amplify, or
modify the terms and provisions hereof.
16.5 NUMBER AND GENDER OF WORDS
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each
other gender where appropriate.
16.6 NOTICES
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in
writing and shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or any nationally recognized
overnight carrier for next business day delivery, upon deposit of such
Notice with such carrier, or (ii) if personally delivered, on the actual
date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid, on the date of mailing addressed as follows:
If to Seller: If to Purchaser:
U.S. Realty Partners Limited HUNTGAL, LLC
Partnership c/o Thomas W. Mueller
c/o AIMCO 1300 West Main Street
1873 South Bellaire Street Louisville, KY 40203
Suite 1700
Denver, CO 80222
Attention: Tim Works, Harry Alcock,
Martha Carlin
Phone: 303-691-4357
and and
with a copy to: with a copy to:
Argent Real Estate Steven R. Berg
Attention: David Marquette Berg & Jones, PLLC
1401 Brickell Avenue, Suite 520 Fourth Floor, The Speed
Miami, FL 33131 Building
Phone: 305-371-9299 315 Guthrie Green
Fax: 305-371-6898 Louisville, KY 40202
Phone: 502-589-2399
with a copy to:
Richard A. Cohn, Esquire
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
Phone: 202-508-6000
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of
Notice by mail or otherwise is required, the giving of such Notice may be
waived in writing by the person or persons entitled to receive such
Notice.
16.7 GOVERNING LAW AND VENUE
The laws of the State of Alabama shall govern the validity, construction,
enforcement, and interpretation of this Purchase Contract, unless
otherwise specified herein except for the conflict of laws provisions
thereof. All claims, disputes and other matters in question arising out
of or relating to this Purchase Contract, or the breach thereof, shall be
decided by proceedings instituted and litigated in the United States
District Court for the district in which the Property is situated, and
the parties hereto expressly consent to the venue and jurisdiction of
such court.
16.8 ENTIRETY AND AMENDMENTS
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings,
if any, relating to the Property, and may be amended or supplemented only
by an instrument in writing executed by the party against whom
enforcement is sought.
16.9 SEVERABILITY
If any of the provisions of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision
shall be fully severable. The Purchase Contract shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had
never comprised a part of this Purchase Contract; and the remaining
provisions of this Purchase Contract shall remain in full force and
effect and shall not be affected by the illegal, invalid, or
unenforceable provision or by its severance from this Purchase Contract.
In lieu of such illegal, invalid, or unenforceable provision, there shall
be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as
may be possible to make such provision legal, valid, and enforceable.
16.10 MULTIPLE COUNTERPARTS
This Purchase 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,
collectively, constitute one Purchase Contract. In making proof of this
Purchase Contract, it shall not be necessary to produce or account for
more than one such counterparts.
16.11 FURTHER ACTS
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be
performed, executed and/or delivered any and all such further acts,
deeds, and assurances as may be necessary to consummate the transactions
contemplated hereby.
16.12 CONSTRUCTION
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect
to the drafting of this Purchase Contract; both parties, being
represented by counsel, having fully participated in the negotiation of
this instrument.
16.13 CONFIDENTIALITY
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Purchase Contract
(i) as required by law, (ii) to consummate the terms of this Purchase
Contract, or any financing relating thereto, or (iii) to Purchaser's or
Seller's lenders, attorneys and accountants. Such information is also
confidential and Purchaser shall be prohibited from making such
information public to any other person or entity other than its agents
and legal representatives, without Seller's prior written authorization,
which may be granted or denied in Seller's sole discretion.
16.14 TIME OF THE ESSENCE
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.15 CUMULATIVE REMEDIES AND WAIVER
Except as otherwise provided herein, no remedy herein conferred or
reserved is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be
in addition to every other remedy given under this Purchase Contract or
now or hereafter existing at law or in equity. No delay or omission to
exercise any right or power accruing upon any default, omission, or
failure of performance hereunder shall impair any right or power or shall
be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. No
waiver, amendment, release, or modification of this Purchase Contract
shall be established by conduct, custom, or course of dealing.
16.16 LITIGATION EXPENSES
In the event either party hereto commences litigation against the other
to enforce its rights hereunder, the prevailing party in such litigation
shall be entitled to recover from the other party its reasonable
attorneys' fees and expenses incidental to such litigation.
16.17 TIME PERIODS
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time
period.
16.18 CLOSING COSTS
Except as otherwise expressly provided in this Purchase Contract, each
party shall pay its own costs and expenses, including attorneys' fees and
expenses incurred through the date fixed for Closing.
16.19 EXCHANGE
At Seller's sole cost and expense, Seller may structure the sale of the Property
to Purchaser as a Like Kind Exchange under Internal Revenue Code Section 1031
whereby Seller will acquire certain property (the "Like Kind Exchange Property")
in conjunction with or subsequent to the sale of the Property (the "Like Kind
Exchange"). Purchaser shall cooperate fully and promptly with Seller's conduct
of the Like Kind Exchange, provided that all costs and expenses generated in
connection with the Like Kind Exchange shall be borne solely by Seller, and
Purchaser shall not be required to take title to or contract for the purchase of
any other property. If Seller uses a qualified intermediary to effectuate the
exchange, any assignment of the rights or obligations of Seller hereunder shall
not relieve, release or absolve Seller of its obligations to Purchaser. In no
event shall the Closing date be delayed by the Like Kind Exchange. Seller shall
indemnify and hold harmless Purchaser from and against any and all liability
arising from and out of the Like Kind Exchange.
16.20 New Leases
Purchasers approval of any new leases that Seller desires to accept prior
to closing shall not be unreasonably withheld or delayed.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as of the
date first set forth above.
Seller: U.S. Realty Partners Limited Partnership
By:___________________________
General Partner
By: [SEAL]
Printed:
Title:
Purchaser: HUNTGAL, LLC
By: [SEAL]
Printed:
Title:
