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): November 10, 1998
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USF&G/Legg Mason Realty Partners Limited Partnership
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(Exact name of registrant as specified in its
Certificate of Limited Partnership)
Maryland 0-17633 75-2228850
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(State or other (Commission (IRS Employer
jurisdiction File Number) Identification No.)
incorporation)
6225 Centennial Way FB0101 Baltimore, Maryland 21209
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(Address of Principal executive offices)
Registrant's telephone number, including area code: (410 205-6900
-------------------------
Not Applicable
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(Former name or former address, if changed since last report.)
<PAGE>
Item 2. Acquisition or Disposition of Assets.
On November 10, 1998, USF&G/ Legg Mason Realty Partners Limited Partnership
(the "Partnership") sold Shadeland Retail Center ("Shadeland") to Invesco
Realty Advisors, Inc., a Delaware corporation. The purchase price for the
105,000 square foot neighborhood retail center located in Indianapolis,
Indiana, was $11,750,000. Net proceeds from the sale, after satisfaction of
the outstanding mortgage obligations, a prepayment penalty for early retirement
of the mortgage, pro-ration of taxes and rents, closing expenses and other
customary adjustments, were approximately $6.3 million. The General Partners
plan to distribute the net proceeds from property sales in accordance with
Section 4.4 of the Partnership Agreement upon completion of the sale of
Northeast Business Campus, the remaining property of the Partnership.
The Partnership was organized as a limited partnership under the Maryland
Revised Uniform Limited Partnership Act pursuant to a Certificate of Limited
Partnership filed with the Maryland State Department of Assessments and
Taxation on April 12, 1988 and a Limited Partnership Agreement and Amended
Certificate of Limited Partnership dated as of June 16, 1988 as subsequently
amended. The Partnership was formed to acquire, hold, lease and ultimately
dispose of income-producing commercial and multifamily residential rental
properties located primarily in the Eastern United States.
Item 7. Financial Statements and Exhibits
(a) Pro Forma Financial Information - USF&G/Legg Mason Realty Partners
Limited Partnership
Unaudited Pro Forma Condensed Balance Sheet - September 30, 1998
Unaudited Pro Forma Condensed Statement of Operations -
Nine Months ended September 30, 1998
Unaudited Pro Forma Condensed Statement of Operations -
Year ended December 31, 1997
Notes to Unaudited Pro Forma Condensed Financial Statements
(b) Exhibit -- Purchase and Sale Agreement between USF&G/ Legg Mason
Realty Partners Limited Partnership, a Maryland limited Partnership
and Invesco Realty Advisors, Inc., a Delaware corporation.
Item 7 (a). Pro Forma Financial Information
USF&G/Legg Mason Realty Partners Limited Partnership
Pro Forma Condensed Financial Statements
The accompanying Unaudited Pro Forma Condensed Balance Sheet as of September
30, 1998 gives effect to the Disposition of Shadeland (the "Disposition") to
Invesco Realty Advisors, Inc. on November 10, 1998 as if the transaction had
occurred as of September 30, 1998. The accompanying Pro Forma Unaudited
Condensed Statement of Operations for the nine months ended September 30, 1998
and the year ended December 31, 1997 reflect the historical results of the
Partnership adjusted to give effect to the Disposition as if the transaction
had occurred as of January 1, 1997.
The unaudited pro forma financial statements presented herein are presented
for information purposes only and are not necessarily indicative of what the
actual results of operations of the Partnership would have been for the periods
presented had the Disposition occurred on January 1, 1997, nor do they
purport to represent the results for future periods. These unaudited pro forma
condensed financial statements should be read in conjunction with the audited
financial statements of the Partnership included in its Form 10-K for the year
ended December 31, 1997, and the unaudited financial statements of the
Partnership included in its Form 10-Q for the nine months ended September 30,
1998. The unaudited pro forma adjustments are based upon this financial
information and certain other assumptions included in the notes to the
unaudited pro forma financial statements.
<PAGE>
<TABLE>
<CAPTION>
USF&G/Legg Mason Realty Partners Limited Partnership
Unaudited Pro Forma Condensed Balance Sheet
September 30, 1998
<S> <C> <C> <C>
Partnership Pro Forma Partnership
Historical Adjustments As Adjusted
-------------------------------------------------------
(Note B)
Assets
Real Estate Investments $16,083,350 $ (8,394,670) (a) $ 7,688,680
Cash and Cash Equivalents 4,479,701 6,303,951 (a) 10,783,652
Restricted Cash Escrow 57,184 - 57,184
Accounts Receivable 174,372 (26,193) (a) 148,179
Other Assets 357,087 (146,010) (a) 211,077
-------------------------------------------------------
Total Assets $21,151,694 $ (2,262,922) $18,888,772
=======================================================
Liabilities
Mortgages Payable $12,785,184 $ (4,900,081) (b) $ 7,885,103
Accounts Payable and Other Liabilities 573,273 (191,778) (a) 381,495
Due to General Partners and Affiliates 2,447,493 2,447,493
-------------------------------------------------------
15,805,950 (5,091,859) 10,714,091
Partners Equity (Deficit)
General Partners (190,955) 28,289 (c) (162,666)
Assignor and Assignee Limited Partners,
1,094,283 Units Issued and Outstanding 5,536,699 2,800,648 (c) 8,337,347
-------------------------------------------------------
5,345,744 2,828,937 8,174,681
-------------------------------------------------------
Total Liabilities and Partners' Equity $21,151,694 $(2,262,922) $18,888,772
=======================================================
</TABLE>
See accompanying notes to unaudited pro forma financial statements.
<PAGE>
<TABLE>
<CAPTION>
USF&G/Legg Mason Realty Partners Limited Partnership
Unaudited Pro Forma Condensed Statement of Operations
Nine Months Ended September 30, 1998
<S> <C> <C> <C>
Partnership Pro Forma Partnership
Historical Adjustments As Adjusted
-------------------------------------------------------
(Note C)
Revenue:
Rental Income $4,011,357 $(904,977) (a) $3,106,380
Expenses:
Property Operating 1,483,484 (207,902) (a) 1,275,582
General and Administrative 98,221 - 98,221
Interest 1,409,643 (281,512) (a) 1,128,131
Depreciation and amortization 442,477 (114,838) (a) 327,639
-------------------------------------------------------
Total Expenses 3,433,825 (604,252) 2,829,573
Other Revenue and Expenses:
St. Andrews Repair and Legal 163,975 - 163,975
Gain on Sale of Income Producing Properties 4,336,964 2,828,937 (b) 7,165,901
-------------------------------------------------------
4,500,939 2,828,937 7,329,876
Income Before Extraordinary Item 5,078,471 2,528,212 7,606,683
Extraordinary Item- Extinguishment of Debt 1,700,000 - 1,700,000
-------------------------------------------------------
Net Income $6,778,471 $2,528,212 $9,306,683
=======================================================
Net Income before Extraordinary Item Per Limited
Partner Unit $ 4.59 $ 6.88
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Extraordinary Item per Limited Partner Unit $ 1.54 $ 1.54
================ ===============
Net Income Per Limited Partner Unit $ 6.13 $ 8.42
================ ===============
</TABLE>
See accompanying notes to unaudited pro forma financial statements.
<PAGE>
<TABLE>
<CAPTION>
USF&G/Legg Mason Realty Partners Limited Partnership
Unaudited Pro Forma Condensed Statement of Operations
Year Ended December 31, 1997
<S> <C> <C> <C>
Partnership Pro Forma Partnership
Historical Adjustments As Adjusted
-------------------------------------------------------
(Note C)
Revenue:
Rental Income $5,239,669 $(1,207,048) (a) $4,032,621
Expenses:
Property Operating 2,024,911 (230,887) (a) 1,794,024
St. Andrews Repair and Legal Costs (146,149) - (146,149)
General and Administrative 123,345 - 123,345
Interest 2,236,910 (377,806) (a) 1,859,104
Depreciation and amortization 1,363,055 (342,077) (a) 1,020,978
-------------------------------------------------------
Total Expenses 5,602,072 (950,770) 4,651,302
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Net Income Prior to Gain (362,403) (256,278) (618,681)
Gain on Sale of Property - 2,828,937 (b) 2,828,937
-------------------------------------------------------
Net Income (Loss) $ (362,403) $2,572,659 $2,210,256
=======================================================
Net Income (Loss) Per Limited Partner Unit $ (.33) $ 2.00
================ ================
</TABLE>
See accompanying notes to unaudited pro forma financial statements.
<PAGE>
USF&G/ Legg Mason Realty Partners Limited Partnership
Notes to Unaudited Pro Forma Condensed Financial Statements
Note A Basis of Presentation
The accompanying unaudited pro forma condensed balance sheet as of September
30, 1998 gives effect to the disposition of Shadeland as if this transaction
had occurred as of September 30, 1998. The accompanying unaudited pro forma
condensed statement of operations for the nine months ended September 30, 1998
and for the year ended December 31, 1997, gives effect to the disposition of
Shadeland as if the transaction had occurred on January 1, 1997.
Note B Adjustments to Pro Forma Condensed Balance Sheet
The accompanying unaudited pro forma balance sheet as of September 30, 1998
reflects certain adjustments which were required to give effect to matters
directly attributable to the disposition of Shadeland. Explanations of the
adjustments are as follows:
(a) Eliminate assets and liabilities related to Shadeland.
(b) Record pay down of the outstanding mortgage payable.
(c) Record net gain resulting from the disposition.
Note C Adjustments to Pro Forma Condensed Statements of Operations
The accompanying unaudited pro forma condensed statements of operations for the
nine months ended September 30, 1998 and the year ended December 31, 1997
reflect certain adjustments which are explained below. These adjustments are
required to give effect to matters directly attributable to the disposition of
Shadeland. Explanations of the adjustments are as follows:
(a) Eliminate revenues and expenses of Shadeland.
(b) Record net gain resulting from the disposition.
Note D Net Income Per Limited Partner Unit
Net income of the Partnership is allocated 1% to the General Partners and 99%
to the Limited Partners. The weighted average number of limited partner units
outstanding used in the calculation of net income (loss) per limited partner
unit for the nine months ended September 30, 1998 and the year ended December
31, 1997 was 1,094,283 on a primary basis.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
USF&G/Legg Mason Realty Partners
Limited Partnership
(Registrant)
By: USF&G Realty Partners, Inc.,
A General Partner
Date:
Joseph A. Wesolowski
Vice President and Chief Accounting Officer
PURCHASE AND SALE AGREEMENT
Shadeland Shoppes and Shadeland Station
Indianapolis, Indiana
1. PARTIES: USF&G/Legg Mason Realty Partners Limited Partnership, a
Maryland limited partnership, ("Seller") agrees to sell and convey to:
A. ---------------------------------------------------------------------
individual Purchaser
B. --------------------------------------------------------------------;
a ------------------ --------------------- limited/general
partnership or limited liability company
C. Invesco Realty Advisors, Inc.: a Delaware corporation
("Purchaser") and Purchaser agrees to buy from Seller the Property
(as defined in Section 2 below) for the consideration and upon and subject to
the terms, provisions, and conditions hereinafter set forth in this Purchase
and Sale Agreement (this "Contract").
2. PROPERTY: A tract of land situated in the City of Indianapolis,
State of Indiana, legally described on Exhibit A attached hereto and
made a part hereof (the "Land"), and commonly known as Shadeland
Shoppes and Shadeland Station located at the southeast corner of 75th
Street and Shadeland Avenue, improved with approximately 104,976
square feet of leasable space in buildings ("Center"), together with
all buildings, improvements, fixtures, and all property of every
kind, character and description, owned by Seller and located in, on,
attached to, or used in connection with, the Center; and all
privileges and appurtenances pertaining thereto including any right,
title and interest, if any, of Seller in and to adjacent streets,
alleys and rights-of-way, together with;
(a) all security deposits taken from any tenants (the "Security
Deposits") on the Closing Date;
(b) all of Seller's interest in all contracts or agreements and/or
leases for the furnishing of maintenance, repairs, supplies, equipment
or other services to the Property, which have a term expiring after
the Closing Date as described on Exhibit B attached hereto and made a
part hereof (the "Services Contracts") and which are not rejected by
Purchaser in writing during the Inspection Period;
(c) to the extent assignable, all of Seller's interest in all
building and other permits, certificates, licenses, authorizations
and approvals granted in connection with the Property on the Closing
Date (the "Licenses and Permits");
(d) all right, title and interest in any leases encumbering or
affecting the Property, as described on Exhibit C attached hereto and
made a part hereof (the "Leases");
The Land, the Center, the Security Deposits, the Service Contracts,
the Licenses and Permits and the Leases, are sometimes referred to
herein, collectively, as the "Property".
3. CONSIDERATION:
A. Purchase Price. The purchase price for the Property shall be
$12,000,000.00, payable in U.S. dollars by Purchaser as follows:
(a) Earnest Money: Within two (2) business days after the execution
of this Contract, Purchaser shall deposit the sum of Two Hundred
Thousand Dollars (200,000.00) (the "Earnest Money") payable with
Chicago Title Insurance Company (the "Title Company"), 350 N. St.
Paul, Suite 250, Dallas, Texas 75201, Attention: Nancy Colauca
<PAGE>
(b) The balance of the Purchase Price, plus or minus prorations and
closing adjustments, if any, is due at the Closing (as hereinafter
defined) and must be paid by wire transfer to a bank account
designated by the Title Company for the benefit of Seller.
4. DOCUMENTS AND DELIVERIES AT CLOSING BY SELLER: At the time and place
of Closing, upon payment in full of the Purchase Price and
satisfaction of all of Purchaser's obligations under this Contract,
Seller shall:
(a) Convey and deliver title to the Land and the Center by special
warranty deed to Purchaser in the form attached hereto as Exhibit F.
(b) Deliver a title policy at Closing issued by the Title Company in
the full amount of the Purchase Price, dated as of Closing, insuring
Purchaser's fee simple title to the Property, subject only to (i) the
title exceptions approved by Purchaser (the "Permitted Exceptions")
and (ii) the standard printed exceptions and such additional
exceptions as are contained in the usual form of owner's title policy.
If Purchaser has any objection to the title commitment or survey,
Purchaser shall notify Seller on or before October 23, 1998 and Seller
shall have until November 9, 1998 to remedy any such objections or
notify Purchaser that Seller shall not remedy such matters. If
Purchaser fails to make any objections by October 23, 1998, the title
and survey shall be deemed acceptable to Purchaser. If Seller is
unable or unwilling to remedy any objection of Purchaser, Purchaser
may terminate this Agreement by providing notice to Seller within
five (5) days of Seller's notice to Purchaser that it is unable or
unwilling to remedy Purchaser's objection and receive the Earnest
Money, or proceed to closing and waive any such objection.
(c) To the extent assignable, assign and deliver to Purchaser all
of Seller's interest in the Licenses and Permits. Purchaser shall be
responsible for all of the obligations of Seller thereunder, from and
after the Closing Date.
(d) To the extent assignable, assign and deliver to Purchaser all of
Seller's interest in the Service Contracts. Purchaser shall be
responsible for all of the obligations of Seller thereunder from and
after the Closing Date. Seller shall be responsible for all
obligations owing thereunder prior to Closing. Seller, as of the
Closing Date, shall terminate the existing management contract for
the Property.
(e) Deliver to Purchaser copies of the Licenses and Permits, if
available, and the Service Contracts.
(f) Assign and deliver to Purchaser all of Seller's interest in the
Security Deposits and Leases. Purchaser shall be responsible for all
of the obligations of Seller thereunder from and after the Closing
Date. Seller shall be responsible for all obligations owing
thereunder prior to Closing. Seller shall provide to Purchaser an
estoppel certificate stating (i) that the Lease(s) are unmodified and
in full force and effect, (ii) the dates to which rental payments
have been made, (iii) that there are no defenses against enforcement
of the Lease(s), and (iv) that Seller (landlord) has not failed to
perform in accordance with any of the terms of the Leases.
(g) Deliver to Purchaser an affidavit originally executed by Seller
to the effect that Seller is not a foreign person for purposes of 26
U.S.C. 1445 (b) (2).
(h) Deliver to Purchaser possession of the Property, subject to the
rights of tenants and parties in possession and other terms of this
Contract.
(i) Use reasonable efforts to obtain estoppel certificates from
Marsh, Osco Drugs and no less than 75% of the other tenants at the
Center in substantially the form attached hereto as Exhibit "G" but
only the provisions in Exhibit "G-1" solely for Marsh. The documents
described in this Section 4 are hereinafter referred to, collectively,
as the "Seller's Closing Documents".
<PAGE>
(j) A certified rent roll dated as of the closing date in the form
hereinafter described.
5. DOCUMENTS AND DELIVERIES AT CLOSING BY PURCHASER: At the time and
place of Closing, Purchaser shall execute and deliver to Seller such
documents as may be necessary to effect the Closing, and an
assumption by Purchaser, from and after the Closing Date, of all
obligations of Seller under the Service Contracts, the Licenses and
Permits and the Leases, the form of which Assignment and Assumption
Agreement is set forth on Exhibit E attached hereto and made a part
hereof.
The documents described in this Section 5 are hereinafter referred
to, collectively, as "Purchaser's Closing Documents". Seller's
Closing Documents and Purchaser's Closing Documents are sometimes
referred to herein, collectively, as the "Closing Documents".
6. CLOSING EXPENSES: Seller shall be responsible for Seller's attorneys'
fees, and the full cost of any owner's title insurance policy.
Purchaser shall be responsible for Purchaser's attorneys' fees, any
survey expenses, any costs and expenses attendant to the investigation
into any environmental conditions on or about the Property, the full
cost of any lender's title insurance policy, any endorsements to the
title policy of lender and owners, and all costs, fees, taxes and
other charges associated with any financing obtained by Purchaser to
finance the acquisition of, or improvement to, the Property. Seller
shall pay all transfer taxes and recording charges. Escrow fees and
document preparation fees and any title insurance company fees for
the use of the Title Company's offices for the Closing shall be borne
equally by the parties. All other costs incurred in connection with
the Closing shall be paid by the party incurring such cost.
7. CONDITIONS TO OBLIGATIONS OF PURCHASER: The obligation of Purchaser
to perform Purchaser's obligations under this Contract are, and shall
be subject to, the satisfaction of each of the following conditions:
(a) Purchaser is satisfied with the condition of the Property by
Purchaser not providing notice to terminate this Contract by October
23, 1998.
(b) Seller shall have executed, acknowledged, where applicable, and
delivered Seller's Closing Documents to be executed and delivered by
Seller, and Seller shall have delivered to Purchaser all of the
agreements, documents and other items required under this Contract.
(c) Seller shall have performed, observed and complied, in all
material respects, with all covenants, agreements and conditions
required by this Contract to be performed, observed and complied with
on its part prior to or as of the Closing.
(d) Seller shall obtain estoppel certificates fromMarsh and Osco
Drugs and no less than 75% of the other tenants at the center
substantially in the form attached hereto as Exhibit "G" but in the
terms of Exhibit "G-1" for Marsh.
(e) All warranties and representations made by Seller herein shall
have been and remain complete and truthful on the Closing Date.
(f) On the Closing Date, the improvements and the equipment forming
a part of the Property shall be in substantially the same condition
and repair, ordinary wear and tear due to normal conditions excepted,
as the same shall have existed at the time of the inspection of the
Property by Purchaser during the Inspection Period.
<PAGE>
(g) All of the Tenant Leases must be in full force and effect on the
Closing Date, unless by its terms a Tenant Lease terminates.
If any one of the above conditions is not satisfied, Purchaser may,
at its option, waive such condition or Purchaser may terminate this
Agreement by written notice thereof to Seller in which event the
Earnest Money shall be immediately refunded to Purchaser and the
parties shall have no further right or obligation hereunder.
8. CONDITIONS TO OBLIGATIONS OF SELLER: The obligation of Seller to
perform Seller's obligations under this Contract are and shall be
subject to the satisfaction of each of the following conditions at or
prior to the Closing:
(a) Purchaser shall have executed, acknowledged, where applicable,
and delivered Purchaser's Closing Documents to be executed and
delivered by Purchaser, and Purchaser shall have delivered to Seller
all of the agreements, documents and other items required under this
Contract.
(b) All of the representations and warranties of Purchaser contained
in this 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.
(c) Purchaser shall have performed, observed and complied, in all
material respects, with all covenants, agreements and conditions
required by this Contract to be performed, observed and complied with
on its part prior to or as of the Closing.
9. CASUALTY TO PROPERTY: Seller shall maintain comprehensive insurance
coverage of the Property in the amount of the full replacement cost
thereof until the Closing. Promptly after the occurrence of any fire
or other casualty affecting the Property or any portion thereof
occurring between the date hereof and the Closing Date (a "Casualty"),
Seller shall give Purchaser written notice thereof (a "Casualty
Notice"), which Casualty Notice shall state the type, location and
amount of damage to the Property.
If, prior to the Closing, such a Casualty shall occur and the cost to
complete repairs of such Casualty shall exceed $200,000, then, in any
such event, either party, at its sole option, may terminate this
Contract by written notice to the other (a "Casualty Termination
Notice"), within ten (10) days after Purchaser has received the
Casualty Notice; provided, however, that if the Closing is scheduled
for a date which is less than ten (10) days after Purchaser's receipt
of the Casualty Notice, the Closing shall be adjourned until ten (10)
days after Purchaser's receipt of the Casualty Notice; in the event
this Contract is terminated as provided herein, the Earnest Money,
together with all interest earned thereon, shall be returned to
Purchaser, this Contract shall be null and void and neither party
hereto shall have any further liability or obligation to the other
(other than the obligation of Purchaser to keep confidential all
documents and other materials furnished to Purchaser pursuant to the
transaction contemplated by this Contract). If neither Purchaser nor
Seller elect to so terminate this Contract, then the Closing shall
take place as provided herein, without credit to the Purchase Price,
but Seller shall pay over to Purchaser all insurance proceeds payable
as a result of such casualty and credit to Purchaser the amount of
the deductible payable under Seller's insurance policy.
10. CONDEMNATION: In the event of any taking of all or any part of the
Property by eminent domain proceedings, or the commencement of any
such proceedings during the period from the date hereof to the
Closing Date, Seller promptly shall give Purchaser written notice of
such proceeding, stating the amount, type and location of such taking
or proposed taking, and Purchaser shall proceed as follows:
(a) Should all of the Property, or a portion of the Property which
materially interferes with the present use thereof (as reasonably
determined by Purchaser), be condemned, (or if a threat of any such
condemnation occurs) Purchaser shall be permitted to terminate this
Contract by written notice to that effect to Seller on or before the
date fixed for the Closing, and the Earnest Money and all interest
<PAGE>
earned thereon shall be returned to Purchaser. Thereafter, this
Contract shall become null and void and neither party hereto shall
have any other liability or obligation to the other (other than the
obligation of Purchaser to keep confidential all documents and other
material furnished to Purchaser pursuant to the transaction
contemplated by this Contract).
(b) If only a portion of the Property is condemned, which would not
materially interfere with the present use thereof, Purchaser will be
liable and obligated to take title to the remaining portion of the
Property at the Purchase Price, in which event Seller shall assign to
Purchaser all of Seller's right, title and interest in and to any
award resulting from such condemnation.
11. CLOSING: Settlement of this transaction shall be held at 11:00 a.m.,
Indianapolis time, on or before November 9, 1998, at the offices of
the title insurance company, time being of the essence thereof. The
settlement of this transaction and the date of such settlement are
referred to herein as the "Closing" and the "Closing Date",
respectively. Seller and Purchaser may mutually agree upon an earlier
date for settlement of this transaction or fix another place for
settlement of this transaction.
12. APPORTIONMENTS AND ADDITIONAL PAYMENTS: The following apportionments
and payments are to be made as of the Closing Date:
(a) In accordance with local custom, all taxes which are attributable
to the real estate as of the Closing Date, and all assessments which
have become a lien upon the Land, whether or not recorded at the date
of this Contract, and continuing until the Closing, shall be paid by
Seller. Current year taxes, if any, shall be prorated and adjusted as
of the Closing Date in accordance with the due date basis of
municipality or taxing unit in which the Land is located. Personal
property taxes, sewer rents, water charges, and all other municipal
charges, if any, shall be apportioned on the basis of the tax year or
other period for which assessed, in accordance with local practices
whether due or payable; provided, however, that all tax refunds from
prior years shall remain the property of Seller. If a refund is
received for a period after the Closing, Purchaser shall be entitled
to the same, after deduction of any expenses incurred by Seller in
order to obtain such refund. The tax proration at Closing shall be
final based upon most recent assessments and no adjustment shall be
made following Closing when actual taxes are determined.
(b) Rents and other income of any type arising from the Center shall
be prorated as of the Closing Date.
(c) Charges for the consumption of electricity, fuel oil on the
Property, steam, gas, telephone services and other utility services,
if any, shall be prorated as of the Closing Date, unless final
readings therefor can be established, as of the Closing Date.
Further, payments under the Service Contracts, the Leases and any
other executory contracts assigned to Purchaser will be prorated at
the Closing.
(d) Security deposits made by tenants under the Leases or other
agreements transferred to Purchaser hereunder shall be deducted from
the Purchase Price, and Purchaser thereupon shall acquire all of
Seller's rights and obligations, if any, in and to such deposits.
To the extent that information for any proration described herein is
not available on the Closing Date, the parties shall cause such
proration to occur with fifteen (15) days after such information is
received.
Except as herein otherwise provided, all apportionments provided for
in this Contract shall be made as of 12:01 a.m. local time on the
Closing Date, and shall be based upon the actual number of days in
the period covered by the sum being apportioned. Closing adjustments
and apportionments made pursuant to the foregoing provisions shall be
determined jointly by representatives of Purchaser and Seller at least
two (2) days prior to the Closing.
<PAGE>
13. CONFIDENTIAL INFORMATION - INSPECTIONS: All information furnished by
Seller to Purchaser in accordance with this Contract or obtained by
Purchaser in the course of its review or preparation for Closing
shall be treated as confidential information by Purchaser and shall
be returned to Seller in accordance with the Confidentiality Agreement
heretofore executed by Purchaser. In addition, copies of all reports,
engineering studies, analyses and other documents and information
initially provided by Seller shall be delivered by Purchaser to Seller
if Purchaser terminates this Contract. Purchaser shall maintain a
policy of comprehensive general liability insurance in order to insure
against any damage, claim, loss or injury which Purchaser, or any of
its employees, agents or representatives, may cause on or in the
Property. Purchaser shall defend, indemnify and hold Seller harmless
from and against any liabilities, claims, demands or actions for
personal injury or property damage incident to, resulting from, or in
any way arising out of, such test, inspection or entry by or on behalf
of Purchaser or any of its agents or employees onto the Property. The
foregoing indemnity shall survive the Closing and not be merged
therein.
14. COVENANTS OF SELLER: Seller hereby agrees that during the period
between the date hereof and the Closing Date that:
(a) Seller will (i) manage the Property or cause the Property to be
managed in accordance with past practices and (ii) continue past
normal practice with respect to reasonable maintenance and repairs of
the Property, and the Property will be of at least the same quality
on the Closing Date as on the date hereof, except for normal wear and
tear and damage by any Casualty; provided, however, that nothing
herein shall obligate Seller to undertake any major repairs or major
renovations or make capital improvements to the Property, except for
that required to operate the Property in the course of its day to day
business.
(b) Seller shall allow Purchaser or Purchaser's representatives
access to the Property, upon reasonable prior notice at reasonable
times, but Purchaser covenants not to talk with any of the tenants,
without prior notice to Seller. Purchaser shall hold in strict
confidence all matters pertaining to the Property.
15. PURCHASER'S REPRESENTATIONS AND WARRANTIES: Purchaser represents and
warrants to Seller as follows, which representations and warranties
shall be true and correct in all material respects as of the date
hereof and as of the Closing Date:
(a) Purchaser, if an entity and not an individual, is duly organized,
validly existing and in good standing under the laws of the state in
which it was organized.
(b) Purchaser has full power and authority to enter into this
Contract and to perform its obligations hereunder.
(c) The person executing this Contract on behalf of Purchaser has
been duly authorized to do so, and, when so executed, this Contract
shall constitute a valid obligation of Purchaser, binding upon and
enforceable against Purchaser in accordance with its terms.
Purchaser will indemnify and hold harmless Seller, and its successors
and assigns, from and against any and all loss, liability, damage,
cost and expense, including, without limitation, reasonable attorneys'
fees, suffered or incurred by Seller due to a breach of any of the
foregoing representations and warranties.
16. SELLER'S REPRESENTATIONS AND WARRANTIES: Seller represents and
warrants to Purchaser as follows, which representations and
warranties shall be true and correct in all material respects as of
the date hereof and as of the Closing Date:
(a) Seller is a limited partnership, duly constituted, validly
existing and in good standing under the laws of the State of Maryland.
<PAGE>
(b) As of the Closing Date, Seller will hold good and marketable
title to all of the Property, subject to no mortgage, pledge, lien,
encumbrance, security interest or charge that will not be discharged
prior to Closing, other than the Permitted Exceptions.
(c) There are no existing or pending litigation actions, suits,
proceedings or claims with respect to any aspect of the Property
except the suit filed by Athanasin Condos, filed in the Marion County
Superior Court, Cause No. 49D049807CT000972 nor, to Seller's
knowledge, have any such actions, suits, proceedings or claims been
threatened or asserted. Seller shall continue to defend such claim
and indemnify and hold harmless Purchaser from any liability related
thereto.
(d) The rent roll to be provided to Purchaser prior to the date
hereof and the rent roll to be provided by Seller at the Closing
(collectively the "Rent Rolls") will each list the name of each
tenant, the date of its lease and any amendments and will be
substantially true, correct and complete list in all material respect
with respect to each Lease for the following (i) the type of space
covered thereby and number of square feet of rentable area, (ii) the
expiration thereof, (iii) renewal options, if any, (iv) the rents and
other charges payable thereunder, (v) any rents or other charges in
arrears or prepaid thereunder and the period for which such rents and
other charges are in arrears or have been prepaid, (vi) the amount of
the security deposit thereunder, and (vii) any tenant improvement
costs or leasing commissions payable by the landlord at any time after
the date hereof. All tenants pay for utility consumption at their
leased premises.
(e) To Seller's knowledge, the Property is in full compliance with
all restrictive covenants and deed restrictions affecting the Property
and with all applicable laws (including, without limitation, any
applicable environmental laws).
"Seller's knowledge" shall consist of only the actual knowledge of
employees of USF&G Realty Advisors, Inc., which entity is responsible for the
management of the Property, and no constructive knowledge shall be applicable
and no further investigation shall be required or has been made.
17. DEPOSIT:
(a) At the Closing, the Escrow Agent shall promptly deliver the
Earnest Money thereon to Seller and Purchaser shall receive the
credit thereof against Purchase Price.
(b) If the Escrow Agent receives a written statement executed by
Purchaser that title to the Property has not closed under this
Contract because of the inability of Seller to close under this
Contract, or because of a default by Seller causing a failure to
close under this Contract, or because of Purchaser's termination of
this Contract as permitted by and in accordance with the provisions
herein contained, Escrow Agent, within three (3) business days after
the receipt of such written statement, shall deliver a copy of said
statement to Seller, and shall return the Earnest Money, and all
interest earned thereon, to Purchaser on the tenth (10th) business
day after receipt thereof by Escrow Agent, unless, prior to such
return, Escrow Agent receives from Seller a written statement
contesting the accuracy of Purchaser's statement and demanding
retention of the Earnest Money, and all interest earned thereon, by
Escrow Agent.
(c) If the Escrow Agent receives a written statement executed by
Seller that title to the Property has not closed under this Contract
because of the inability of Purchaser to close under this Contract,
or because of a default by Purchaser causing a failure to close under
this Contract or because of Seller's termination of this Contract as
permitted by and in accordance with the provisions herein contained,
Escrow Agent, within three (3) business days after receipt of such
written statement, shall deliver a copy of said statement to
Purchaser and shall forward the Earnest Money, and all interest
earned thereon, to Seller on the tenth (10th) business day after
receipt thereof by Escrow Agent, unless, prior to such return,
Escrow Agent receives from Purchaser a written statement contesting
the accuracy of Seller's statement and demanding retention of the
Earnest Money, and all interest earned thereon, by Escrow Agent.
<PAGE>
(d) Upon receipt by Escrow Agent of a written statement of contest
from Seller under subsection (b) above, or from Purchaser under
subsection (c) above, Escrow Agent shall retain the Earnest Money,
and all interest earned thereon, and thereafter deliver the same
(less costs) to either Seller or Purchaser (or otherwise), as Seller
and Purchaser direct by a written statement jointly executed by them
or pursuant to the directions contained in a final Court Order from a
Court having jurisdiction and venue over the parties and the dispute;
provided, however, that Escrow Agent, at any time before receiving
any such jointly executed statement or Court Order, and on notice to
eller and Purchaser, may surrender the Earnest Money, and all interest
earned thereon, to a court of competent jurisdiction by means of an
interpleader action or otherwise, for such disposition as may be
directed by such court.
(e) Escrow Agent shall not be liable to either Seller or
Purchaser in connection with its performance as escrow agent
hereunder, except in the event of its gross negligence and/or willful
disregard of the escrow provisions set forth in this Contract. Escrow
Agent may rely and/or act upon any instrument or document reasonably
believed by it to be genuine and to be executed and/or delivered by
the proper person. Seller and Purchaser hereby agree to indemnify,
defend and hold Escrow Agent harmless from and against any cost, loss
or expense (including reasonable attorneys' fees and disbursements)
suffered or incurred by Escrow Agent as a result of it being named in
or as a result of it commencing and prosecuting any litigation or
proceeding required or permitted including all interest earned
thereon, and any and all of its obligations arising therefrom.
(f) Notwithstanding anything contained herein to the contrary,the
Earnest Money shall be immediately refunded to Purchaser upon Title
Company's receipt of a copy of a notice from Purchasers terminating
this Agreement on or before the last day of the Inspection Period.
18. BROKER: Seller and Purchaser each represent and warrant to the other
that it has not utilized the services of any real estate broker,
salesperson or finder ("Broker") in connection with this Contract or
the purchase and sale of the Property contemplated hereby. Seller and
Purchaser each agree to indemnify, defend and hold harmless the other
and their respective successors and assigns from and against all
claims for brokerage commissions and finder's fees arising from or
attributable to the acts or omissions of the indemnifying party or
any person or entity purportedly acting on behalf of the indemnifying
party. The foregoing indemnifications shall survive the Closing.
19. DISCLAIMER:
A. EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THIS CONTRACT, SELLER
HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY AND
REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO
AND CONCERNING, 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. EXCEPT AS SPECIFICALLY REPRESENTED BY SELLER UNDER SECTION 16,
PURCHASER ACKNOWLEDGES THAT HAVING BEEN GIVEN A SUFFICIENT OPPORTUNITY
TO INSPECT THE PROPERTY, PURCHASER IS RELYING SOLELY ON ITS OWN
INVESTIGATION OF THE PROPERTY AND FINANCIAL ANALYSIS OF THE REVENUE
AND EXPENSES THAT MAY BE RECEIVED OR INCURRED IN ARRIVING AT ITS
DECISION TO PURCHASE THE PROPERTY.
C. PURCHASER IS PURCHASING THE PROPERTY IN ITS PRESENT CONDITION,
"AS IS, WHERE IS", AND SELLER HAS NO OBLIGATION TO CONSTRUCT ANY
IMPROVEMENTS THEREON, OR TO PERFORM ANY OTHER ACT REGARDING THE
PROPERTY, EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND HAS BEEN GIVEN
SUFFICIENT OPPORTUNITY TO INSPECT THE PROPERTY, INCLUDING, BUT NOT
LIMITED TO, SEWER, ROOF, PLUMBING, ELECTRICAL, MECHANICAL AND
STRUCTURAL, AIR CONDITIONERS AND HEATING SYSTEMS. NOTHING HEREIN
SHALL RELEASE SELLER FROM LIABILITY FOR ANY OF ITS REPRESENTATIONS OR
WARRANTIES.
<PAGE>
D. FACTUAL INFORMATION SUCH AS PROPERTY DIMENSIONS, SQUARE FOOTAGE,
OR SKETCHES SHOWN TO PURCHASER OR SET FORTH HEREIN ARE OR MAY BE
APPROXIMATE, AND PURCHASER REPRESENTS TO SELLER THAT HE/SHE/IT HAS
INSPECTED AND VERIFIED THE FACTS AND INFORMATION PRIOR TO THE
EXECUTION OF THIS CONTRACT. NO LIABILITY FOR ANY INACCURACIES,
ERRORS OR OMISSIONS IS ASSUMED BY SELLER.
E. THE AGENTS OF SELLER IN THIS TRANSACTION HAVE NO EXPERTISE WITH
RESPECT TO ENVIRONMENTAL MATTERS. PROPER INSPECTIONS OF THE PROPERTY
BY QUALIFIED EXPERTS ARE AN ABSOLUTE NECESSITY TO DETERMINE WHETHER
OR NOT THERE ARE ANY CURRENT OR POTENTIAL ENVIRONMENTAL CONCERNS
RELATING TO THE PROPERTY. PROBLEMS INVOLVING ENVIRONMENTAL CONCERNS
CAN BE EXTREMELY COSTLY TO CORRECT. IT IS THE RESPONSIBILITY OF
PURCHASER TO RETAIN QUALIFIED EXPERTS TO DEAL WITH THE DETECTION AND
CORRECTION OF SUCH MATTERS.
F. IT IS UNDERSTOOD AND AGREED THAT PURCHASER ASSUMES FULL AND
COMPLETE RESPONSIBILITY FOR COMPLIANCE WITH ALL TITLES OF THE FEDERAL
AMERICANS WITH DISABILITIES ACT ("ADA") AND THE REGULATIONS
PROMULGATED PURSUANT THERETO, AS WELL AS ANY AND ALL STATE OR LOCAL
ACCESSIBILITY STANDARDS.
20. NOTICES: All notices, elections, consents, demands and communications
(collectively called "Notices" or individually called a "Notice")
shall be in writing and delivered personally, by registered or
certified mail return receipt requested, postage prepaid, or by a
national overnight courier service or by facsimile (with a copy sent
by U.S. mail) and, if sent to Purchaser, addressed to Purchaser at
Purchaser's address, and, if sent to Seller, addressed to Seller at
Seller's address, each stated on the signature page of this Contract.
Copies of Notices shall be sent to the attorneys for the respective
parties, if identified on the signature page. Either party, by
written notice to the other, may change the address to which Notices
are to be sent. Unless otherwise provided herein, all Notices shall
be deemed given when personal delivery is effected, or when deposited
in any branch, station or depository maintained by the U.S. Postal
Service or the overnight courier service within the United States of
America, or when confirmed receipt of a facsimile transmission if
received by the sender except that a Notice of a change of address
shall be deemed given when actually received. Seller's affidavit of
the date and time of deposit in a mailbox, or with an overnight mail
service, or a postmark, whichever is earlier, shall constitute
evidence of the effective date when the Notice has been given.
21. ENTIRE AGREEMENT: This Contract constitutes the entire agreement
between the parties as to the subject matter hereof and supersedes
all prior understandings and agreements. There are no
representations, agreements arrangements or understandings, oral or
written, between the parties relating to the subject matter contained
in this Contract, which is not fully expressed or referred to herein.
22. SUCCESSORS AND ASSIGNS: The provisions of this Contract shall bind
and inure to the benefit of Purchaser and Purchaser's heirs, legal
representatives, successors and permitted assigns, and shall bind and
inure to the benefit of Seller and its successors and assigns. This
Contract may be assigned by Purchaser at the closing without prior
written consent of Seller, to any existing client of Purchaser.
<PAGE>
23. JOINT PURCHASERS: The term "Purchaser" shall be read as "Purchasers",
if more than one person is the Purchaser of the Property, in which
case their obligations shall be joint and several.
24. FURTHER ASSURANCES: Either party shall execute, acknowledge and
deliver to the other party such instruments and take such other
actions, in addition to the instruments and actions specifically
provided for herein, at any time and from time to time after
execution of this Contract, whether before or after the Closing, as
such other party may reasonably request in order to effectuate the
provisions of this Contract or the transaction contemplated herein,
or to confirm or perfect any right to be created or transferred
hereunder or pursuant to this transaction, provided that neither
party shall be required to incur any material expense in connection
therewith.
25. SEVERABILITY: If any clause or provision of this Contract is held to
be invalid or unenforceable by any court of competent jurisdiction as
against any person or under any circumstances, the remainder of this
Contract and the applicability of any such clause or provision to
other persons or circumstances shall not be affected thereby. All
other clauses or provisions of this Contract, not found invalid or
unenforceable, shall be and remain valid and enforceable.
26. CONSULT YOUR ATTORNEY: THIS IS INTENDED TO BE A LEGALLY BINDING
CONTRACT. READ IT CAREFULLY. NO REPRESENTATION OR RECOMMENDATION IS
MADE BY SELLER, BROKER, LISTING COMPANY OR ANY OF THEIR AGENTS OR
EMPLOYEES, AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT OR TAX
CONSEQUENCES OF THIS DOCUMENT, OR THE TRANSACTION RELATING THERETO.
THESE ARE QUESTIONS FOR YOUR ATTORNEY. CONSULT YOUR ATTORNEY BEFORE
SIGNING. NONE OF SELLER, BROKER OR LISTING COMPANY CAN GIVE YOU ANY
LEGAL ADVICE.
27. TERMINATION, DEFAULT AND REMEDIES:
(a) Permitted Termination. If this Contract is terminated by either
party pursuant to a right expressly given it to do so hereunder
(herein referred to as a "Permitted Termination"), except for a
termination by Seller because of the default of Purchaser, the
Earnest Money, and all interest earned thereon, immediately shall be
returned to Purchaser.
(b) Seller's Title Default. If Seller shall be unable to convey
title to the Property at Closing in accordance with the title
accepted by Purchaser under Section 4(b), Purchaser may elect to
ccept such title as Seller conveys, but the foregoing shall not
permit Seller to refuse to pay off existing mortgages or judgment
liens which are unpermitted title exceptions, or Purchaser may
terminate this Contract and receive back the Earnest Money deposit
and accrued interest, and if as a result of an act or omission of
Seller following Purchaser's acceptance of the condition of title to
the Property under Section 4(b), recover its reasonable out-of-pocket
costs and expenses incurred in connection with the transaction
evidenced hereby not to exceed $200,000, as its sole remedy.
(c) Other Default by Seller. If Seller defaults for any reason other
than for a title defect as provided for above, Purchaser may elect to
receive back his Earnest Money deposit and accrued interest (less
service charge), if any, and recover its reasonable out-of-pocket
expenses incurred in connection with the transaction which shall not
exceed $200,000, as liquidated damages, or in the alternative,
Purchaser shall have the right to an action for specific performance
for Seller's breach of this Contract, which shall be Purchaser's only
other remedy. Purchaser acknowledges and agrees that under no
circumstances except Seller's fraud or deceit or except as otherwise
provided in this Section 27, shall Seller be liable for Purchaser's
damages, consequential, actual, punitive, speculative, or otherwise.
<PAGE>
(d) Default by Purchaser. In the event of a default by Purchaser
hereunder, Seller's sole remedy shall be to terminate this Contract
by notice to Purchaser, whereupon this Contract shall become null
and void, without further liability of either party to the other,
with the exception that Seller shall be paid the Earnest Money, and
all interest earned thereon, it being agreed between Purchaser and
Seller that such sum(s) shall be liquidated damages for a default by
Purchaser hereunder, because of the difficulty, inconvenience and
uncertainty of ascertaining actual damages for such default.
Notwithstanding anything to the contrary contained herein, in the
event of a termination of this Contract for any reason whatsoever,
any provision hereof that is intended to survive the Closing also
shall survive such termination.
28. SPECIAL CONDITIONS: All Service Contracts not rejected by Purchaser
prior to the end of the Inspection Period and all Leases affecting the
Property will be assumed by Purchaser from and after the Closing Date.
29. SUPPLEMENTAL DOCUMENTS: The parties agree to execute all documents
which may reasonably be required to effectuate the terms and
provisions of this Contract, provided any such documents do not
increase the liability of the executing party in excess of the terms
and conditions of this Contract.
30. CONSTRUCTION: The words "include" or "including" shall be construed
as incorporating also the words "but not limited to" and "without
limitation." The word "day" means a calendar day, unless otherwise
specified. The words "herein", "hereof", "hereunder" and other
similar compounds of the words "here", when used in this Contract,
shall refer to the entire Contract and not to any particular
provision or section. If the last day of any time period stated
herein shall fall on a Saturday, Sunday or legal holiday, then the
duration of such time period shall be extended so that it shall end
on the next succeeding day which is not a Saturday, Sunday or legal
holiday. Whenever used in this Contract, the singular shall include
the plural, the plural the singular, and the use of any gender shall
be applicable to all genders. Marginal notes are inserted for
convenience only and shall not form part of the text of this Contract.
31. COVENANT NOT TO RECORD: Purchaser will not record this Contract.
Any attempted recording of this Contract shall constitute a default
hereunder on the part of Purchaser and shall cause forfeiture by
Purchaser of the Earnest Money and all interest thereon.
32. COUNTERPARTS AND COPIES: This Contract may be executed in several
counterparts, all of which, when taken together, shall be deemed to
be one original. Each fully executed copy also shall be deemed to be
an original.
33. EFFECTIVE DATE: The date of formation of this Contract (herein
called the "Effective Date" or the "date hereof") shall for all
purposes be the date Seller executes this Contract.
34. TIME: Time is of the essence of this Contract.
35. STRICT COMPLIANCE/WAIVER: Any failure by either party to insist upon
strict performance by the other party of any of the provisions of this
Contract shall not be deemed a waiver of any of the provisions hereof,
irrespective of the number of violations or breaches that may occur,
and each party, notwithstanding any such failure, shall have the
right thereafter to insist upon strict performance by the other of
any and all of the provisions of this Contract.
36. GOVERNING LAW: The provisions of this Contract and all questions
with respect to the construction and enforcement thereof, and the
rights and liabilities of the parties hereto, shall be governed by,
and construed and enforced in accordance with, the laws of the State
in which the Property is located.
37. WAIVER OF JURY TRIAL: EXCEPT AS PROHIBITED BY LAW, THE PARTIES SHALL,
AND THEY HEREBY DO, EXPRESSLY WAIVE TRIAL BY JURY IN ANY LITIGATION
ARISING OUT OF, CONNECTED WITH, OR RELATING TO, THIS CONTRACT OR THE
RELATIONSHIP CREATED HEREBY. WITH RESPECT TO ANY MATTER FOR WHICH A
JURY TRIAL CANNOT BE WAIVED, THE PARTIES AGREE NOT TO ASSERT ANY SUCH
CLAIM AS A COUNTERCLAIM IN, OR MOVE TO CONSOLIDATE SUCH CLAIM WITH,
ANY ACTION OR PROCEEDING IN WHICH A JURY TRIAL IS WAIVED.
<PAGE>
38. ATTORNEYS FEES: A party to this Contract who is the prevailing party
in any legal proceeding against any other party brought under or with
respect to this Contract or the transaction contemplated hereby shall
be additionally entitled to recover court costs and reasonable
attorney's fees from the non-prevailing party.
39. GENDER: A reference in this Contract to any one gender, masculine,
feminine or neuter, includes the other two, and the singular includes
the plural, and vice versa, unless the context requires otherwise.
40. CERTAIN REFERENCES: The term "herein", "hereof" or "hereunder", or
similar terms used in this Contract, refer to this entire Contract
and not to the particular provision in which the term is used. Unless
otherwise stated, all references herein to paragraphs, subparagraphs
or other provisions are references to paragraphs, subparagraphs or
other provisions of this Contract.
41. CAPTIONS: The captions in this Contract are for convenience and
reference only and in no way define, limit or describe the scope of
this Contract or the intent of any provision hereof.
42. NO ORAL CHANGES: This Contract cannot be changed, and no provision
hereof may be waived, orally. ANY CHANGES OR ADDITIONAL PROVISIONS
OR WAIVERS MUST BE SET FORTH IN A RIDER ATTACHED HERETO OR IN A
SEPARATE WRITTEN AGREEMENT SIGNED BY THE PARTIES.
43. EXHIBITS: All exhibits described herein and attached hereto are
incorporated herein by this reference for all purposes.
44. DATE OF PERFORMANCE: If any date for performance hereunder falls on
a Saturday, Sunday or other day which is a holiday under Federal law
or under the State law where the Property is located, the date for
such performance shall be the next succeeding business day.
45. COUNTERPART FACSIMILE EXECUTION: For purposes of executing this
Contract, a document signed and transmitted by facsimile machine
shall be treated an original document. The signature of any party
thereon shall be considered an original signature, and the document
transmitted shall be considered to have the same binding legal effect
as an original signature on an original document. At the request of
either party, any facsimile document shall be re-executed by both
parties in original form. No party hereto may raise the use of a
facsimile machine or the fact that any signature was transmitted
through the use of a facsimile machine as a defense to the enforcement
of this Contract or any amendment executed in compliance with this
paragraph. This paragraph does not supersede the requirements of
the "Notices" paragraph.
IN WITNESS HEREOF, Purchaser and Seller agree that the Effective Date
of this Contract shall be the date Seller executes this Contract.
Purchaser: (Execute applicable Paragraph A., B. or C.)
A. INDIVIDUAL:
Purchaser: _______________________________________________________
(Sign Name) (Sign Name)
Print: ________________________________________________________
<PAGE>
B. LIMITED LIABILITY COMPANY OR PARTNERSHIP
Purchaser: _______________________________________________________
a ______________________ _______________________________________
By: _____________________________________________
_________________________________________
(Print Name) (Title)
By: _____________________________________________
_________________________________________
(Print Name) (Title)
C. CORPORATION:
Purchaser: Invesco Realty Advisor, Inc.,
a Delaware Corporation
By: _____________________________________________
Its: __________________________________________
Attest: __________________________________
Its: _____________________________________
PURCHASER'S ADDRESS:
One Lincoln Centre, Suite 700
5400 LBJ Freeway LB2,
Dallas, TX 75240 Attention: Ron Ragsdale
PURCHASER'S PHONE: (H) ( )
(O) (972-715-7400 )
(Fax) (972-715-5811 )
SOCIAL SECURITY OR TAXPAYER I.D. NUMBER OF PURCHASER:
___________________________________________________________
DATE PURCHASER EXECUTES THIS CONTRACT: September ___, 1998
<PAGE>
PURCHASER'S ATTORNEY: George C. Dunlap, Jr.
ATTORNEY'S ADDRESS: Jenkens & Gilchrist
Fountain Place
1445 Ross Avenue
Suite 3200
Dallas, Texas 75202
Phone: (214-855-4500)
Fax: (214-855-4300)
SELLER: USF&G/LEGG MASON REALTY PARTNERS LIMITED
PARTNERSHIP, a Maryland Limited Partnership
By: USF&G Realty Partners, Inc., a General Partner
By: ________________________________________________________
Its: _______________________________________________________
SELLER'S ADDRESS: 6225 Smith Avenue
Baltimore, MD 21209
Attention: Gerry Trainor
Phone: 410-205-6914
FAX: 410-205-6932
SELLER'S ATTORNEY: Jeffrey A. Abrams
SELLER'S ADDRESS: Dann Pecar Newman & Kleiman
2300 One American Square
Box 82008
Indianapolis, IN 46282
Phone: (317) 632-3232
Fax: (317) 632-2962
Nicholas F. McCoy, Esq.
USF&G Realty Advisors
6225 Smith Avenue
Baltimore, MD 21209
Phone: 410-205-6337
Fax: 410-205-6932
DATE SELLER EXECUTES THIS CONTRACT: , 1998.
("Effective Date").
Exhibit A Legal Description of the Land
Exhibit B Service Contracts
Exhibit C Leases
Exhibit D Permitted Exceptions
Exhibit E Form of Assignment and Assumption Agreement
Exhibit F Form of Warranty Deed
Exhibit G Form of Estoppel Certificate
<PAGE>
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
----------------------------------------------
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
dated as of October 22, 1998, is executed by and between USF&G/LEGG MASON
REALTY PARTNERS LIMITED PARTNERSHIP, a Maryland limited partnership ("Seller"),
and INVESCO REALTY ADVISORS, INC., a Delaware corporation ("Purchaser").
