EXHIBIT 10.1
PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is made and entered into this 30th day of March, 1997,
by and among MRI BUSINESS PROPERTIES FUND, LTD., a California limited
partnership, hereinafter called "SELLER" and SYMS CORP., hereinafter called
"BUYER".
W I T N E S S E T H
1. AGREEMENT TO SELL AND PURCHASE. For and in consideration of the
Xxxxxxx Money, hereinafter defined, in hand paid by Buyer to Commonwealth Land
Title Insurance Company, hereinafter called "HOLDER", the mutual covenants and
agreements contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by Seller and Buyer,
Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to
purchase and take from Seller, subject to and in accordance with all of the
terms and conditions of this Agreement, the following:
(a) All that certain lot, tract or parcel of improved real estate
more particularly described on EXHIBIT "A" attached hereto, together with all
plants, shrubs and trees located thereon, and together with all rights, ways and
easements appurtenant thereto, including, without limitation, all of Seller's
right, title and interest in and to the land underlying and the air space
overlying any public or private ways or streets crossing or abutting said real
estate, herein-after collectively called the "LAND";
(b) All buildings, structures and other improvements of any and every
nature located on the Land and all fixtures attached or affixed, actually or
constructively, to the Land or to any such buildings, structures or other
improvements, hereinafter collectively called the "IMPROVEMENTS";
(c) All goods, equipment, machinery, apparatus, fittings, furniture,
furnishings, supplies, spare parts, tools and other personal property of every
kind located on the Land or within the Improvements and used in connection with
the operation, management or maintenance of the Land or the Improvements,
excluding any such items owned by tenants of the Land or the Improvements,
hereinafter collectively called the "PERSONALTY"; and
(d) All of Seller's right, title and interest in, to and under every
lease and other agreement for the use, occupancy or possession of any part of
the Land or the Improvements, hereinafter collectively called the "LEASES".
The Land, the Improvements, the Personalty and the Leases are hereinafter
sometimes collectively called the "PROPERTY".
2. PURCHASE PRICE: METHOD OF PAYMENT. The purchase price for the Property,
hereinafter called the "PURCHASE PRICE", shall be TWO MILLION FOUR HUNDRED
THOUSAND DOLLARS ($2,400,000.00). The Purchase Price shall be paid by Buyer to
Seller on the Closing Date, after crediting the Xxxxxxx Money, and subject to
the prorations and adjustments hereinafter described, by wire delivery of funds
through the Federal Reserve System to an account designated in writing by
Seller. Notwithstanding the foregoing, in the event that Seller advises Buyer
that Seller is a "FOREIGN PERSON" (as defined in Section 1445 of the Internal
Revenue Code of 1986, as amended, and regulations promulgated thereunder,
hereinafter called the "CODE"), or in the event that Seller fails or refuses to
deliver a certificate and affidavit of non-foreign status, or Buyer has actual
knowledge that, such certificate and affidavit is false, Buyer shall deduct and
withhold from the Purchase Price a tax equal to ten percent (10%) of the
Purchase Price, as required by Section 1445 of the Code. Buyer shall remit such
amount to, and file the required form with, the Internal Revenue Service, and
Buyer shall receive a credit against the Purchase Price for the amount so
withheld. Further notwithstanding the foregoing, in the event that Seller
advises Buyer that Seller is a "nonresident" of the State of Georgia, as defined
in O.C.G.A. Section 48-7-128(a), is not otherwise eligible for an exemption from
the withholding requirements of O.C.G.A. Section 48-7-128, or in the event that
Seller fails or refuses to deliver the affidavit of Seller's residence or a
certificate of Seller's exemption, or in the event that Buyer receives actual or
constructive notice that the Seller's affidavit is false or contains erroneous
information, Buyer shall deduct and withhold from the Purchase Price a State of
Georgia tax equal to three percent (3%) of the Purchase Price, or,
alternatively, three percent (3%) of the Seller's gain if documented in
compliance with O.C.G.A. Section 48-7-128. Buyer shall remit such amount to, and
file the required form with the Commissioner of the Georgia Department of
Revenue, and Buyer shall receive a credit against the Purchase Price for the
amount so withheld.
3. XXXXXXX MONEY. Contemporaneously with Buyer's execution of this
Agreement, Buyer has delivered to Holder the sum of Fifty Thousand Dollars
($50,000.00), which sum, together with all interest actually earned thereon
during the term of this Agreement, is herein called the "XXXXXXX MONEY". During
the term of this Agreement, Holder shall hold the Xxxxxxx Money in an interest-
bearing form reasonably satisfactory to Buyer and Seller. On the Closing Date,
the Xxxxxxx Money shall be applied as part payment of the Purchase Price. The
Xxxxxxx Money shall not be refundable to Buyer except as expressly provided in
paragraphs 5(c), 7(b), 12, 14(b) and 17 of this Agreement.
4. CLOSING. The closing of the purchase and sale of the Property,
hereinafter called "CLOSING", shall take place through escrow at such time and
on such date, herein called the "CLOSING DATE", as may be specified by written
notice from Buyer to Seller not less than ten (10) days prior thereto; provided,
however, that the Closing Date shall be on or before the ninetieth (90th) day
after the date of this Agreement (the "CLOSING DEADLINE"), and, if Buyer shall
fail to give notice designating the Closing Date, the Closing Date shall be, and
the Closing shall take place at 10:00 A.M. on the Closing Deadline. In the event
Buyer specifies a date earlier than Closing Deadline as the Closing Date, Buyer
may thereafter postpone the Closing Date to a later date on or before the
Closing Date by providing written notice to Seller at least two (2) business
days before the then scheduled Closing Date.
5. ACCESS AND INSPECTION: DELIVERY OF DOCUMENTS AND INFORMATION BY SELLER:
EXAMINATION BE BUYER. (a) Between the date of this Agreement and the Closing
Date, Buyer and Buyer's agents and designees shall have the right to enter the
Property for the purposes of inspecting the Property, conducting soil tests, and
making surveys, mechanical and structural engineering studies, and any other
investigations and inspections as Buyer may reasonably require to assess the
condition of the Property; provided, however, that Buyer (i) shall give Seller
reasonable prior notice of such inspections and investigations, including the
name of Buyer's consultant and a description of the tests and inspections to be
performed on the Property, and (ii) Buyer shall use its best efforts to minimize
any interference with the operation of the Property; and provided further,
however, that Buyer shall indemnify and hold Seller harmless from and against
any and all claims, demands, losses, damages and liabilities (including, but not
limited to injury to person or damage to property) resulting from the activities
of Buyer or Buyer's agents or designees on the Property. Seller shall have the
right to disapprove of Buyer's consultant and/or the proposed tests and
inspection on reasonable grounds (e.g., overly invasive testing means), in which
case Buyer may propose alternative consultants and/or testing methods or
terminate this Agreement. The provisions of this paragraph shall survive the
Closing or earlier termination of this Agreement.
(b) On or before the fifteenth (15th) day after the date of this
Agreement, Seller shall deliver to Buyer, if not previously delivered, or make
available to Buyer for examination or copying by Buyer, at the address for Buyer
set forth below Buyer's execution of this Agreement, the following documents and
information with respect to the Property:
(i) All surveys, plans, specifications and engineering data
relating to the Property, and reports such as soils reports and environmental
audits, which are in Seller's possession;
(ii) All real property and other ad valorem tax bills regarding
the Property for the two-year period preceding the date of this Agreement;
(iii) A recent title commitment issued by Holder, together with
legible copies of all instruments referenced therein; and
(iv) Copies of the leases (the "LEASES") for the tenants of the
Property listed on EXHIBIT "B".
(c) Buyer shall have until the sixtieth (60th) day after the date of this
Agreement (the "INSPECTION DEADLINE"), in which to examine and investigate the
Property, and to determine whether the Property is suitable and satisfactory to
Buyer. In the event that Buyer shall determine, in Buyer's sole and absolute
judgment and discretion, that the Property is in any manner unsuitable or
unsatisfactory to Buyer, Buyer shall have the right, at Buyer's option, to
terminate this Agreement by giving written notice thereof to Seller on or before
Inspection Deadline, in which event One Hundred Dollars ($100.00) of the Xxxxxxx
Money shall be delivered to Seller as consideration for Seller's execution of
and entry into this Agreement, the balance of the Xxxxxxx Money shall be
refunded to Buyer immediately upon request, all rights and obligations of the
parties under this Agreement shall expire, and this Agreement shall become null
and void. Seller acknowledges that Buyer will expend time, money and other
resources in connection with the examination and investigation of the Property
hereinabove described, and that, notwithstanding the fact that Buyer may
terminate this Agreement pursuant to this paragraph, such time, money and other
resources expended, together with the payment of the portion of the Xxxxxxx
Money hereinabove described to be paid to Seller in the event of a termination
of this Agreement, constitute good, valuable, sufficient and adequate
consideration for Seller's execution of and entry into this Agreement. It is
further understood and agreed, and Buyer hereby acknowledges that the Inspection
Deadline is more than ample time to review and inspect the condition of the
Property and that if, for any reason, it is dissatisfied with the condition of
the Property or with the information provided or available to Buyer within the
Inspection Deadline, it has the unrestricted right to terminate this Agreement.
Accordingly, in the event Buyer does not terminate this Agreement, and proceeds
beyond the expiration of the Inspection Deadline, it is understood and agreed
that the Property is being sold "as is", "where is" and "with all faults", and
Seller makes no representation or warranty whatsoever as to the condition or
value of the Property or otherwise except as set forth in Paragraph 11.
6. PRORATIONS AND ADJUSTMENTS TO PURCHASE PRICE. The following prorations
and adjustments shall be made between Buyer and Seller at Closing, or thereafter
if Buyer and Seller shall agree, all with respect to the Purchase Price:
(a) All city, state and county ad valorem taxes and similar impositions
levied or imposed upon or assessed against the Property, hereinafter called the
"TAXES", for the year in which Closing occurs shall be prorated as of the
Closing Date. In the event the Taxes for such year are not determinable at the
time of Closing, said Taxes shall be prorated on the basis of the best available
information, and Seller and Buyer shall re-prorate the Taxes for such year
promptly upon the receipt of the tax bills for such year and shall make between
themselves any equitable adjustment required by reason of any difference between
the estimated amount of the Taxes used as a basis for the proration at Closing
and the actual amount of the Taxes for such year. In the event any of the Taxes
are due and payable at the time of Closing, the same shall be paid at Closing.
If the Taxes are not paid at Closing, Seller shall deliver to Buyer the bills
for the Taxes promptly upon receipt thereof and Buyer shall thereupon be
responsible for the payment in full of the Taxes within the time fixed for
payment thereof and before the same shall become delinquent;
(b) The rent payable by tenants under the Leases; provided, however,
that rent and all other charges which are due and payable to Seller by any
tenant but uncollected as of the Closing shall not be adjusted, but Buyer shall
cause the rent and other charges for the period prior to Closing to be remitted
to Seller if and when collected. At Closing, Seller shall deliver to Buyer a
schedule of all such past due but uncollected rent and other charges owed by
tenants. Buyer shall promptly remit to Seller any such rent or other sums paid
by scheduled tenants, but only if a deficiency in the then-current rent is not
thereby created. In addition, percentage rent, reimbursement of operating
expenses and real estate taxes, utility charges and any other payments,
reimbursements or contributions by tenants under the Leases shall be prorated as
follows: with respect to percentage rents (if any), Buyer, upon its receipt,
shall furnish to Seller copies of all sales reports from tenants relative
thereto, whereupon the percentage rent due (if any) shall be promptly calculated
and prorated between Seller and Buyer; and the amount of other rents (including,
without limitation, operating expenses, real estate taxes and utility charges),
payment, reimbursements or contributions to be made by any tenant shall be made
in accordance with such tenant's lease as existing as of Closing, and Buyer
shall promptly pay to Seller a prorata portion of such rents, payments,
reimbursements or contributions (based upon apportionment being made as of the
Closing Date);
(c) All utility charges for the Property (including, without limitation,
telephone, water, storm and sanitary sewer, electricity, gas, garbage and waste
removal) shall be prorated as of the Closing Date, transfer fees required with
respect to any such utility shall be paid by or charged to Buyer, and Seller
shall be credited with any deposits transferred to the account of Buyer;
provided, however, that at either party's election any one or more of such
utility accounts shall be closed as of the Closing Date, in which event Seller
shall be liable and responsible for all charges for service through the Closing
Date and shall be entitled to all deposits theretofore made by Seller with
respect to such utility, and Buyer shall be responsible for reopening and
reinstituting such service in Buyer's name, and shall be responsible for any
fees, charges and deposits required in connection with such new account; and
(d) Any other items which are customarily prorated in connection with the
purchase and sale of properties similar to the Property shall be prorated as of
the Closing Date.
In making the prorations required by this paragraph, the economic burdens and
benefits of ownership of the Property for the Closing Date shall be allocated to
Seller. The provisions of this Paragraph 6 shall survive the Closing until
December 31, 1997.
7. TITLE. (a) Seller covenants to convey to Buyer at Closing good and
marketable fee simple title in and to the Property. For the purposes of this
Agreement, "good and marketable fee simple title" shall mean fee simple
ownership which is: (i) free of all claims, liens and encumbrances of any kind
or nature whatsoever other than the Permitted Exceptions, hereinafter defined;
and (ii) insurable by a title insurance company reasonably acceptable to Buyer,
at then current standard rates, under the standard form of ALTA owner's policy
of title insurance, with the standard printed exceptions therein deleted, and
without exception other than for the Permitted Exceptions. For the purposes of
this Agreement, the term "PERMITTED EXCEPTIONS" shall mean: (i) current city,
state and county ad valorem taxes and special assessments not yet due and
payable; (ii) easements for the installation or maintenance of public utilities
serving only the Property; (iii) any other matters specified on EXHIBIT "C"
attached hereto; and (iv) tenants in possession described on Exhibit "B".
(b) Buyer shall have until the Inspection Deadline in which to examine
title to the Property and in which to give Seller written notice of objections
which render Seller's title less than good and marketable fee simple title.
Thereafter, Buyer shall have until the Closing Date in which to reexamine title
to the Property and in which to give Seller written notice of any additional
objections which arise from any new matters disclosed by such reexamination.
Seller shall undertake to eliminate or modify such unacceptable exceptions to
the satisfaction of Buyer. In the event Seller is unable or unwilling to
eliminate or modify any such unacceptable exceptions or agree to do so at or
before Closing within ten (10) days after Seller receives Buyer's written notice
of title objections, Buyer may terminate this Agreement by notice in writing to
Seller within ten (10) days after the expiration of Seller's ten (10) day cure
period, or may accept such title as Seller can deliver. The failure of Buyer to
notify Seller prior to the expiration of the time periods specified herein shall
be deemed to be the Buyer's acceptance of the state of title reflected in such
Title Policy. In the event Seller is unable to convey title to the Property in
accordance with this paragraph and Buyer elects to terminate this Agreement,
Buyer shall be entitled to the return of the Xxxxxxx Money as Buyer's sole
remedy and Seller and Buyer shall have no further obligations or liabilities to
the other.
8. SURVEY. Buyer shall have the right to cause an as built survey of the
Property to be prepared by a surveyor registered and licensed in the State of
Georgia and designated by Buyer, which survey shall depict such information as
Buyer shall require. Upon completion of a plat of the survey, Buyer shall
furnish Seller with a copy thereof. The survey shall be used as the basis for
the preparation of the legal description to be included in the limited warranty
deed to be delivered by Seller to Buyer at Closing.
9. PROCEEDINGS AT CLOSING. On the Closing Date, the Closing shall take
place as follows:
(a) Seller shall deliver to Buyer the following documents and
instruments, duly executed by or on behalf of Seller in form and substance
reasonably satisfactory to Seller and Buyer: (i) a limited warranty deed, in
recordable form, conveying the Land and the Improvements; (ii) a xxxx of sale
with limited warranty of title, conveying the Personalty; (iii) an assignment of
leases (the "ASSIGNMENT OF LEASES") transferring and assigning the Leases and
containing Buyer's assumption of the obligations of Seller arising under the
Leases after the Closing Date; (iv) a seller's affidavit with respect to the
Property; (v) if Seller is not a Foreign Person, a certificate and affidavit of
non-foreign status; and (vi) a certificate and affidavit as to whether (A)
Seller is a resident of the State of Georgia as defined in O.C.G.A. Section 48-
7-128, (B) Seller is deemed to be a resident of the State of Georgia pursuant to
O.C.G.A. Section 48-7-128, or (C) the purchase and sale of the Property is
otherwise exempt from the withholding requirements of O.C.G.A. Section 48-7-128.
(b) Seller shall use reasonable efforts to deliver estoppel certificates
from the tenants set forth on Exhibit B in form reasonably acceptable to Buyer;
provided, however, Buyer acknowledges that the delivery of such estoppel
certificates is not a condition precedent to Buyer's obligations under this
Agreement and Seller has not covenanted that it will be able to deliver such
estoppel certificates and shall not be in default under this Agreement if such
certificates are not delivered at Closing.
(c) Seller shall deliver to Buyer evidence in form and substance reasonably
satisfactory to Buyer that Seller has the power and authority to execute and
enter into this Agreement and to consummate the purchase and sale of the
Property, and that any and all actions required to authorize and approve the
execution of and entry into this Agreement by Seller, the performance by Seller
of all of Seller's duties and obligations under this Agreement, and the
execution and delivery by Seller of all documents and other items to be executed
and delivered to Buyer at Closing, have been accomplished.
(d) Buyer shall deliver to Seller the Assignment of Leases duly executed
by or on behalf of Buyer, and Buyer shall pay the remainder of the Purchase
Price, after crediting the Xxxxxxx Money and making the adjustments and
prorations provided for in this Agreement, to Seller in accordance with the
provisions of this Agreement.
10. COSTS OF CLOSING. Seller shall pay the state of Georgia Realty
Transfer Tax payable on the transfer of the Land and the Improvements, all
recording costs relating to any title clearance matters and Seller's attorneys'
fees. Buyer shall pay all recording costs relating to the purchase by Buyer of
the Property, the cost of any survey obtained pursuant to paragraph 8 hereof,
the premium for any owner's policy of title insurance issued in favor of Buyer
insuring Buyer's title to the Property and Buyer's attorneys' fees. All other
costs and expenses of the transaction contemplated hereby shall be borne by the
party incurring the same.
11. WARRANTIES, REPRESENTATIONS AND ADDITIONAL COVENANTS OF SELLER. Seller
represents, warrants and covenants to and with Buyer, knowing that Buyer is
relying on each such representation, warranty and covenant, that:
(a) Seller is a limited partnership, duly organized, validly existing and
in good standing under the laws of the State of California.
(b) Seller has the lawful right, power, authority and capacity to sell the
Property in accordance with the terms, provisions and conditions of this
Agreement.
(c) There are no actions, suits or proceedings pending or to the best of
Seller's knowledge threatened against, by or affecting Seller which affect title
to the Property or which question the validity or enforceability of this
Agreement or of any action taken by Seller under this Agreement, in any court or
before any governmental authority, domestic or foreign.
(d) The execution of and entry into this Agreement, the execution and
delivery of the documents and instruments to be executed and delivered by Seller
on the Closing Date, and the performance by Seller of Seller's duties and
obligations under this Agreement and of all other acts necessary and appropriate
for the full consummation of the purchase and sale of the Property as
contemplated by and provided for in this Agreement, are consistent with and not
in violation of, and will not create any adverse condition under, any contract,
agreement or other instrument to which Seller is a party, any judicial order or
judgment of any nature by which Seller is bound, or by which Seller was created
or exists; and this Agreement, and the covenants and agreements of Seller under
this Agreement, are the valid and binding obligations of Seller, enforceable in
accordance with their terms.
(e) On the Closing Date, all required action will have been taken by
Seller authorizing and approving the execution of and entry into this Agreement,
the execution and delivery by Seller of the documents and instruments to be
executed and delivered by Seller on the Closing Date, and the performance by
Seller of Seller's duties and obligations under this Agreement and of all other
acts necessary and appropriate for the consummation of the purchase and sale of
the Property as contemplated by and provided for in this Agreement.
(f) On the Closing Date, Seller will not be indebted to any contractor,
laborer, mechanic, materialman, architect, engineer or any other person for
work, labor or services performed or rendered, or for materials supplied or
furnished, in connection with the Property for which any such person could claim
a lien against the Property; on or before Closing, Seller shall terminate all
service contracts pertaining to the maintenance or operation of the Property,
including those contracts listed on EXHIBIT D attached hereto.
(g) Seller will pay or cause to be paid promptly when due all city, state
and county ad valorem taxes and similar taxes and assessments, all sewer and
water charges and all other governmental charges levied or imposed upon or
assessed against the Property between the date hereof and the Closing Date, and
will pay or cause to be paid all expenses incurred in the use, occupancy and
operation of the Property between the date hereof and the Closing Date;
provided, however, Seller shall not be obligated under the terms of this
Agreement to incur in excess of twenty-five thousand dollars for the repair (but
not usual and customary maintenance) of any portion of the Property.
(h) To the best of Seller's knowledge, during the period of Seller's
ownership, no portion of the Property has ever been used by Seller as a landfill
or as a dump to receive garbage, refuse, waste or fill material whether or not
hazardous. Seller, to the best of Seller's knowledge, during the period of
Seller's ownership, has not stored, handled, installed or disposed of any
Hazardous Substances (as hereinafter defined) in, on or about the Property or
any other location within the vicinity of the Property; and, to Seller's
knowledge, there is no Hazardous Substances on the Property. As used in this
Agreement, the terms "Hazardous Substances" means asbestos, polychlorinated
biphenyl and such materials, waste, contaminants or other substances defined as
toxic, dangerous to health or otherwise hazardous by cumulative reference to the
following sources as amended from time to time: (i) the Resource Conservation
and Recovery Act of 1976, 42 USC Section6901 et. seq. ("RCRA"); (ii) the
Hazardous Materials Transportation Act, 49 USC Section1801, et. seq.; (iii) the
Comprehensive Environmental Response Compensation and Liability Act of 1980, 42
USC Section9601 et. seq. ("CERCLA"); (iv) applicable laws of the jurisdiction
where the Property is located; and (v) any federal, state or local statutes,
regulations, ordinances, rules or orders issued or promulgated under or pursuant
to any of those laws or otherwise by any department, agency or other
administrative, regulatory or judicial body. The term "Hazardous Substances"
does not include usual and customary cleaning and other supplies necessary for
the normal operations, maintenance and/or occupancy of the Property by Seller or
any of its tenants.
(i) There are no pending, or to the best of Seller's knowledge,
threatened or contemplated, condemnation actions involving all or any portion of
the Property; and, to the best of Seller's knowledge, there are no existing,
proposed or contemplated plans to widen, change the grade of, modify or realign
any public rights-of-way located adjacent to any portion of the Land.
(j) Attached hereto as EXHIBIT B is a true and correct copy of a Rent
Roll for the Property which sets forth all tenants in possession of the
Property. Seller's managing agent has previously delivered to Buyer copies of
all Leases for tenants in possession at the Property as set forth on the Rent
Roll. To Seller's knowledge, the Leases delivered are true, complete and correct
copies of the Leases, without further modification or amendment. Seller has not
received any written notice of any default or breach on the part of the landlord
under any Lease, nor to Seller's knowledge, does there exist any such default or
breach on part of the landlord.
(k) Notwithstanding anything to the contrary provided herein, Buyer shall
have no right to pursue any action against Seller pursuant to this Paragraph 11
as a result of any of Seller's representations and warranties being untrue,
inaccurate or incorrect if Buyer has actual knowledge at the time of Closing
that such representation or warranty was untrue, inaccurate or incorrect at the
time of Closing and Buyer nevertheless closes the transfer of title hereunder.
The representations and warranties of Seller contained in this Paragraph 11 will
survive the Closing for a period of six (6) months after the Closing Date; and
(i) any claim based upon any alleged breach thereof must be alleged (in writing)
within such six (6) month period and (ii) any action based upon any alleged
breach thereof must be commenced within one (1) year after Closing. Failure to
give notice or commence an action on any alleged breach within the time period
specified herein shall constitute a waiver of any such claim.
(l) As used in this Agreement, the words "to Seller's knowledge" or words
of similar import shall be deemed to mean and shall be limited to, the actual
(as distinguished from implied, imputed or constructive) knowledge of Exeter
Capital Corporation, without such persons having any obligation to make any
independent inquiry or investigation whatsoever, except "due inquiry" as
described below. Nothing in this Agreement shall be deemed to create or impose
any personal liability of any kind whatsoever on any of the officers of Exeter
Capital Corporation.
(m) As used in this Agreement, the words "after due inquiry" or words of
similar import shall be deemed to mean, and shall be limited to mean, that
Exeter Capital Corporation has confirmed (orally or in writing) the accuracy of
a particular representation or warranty with Metric Realty who is the current
property manager for the Property. As noted in subsection (l) above, nothing in
this Agreement shall be deemed to create or impose any personal liability of any
kind whatsoever on any of the within named individuals.
12. CONDITIONS OF BUYER'S OBLIGATIONS. Buyer's obligation to consummate
the purchase and sale of the Property on the Closing Date shall be subject to
Seller having fully and completely kept, observed, performed, satisfied and
complied with all terms, covenants, conditions, agreements, requirements,
restrictions and provisions required by this Agreement to be kept, observed,
performed, satisfied or complied with by Seller before, on or as of the Closing
Date. If the foregoing condition has not been satisfied or performed or waived
in writing by Buyer on or as of the Closing Date, Buyer shall have the right, at
Buyer's option, either: (i) to terminate this Agreement by giving written notice
to Seller on or before the Closing Date, in which event all rights and
obligations of Seller and Buyer under this Agreement shall expire, and this
Agreement shall become null and void; or (ii) if such failure of condition
constitutes a failure by Seller to perform any of the terms, covenants,
conditions, agreements, requirements, restrictions or provisions of this
Agreement, or otherwise constitutes a default by Seller under this Agreement, to
exercise such rights and remedies as may be provided for in paragraph 14 of this
Agreement, or (iii) to waive the condition and proceed to close. In either of
events (i) or (ii), the Xxxxxxx Money shall be refunded to Buyer immediately
upon request.
13. POSSESSION AT CLOSING. Seller shall surrender possession of the
Property to Buyer on the Closing Date.
14. REMEDIES. (a) If the purchase and sale of the Property is not
consummated in accordance with the terms and conditions of this Agreement due to
circumstances or conditions which constitute a default by Buyer under this
Agreement, the Xxxxxxx Money paid hereunder prior to Buyer's default shall be
delivered to Seller as full liquidated damages for such default. Seller and
Buyer acknowledge that Seller's actual damages in the event of a default by
Buyer under this Agreement will be difficult to ascertain, that such liquidated
damages represent the Seller's and Buyer's best estimate of such damages and
that the Seller and Buyer believe such liquidated damages are a reasonable
estimate of such damages. Seller and Buyer expressly acknowledge that the
foregoing liquidated damages are intended not as a penalty, but as full
liquidated damages, as permitted by O.C.G.A. Section 13-6-7, in the event of
Buyer's default and as compensation for Seller's taking the Property off the
market during the term of this Agreement. Such delivery of the Xxxxxxx Money
shall be the sole and exclusive remedy of Seller by reason of a default by Buyer
under this Agreement, and Seller hereby waives and releases any right to xxx
Buyer, and hereby covenants not to xxx Buyer, for specific performance of this
Agreement or to prove that Seller's actual damages exceed the Xxxxxxx Money
which is herein provided Seller as full liquidated damages.
(b) In the event that Seller fails to consummate the transaction herein
contemplated in accordance with the terms of this Agreement, after the
performance or tender of performance by Buyer or all of its obligations
hereunder, at Buyer's election, Buyer shall (i) be entitled to terminate this
Agreement whereupon the Holder shall return the Xxxxxxx Money to Buyer and Buyer
shall be entitled to reimbursement from Seller of its actual out-of-pocket
expenses of Buyer's counsel and third parties conducting due diligence (i.e.,
title, survey, engineer and environmental reports, based upon paid receipts
tendered by Buyer to Seller) not to exceed Thirty Thousand Dollars ($30,000.00),
or (ii) be entitled to xxx Seller for specific performance of this Agreement
provided, however, Seller shall not be required to expend in excess of Thirty
Thousand Dollars ($30,000.00) to correct any matter Seller did not deliberately
cause. The parties agree that should Buyer be unsuccessful in obtaining the
remedy set forth in (ii) above, Buyer's sole remedy shall be as set forth in
subparagraph (i) above.
15. INDEMNIFICATION. Seller shall, and does hereby, indemnify, defend and
hold Buyer harmless from, against and in respect of: any matter arising out of,
by reason of or with respect to any of the Leases or claims of third parties
pertaining to any injury to or the death of any person or damage to property of
third parties arising from Seller's ownership of the Property prior to the
Closing Date.
16. RISK OF LOSS AND INSURANCE. Between the date of this Agreement and
Closing, the risks and obligations of ownership and loss of the Property and the
correlative rights against insurance carriers and third parties shall belong to
Seller. In the event of the damage or destruction of any portion of the Property
prior to Closing, the Purchase Price shall be reduced by the total of any
insurance proceeds received by Seller prior to Closing by reason of such damage
or destruction and not used to repair the Property and by the amount of any
deductible applicable to the policy of insurance, and, at Closing, Seller shall
assign to Buyer all insurance proceeds to be paid or to become payable after
Closing by reason of such damage or destruction.
17. CONDEMNATION. In the event of the taking of all or any part of the
Property by eminent domain proceedings, or the commencement or bona fide threat
of the commencement of any such proceedings, prior to Closing, Buyer shall have
the right, at Buyer's option, to terminate this Agreement by giving written
notice thereof to Seller prior to Closing, in which event the Xxxxxxx Money
shall be refunded to Buyer immediately upon request, all rights and obligations
of Seller and Buyer under this Agreement shall expire, and this Agreement shall
become null and void. If Buyer does not so terminate this Agreement, the
Purchase Price shall be reduced by the total of any awards or other proceeds
received by Seller prior to Closing with respect to any taking, and, at Closing,
Seller shall assign to Buyer all rights of Seller in and to any awards or other
proceeds to be paid or to become payable after Closing by reason of any taking.
Seller shall notify Buyer of eminent domain proceedings within five (5) days
after Seller receives written notice thereof.
18. ASSIGNMENT. This Agreement may not be assigned without the prior
written consent of Seller, which consent may be withheld in Seller's sole
discretion. Notwithstanding the foregoing, Buyer shall have the right, power and
authority to assign this Agreement and all rights hereunder to any affiliated
entity in which Buyer has a fifty percent (50%) or more ownership and control
interest or, for a limited partnership, in which Buyer is the managing general
partner or, for a limited liability company, in which Buyer is the managing
member. Buyer shall be and remain liable and responsible for payment and
performance of all obligations hereunder or undertaken by Buyer to be paid or
performed pursuant to any permitted assignment.
19. PARTIES. This Agreement shall be binding upon and enforceable
against, and shall inure to the benefit of, Buyer, Seller and their respective
successors and assigns.
20. BROKER AND COMMISSION. (a) All negotiations relative to this Agreement
and the purchase and sale of the Property as contemplated by and provided for in
this Agreement have been conducted by and between Seller and Buyer without the
intervention of any person or other party as agent or broker, with the exception
of Spectrum Realty Advisors (the "BROKER"). Seller and Buyer warrant and
represent to each other that other than with regard to Broker, Seller and Buyer
have not entered into any agreement or arrangement and have not received
services from any broker or broker's employees or independent contractors which
would give rise to any claim of lien or lien against the Property pursuant to
the Georgia Commercial Real Estate Broker Lien Act, and there are and will be no
broker's commissions or fees payable in connection with this Agreement or the
purchase and sale of the Property by reason of their respective dealings,
negotiations or communications except the commission payable to Broker by Seller
in accordance with the terms and provisions of subparagraph (b), below. Buyer
shall in no event be responsible or liable for the payment of any commission or
fee to Broker in connection with the purchase and sale of the Property. If the
purchase and sale of the Property is consummated in accordance with this
Agreement, payment of the commission specified in subparagraph (b), below shall
constitute full and complete payment and satisfaction of any and all
commissions, fees, charges and claims of Broker and Broker's agents, employees,
representatives and affiliates arising from, in connection with or with respect
to this Agreement and the purchase and sale of the Property. Seller and Buyer
shall and do each hereby indemnify, defend and hold harmless each of the others
from and against the claims, demands, actions and judgments of any and all
brokers, agents and other intermediaries alleging a commission, fee or other
payment to be owing by reason of their respective dealings, negotiations or
communications in connection with this Agreement or the purchase and sale of the
Property.
(b) Broker has acted as agent for Seller in this transaction and is
to be paid a commission by Seller according to a separate agreement between
Broker and Seller.
21. FURTHER ASSURANCES: SURVIVAL. At Closing, and from time to time
thereafter, Seller shall do all such additional and further acts, and shall
execute and deliver all such additional and further deeds, affidavits,
instruments, certificates and documents, as Buyer, Buyer's counsel or Buyer's
title insurer may reasonably require fully to vest in and assure to Buyer full
right, title and interest in and to the Property to the full extent contemplated
by this Agreement and otherwise to effectuate the purchase and sale of the
Property as contemplated by and provided for in this Agreement. Notwithstanding
any provision of this Agreement to the contrary, the indemnification provisions
of paragraphs 5, 15 and 20 of this Agreement shall survive any termination of
this Agreement.
22. MODIFICATION. This Agreement supersedes all prior discussions and
agreements among Seller and Buyer with respect to the purchase and sale of the
Property and other matters contained herein, and this Agreement contains the
sole and entire understanding among Seller and Buyer with respect thereto. This
Agreement shall not be modified or amended except by an instrument in writing
executed by or on behalf of Seller and Buyer.
23. APPLICABLE LAW. This Agreement shall be governed by, construed under
and interpreted and enforced in accordance with the laws of the State of
Georgia.
24. COUNTERPARTS. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all of such counterparts together
shall constitute one and the same instrument.
25. TIME; DATES. Time is and shall be of the essence of this Agreement.
All references to the "date of this Agreement" shall be deemed to refer to the
later of the date of Buyer's or Seller's execution of this Agreement. If any
time period or deadline set forth in this Agreement falls on a Saturday, Sunday
or federal banking holiday, such time period or deadline shall be extended until
the next succeeding business day.
26. CAPTIONS. The captions and headings used in this Agreement are for
convenience only and do not in any way restrict, modify or amplify the terms of
this Agreement.
27. EXHIBITS. Each and every Exhibit referred to or otherwise mentioned in
this Agreement is attached to this Agreement and is and shall be construed to be
made a part of this Agreement by such reference or other mention at each point
at which such reference or other mention occurs, in the same manner and with the
same effect as if each Exhibit were set forth in full and at length every time
it is referred to or otherwise mentioned.
28. NOTICES. All notices, requests, demands, tenders, and other
communications under this Agreement shall be in writing. Any such notice,
request, demand, tender or other communication shall be deemed to have been duly
given when actually delivered, or when delivered to a nationally recognized
commercial courier for next day delivery, or when deposited in the United States
Mail, Certified Mail, Return Receipt Requested, with all postage prepaid, to the
address for each party set forth below its execution of this Agreement, or when
transmitted by facsimile to the telecopy number for each party set forth below
its execution of this Agreement. A copy of any notice transmitted by facsimile
shall also be sent by a nationally recognized commercial courier for next day
delivery, to the address for each party set forth below its execution of this
Agreement. Rejection or other refusal to accept, or inability to deliver because
of changed address of which no notice was given, shall be deemed to be receipt
of such notice, request, demand, tender, or other communication. Any party, by
written notice to the others in the manner herein provided, may designate an
address different from that stated above.
IN WITNESS WHEREOF, Seller and Buyer have executed and delivered this
Agreement, all as of the day and year first written above.
SELLER:
Signed, sealed and delivered in MRI BUSINESS PROPERTIES FUND,
presence of: LTD.
By: Exeter Capital Corporation,
its attorney in fact
/s/ Xxxxxxx X. Post By: /s/ Xxxxx Xxxxxxxxx
Notary Public Xxxxx Xxxxxxxxx,
My Commission Expires: February 13, 1999 Vice President
Initial address for notices:
c/o Xxxxx Xxxxxxxxx
Winthrop Financial Associates
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Telephone Number: (000)000-0000
Telecopy Number: (000)000-0000
With a copy to:
Post & Xxxxxxx, LLP
Attn: Xxxxxxx X. Post
000 Xxxxxxx Xxxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxx Xxxx 00000
Telephone Number:(000) 000-0000
Telecopy Number: (000) 000-0000
Date of Seller's Execution:
3/31/97
BUYER:
Signed, sealed and delivered in SYMS CORP.
presence of:
By: /s/ Xxxxx Xxxx
/s/ Xxxxxxxx X. Xxxxxx
Notary Public
My Commission Expires: September 17, 1997
Initial address for notices:
c/o Xxxxx Xxxx
Syms Corp.
Xxx Xxxx Xxx
Xxxxxxxx, Xxx Xxxxxx 00000
Telephone Number (000) 000-0000
Telecopy Number (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx, Esquire
0 Xxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone Number (000) 000-0000
Telecopy Number (000) 000-0000
Date of Buyer's Execution:
3/30/97
EXHIBIT "C"
1.Rights of the tenants under unrecorded leases per Exhibit B.
2.All matters disclosed by plat of As-Built Survey of Parkway Village Shopping
Center for MRI Business Properties Fund, Ltd. prepared by Xxxxxx Xxx Xxxxx,
Georgia Registered Land Surveyor No. 2080, Planners and Engineers
Collaborative, dated April 13, 1978, revised November 10, 1978, updated June
1, 1984 and revised June 13, 1984.
0.Xxxxx from Post Ridge, Limited to Super X Drugs of Georgia, Inc., dated April
15, 1974, recorded at Deed Book 1539, page 218, Xxxx County, Georgia records,
assigned to Post Ridge Associates by Assignment of Leases dated November 10,
1978 recorded in Deed Book 1946, page 22 aforesaid records, with Assignment
of Leases dated June 15, 1984 to MRI Business Properties Fund Ltd. recorded
in Deed Book 3161, page 543, aforesaid records. [To be removed as exception
upon closing]
0.Xxxxx from Post Ridge, Limited to the Kroger Co., dated May 1, 1974, recorded
at Deed Book 1539, page 220, said records, as assigned to Post Ridge
Associates, Ltd. dated November 10, 1978 recorded in Deed Book 1946, page 22
aforesaid records, as assigned to MRI Business Properties Fund, Ltd. dated
June 15, 1984 recorded in Deed Book 3161, page 543 aforesaid records. [To be
removed as exception upon closing]
5. Sewer Easement from Post Ridge, Ltd. to Exxon Corporation, dated October 18,
1974, recorded in Deed Book 1565, page 322, said records.
6.Easement from Post Ridge, Ltd. to Exxon Corporation, dated October 18, 1974,
recorded at Deed Book 1565, page 325, said records.
7.Permissive Use and Hold Harmless Agreement between City of Marietta and its
Board of Lights and Waterworks and Post Ridge, Ltd. and Tri-Xxxx Investments,
Inc., dated January 12, 1977, recorded at Deed Book 1747, page 700, said
records.
8.Declaration of Reciprocal Easements by Post Ridge, Ltd., dated May 10, 1978,
recorded at Deed Book 1888, page 124, said records.
0.Xxxxx Wall Declaration by Post Ridge, Ltd., dated May 10, 1978, recorded at
Deed Book 1888, page 133 said records.
10.Memorandum of Lease between Post Ridge Associates, Ltd. and X.X. Xxxxx & Co.,
dated November 13, 1978, recorded at Deed Book 1948, page 529, said records,
as assigned to MRI Business Properties Fund, Ltd. dated June 15, 1984,
recorded in Deed Book 3161, page 543 aforesaid records. [To be removed as
exception at closing]
11.Distribution Line Permit from Post Properties, Inc. to Board of Lights and
Water, dated June 2, 1977, recorded at Deed Book 1791, page 167, said
records.
12.Distribution Line Permit from Post Properties, Inc. to Board of Lights and
Water, dated June 13, 1978, recorded at Deed Book 1904, page 252, said
records.
13.Easements contained in Right of Way Deed from X. Xxxx Xxxxxx, Cone X.
Xxxxxx, Xx., Cone X. Xxxxxx, III, Xxxx X. Xxxxxxx, Xxxxxx X. Xxx and J.R.
Xxxxxxx to State Highway Department of Georgia, dated April 18, 1967,
recorded at Deed Book 985, page 398, said records.
14.Easement from J.R. Xxxxxxx to Board of Lights and Water Works, dated June
30, 1970, recorded at Deed Book 1176, page 485, said records.
15.Easement from J.R. Xxxxxxx to Board of Lights and Water Works, dated June
30, 1970, recorded at Deed Book 1176, page 487, said records.
16.Easements contained in Right of Way deed from Xxxxxxx X. Xxxxxx to State
Highway Department of Georgia, dated October 24, 1967, recorded at Deed Book
1006, page 196, said records.
17.Distribution Line Permit from Post Properties, Inc. to Board of Lights and
Water Works, dated November 1, 1974, recorded at Deed book 1567, page 837,
said records.
18.Easement from Post Properties, Inc. to Board of Lights and Water Works,
dated March 19, 1975, recorded at Deed Book 1591, page 215, said records.
19.Easements to Humble Oil & Refining Company contained in Warranty Deed from
Cone X. Xxxxxx, Xx. and Xxxx X.. Xxxxxxx, as to an undivided 1/6 interest
each, and Xxxxxx X. Xxx, a/k/a W. R.. Xxx, and J.R. Xxxxxxx, as to an
undivided 2/6 interest each to Humble Oil & Refining Company, dated March 19,
1970, recorded at Deed Book 1147, page 112, said records.
20.Rights of Pizza Ring Enterprises, Inc. retained in Quitclaim Deed from
Pizza Ring Enterprises, Inc. to Post Ridge, Ltd., dated February 16, 1976,
recorded at Deed Book 1668, page 730, said records.
21.Distribution Line Permit from Humble Oil & Refining Company to Board of
Lights and Water Works, dated July 7, 1970, recorded at Deed Book 1166, page
539, said records.
22.A portion of subject property borders Marietta Parkway (S.R. 120 Loop),
which is a limited access highway with rights of access limited to those
points designated by the State Highway Department of Georgia.
23.Easement contained in unrecorded cable Communications Service Agreement dated
April 11, , between Cartersville Cable TV, Inc. and Post Ridge, Ltd. (as to
easement area described as (d) on EXHIBIT "A" attached hereto and made a part
hereof only).
24.Indemnity Agreement dated March 15, 1990, between MRI Business Properties
Fund, Ltd. and Georgia Department of Transportation recorded at Deed Book
6025, page 28, aforesaid records.
