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EXHIBIT B
REAL ESTATE TRANSFER AGREEMENT
THIS AGREEMENT made and entered into as of the 22nd day of April,
1998, by and between RMS LIMITED PARTNERSHIP, a Nevada limited partnership
(hereinafter referred to as "Seller") and PRECISION SYSTEMS, INC., a Delaware
corporation (hereinafter referred to as "Purchaser").
RECITALS:
WHEREAS, Seller desires to sell the hereinafter described property and
Purchaser desires to purchase the same on the terms and conditions hereinafter
set forth.
NOW, THEREFORE, for and in consideration of the mutual covenants and
agreements herein contained, the parties covenant and agree as follows:
1. Purchase and Sale. Seller hereby agrees to sell and convey to
Purchaser and Purchaser hereby agrees to purchase from Seller, subject to the
terms and conditions hereinafter set forth, all that certain parcel of land
(the "Land") lying and being situated in Nashville, Davidson County,
Tennessee, and being more particularly described on Exhibit "A," attached
hereto and made a part hereof for all purposes, together with the following:
(a) All buildings and other improvements situated thereon.
(b) All the rights and appurtenances pertaining thereto, including
any right, title and interest of Seller in and to adjacent
streets, roads, alleys, and rights-of-way;
(c) All fixtures, equipment and machinery owned by Seller and
located on, attached to, or used in connection with the
buildings and other improvements situated on the Land; and
(d) Such other rights, interests and properties as may be
specified in this Agreement to be sold, transferred, assigned,
or conveyed by Seller to Purchaser.
The Land together with the buildings and other improvements, rights, interests,
fixtures, and other properties described above, are collectively called the
"Property."
2. Consideration. The consideration for the transfer of the
Property shall be 3,789,393 shares of the common stock of Purchaser (the
"Purchaser Common Stock") which shall be issued and delivered to Seller at
Closing pursuant to the terms and conditions of that certain Contribution and
Share Exchange Agreement (the "Contribution Agreement") dated as of April 22,
1998, by and among Purchaser and Xxxxx Communications Holdings Limited
Partnership, a Nevada limited partnership, Xxxxx World Wide Digital
Transmission & Vaulting Limited Partnership, a Nevada limited partnership,
Xxxxx Productions Limited Partnership, a Nevada limited partnership and Xxxxx
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Virtual Media Limited Partnership, a Nevada limited partnership (collectively
"Seller's Related Entities").
3. Title to the Property. Title to the Property shall be good
and marketable and free of all leases, liens and other encumbrances except for
the following (hereinafter referred to as the "Permitted Exceptions"):
(a) Taxes for the current year, which shall be pro-rated as of the
Closing Date and assumed by Purchaser;
(b) All applicable zoning ordinances of the Metropolitan
Government of Nashville and Davidson County, Tennessee and
other governmental regulations, laws and ordinances governing
the use of the Property; and
(c) Those matters set forth on Exhibit "B" hereto.
4. Title Insurance. Within ten (10) days following the final
execution of this Agreement, Seller shall apply for and furnish Purchaser a
standard ALTA commitment with any documents of record affecting title of the
Property attached thereto, for owner's title insurance covering the Property
issued by a reputable title insurance company selected by Seller and approved
by Purchaser and doing business in Tennessee. Within fifteen (15) days after
the delivery of such commitment to Purchaser, Purchaser shall advise Seller of
its objections to any defect or limitation in title shown thereon (other than
the Permitted Exceptions), and Seller shall then have a reasonable time in
which to cure or remove any such defect. If Seller shall fail to cure or
remove any such defect in title, then, at the election of Purchaser, as
evidenced by written notice to Seller, the sale shall be closed subject to said
matters, or in the alternative, Purchaser may elect to terminate this Agreement
in which event neither party shall have any further claim or rights against the
other; provided that Purchaser shall advise Seller of its election to either so
close this transaction (at the time and otherwise in the manner as herein
provided), or to terminate this Agreement within ten (10) days following notice
from Seller to Purchaser as to any such defect in title that will not be cured
or removed. Notwithstanding anything to the contrary, any defect or limitation
in title created after the date of this Agreement shall be deemed a default of
this Agreement, and at the election of Purchaser, as evidenced by written
notice to Seller, Purchaser may terminate this Agreement, or in the
alternative, may cure any such defect or limitation and deduct such costs of
cure from the consideration to be provided on the Closing Date.
Upon closing of this transaction, Seller, at its expense, shall
provide for the furnishing to Purchaser of an owner's title insurance policy in
the amount of the purchase price covering the Property on standard ALTA Form B
in accordance with the above commitment subject only to the Permitted
Exceptions, such other matters as may be disclosed in the above commitment
which are not objected to by Purchaser as above provided. Seller agrees to
furnish any affidavits or guaranties that may be required by the title insurer
to remove the exception for mechanics' and materialmen's liens or rights of
parties in possession.
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5. Representations and Warranties and Covenants of Seller.
Seller represents and warrants and covenants to Purchaser as follows:
(a) Seller is a limited partnership (i) duly formed and validly
existing under the laws of the State of Nevada and its
partnership agreement, (ii) fully qualified to do business in
Tennessee, to the extent such qualification is required to
consummate the transactions contemplated by this Agreement,
(iii) having the power, authority and legal right to carry on
the business conducted by it and to engage in the transactions
contemplated by this Agreement, and (iv) having authorized by
all necessary actions of the partners of Seller the execution
and delivery of this Agreement.
(b) Marketable Title. Seller has good, marketable and insurable
title to the Property, free and clear of all mortgages, liens,
encumbrances, leases, tenancies, security interests,
covenants, conditions, restrictions, rights-of-way, easements,
judgments, and other matters affecting title except the
Permitted Exceptions.
(c) No Condemnation Pending or Threatened. There is no pending or
threatened condemnation or similar proceeding affecting the
Property or any portion thereof, nor has Seller knowledge that
any such action is presently contemplated.
(d) Adverse Information. Seller has no information or knowledge
of any change contemplated in any applicable laws, ordinances,
or restrictions, or any judicial or administrative action, or
any action by adjacent landowners, or natural or artificial
conditions upon the Property, which would prevent, limit,
impede, or render more costly Purchaser's contemplated use of
the Property.
(e) Compliance with Laws. Seller has complied in all material
respects with all applicable laws, ordinances, regulations,
statutes, rules, and restrictions pertaining to and affecting
the Property. Performance of this Agreement will not result
in any breach of, or constitute any default under, or result
in the imposition of, any lien or encumbrance under the
Property under any agreement or other instrument to which
Seller is a party or by which Seller or the Property might be
bound.
(f) Pending Litigation. There are no legal actions, suits, or
other legal or administrative proceedings, including
condemnation cases and matters of applications before any
governmental authority having zoning jurisdiction of the
Property, pending or threatened, against the Property, and
Seller is not aware of any facts which might result in any
such action, suit or other proceedings.
(g) Zoning. The Property is zoned under a CS, Commercial Services
zoning classification of the Metropolitan Government of
Nashville and Davidson County, Tennessee. Seller has no
knowledge of any fact, action or proceeding, whether actual,
pending or threatened, which would result in a modification or
the termination of such zoning.
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(h) No Special Assessments. No portion of the Property is
affected by any special assessments, whether or not
constituting a lien thereon.
(i) Access to Highways and Roads. The Property has full, free,
and adequate access to and from public highways and roads, and
Seller has no knowledge of any fact or condition which would
result in the termination of such access.
(j) Parties in Possession. There are no parties in possession of
any portion of the Property as lessees, tenants at sufferance
or trespassers, except as expressly set forth herein.
(k) Special Flood Hazard Area. To the best of Seller's knowledge,
none of the Property is located within a special flood hazard
area.
(l) Existing Improvements. All buildings and improvements
(including all streets, curbs, sidewalks, sewers and other
utilities) have been completed and installed in accordance
with the plans and specifications approved by the various
governmental authorities having jurisdiction. Permanent
certificates of occupancy, all licenses, permits,
authorizations, approvals required by all governmental
authorities having jurisdiction have been issued for the
buildings and improvements and have been paid for, and, as of
the Closing, all of the same will be in full force and effect.
(m) No Violations of Zoning Laws, Etc. No zoning, building, or
similar law, ordinance, or regulation is, or as of the Closing
will be, violated by the continued maintenance, operation, or
use of any buildings, improvements, or structures presently
erected on the Property or by the continued maintenance,
operation, or use of the parking areas. There are not, and as
of the Closing there will not be, any uncured violations of
federal, state, or municipal laws, ordinances, orders,
regulations, or requirements affecting any portions of the
Property. No heating equipment, incinerators, or other
burning devices violate, or as of the Closing will violate,
any applicable federal, state, or municipal laws, ordinances,
orders, regulations or requirements.
(n) Maintenance of Property. Subsequent to the execution of this
Agreement and until the Closing, the Property will be kept in
sound order and all repairs and replacements, structural and
nonstructural, ordinary and extraordinary, required with
respect to any portion of the Property will be made. There
are not, and as of the Closing there will not be any
structural defects in any of the buildings or other
improvements erected on the Property. The heating, air
conditioning, electrical, plumbing, and other building
equipment, including the roof, are, and as of the Closing will
be, in good condition and working order and adequate in
quantity and quality for normal operations.
(o) Environmental Matters. Except as disclosed in Section 4.16 of
the Xxxxx Disclosure Letter of the Contribution Agreement, to
the best of Seller's knowledge, the Property and the use
thereof is not in direct or indirect violation of any local,
state or federal
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law, rule or regulation pertaining to environmental
regulation, contamination, or cleanup (collectively,
"Environmental Laws"), including without limitation the
Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation, and Liability Act, the
Superfund Amendments and Reauthorization Act, the Federal
Water Control Act, the Occupational Safety and Health Act,
state and federal super-lien and environmental cleanup
statutes, and that the Property does not contain asbestos or
any underground storage tank and is not subject to any private
or governmental claims, liens or judicial or administrative
notices or actions relating to hazardous and/or toxic
substances, waste, materials, pollutants or contaminates, or
any other substances or materials which are included under or
regulated by Environmental Laws (said materials, together with
asbestos, petroleum and petroleum-derived products,
the"Hazardous Substances", and the Property has not been by
the Seller used for the storage, processing, treatment or
disposal of Hazardous Substances and to the best of Seller's
knowledge no Hazardous Substances have been released,
introduced, spilled, discharged or disposed of on the
Property.
(p) Survival of Representations and Warranties. The
representations and warranties set forth in this Article 5
shall be continuing and shall be true and correct on and as of
the Closing Date with the same force and effect as if made at
the time, and all of such representations and warranties shall
survive the Closing for a period of one (1) year after the
Closing Date.
(q) Investment. Seller is acquiring the Purchaser Common Stock
under this Agreement for investment only and not with a view
to the public distribution or resale thereof or any interest
therein in violation of the Securities Act of 1933, as amended
(the "Securities Act") or any other applicable federal or
state securities laws or regulations. Seller is familiar with
the meaning of such representation and fully understands the
restrictions and limitations that are imposed thereby.
Purchaser has disclosed to Seller that Seller must bear the
economic risk of the investment in the Purchaser Common Stock
for an indefinite period of time because the Purchaser Common
Stock has not been registered under the Securities Act or any
state blue sky law and therefore, the Purchaser Common Stock
cannot be sold unless it is subsequently registered under the
Securities Act and applicable state blue sky laws or an
exemption for such registration is available. Seller is able
and prepared to bear the economic risks of investing in and
holding the Purchaser Common Stock for an indefinite period of
time. At all times during the negotiation of this Agreement
and at the date hereof, Seller has such knowledge and
experience in financial and business matters that it is
capable of evaluating the merits and risk of the investment in
the Purchaser Common Stock. Seller has had access to such
financial and other information and has been afforded the
opportunity to ask such questions of Purchaser and its
representative and has received answers thereto, as it deems
necessary in connection with its decision to acquire the
Purchaser Common Stock.
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6. Representation and Warranties of Purchaser. The warranties
and representations of Purchaser contained in Article III of the Contribution
Agreement are incorporated herein and all such representations and warranties
are hereby made to Seller as if copied in full.
7. Indemnification.
(a) Indemnification from Seller. From and after the Closing
through and until the first anniversary thereof, Seller shall
indemnify and hold harmless Purchaser and its officers,
directors, employees, shareholders, affiliates, successors and
permitted assigns from all Losses (as hereinafter defined)
resulting from a breach by Seller of any representation,
warranty, covenant or agreement under this Agreement, provided
that written notice of Losses (or any event known to Purchaser
which does not or may give rise to Losses) has been given by
Purchaser to Seller on or prior to the first anniversary of
the Closing Date.
(b) Notice. The Indemnified Party (as hereinafter defined) shall
give prompt written notice to the Indemnifying Party of any
claim or event known to it which does or may give rise to a
claim by the Indemnified Party against the Indemnifying Party
based on this Agreement, stating the nature and basis of said
claims or event and the amounts thereof, to the extent known.
Such notice shall be given in accordance with Section 12
herein. Such notice shall be a condition precedent to any
liability of the Indemnifying Party hereunder.
Notwithstanding the foregoing, the failure to give reasonably
prompt written notice by the Indemnified Party shall not
defeat a claim made pursuant hereto except to the extent that
the Indemnifying Party can establish that it has been injured
by such delay.
(c) Defense of Claims. In the event of any claim, action, suit or
proceeding made or brought by third parties against the
Indemnified Party, the Indemnified Party shall given written
notice of such claim, action, suit or proceeding as described
in Section 12 herein, with a copy of the claim, process and
all legal pleadings with respect thereto. After notification,
the Indemnifying Party shall participate in, and jointly with
any other Indemnifying Party similarly notified, assume the
defense thereof, with counsel reasonably satisfactory to such
Indemnified Party at the time of such assumption. The
Indemnified Party shall have the right to employ its own
counsel and such counsel may participate in such action, but
the fees and expenses of such counsel shall be at the expense
of the Indemnified Party, when and as incurred, unless (i) the
employment of counsel by such Indemnified Party has been
authorized by the Indemnifying Party, of (ii) the Indemnifying
Party shall not in fact have employed counsel to assume the
defense of such action reasonably satisfactory to the
Indemnified Party at the time of the Indemnifying Party's
assumption of the defense. If clause (ii) of the preceding
sentence shall be applicable, then counsel for the Indemnified
Party shall have the right to direct the defense of such
claim, action, suit or proceeding on behalf of the Indemnified
Party. The Indemnified Party and the Indemnifying Party, as
the case may be, shall be kept fully informed of such claim,
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action, suit or proceeding at all stages thereof whether or
not such party is represented by its own counsel.
(d) Definitions.
(i) As used herein, the term "Losses" means any and all
claims, demands, costs, losses, damages and
liabilities, net of any insurance proceeds received.
The term "Losses" includes reasonable attorneys' fees
and costs incurred in the investigation and defense
of a claim, demand, cost, loss or liability
notwithstanding anything herein contained to the
contrary, in no event shall the Indemnifying Party be
liable for Losses in an amount less than $100,000 or
more than $1,000,000.
(ii) As used herein, the term "Indemnifying Party" shall
mean the person or persons against whom a party (the
"Indemnified Party") makes a claim for
indemnification hereunder.
8. Closing.
(a) Closing Date. The consummation of the transactions
contemplated by this Agreement (the "Closing") shall take
place pursuant to the provisions of Article X of the
Contribution Agreement on the date set forth therein (the
"Closing Date").
(b) Conditions to Purchaser's Obligations. The obligations of
Purchaser to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of each of the
following conditions as of the Closing Date, except to the
extent any such condition is waived in whole or in part by
Purchaser in writing at or prior to the Closing:
(i) Satisfaction. The representations and warranties of
Seller contained in this Agreement shall have been
true on the date of this Agreement and on Closing (as
if made as of the Closing Date without limitation to
the "knowledge" or awareness of Seller). Seller
shall have performed all obligations and complied
with all covenants required by this Agreement.
(ii) Satisfaction of Conditions in Contribution Agreement.
All conditions precedent to Closing contained in
Article IX of the Contribution Agreement shall have
been fulfilled, satisfied or waived by Purchaser.
(iii) No Adverse Change. No material and adverse change
shall have occurred, without Purchaser's written
consent, in the state or condition of the Property.
(c) Conditions to Seller's Obligations. The obligations of
Seller to consummate the transactions contemplated by this
Agreement are subject to the satisfaction of each
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of the following conditions as of the Closing Date, except to
the extent any such condition is waived in whole or in part by
Seller in writing at or prior to the Closing.
(i) Satisfaction. The representations and warranties of
Purchaser contained in this Agreement shall have been
true on the date of this Agreement and on Closing.
Purchaser shall have performed all obligations and
complied with all covenants required by this
Agreement.
(ii) Satisfaction of Conditions in Contribution Agreement.
All conditions precedent to Closing contained in
Article VIII of the Contribution Agreement shall have
been fulfilled, satisfied or waived by Seller and/or
Seller's Related Entities.
(d) Seller's Obligations at Closing. At the Closing, Seller shall
do the following:
(i) Execute, acknowledge, and deliver to Purchaser a
General Warranty Deed in a form suitable for
recording conveying the Property to Purchaser subject
only to the Permitted Exceptions.
(ii) Execute and deliver to Purchaser a blanket
assignment and xxxx of sale assigning and conveying
to Purchaser title to any personal property covered
by this Agreement, free and clear of all liens and
encumbrances, other than the Permitted Exceptions.
(iii) Execute and deliver to Purchaser an assignment or
assignments assigning to Purchaser all existing
assignable guarantees and warranties issued or made
in connection with the construction, improvement,
alteration, and repair of any improvements comprising
a part of the Property, together with the original of
each such guaranty and warranty, if any.
(iv) Deliver to Purchaser plans and specifications of the
property and of any improvements thereon, and copies
of all certificates of occupancy, license, permits,
authorizations, and approvals required by law and
issued by all governmental authorities having
jurisdiction and copies of all certificates issued by
the local board of fire underwriters (or other body
exercising similar functions), if any, and the
original of each xxxx for current real estate and
personal property taxes, together with proof of
payment thereof (if any of the same have been paid).
(e) Purchaser's Obligations at Closing. Subject to the terms,
conditions, and provisions hereof, and contemporaneously with
the performance by Seller of its obligations set forth in
Section (d) above, Purchaser shall do the following at
Closing;
(i) Deliver to Seller the consideration pursuant to the
terms of the Contribution Agreement and this
Agreement.
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(f) Closing Costs. Seller shall pay the following costs and
expenses in connection with the Closing:
(i) The costs of the preparation of the Warranty Deed;
(ii) The premium payable for the Owner's Policy of Title
Insurance to be furnished to Purchaser; and
(iii) Its attorney's fees.
Purchaser shall pay the following costs in connection with
the Closing:
(i) The costs of recording of the Warranty Deed and the
transfer taxes assessed thereon pursuant to T.C.A.
Section 67-4-409; and
(ii) Its attorney's fees.
(g) Proration of Taxes, Utilities, Rents, Interest and Insurance.
Taxes, utilities and insurance premiums of the year of the
Closing shall be prorated to the date of Closing. If the
Closing shall occur before the tax rate is fixed for the then
current year, the apportionment of taxes shall be upon the
basis of the tax rate for the preceding year applied to the
latest assessed valuation. Subsequent to the Closing, when
the tax rate is fixed for the year in which the Closing
occurs, Seller and Purchaser agree to adjust the proration of
taxes and, if necessary, to refund or pay (as the case may be)
such sums as shall be necessary to effect such adjustment. In
the event that Purchaser shall elect not to continue present
insurance coverage on the Property, such coverage shall be
terminated as of the Closing Date and there shall be no
proration of insurance premiums.
9. Casualty Loss. Seller represents to Purchaser that the
improvements located on the Property are presently insured by a policy of fire
and extended coverage insurance in an amount at least equal to the full
insurable value. In the event such improvements are materially damaged or
destroyed by fire or other casualty prior to the Closing of this Agreement,
Purchaser, at its election, may terminate this Agreement, and neither party
shall have any further claim or rights against the other, or Purchaser may
elect to proceed to close the purchase of the Property, in which event the
amount of any insurance proceeds payable by reason of such damage or
destruction, or any claim therefor, shall be assigned or paid to Purchaser.
Except as otherwise provided herein, all risk of loss to any improvements
located on the Property prior to the Closing of this transaction shall be borne
by the Seller.
10. Condemnation. If, during the term of this Agreement, all or
any material portion of the Property shall be condemned or otherwise taken by
power of eminent domain, Purchaser may elect to terminate this Agreement, and
there shall be no further rights, duties or obligations on the part of either
party hereunder, and Purchaser shall promptly release whatever claim, if any,
it may have in or to the condemnation award. If there shall be any such
condemnation or taking and if this
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Agreement is not terminated as a result thereof, then any condemnation award or
other amount to be paid for the value of the Property taken shall, be assigned
or paid to Purchaser, and the transaction shall close with no abatement of the
purchase price.
11. Remedies. In the event of a default under this Agreement by
either party, the non-defaulting party shall be entitled to exercise all
remedies available to it under the terms of the Contribution Agreement.
12. Notice. Any notice request or other communication which may
be required or desired to be given hereunder by any party to any other party
shall be in writing and shall be personally delivered or sent by United States
registered or certified mail, with postage prepaid, or sent by Federal Express
or other widely used overnight courier service, or sent by facsimile
transmission, and addressed as follows:
To Seller:
RMS Limited Partnership
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
Attn: C. Xxxxxx Xxxxxx, Xx., Esq.
with a copies thereof addressed to:
Xxxxx & XxXxxxxx
000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxx X. Xxxx, Xx., Esq.
and
Xxxxxx X. Xxxxxx, Xx., Esq.
0000 Xxxxxxx Xxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
or to such other address or addresses and to the attention of such other person
or persons as Seller may from time to time designate in writing; and
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To Purchaser:
Precision Systems, Inc.
00000 00xx Xxxxx Xxxxx
Xx. Xxxxxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxxxx
with copies thereof addressed to:
Xxxxxxxx Xxxxxxx LLP
NationsBank Plaza
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxx, III, Esq.
and
Xxxxx & Xxxxxxx
000 Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
or to such other address or addresses and to the attention of such other person
or persons as Purchaser may from time to time designate in writing.
A party may designate by such notice a new address or fax number to
which any notice, request or other communication to it shall thereafter be
sent. A notice shall be deemed received on the date that is three (3) calendar
days after the date that the notice is deposited in the United States mail if
sent by registered or certified mail, or, if personally delivered, on the date
such personal delivery is made. If notice is given by Federal Express or other
widely used overnight courier service, the notice shall be deemed received on
the next business day following the date that the notice is deposited with
Federal Express or such other overnight courier service. If notice is given by
facsimile transmission, the notice shall be deemed received when electronic
confirmation of receipt is obtained.
12. Brokerage. Each party represents to the other that no broker
has been involved in this transaction. It is agreed that if any claims for
brokerage commissions or fees are ever made against Seller or Purchaser in
connection with this transaction, all such claims shall be handled and paid by
the party whose actions or alleged commitments form the basis of such claim.
It is further agreed that each party agrees to indemnify and hold harmless the
other from and against any and all such
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claims or demands with respect to any brokerage fees or agents' commissions or
other compensation asserted by any person, firm, or corporation in connection
with this Agreement or the transactions contemplated hereby.
13. Non-Foreign Seller. Seller represents and warrants that no
part of the transfer of the Property constitutes a disposition of "United
States Real Property Interest by a 'Foreign' Person", as those terms are
defined in Sections 897 and 1445, respectively of the Internal Revenue Code of
1986, as amended (the "Code"). In the event that it is determined that
withholding tax is required under the Code, Seller hereby consents to the
deduction, withholding and deposit by Purchaser with the Internal Revenue
Service of ten percent (10%), or such other amount as required by law, of the
amount realized pursuant to this agreement if Seller is deemed to be a "foreign
person," and further agrees to full compliance by Purchaser with the
requirements of said Code. Seller agrees to execute, at the Closing, under
oath, an affidavit in form acceptable to Purchaser swearing that Seller's
disposition of the Property does not constitute the disposition of a "United
States Real Property Interest By a Foreign Person" as above defined, but only
if the same is required by and conforms to the Code and any regulations adopted
pursuant thereto.
14. Miscellaneous.
(a) Assignment. Neither Purchaser nor Seller may assign this
Agreement in whole or in part without first obtaining the
written consent of the other party, except that Seller may
assign its rights and obligations under this Agreement to one
or more of Seller's Related Entities so long as Seller remains
responsible for its performance thereunder.
(b) Entire Agreement. This Agreement constitutes the sole and
entire agreement between the parties with reference to the
Property and no modification hereof shall be binding unless
signed by all the parties to this Agreement. No
representations, promises or inducements other than as are set
forth in this Agreement shall be binding upon either of the
parties hereto.
(c) Construction and Effect. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto and their
respective heirs, representatives, successors and assigns.
This Agreement shall be construed in accordance with the laws
of the state of Tennessee. As herein used, the singular
number shall be applicable to all genders, except where the
context would fairly require a different construction. TIME
IS OF THE ESSENCE OF THIS AGREEMENT AND ALL THE PROVISIONS
HEREOF.
(d) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original
and all of which together shall comprise one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written; provided, however, that for the
purpose of determining "the date hereof" or "the date of final execution
hereof," as used in this Agreement, such date shall be the last date any of the
parties hereto execute this Agreement.
PURCHASER: SELLER:
PRECISION SYSTEMS, INC. RMS LIMITED PARTNERSHIP
By:/s/ Xxxxxx Xxxxxxx By: /s/ C. Xxxxxx Xxxxxx, Xx.
-------------------- --------------------------------
Xxxxxx Xxxxxxx C. Xxxxxx Xxxxxx, Xx.
CEOO and President President, Xxxxxxx Xxxxxxx, Inc.
General Partner of RMS Limited
Partnership
Date of Execution: Date of Execution:
April 22, 1998 April 22, 1998
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Exhibit "A"
TRACT I:
Beginning at an iron pipe in the East right-of-way line of
Xxxxxxxxx Pike, said point also being a Southwest corner of the
property more particularly described as follows:
Thence with the East right-of-way line of Xxxxxxxxx Xxxx North
05 degrees 14'28" East, a distance of 655.11' to an iron pipe;
thence South 16 degrees 14'03" East, a distance of 42.82' to
an iron pin; thence South 84 degrees 53'56" East, a distance
of 234.98' to an iron pin; thence North 05 degrees 04'18"
East, a distance of 184.63' to an iron pipe; thence South 85
degrees 58'44" East, a distance of 678.20' to an iron pin;
thence South 09 degrees 38'26" West, a distance of 566.41' to
an iron pipe; thence South 13 degrees 25'30" West, a distance
of 301.68' to an iron pipe in the North right-of-way line of
Maplewood Lane; thence with said right-of-way line North 83
degrees 06'14" West, a distance of 817.71' to an iron pipe,
said point being the beginning of a curve to the right; thence
with the arc of a curve to the right, with a radius of 25.00'
and a chord bearing and distance of North 39 degrees 15'46"
West, 34.79' an arc distance of 38.48' to the point of
beginning and containing 16.18 acres or 704,799 square feet.
Being the same property conveyed to RMS Limited Partnership, a
Nevada limited partnership by quitclaim deed from WNAB Channel
58 Nashville, Inc., a Tennessee corporation for record in Book
10121, page 507, Register's Office for Davidson country,
Tennessee.
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Exhibit "B"
TRACT I:
1. 1998 real property taxes, a lien, but not yet due and payable.
2. Easements for sanitary sewers and/or storm drainage/detention
of record in Book 5713, page 763 and Book 6549, page 793,
Register's Office for Davidson County, Tennessee.
3. Non-exclusive easement for ingress and egress over and
driveways, exits and entrances of the shopping center property
to Burger King Limited Partnership III, of record in Book
6690, page 494, Register's Office for Davidson County,
Tennessee.
4. Driveway easement to Burger King Limited Partnership II, of
record in Book 6690, page 494, Register's Office for Davidson
County, Tennessee.
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