R E C I T A L S
---------------
A. Seller and Purchaser have heretofore entered into a certain Purchase
and Sale Agreement (the "Agreement") dated September 28, 1998, pursuant to the
terms of which Seller agreed to sell and convey, and Purchaser agreed to
purchase and acquire, certain real property located in Indianapolis, Marion
County, Indiana all as more particularly described in the Agreement. Unless
otherwise defined herein, terms used herein with initial capital letters
shall have the same meanings assigned to such terms in the Agreement.
B. Seller and Purchaser now wish to amend the Agreement.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
1. Section 7(a) of the Agreement is hereby amended to provide as follows:
"(a) Purchaser is satisfied with the condition of the Property by
Purchaser not providing notice to terminate this Contract on or before
October 26, 1998."
2. Seller agrees, on or before the Closing Date, to terminate any and all
of the Service Contracts at Seller's sole cost and expense.
3. Seller and Purchaser agree to accept signatures on this Amendment by
facsimile.
4. As amended hereby, the Agreement remains in full force and effect.
EXECUTED and DELIVERED as of the date first above written.
SELLER:
------
USF&G/LEGG MASON REALTY PARTNERS LIMITED PARTNERSHIP,
a Maryland Limited Partnership
USF&G Realty Partners, Inc.,
a General Partner
By:
Print:
Its:
PURCHASER:
---------
INVESCO REALTY ADVISORS, INC.,
a Delaware corporation
By:
Name:
Title:
<PAGE>
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
-----------------------------------------------
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
dated as of October 26, 1998, is executed by and between USF&G/LEGG MASON
REALTY PARTNERS LIMITED PARTNERSHIP, a Maryland limited partnership ("Seller"),
and INVESCO REALTY ADVISORS, INC., a Delaware corporation ("Purchaser").
R E C I T A L S
---------------
A. Seller and Purchaser have heretofore entered into a certain Purchase and
Sale Agreement (the "Original Agreement") dated September 28, 1998, pursuant to
the terms of which Seller agreed to sell and convey, and Purchaser agreed to
purchase and acquire, certain real property located in Indianapolis, Marion
County, Indiana all as more particularly described in the Agreement. The
Original Agreement was amended by a First Amendment to Purchase and Sale
Agreement (the "First Amendment") dated as of October 22, 1998, executed by
Seller and Purchaser. The Original Agreement, as amended by the First Amendment,
is collectively called the "Agreement." Unless otherwise defined herein, terms
used herein with initial capital letters shall have the same meanings assigned
to such terms in the Agreement.
B. Seller and Purchaser now wish to amend the Agreement.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
1. The Purchase Price shall be $11,750,000.00.
2. Section 7(a) of the Agreement is hereby amended to provide as follows:
"(a) Purchaser is satisfied with (i) the state taxes payable by owners of real
property in the State of Indiana, and (ii) the duties, obligations and
liabilities of the owner of the Property as a member of the Shadeland Station
Owner's Association, Inc., by Purchaser not providing notice to terminate this
Contract on or before October 27, 1998."
3. Seller and Purchaser agree to accept signatures on this Amendment by
facsimile.
4. As amended hereby, the Agreement remains in full force and effect.
EXECUTED and DELIVERED as of the date first above written.
SELLER:
------
USF&G/LEGG MASON REALTY PARTNERS LIMITED PARTNERSHIP,
a Maryland Limited Partnership
USF&G Realty Partners, Inc.,
a General Partner
By:
Print:
Its:
<PAGE>
PURCHASER:
---------
INVESCO REALTY ADVISORS, INC.,
a Delaware corporation
By:
Name:
Title:
<PAGE>
THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT
----------------------------------------------
THIS THIRD AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
dated as of October 27, 1998, is executed by and between USF&G/LEGG MASON
REALTY PARTNERS LIMITED PARTNERSHIP, a Maryland limited partnership ("Seller"),
and INVESCO REALTY ADVISORS, INC., a Delaware corporation ("Purchaser").
R E C I T A L S
---------------
a. Seller and Purchaser have heretofore entered into a certain Purchase
and Sale Agreement (the "Original Agreement") dated September 28, 1998,
pursuant to the terms of which Seller agreed to sell and convey, and Purchaser
agreed to purchase and acquire, certain real property located in Indianapolis,
Marion County, Indiana all as more particularly described in the Agreement. The
Original Agreement was amended by a First Amendment to Purchase and Sale
Agreement (the "First Amendment") dated as of October 22, 1998, and by a
Second Amendment to Purchase and Sale Agreement dated as of October 26, 1998,
each of which were executed by Seller and Purchaser. The Original Agreement,
as amended by the First Amendment and the Second Amendment, is collectively
called the "Agreement." Unless otherwise defined herein, terms used herein with
initial capital letters shall have the same meanings assigned to such terms in
the Agreement.
b. Seller and Purchaser now wish to amend the Agreement.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
1. Section 7(a) of the Agreement is hereby amended to provide as follows:
"Purchaser is satisfied with the duties, obligations and liabilities of the
owner of the Property as a member of the Shadeland Station Owner's Association,
Inc., by Purchaser not providing notice to terminate this Contract on or before
October 28, 1998."
2. Seller and Purchaser agree to accept signatures on this Amendment by
facsimile.
3. As amended hereby, the Agreement remains in full force and effect.
EXECUTED and DELIVERED as of the date first above written.
SELLER:
------
USF&G/LEGG MASON REALTY PARTNERS LIMITED PARTNERSHIP,
a Maryland Limited Partnership
USF&G Realty Partners, Inc.,
a General Partner
By:
Print:
Its:
<PAGE>
PURCHASER:
---------
INVESCO REALTY ADVISORS, INC.,
a Delaware corporation
By:
Name:
Title:
<PAGE>
FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT
-----------------------------------------------
THIS FOURTH AMENDMENT TO PURCHASE AND SALE AGREEMENT (this "Amendment")
dated as of November 5, 1998, is executed by and between USF&G/LEGG MASON
REALTY PARTNERS LIMITED PARTNERSHIP, a Maryland limited partnership ("Seller"),
and INVESCO REALTY ADVISORS, INC., a Delaware corporation ("Purchaser").
R E C I T A L S
---------------
A. Seller and Purchaser have heretofore entered into a certain Purchase
and Sale Agreement (the "Original Agreement") dated September 28, 1998,
pursuant to the terms of which Seller agreed to sell and convey, and Purchaser
agreed to purchase and acquire, certain real property located in Indianapolis,
Marion County, Indiana all as more particularly described in the Agreement.
The Original Agreement was amended by a First Amendment to Purchase and Sale
Agreement (the "First Amendment") dated as of October 22, 1998, by a Second
Amendment to Purchase and Sale Agreement (the "Second Amendment") dated as of
October 26, 1998, and by a Third Amendment to Purchase and Sale Agreement (the
"Third Amendment") dated as of October 27, 1998, each of which were executed
by Seller and Purchaser. The Original Agreement, as amended by the First
Amendment, the Second Amendment and the Third Amendment, is collectively called
the "Agreement." Unless otherwise defined herein, terms used herein with
initial capital letters shall have the same meanings assigned to such terms in
the Agreement.
B. Seller and Purchaser now wish to further amend the Agreement.
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars ($10.00)
and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, Seller and Purchaser hereby agree as follows:
1. The Closing Date shall be November 10, 1998.
2. As amended hereby, the Agreement remains in full force and effect.
EXECUTED and DELIVERED as of the date first above written.
SELLER:
------
USF&G/LEGG MASON REALTY PARTNERS LIMITED PARTNERSHIP,
a Maryland Limited Partnership
USF&G Realty Partners, Inc.,
a General Partner
By:
Print:
Its:
<PAGE>
PURCHASER:
---------
INVESCO REALTY ADVISORS, INC.,
a Delaware corporation
By:
Name:
Title:
