Exhibit 3.1
PURCHASE AND SALE AGREEMENT
[▇▇▇▇▇▇ Springs Shopping Plaza, ▇▇▇▇ County, Tennessee]
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of the
30/th/ day of November, 2001 by and between FIRST CAPITAL INCOME PROPERTIES,
LTD. - SERIES VIII, a Florida limited partnership ("Seller") with an office at
c/o Equity Properties and Development, L.L.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; and CURSOR PROPERTIES, L.L.C., a South Carolina
limited liability company ("Purchaser"), with an office at ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS:
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A. Seller is the owner of certain real estate in the County of ▇▇▇▇,
State of Tennessee, which parcel is more particularly described on Exhibit A
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attached hereto (the "Land") upon which is located a retail shopping center
commonly known as ▇▇▇▇▇▇ Springs Shopping Plaza (the "Improvements"). The Land
and the Improvements are collectively referred to as the "Real Property."
B. Seller desires to sell, and Purchaser desires to purchase, the
Property (as such term is hereinafter defined), each in accordance with and
subject to the terms and conditions set forth in this Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants
and agreements herein set forth and the benefits to be derived therefrom, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE
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Subject to and in accordance with the terms and conditions set forth in
this Agreement, Seller shall convey to Purchaser all of Seller's right, title
and interest in and to (i) the Real Property, (ii) all buildings and
improvements owned by Seller and located on the Real Property as well as any and
all of Seller's rights, easements and privileges presently thereon or
appertaining thereto, (iii) the leases of the Real Property as of the date
hereof and other leases entered into in accordance with this Agreement, and all
amendments thereto (the "Leases") and all unapplied security or other deposits
held by Seller under the Leases; (iv) the tangible personal property set forth
on Exhibit B attached hereto (subject to ordinary depletion) (the "Tangible
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Personal Property"); (v) any and all of the agreements and equipment leases (to
the extent assignable) set forth on Exhibit C attached hereto and other
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agreements entered into in accordance with this Agreement, and all amendments
thereto (the "Service Contracts"); and (vi) (A) to the extent assignable, the
right to use the trade name "▇▇▇▇▇▇ Springs Shopping Plaza"; and (B) to the
extent assignable and obtained, all certificates of occupancy and other permits,
licenses and certificates held by Seller with respect to the Property
(collectively, "Permits and Licenses"); (items (i) through (vi) above are
collectively referred to in this Agreement as the "Property"). All of the
foregoing expressly excludes all property owned by the tenants or other
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users or occupants of the Property and any refund of taxes applicable to the
period prior to the Closing Date (as defined in Section 4.A hereof).
2. PURCHASE PRICE
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The purchase price to be paid by Purchaser to Seller for the Property
is Six Million Five Hundred Thousand and No/100 Dollars ($6,500,000.00) (the
"Purchase Price"). The Purchase Price shall be paid as follows:
▇. ▇▇▇▇▇▇▇ Money. Purchaser shall, within one (1) business day
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from the date of this Agreement, deliver to the Title Insurer pursuant to the
escrow agreement attached as Exhibit J the amount of One Hundred Thousand and
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no/100 Dollars ($100,000.00) ("▇▇▇▇▇▇▇ Money"). If the transaction closes in
accordance with the terms of this Agreement, at Closing, the ▇▇▇▇▇▇▇ Money shall
be delivered by Escrowee to Seller as part payment of the Purchase Price. If the
transaction fails to close due to a default on the part of Purchaser, the
▇▇▇▇▇▇▇ Money shall be delivered by Escrowee to Seller as liquidated damages in
accordance with Section 7.A below. If the transaction fails to close due to a
default on the part of Seller, the ▇▇▇▇▇▇▇ Money shall be delivered by Escrowee
to Purchaser, subject to the provisions of Section 7.B below. Interest earned on
the ▇▇▇▇▇▇▇ Money shall be deemed as part of the ▇▇▇▇▇▇▇ Money for purposes of
this Agreement.
B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by
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wire transferred current federal funds, an amount (the "Cash Payment") equal to
the Purchase Price minus the ▇▇▇▇▇▇▇ Money, and plus or minus, as the case may
require, the closing prorations and adjustments to be made pursuant to Section
4.C. below.
3. EVIDENCE OF TITLE
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A. Title Examination; Commitment for Title Insurance. Seller shall
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promptly deliver to Purchaser a title insurance commitment (the "Title
Commitment") with respect to the Real Property from a title insurer selected by
Seller (the "Title Insurer"). Seller shall instruct the Title Insurer to deliver
to Purchaser and Seller copies of the Title Commitment and all instruments
referenced in Schedule B thereof.
B. Survey.
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During the Review Period, Purchaser may, at Seller's expense
(provided Seller has approved the cost thereof in writing in advance), employ a
surveyor or surveying firm to prepare a survey (the "Survey") of the Property.
Purchaser shall instruct said surveyor to deliver a copy of the Survey to
Purchaser, Seller and the Title Insurer.
C. Title Objections; Cure of Title Objections.
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The exceptions which are more fully described on attached
Exhibit D are referred to as "Permitted Exceptions". If the Title Commitment or
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survey discloses exceptions other than those exceptions which are listed on
Exhibit D, then, within five (5) business days
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after its receipt of the same, Purchaser shall notify Seller of any such
exceptions to which it objects. Any such exceptions not objected to by Purchaser
as aforesaid shall become Permitted Exceptions. If Purchaser objects to any such
exceptions, Seller shall have fifteen (15) days after it receives notice of
Purchaser's objections to notify Purchaser of which, if any, such exceptions
Seller shall cause to be removed by waiver or endorsement by the Title Insurer.
If Seller fails to notify Purchaser within said fifteen (15) day period that
Seller will remove such exceptions, Purchaser shall have the option, as its sole
and exclusive remedy, by written notice given no later than five (5) days after
expiration of such fifteen (15) day period, to either (a) waive the unsatisfied
objections and close, or (b) terminate this Agreement and obtain a return of the
▇▇▇▇▇▇▇ Money. If Purchaser does not elect to terminate this Agreement,
Purchaser shall consummate the Closing and accept title to the Property subject
to all such exceptions, in which event, all such exceptions shall be deemed
Permitted Exceptions.
4. CLOSING
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A. Closing Date. The "Closing" of the transaction contemplated by
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this Agreement (that is, the payment of the Purchase Price, the transfer of
title to the Property and the satisfaction of all other terms and conditions of
this Agreement) shall occur at the Chicago office of the Title Insurer at 10:00
a.m. on the fifteenth (15th) day after expiration of the Review Period (as
defined below). The "Closing Date" shall be the date of Closing, provided the
Cash Payment has been wired to Title Insurer by 2:00 P.M. Central Time on that
day; otherwise the Closing Date shall be deemed to be the next business day. If
the date for Closing above provided for falls on a Saturday, Sunday or legal
holiday, then the Closing Date shall be the next business day.
B. Closing Documents
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(i) Seller. In addition to the other items and documents
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required elsewhere under this Agreement to be delivered to Purchaser at Closing,
Seller shall also execute and/or deliver (or cause to be delivered) to Purchaser
the following at Closing:
(a) a deed (the "Deed") of the Real Property to
Purchaser, in form acceptable to the Title Insurer, duly acknowledged and in
proper form for recording;
(b) a ▇▇▇▇ of sale in the form attached as Exhibit E;
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(c) a letter advising tenants under the Leases of the
change in ownership of the property in form attached as Exhibit F;
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(d) an Assignment and Assumption of Leases and an
Assignment and Assumption of Service Contracts, in the forms attached as
Exhibits G and H;
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(e) (i) the originals (or if not available, copies) of
the Leases and the Service Contracts and amendments thereto, (ii) the originals
(or if not available, copies) of any Permits and Licenses, and (iii) all keys to
the Property in Seller's possession;
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(f) A Non-Foreign Certification in the form attached as
Exhibit I;
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(g) a closing statement to be prepared by Seller and
executed by Seller and Purchaser, setting forth the prorations and adjustments
to the Purchase Price as required by Section 4.C. below;
(h) the schedule of past-due rents for the Property, if
any, as described in Section 4.C.(i)(b) below;
(i) evidence of a termination of any management agreement
to which Seller is a party affecting the Property;
(j) an affidavit of title, containing such reasonable
terms and conditions as may be required by Title Insurer to enable Title Insurer
to insure Purchaser's title to the Property in conformity with Section 3 of this
Agreement;
(k) a written statement of Seller setting forth, to
Seller's Knowledge (hereafter defined), any changes in Seller's representations
and warranties under this Agreement which have occurred since the effective date
of such representations and warranties. In the event Seller is unable to certify
that there have been no material adverse changes in Seller's representations and
warranties, Purchaser shall have the right as its sole remedy to terminate this
Agreement, in which event the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser, and
neither party shall have any further obligations hereunder except for those
obligations which by their terms survive the termination of this Agreement;
(l) Seller Estoppel Certificates (hereafter defined) as
required in accordance with the provisions set forth in Section 10.B of this
Agreement, together with any tenant Estoppel Certificates received by Seller.
(ii) Purchaser. At Closing, Purchaser shall deliver or cause
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to be delivered to Seller the following:
(a) the Cash Payment;
(b) the Assignment and Assumption of Leases and
Assignment and Assumption of Service Contracts, in the forms attached as
Exhibits G and H;
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(c) the closing statement referred to in Section
4.B.(i)(g) above;
(d) a written statement of Purchaser setting forth, to
Purchaser's Knowledge (hereafter defined), any changes in Purchaser's
representations and warranties which have occurred since the effective date of
such representations and warranties. In the event Purchaser is unable to certify
that there have been no material adverse changes in Purchaser's representations
and warranties, Seller shall have the right to terminate this Agreement, in
which event the ▇▇▇▇▇▇▇ Money shall be delivered to Seller, and neither party
shall
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have any further obligations hereunder except for those obligations which by
their terms survive the termination of this Agreement.
C. Closing Prorations and Adjustments
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(i) The following items are to be prorated or adjusted
(as appropriate) as of 11:59 p.m. on the day before the Closing Date and
reprorated (if necessary) pursuant to Section 4.C.(ii) below, it being
understood that for purposes of prorations and adjustments, Seller shall be
deemed the owner of the Property on the day before the Closing Date, and
Purchaser shall be deemed the owner of the Property on the Closing Date:
(a) real estate and personal property taxes based on
the fiscal year used by the taxing authority (on the basis of the most recent
ascertainable tax or assessment ▇▇▇▇ if the current ▇▇▇▇ is not then available);
(b) the "minimum" or "base" rent and estimated
payments of "Percentage Rent" (hereafter defined) payable by tenants under the
Leases; provided, however, that rent and all other sums which are due and
payable to Seller as of Closing by any tenant but uncollected as of the Closing
shall not be adjusted, but Purchaser shall cause the rent and other sums for the
period prior to Closing to be remitted to Seller if, as and when collected, but
only if there is no deficiency in the then current rent. At Closing, Seller
shall deliver to Purchaser a schedule of all such past due but uncollected rent
and other sums owed by tenants. Purchaser shall include the amount of such rent
and other sums in the bills thereafter submitted to the tenants in question
after the Closing. Purchaser shall not be obligated to commence a law suit to
collect any such sums or to evict any tenant for the failure to pay any such
sums but Seller shall retain the right to do so after the Closing provided
Seller may not seek to terminate any Lease or evict any tenant;
(c) to the extent not set forth on the schedule of
uncollected rent described in Section 4.C.(i)(b) above, "percentage" or
"overage" rent ("Percentage Rent") that is (1) attributable to any Percentage
Rent lease year in which the Closing Date falls and (2) not yet determinable as
of the Closing Date (collectively, "Current Year Percentage Rent"), shall be
prorated as follows: promptly upon receipt by Purchaser, Purchaser shall furnish
to Seller copies of all sales reports from tenants relative to Current Year
Percentage Rent, including, without limitation, all sales reports with respect
to any tenants whose Percentage Rent lease years have expired as of the Closing
but whose sales reports were not delivered to Seller as of the Closing Date and
sales reports of any tenants whose Percentage Rent lease years expire after the
Closing, and the amount of any Current Year Percentage Rent shall be payable in
accordance with such tenant's Lease as existing as of the Closing Date, and
Purchaser shall (to the extent not paid to Seller by way of estimated payments
prior to Closing) pay to Seller a portion of such rent based upon the
apportionment being made as of the Closing Date (in proportion to the relative
number of days in the subject Percentage Rent Lease year occurring prior and
subsequent to the Closing Date), promptly after the date when such rent is
received from the tenant;
(d) Seller, as landlord under the Leases, is
currently collecting from tenants additional rent to cover taxes, insurance,
utilities, maintenance and other operating
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costs and expenses incurred by Seller (such expenses, collectively "Expenses"
and such collections, collectively "Collections"). Non-delinquent Collections
for the month in which Closing occurs shall be prorated in the same manner as
other rents. Within sixty (60) days after the end of the year in which Closing
occurs, Purchaser shall calculate the Expenses incurred and Collections received
for the year of Closing by Seller and Purchaser and shall prepare and present to
Seller for its review and approval, which approval shall not be unreasonably
withheld or delayed, a calculation of the Collections received and Expenses
incurred by each of Seller and Purchaser. Seller shall make any necessary
adjusting payment to Purchaser, due to any over-collection by Seller, within
thirty (30) days after presentment to, and approval by, Seller of Purchaser's
calculation and Purchaser shall make any necessary adjusting payment to Seller,
due to any under-collection by Seller, within thirty (30) days after presentment
to, and approval by Seller of Purchaser's calculation. Either party may inspect
the other's books and records related to the Property to confirm the
calculation;
(e) If Closing occurs, Purchaser shall be responsible for
the payment of all Tenant Inducement Costs (as hereinafter defined) and leasing
commissions which become due and payable (whether before or after Closing) under
any new Leases entered into after the date hereof and prior to Closing to the
extent such new Leases are approved or deemed approved by Purchaser in
accordance with Section 5.A hereof. Seller shall be responsible for the payment
of all Tenant Inducement Costs and leasing commissions which are not described
in the preceding sentence. If, as of the date of Closing, Seller shall have paid
any Tenant Inducement Costs or leasing commissions for which Purchaser is
responsible pursuant to the foregoing provisions, Purchaser shall reimburse
Seller therefor at Closing. If, as of the Closing, Seller shall not have paid
any Tenant Inducement Costs or leasing commissions for which Seller is
responsible, Purchaser shall receive a credit at Closing in such amounts. For
purposes hereof, the term "Tenant Inducement Costs" shall mean any out-of-pocket
payments required under a Lease to be paid by the landlord thereunder to or for
the benefit of the tenant thereunder which is in the nature of a tenant
inducement, including, specifically, without limitation, tenant improvement
costs, lease buyout costs, and moving, design, refurbishment and club membership
allowances (but excluding legal fees incurred in connection with the preparation
and negotiation of the lease). The term "Tenant Inducement Costs" shall not
include loss of income resulting from any free rental period, it being agreed
that Seller shall bear the loss resulting from any free rental periods until the
date of Closing and Purchaser shall bear such loss from and after the date of
Closing;
(f) the amount of unapplied security deposits held by
Seller or otherwise outstanding (and not previously applied) under the Leases
shall be credited to Purchaser at Closing;
(g) to the extent not paid directly by tenants, gas,
water, electric, telephone and all other utility and fuel charges, fuel on hand
(at cost plus sales tax), and any deposits with utility companies assigned to
Purchaser (to the extent possible, utility prorations will be handled by final
meter readings obtained from the utility providers on the day immediately
preceding the Closing Date);
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(h) amounts due and prepayments under the Service
Contracts assigned to Purchaser under this Agreement;
(i) assignable license and permit fees;
(j) contributions of Seller to the promotional
organizations shall be adjusted and prorated by the parties based upon the
period to which such charges relate;
(k) other similar items of income and expenses of
operation if and to the extent not paid or reimbursed by Tenants.
(ii) If any item of income or expense set forth in this
Section 4.C. is subject to final adjustment after Closing, then Seller and
Purchaser shall make, and each shall be entitled to, an appropriate reproration
to each such item promptly when accurate information becomes available. Any such
reproration shall be paid promptly in cash to the party entitled thereto.
(iii) The terms of this Section 4.C., to the extent they call
for adjustments, prorations or payments after Closing (collectively,
"Post-Closing Adjustments"), shall survive the Closing.
D. Transaction Costs
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Seller shall pay the cost of the base title insurance premium, the
survey and one-half of any escrow fees. Purchaser shall pay the cost of any
endorsements to the title insurance policy (including for extended coverage),
any recording fees, any transfer tax or similar charge and one-half of any
escrow fees. Seller and Purchaser shall, however, be responsible for the fees of
their respective attorneys, subject to Section 12.P. below.
E. Possession
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Upon Closing, Seller shall deliver to Purchaser possession of the
Property in accordance with the terms of this Agreement.
5. OPERATION OF PROPERTY PRIOR TO CLOSING
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Notwithstanding anything to the contrary contained herein:
A. After expiration of the Review Period, Seller may not modify,
extend, renew, cancel or terminate any Lease or Service Contract, or enter into
any proposed lease or service contract which is not terminable as of Closing
without Purchaser's consent (which shall not be unreasonably withheld or
delayed). Should Seller seek in writing Purchaser's consent for any such action,
Purchaser shall respond in writing to Seller (therein giving consent or
specifying the precise nature of Purchaser's objection to the action) within
five (5) business days of receipt
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of Seller's request. If Purchaser does not respond within said five (5) business
day period, Purchaser shall be deemed conclusively to have consented to the
action requested by Seller.
B. From the date hereof until the Closing or earlier termination of
this Agreement, Seller shall not remove (or direct the removal of) any item of
Tangible Personal Property except as may be required for repair or replacement
or to retire obsolete property.
C. From the date hereof until the Closing or earlier termination of
this Agreement, Seller shall not enter into any new agreement, or amend any
Service Contract, to the extent such agreement or amendment would be binding
upon Purchaser after Closing.
6. REPRESENTATIONS
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A. Seller's Representations and Warranties: Seller represents and
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warrants to Purchaser that as of the date of this Agreement (unless otherwise
stated below):
(i) Seller is a duly formed and validly existing limited
partnership organized under the laws of Florida.
(ii) Seller has the full legal right, power and authority to
execute and deliver this Agreement and all documents now or hereafter to be
executed by it pursuant hereto (collectively, the "Seller's Documents"), to
consummate the transaction contemplated in this Agreement, and to perform its
obligations under this Agreement and the Seller's Documents. The person signing
this Agreement on behalf of Seller is authorized to do so.
(iii) Seller has not been served with any litigation which is
still pending with respect to the Property that would adversely affect Seller's
ability to perform its obligations under this Agreement, or that would
materially and adversely affect the financial condition or operation of the
Property, nor to Seller's Knowledge, has any such litigation been filed.
(iv) (a) To Seller's Knowledge, (1) the information contained
in the schedule of leases attached to and made a part of this Agreement as
Exhibit L (the "Lease Schedule") is complete and accurate as of the date hereof;
and (2) there are no leases other than those set forth in the Lease Schedule.
(b) To Seller's Knowledge, except as set forth in the
Lease Schedule:
(1) Seller holds no security or other tenant
deposits.
(2) Each Lease is in full force and effect.
(3) No written notice of an existing and uncured
default has been delivered by Seller or any
tenant under any Lease.
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If any Lease contains provisions which are inconsistent with the foregoing
representations and warranties, such representations and warranties shall be
deemed modified to the extent necessary to eliminate such inconsistency and to
conform such representations and warranties to the provisions of such Lease.
Without limitation of the generality of the foregoing, the preceding sentence
shall not be deemed to limit Purchaser's right to terminate this Agreement
pursuant to Section 4.B.(i)(k) above.
(v) To Seller's Knowledge, Exhibit C attached to and made
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apart of this Agreement is a complete list of the Service Contracts. No written
notice of an existing default has been delivered by Seller or any tenant under
any Service Contract.
(vi) Seller has not received written notice of any violations
of any laws or other requirements of any governmental authority having
jurisdiction over the Property which remain outstanding.
B. Purchaser's Representations and Warranties. Purchaser represents and
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warrants to Seller that as of the date of this Agreement:
(i) Purchaser is a duly formed and validly existing limited
liability company organized under the laws of the State of South Carolina.
(ii) Purchaser has the full legal right, power and authority to
execute and deliver this Agreement and all documents now or hereafter to be
executed by Purchaser pursuant to this Agreement (collectively, the "Purchaser's
Documents"), to consummate the transaction contemplated hereby, and to perform
its obligations hereunder and under Purchaser's Documents.
C. Seller and Purchaser shall be deemed to remake and restate the
representations and warranties set forth in this Section 6 above as of Closing.
Should Seller proceed to Closing with the Knowledge of Purchaser's violation of
any representation or warranty contained in this Section 6, Seller will be
conclusively deemed to have waived any remedy therefor. Should Purchaser proceed
to Closing with Knowledge of Seller's violation of any representation or
warranty of Seller contained in this Section 6, Purchaser will be conclusively
deemed to have waived any remedy therefor, including any adjustment in Purchase
Price.
D. The representations and warranties set forth in Section 6 above,
as of the date made (or deemed made) shall survive Closing for a period of one
hundred eighty (180) days, but any claims thereunder must be made in writing
within said one hundred eighty (180) day period or they shall thereafter be
deemed lapsed, and to be null and void.
E. The term "Seller's Knowledge" as used in this Agreement means the
actual knowledge possessed by ▇▇▇▇▇▇ ▇▇▇▇▇▇ (without investigation or inquiry)
(and not imputed or implied knowledge). The term "Purchaser's Knowledge" as used
in this Agreement means actual knowledge possessed by ▇▇▇▇ ▇▇▇▇▇▇▇▇.
Notwithstanding anything contained herein to the contrary, neither ▇▇▇▇▇▇ ▇▇▇▇▇▇
or ▇▇▇▇ ▇▇▇▇▇▇▇▇ shall have any personal liability or obligation
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whatsoever with respect to any of the matters set forth in this Agreement or any
of Seller's or Purchaser's representations and/or warranties herein being or
becoming untrue, inaccurate or incomplete in any respect.
F. In the event that, prior to Closing, Purchaser obtains Knowledge
that, as of Closing, Seller is in breach of any of the representations and
warranties set forth herein, or Seller otherwise discloses to Purchaser facts
that are inconsistent with or different from the information set forth in the
representations and warranties herein, and the Closing occurs, then the
representations and warranties herein shall be deemed to be modified and/or
superseded by such certificates or other documents (and, in such event, Seller
shall no longer have any liability hereunder with respect to the portion of
representation or warranty modified or superseded herein, as applicable.
7. CASUALTY LOSS AND CONDEMNATION
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If, prior to Closing, the Property or any part thereof shall be condemned,
or destroyed or damaged by fire or other casualty, Seller shall promptly so
notify Purchaser. In the event the effect of such condemnation or casualty
occurring prior to Closing is "material" (hereinafter defined), Purchaser shall
have the option by written notice to Seller within ten (10) days of receipt of
Seller's notice to Purchaser, either to terminate this Agreement or to
consummate the transaction contemplated by this Agreement notwithstanding such
condemnation, destruction or damage. If Purchaser elects to consummate the
transaction contemplated by this Agreement or fails to timely elect to terminate
this Agreement, or if a casualty or condemnation is immaterial, Purchaser shall
be entitled (a) in the event of a condemnation, to receive the condemnation
proceeds, and (b) in the event of a casualty, to settle the loss under all
policies of insurance applicable to the destruction or damage and receive the
proceeds of insurance applicable thereto, together with a credit in the amount
of any deductible portion of the policy for which Purchaser would be responsible
to pay in connection therewith, and Seller shall, at Closing, execute and
deliver to Purchaser all customary proofs of loss, assignments of claims and
other similar items. If, upon a material condemnation or casualty prior to
Closing, Purchaser timely elects to terminate this Agreement, the ▇▇▇▇▇▇▇ Money
shall be returned to Purchaser, in which event this Agreement shall, without
further action of the parties, become null and void and neither party shall have
any further rights or obligations under this Agreement. For purposes of this
provision, a condemnation or casualty loss shall be deemed to be "material" if:
(x) in the event of condemnation, the value of the Property taken or in the
event of a casualty, the cost of repairing or restoring the premises in
question, would be equal to or greater than Five Hundred Thousand Dollars
($500,000.00), or (y) an event of condemnation or casualty would permit the
termination by the tenant of the Lease(s) of (i) any Required Tenant (hereafter
defined), or (ii) any two (2) Other Tenants (hereafter defined), unless Seller
obtains the waiver of such rights by such tenants. The provisions of this
Section 7 shall supersede the provisions of any law regarding the allocation of
the risk of loss between purchasers and sellers.
8. BROKERAGE
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Seller has engaged ▇▇▇▇▇▇▇ ▇▇▇▇ ("Broker") to act as its broker in
connection with the sale of the Property. Purchaser and Seller each hereby
represents and warrants to the other that it
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has not dealt with any broker, finder or other party (other than Broker, whose
commission, if any, shall be paid by Seller) in connection with the negotiation
of this Agreement or otherwise in connection with the Property. Seller and
Purchaser shall each indemnify and hold the other harmless from and against any
and all claims of all other brokers and finders claiming by, through or under
the indemnifying party and in any way related to the sale and purchase of the
Property, this Agreement or otherwise, including, without limitation, attorneys'
fees and expenses incurred by the indemnified party in connection with such
claim.
9. DEFAULT AND REMEDIES
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A. Notwithstanding anything to the contrary contained in this
Agreement, if closing does not occur solely due to a default by Seller
hereunder, then as Purchaser's sole and exclusive remedy hereunder, Purchaser
may (A) terminate this Agreement, in which event the ▇▇▇▇▇▇▇ Money shall be
returned to Purchaser, and this Agreement shall be null and void, and neither
party shall have any rights or obligations under this Agreement (except as may
expressly survive termination of this Agreement), and in no event shall
Purchaser be entitled to recover additional money damages against Seller or (B)
seek specific performance of Seller's obligations hereunder; provided an action
is filed within 90 days of termination of this Agreement;
B. If Purchaser fails to complete closing in accordance with the
terms of this Agreement, then this Agreement shall be terminated and the ▇▇▇▇▇▇▇
Money shall be retained by Seller as Seller's sole remedy and as liquidated
damages. Seller and Purchaser acknowledge and agree that: (i) the ▇▇▇▇▇▇▇ Money
is a reasonable estimate of and bears a reasonable relationship to the damages
that would be suffered and costs incurred by Seller as a result of having
withdrawn the Property from sale and the failure of Closing to occur due to a
default of Purchaser under this Agreement; (ii) the actual damages suffered and
costs incurred by Seller as a result of such withdrawal and failure to close due
to a default of Purchaser under this Agreement would be extremely difficult and
impractical to determine; (iii) Purchaser seeks to limit its liability under
this Agreement to the amount of the ▇▇▇▇▇▇▇ Money in the event this Agreement
does not close due to a default by Purchaser under this Agreement; and (iv) such
amount shall constitute valid liquidated damages; provided, however, that the
-------- -------
foregoing shall not limit Seller's recourse against Purchaser under Sections 8,
10.A and 11.
C. After Closing and subject to any limitations set forth in this
Agreement, including but not limited to Sections 12.J and 12.L, Seller and
Purchaser shall, subject to the terms and conditions of this Agreement, have
such rights and remedies as are available at law or in equity, but only for such
obligations as expressly survive Closing; except that neither Seller nor
Purchaser shall be entitled to recover from the other consequential, exemplary,
punitive or special damages.
10. CONDITIONS PRECEDENT
--------------------
A. Purchaser shall have the period of time beginning on the date
hereof and ending on the thirtieth (30/th/) day after the date hereof, within
which to inspect and investigate the Property and its operations (the "Review
Period"). If Purchaser determines that the Property is unsuitable for its
purposes and notifies Seller of such decision within the Review Period, the
11
▇▇▇▇▇▇▇ Money shall be returned to Purchaser, at which time this Agreement shall
be null and void and neither party shall have any further rights or obligations
under this Agreement, except those which by their terms expressly survive such
termination. Seller shall cooperate with Purchaser to allow Purchaser and
Purchaser's Representatives access to the Property, to allow Purchaser and
Purchaser's Representatives access to all non-proprietary information and
documentation, and otherwise to promptly provide such non-proprietary
information and documentation, relating to the Property and its operations as
Purchaser may reasonably request but excluding internal correspondence,
analyses, appraisals, projections or similar items. Subject to Section 2.A.,
Purchaser's failure to terminate this Agreement pursuant to this Section 10.A
within the Review Period shall be deemed a waiver by Purchaser of the condition
contained in this Section 10.A. Purchaser's right of inspection pursuant to this
Section 10.A is and shall remain subject to the rights of tenants under the
Leases and other occupants and users of the Property. No inspection shall be
undertaken without 48 hours' prior notice to Seller. Seller shall have the right
to be present at any or all inspections. Neither Purchaser nor its agents or
representatives shall contact any tenants without the prior consent of Seller.
No inspection shall involve the taking of samples or other physically invasive
procedures without the prior consent of Seller. Purchaser shall restore the
Property to its condition existing prior to the inspection of the Property
hereunder. Notwithstanding anything to the contrary contained in this Agreement,
Purchaser shall indemnify, defend (with counsel reasonably acceptable to Seller)
and hold Seller and its employees and agents, and each of them, harmless from
and against any and all losses, claims, damages and liabilities (including,
without limitation, attorneys' fees incurred in connection therewith) arising
out of or resulting from Purchaser's exercise of its rights under this Section
10.A and such indemnity shall survive the Closing and any termination of this
Agreement.
B. Seller shall send estoppel certificates (individually, a
"Estoppel Certificate" and collectively, the "Estoppel Certificates") in the
-------------------- ---------------------
form of Exhibit N attached hereto (the "Form Tenant Estoppel Certificate") to
--------- --------------------------------
each tenant occupying space at the Property on the date hereof. Upon Purchaser's
written request, Seller shall include in any request for Estoppel Certificate
sent to a tenant, a form of subordination, non-disturbance and attornment
agreement ("SNDA") for execution by such tenant, provided, however, that (i)
Seller receives Purchaser's written request and form(s) no later than thirty
five (35) days prior to Closing, (ii) such tenant will be directed to return the
SNDA directly to Purchaser, and (iii) receipt of any SNDA by Purchaser shall not
be deemed a condition precedent to Closing.
It shall be a condition precedent to Purchaser's obligation to
purchase the Property pursuant to this Agreement that Seller provide to
Purchaser, at Closing, Estoppel Certificates executed by CVS, Rush Fitness
Center and Books a Million (each individually, a "Required Tenant" and
---------------
collectively, the "Required Tenants"). All tenants which are not Required
----------------
Tenants are herein referred to as the "Other Tenant(s)".
---------------
An Estoppel Certificate executed by any tenant shall satisfy the
condition set forth immediately above in this Section 10.B if it is in
substantially the form of the Form Tenant Estoppel Certificate and any other
representations made herein by Seller with respect to such Lease, provided,
however, that an Estoppel Certificate executed by any tenant shall be deemed to
satisfy the condition set forth immediately above in this Section 10.B as long
as it is in the form
12
or contains such specified information as the Lease requires such tenant to
provide and/or contains the qualification by such tenant of any statement as
being to its knowledge or as being subject to any similar qualification. If
Seller is unable to deliver Estoppel Certificates to Purchaser for any Required
Tenants, then Purchaser may, by delivering written notice to Seller prior to
Closing, terminate this Agreement, in which event the ▇▇▇▇▇▇▇ Money shall be
returned to Purchaser, at which time this Agreement shall be null and void and
neither party shall have any further rights or obligations under this Agreement,
except those which by their terms expressly survive such termination.
In the event that Seller is unable to provide Estoppel Certificates to
Purchaser at the Closing for the Other Tenants, Seller shall execute and deliver
to Purchaser certificates (individually, a "Seller Estoppel Certificate", and,
--------------------------
collectively, the "Seller Estoppel Certificates") substantially in the same form
----------------------------
as the certificate attached hereto as Exhibit O (the "Form Seller Estoppel
--------- --------------------
Certificate"), as the same may be modified by Seller to reflect any exceptions
-----------
or changes to the statements set forth therein which are necessary to make such
certificates accurate and complete as of such date, covering the particular
Other Tenants so that Purchaser shall receive, at Closing, an Estoppel
Certificate or a Seller Estoppel Certificate with respect to each Other Tenant.
If Seller delivers Seller Estoppel Certificates to Purchaser in connection with
this Agreement, each statement therein shall survive for a period terminating on
the earlier of (i) one hundred eighty (180) days from the Closing Date, or (ii)
the date on which Purchaser has received an executed Estoppel Certificate signed
by the tenant under the Lease in question. If Purchaser receives an estoppel
certificate which contains some but not all of the matters set forth in the
Estoppel Certificate (a "Partial Certificate") and Seller provides a Seller
-------------------
Estoppel Certificate for such tenant, then (i) if the Partial Certificate is
received prior to Closing, the Seller Estoppel Certificate may omit matters
contained in the Partial Certificate, and (ii) if the Partial Certificate is
received after Closing, Seller's Estoppel Certificate shall cease to survive as
to the matters contained in the Partial Certificate. If any Estoppel Certificate
contains statements confirming any of Seller's representations or warranties
herein, then Seller shall be relieved of any liability with respect to any such
representation or warranty.
If any Estoppel Certificates or Seller Estoppel Certificates contain
statements or allegations that a default or potential default exists on the part
of Seller under the Lease in question or contain information inconsistent with
any representations of Seller contained in this Agreement and Purchaser elects
to close the purchase and sale transaction contemplated herein notwithstanding
the existence of such statements, allegations or information, then such Estoppel
Certificates and/or Seller Estoppel Certificates shall be deemed acceptable for
purposes of this Section 10.F, notwithstanding the existence of such
allegations, statements or information, and Seller shall have no liability to
Purchaser hereunder with respect to the existence of such allegations,
statements or information.
11. PROPERTY INFORMATION AND CONFIDENTIALITY
----------------------------------------
A. Purchaser agrees that, prior to the Closing, Purchaser shall use
diligent efforts to keep all "Property Information" (as defined below)
confidential, and that Property Information shall not, without the prior consent
of Seller, be disclosed by Purchaser or Purchaser's Representatives (as
hereinafter defined), except to Purchaser Representatives, and
13
that Property Information will not be used for any purpose other than
investigating and evaluating the Property. Moreover, Purchaser agrees that,
prior to the Closing, the Property Information will be transmitted only to the
Purchaser's Representatives who need to know the Property Information for the
purpose of investigating and evaluating the Property, and who are informed by
Purchaser of the confidential nature of the Property Information and who agree
in writing to comply with and be bound by this Section 11 for the benefit of
Seller. The provisions of this Section 11.A. shall not apply to Property
Information which is a matter of public record or to the extent disclosure is
required to comply with laws or court orders.
B. Purchaser hereby agrees it will not release or cause or permit to
be released any press notices, publicity (oral or written) or advertising
promotion relating to, or otherwise announce or disclose or cause or permit to
be announced or disclosed, in any manner whatsoever, the terms, conditions,
parties to or substance of this Agreement or the transactions contemplated
herein, without first obtaining the written consent of Seller, as to the portion
of the disclosure relating to this transaction, the Property or Seller and its
affiliates, which consent shall not be unreasonably withheld. It is understood
that the foregoing shall not preclude either Purchaser from discussing the
substance or any relevant details of the transactions contemplated in this
Agreement, subject to the terms of this Section 11, with any of Purchaser's
Representatives (defined below), accountants, professional consultants or
potential lenders, as the case may be, or prevent Purchaser hereto from
complying with applicable laws or court orders.
C. In the event this Agreement is terminated, Purchaser and
Purchaser's Representatives shall promptly return to Seller all originals and
copies of the "Property Information" (defined below) in the possession of
Purchaser and Purchaser's Representatives.
D. As used in this Agreement, the term "Property Information" shall
mean:
(i) All information and documents relating to the Property,
the operation thereof or the sale thereof (including, without limitation,
Leases, Service Contracts, Permits and Licenses) furnished to, or otherwise made
available by Seller or any of Seller's Affiliates for review by, Purchaser, or
its respective directors, officers, employees, affiliates, partners, brokers,
agents, title insurers, surveyors or other representatives, including, without
limitation, attorneys, accountants, contractors, consultants, engineers and
financial advisors (collectively, "Purchaser's Representatives").
(ii) All analyses, compilations, data, studies, reports or
other information or documents prepared or obtained by Purchaser or Purchaser's
Representatives containing or based in any material part on any information or
documents described in the preceding clause (i).
E. In addition to any other remedies available to Purchaser under
this Agreement, Seller shall have the right to seek equitable relief, including,
without limitation, injunctive relief or specific performance, against Purchaser
or Purchaser's Representatives in order to enforce the provisions of this
Section 11.
14
F. The provisions of this Section 11 shall survive the termination of
this Agreement.
12. MISCELLANEOUS
-------------
A. All understandings and agreements heretofore had between Seller
and Purchaser with respect to the Property are merged in this Agreement, which
alone fully and completely expresses the agreement of the parties.
B. Neither this Agreement nor any interest hereunder shall be
assigned or transferred by Purchaser or Seller without the prior written consent
of the other party.
C. This Agreement shall not be modified or amended except in a
written document signed by Seller and Purchaser.
D. Time is of the essence of this Agreement.
E. This Agreement shall be governed and interpreted in accordance
with the laws of the State of Tennessee.
F. All notices, requests, demands or other communications required
or permitted under this Agreement shall be in writing and delivered personally,
by certified mail, return receipt requested, postage prepaid, by overnight
courier (such as Federal express), or by facsimile transmission (with
confirmation of transmission), addressed as follows:
If to Seller: First Capital Income Properties, Ltd. - Series VIII
c/o Equity Properties and Development, L.L.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Facsimile: 312/454-0826
With copies to: ▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
Telephone: 312/▇▇▇-▇▇▇▇
Facsimile: 312/269-1747
If to Purchaser: Cursor Properties, L.L.C
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone: 212/▇▇▇-▇▇▇▇
Facsimile: 212/979-6080
15
With copies to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
Attorneys At Law
Suite 600, Bank of America Plaza
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: 803/▇▇▇-▇▇▇▇
Facsimile: 803/254-2682
All notices given in accordance with the terms hereof shall be deemed received
three (3) business days after posting (in the case of notices sent by certified
mail), or when delivered personally or otherwise received or receipt is refused
(in the case of all other methods of notice). Either party hereto may change the
address for receiving notices, requests, demands or other communication by
notice sent in accordance with the terms of this Section 12.F.
G. ANY INFORMATION, REPORTS, STATEMENTS, DOCUMENTS OR RECORDS
(COLLECTIVELY, THE "DISCLOSURES") PROVIDED OR MADE TO PURCHASER OR ITS
CONSTITUENTS BY SELLER, ITS AGENTS OR EMPLOYEES CONCERNING THE CONDITION OF THE
PROPERTY SHALL NOT BE REPRESENTATIONS AND WARRANTIES. PURCHASER SHALL NOT RELY
ON SUCH DISCLOSURES, BUT RATHER, PURCHASER SHALL RELY ONLY ON ITS OWN INSPECTION
OF THE PROPERTY. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS
UNDERSTOOD AND AGREED THAT NEITHER SELLER NOR ANY OF SELLER'S AFFILIATES IS
MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF ANY
KIND OR CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING
BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO HABITABILITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ZONING, TAX
CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES,
OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE
COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR
COMPLETENESS OF THE PROPERTY INFORMATION OR ANY OTHER INFORMATION PROVIDED BY OR
ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE
PROPERTY. PURCHASER ACKNOWLEDGES AND AGREES THAT EXCEPT AS OTHERWISE PROVIDED IN
THIS AGREEMENT, AT CLOSING SELLER SHALL SELL AND CONVEY TO PURCHASER AND
PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS". EXCEPT
TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, PURCHASER HAS NOT
RELIED AND WILL NOT RELY ON, AND NEITHER SELLER NOR ANY OF SELLER'S AFFILIATES
IS LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES, GUARANTIES,
STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE PROPERTY OR
RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION, PROPERTY
INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
16
FURNISHED BY SELLER, ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR PURPORTING
TO REPRESENT SELLER, OR ANY THIRD-PARTY, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR
INDIRECTLY, ORALLY OR IN WRITING. PURCHASER ACKNOWLEDGES THAT PURCHASER HAS
CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE
PROPERTY, INCLUDING BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY TO SATISFY ITSELF AS TO THE
CONDITION OF THE PROPERTY AND THE EXISTENCE OR NONEXISTENCE OR CURATIVE ACTION
TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR TOXIC SUBSTANCES ON OR DISCHARGED
FROM THE PROPERTY, AND WILL RELY SOLELY UPON SAME AND NOT UPON ANY INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER OR ITS AGENTS OR EMPLOYEES WITH RESPECT
THERETO, OTHER THAN SUCH REPRESENTATIONS AND COVENANTS OF SELLER AS ARE
EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING, EXCEPT FOR SELLER'S
REPRESENTATIONS AND WARRANTIES THAT WILL SURVIVE CLOSING, PURCHASER SHALL ASSUME
THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO CONSTRUCTION DEFECTS
AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN REVEALED BY
PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON EXPIRATION OF THE REVIEW PERIOD,
SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER AND SELLER'S
AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES, DAMAGES, LIABILITIES, COSTS AND
EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR
CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE ASSERTED OR ALLEGED
AGAINST SELLER OR SELLER'S AFFILIATES AT ANY TIME BY REASON OF OR ARISING OUT OF
ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF
ANY APPLICABLE LAWS (INCLUDING WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND
ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING
THE PROPERTY. PURCHASER, ITS SUCCESSORS AND ASSIGNS, HEREBY WAIVE, RELEASE AND
AGREE NOT TO MAKE ANY CLAIM OR BRING ANY COST RECOVERY ACTION OR CLAIM FOR
CONTRIBUTION OR OTHER ACTION OR CLAIM AGAINST SELLER OR SELLER'S AFFILIATES
(HEREAFTER DEFINED) BASED ON (A) ANY FEDERAL, STATE, OR LOCAL ENVIRONMENTAL OR
HEALTH AND SAFETY LAW OR REGULATION, INCLUDING CERCLA OR ANY STATE EQUIVALENT,
OR ANY SIMILAR LAW NOW EXISTING OR HEREAFTER ENACTED, (B) ANY DISCHARGE,
DISPOSAL, RELEASE, OR ESCAPE OF ANY CHEMICAL, OR ANY MATERIAL WHATSOEVER, ON,
AT, TO, OR FROM THE PROPERTY; OR (C) ANY ENVIRONMENTAL CONDITIONS WHATSOEVER ON,
UNDER, OR IN THE VICINITY OF THE PROPERTY.
H. In any lawsuit or other proceeding initiated under or with
respect to this Agreement, Purchaser and Seller waive any right they may have to
trial by jury.
17
I. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's written request, assign and transfer to Seller,
without representation, warranty or recourse, all of its right, title and
interest in and to any and all studies, reports, surveys and other information,
data and/or documents relating to the Property or any part thereof prepared by
or at the request of Purchaser, its employees and agents, and shall deliver to
Seller copies of all of the foregoing.
J. After Closing, Seller shall not be liable to Purchaser in respect
of obligations under this Agreement or any documents delivered at Closing which
survive Closing for any amounts less than Twenty-Five Thousand Dollars
($25,000.00) or in excess of Two Hundred Fifty Thousand Dollars ($250,000.00) in
the aggregate, Purchaser hereby waiving any and all claims it may have to such
recoveries in excess of, or less than, the foregoing amounts.
K. Seller and Purchaser hereby designate Title Insurer to act as and
perform the duties and obligations of the "reporting person" with respect to the
transaction contemplated by this Agreement for purposes of 26 C.F.R. Section
1.6045-4(e)(5) relating to the requirements for information reporting on real
estate transaction closed on or after January 1, 1991. In this regard, Seller
and Purchaser each agree to execute at Closing, and to cause the Title Insurer
to execute at Closing, a Designation Agreement, designating Title Insurer as the
reporting person with respect to the transaction contemplated by this Agreement.
L. Purchaser agrees that it does not have and will not have any
claims or causes of action against any disclosed or undisclosed trustee,
partner, affiliate, subsidiary, beneficiary, principal, member, agent, managing
entity, shareholder, director, officer, or employee of Seller (whether direct or
indirect), including, without limitation, their attorneys, accountants,
consultants, engineers, brokers, and advisors (collectively, "Seller's
Affiliates"), arising out of or in connection with this Agreement or the
transactions contemplated hereby and further agrees not to ▇▇▇ or otherwise seek
to enforce any personal obligation against any of Seller's Affiliates with
respect to any matters arising out of or in connection with this Agreement or
the transactions contemplated hereby.
M. Seller shall have the exclusive right to file and control any tax
appeal for the real estate taxes attributable to the period prior to and
including the calendar year 2001 (the "Pre-2002 Tax Period") but shall keep
Purchaser informed of the progress and outcome of any such appeal. To the extent
that Seller shall receive a refund therefor, Seller shall disburse to any tenant
not in default under its Lease a portion of such refund as may be due that
tenant under its Lease. Purchaser shall have the exclusive right to file and
control any tax appeal for the real estate taxes attributable to the period
after and including the calendar year 2002 (the "2002 Tax Period"). To the
extent that Purchaser shall receive a refund therefor, Purchaser shall disburse
to any tenant not in default under its Lease a portion of such refund as may be
due that tenant under its Lease. The remainder of the refund, if any, shall be
prorated between Purchaser and Seller pursuant to Section 4.C. after deducting
therefrom the cost and expenses reasonably incurred in pursuing the appeal and
not charged to tenants. The terms of this Section 12.M. shall survive the
Closing.
N. Intentionally Deleted.
18
O. This Agreement may be executed in any number of counterparts, any
or all of which may contain the signatures of less than all of the parties, and
all of which shall be construed together as a single instrument. For purposes of
this Agreement, a facsimile of an executed counterpart shall constitute an
original.
P. In the event of litigation between the parties with respect to
this Agreement or the transactions contemplated hereby, the prevailing party
therein shall be entitled to recover from the losing party therein its
attorneys' fees and costs of suit.
Q. For purposes of this Agreement, the masculine shall be deemed to
include the feminine and the neuter, and the singular shall be deemed to include
the plural, and the plural the singular, as the context may require.
R. The invalidity or unenforceability of any provision of this
Agreement shall in no way affect the validity or enforceability of any other
provision.
S. The captions contained in this Agreement are not a part of this
Agreement. They are only for the convenience of the parties and do not in any
way modify, amplify or give full notice of any of the terms, covenants or
conditions of this Agreement.
T. This Agreement shall inure to the benefit of and be binding upon
the parties hereto and their respective legal or personal representatives,
heirs, executors, administrators, successors, and permitted assigns.
U. Purchaser shall cooperate with Seller and shall execute any and
all documents necessary to allow Seller (or its affiliates) to effectuate the
conveyance of the Property as an exchange under Section 1031 of the Internal
Revenue Code ("Exchange"); provided however, that at no time shall Purchaser be
required to take title to real estate other than the Property or incur any
obligations other than those set forth elsewhere in this Agreement. Seller shall
pay all reasonable costs which may be incurred by Purchaser in connection with
such tax free exchange and Seller shall indemnify Purchaser and hold it harmless
from any loss, cost, damage, expense or liability incurred in connection
therewith. Purchaser acknowledges and agrees that Seller may, if necessary, in
order for one or more of its affiliates to qualify for an exchange, distribute
the Property to its equity owners prior to Closing provided the same shall not
relieve Seller of its obligations hereunder and such distributees shall assume
the obligations of Seller hereunder (to the extent of such distribution).
V. Neither this Agreement nor a memorandum thereof shall be recorded
by any party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK. SIGNATURE
COUNTERPARTS ON NEXT PAGE]
19
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered
this Agreement as of the date first above written.
SELLER:
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII, a
Florida limited partnership
By: First Capital Financial, L.L.C., a Florida limited
liability company, its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-----------------------------
Title: Vice President
----------------------------
PURCHASER:
CURSOR PROPERTIES, L.L.C.,
a South Carolina limited liability company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------
Title:
----------------------------
20
EXHIBITS
--------
Exhibit A - Legal Description
---------
Exhibit B - Tangible Personal Property
---------
Exhibit C - Service Contracts
---------
Exhibit D - Permitted Exceptions
---------
Exhibit E - Bills of Sale
---------
Exhibit F - Notice Letter
---------
Exhibit G - Assignment and Assumption of Leases
---------
Exhibit H - Assignment and Assumption of Contracts
---------
Exhibit I - Non-Foreign Certification
---------
Exhibit J - Escrow Agreement
---------
Exhibit K - Omitted
---------
Exhibit L - Lease Schedule
---------
Exhibit M - Omitted
---------
Exhibit N - Form Tenant Estoppel Certificate
---------
Exhibit O - Form Seller Estoppel Certificate
---------
21
EXHIBIT A
---------
LEGAL DESCRIPTION
-----------------
SITUATED in District 6 of ▇▇▇▇ County, Tennessee, and without the corporate
limits of the City of Knoxville, Tennessee, and being more fully described as
follows:
BEGINNING in the northern right-of-way line of Kingston Pike (US Highway 11/70),
at a point lying north 70 deg. 44 min. 50 sec. east, 375.0 feet from the
intersection of the northern right-of-way line of Kingston Pike with the eastern
right-of-way line of ▇▇▇▇▇▇ Springs Road (the right-of-way of Kingston Pike
being 80.0 feet wide, and the right-of-way of ▇▇▇▇▇▇ Springs Road being 100.00
feet wide, at such intersection); thence north 10 deg. 22 min. 40 sec. west,
150.0 feet to a point; thence south 70 deg. 44 min. 50 sec. west, 175.0 feet to
a point; thence north 10 deg. 22 min. 40 sec. west, 140.52 feet to a point;
thence south 63 deg. 17 min. 50 sec. west, 200.0 feet to a point in the eastern
right-of-way line of ▇▇▇▇▇▇ Springs Road; thence north 09 deg. 11 min. 40 sec.
west, along the eastern right-of-way line of ▇▇▇▇▇▇ Springs Road, 50.0 feet to a
point, said point being the southwestern boundary of the property of ▇▇▇▇▇▇▇
under lease to Texaco, Inc.; thence north 63 deg. 17 min. 50 sec. east, along
the southern line of the aforesaid property of ▇▇▇▇▇▇▇, 200.0 feet to a point
being the southeastern corner of the aforesaid ▇▇▇▇▇▇▇ property; thence north 09
deg. 11 min. 40 sec. west, along the eastern line of the aforesaid property,
200.0 feet to a point in the southern right-of-way line of Interstate Highway
75/40; thence north 63 deg. 17 min. 50 sec. east, along the southern line of
Interstate Highway 75/40, 515.6 feet to a point; thence north 75 deg. 17 min. 40
sec., east, continuing along the southern right-of-way line of Interstate
Highway 75/40, 501.22 feet to a point; thence south 19 deg. 19 min. 00 sec.
east, 409.86 feet to a point; thence south 70 deg. 41 min. 00 sec. west, 175.0
feet to a point; thence south 19 deg. 19 min. 00 sec. east, 150.0 feet to a
point in the northern right-of-way line of Kingston Pike; thence south 70 deg.
41 min. 00 sec. west. along the northern right-of-way line of Kingston Pike,
298.5 feet to a point; thence south 70 deg. 44 min. 50 sec. west, continuing
along the northern right-of-way line of Kingston Pike, 451.5 feet to the point
of BEGINNING.
BEING the same property conveyed to First Capital Income Properties, Ltd. -
Series VIII, a Florida limited partnership, pursuant to Warranty Deed of record
in Deed Book 1805, page 996, and being the same property in which the leasehold
interests were assigned to First Capital Income Properties, Ltd. - Series VIII,
a Florida limited partnership, pursuant to Assignment of record in Trust Book
2065, Page 773, both in the Register's Office for ▇▇▇▇ County, Tennessee.
TOGETHER with and subject to the terms, easements, conditions and provisions as
set forth in Deed Book 1481, Page 400; Deed Book 1499, Page 669; Deed Book 1511,
Page 149; and Deed Book 1612, Page 440, all in said Register's Office.
22
EXHIBIT B
---------
TANGIBLE PERSONAL PROPERTY
--------------------------
None
23
EXHIBIT C
---------
Service Contracts
-----------------
Verbal contracts:
1. Volunteer Lawn Service.
2. Bevco Parking Lot Service.
24
EXHIBIT D
---------
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. State, county and municipal real estate taxes and assessments not yet due
and payable as of Closing.
3. Rights of tenants in possession under the Leases, and those in possession
claiming by, through and under said tenants.
4. Zoning, building and other governmental and quasi-governmental laws, codes,
variances, permits and regulations.
5. Any state of facts which would be disclosed by an accurate survey.
25
EXHIBIT E
---------
▇▇▇▇ OF SALE
------------
THIS ▇▇▇▇ OF SALE (this "▇▇▇▇ of Sale") is executed as of the day of ,
2001, by FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII, a Florida limited
partnership ("Seller") with an office at c/o Equity Properties and Development,
L.L.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ in favor
of ________________________, a _______________ ("Purchaser"), having an office
at _______________________________________________________.
1. (a) The "Tangible Personal Property" means those articles of
personal property described in Exhibit "B" attached to this ▇▇▇▇ of Sale; and
-----------
(b) "Agreement" means that certain Purchase and Sale Agreement dated
____________ between Seller and Purchaser.
2. Sale. For good and valuable consideration received by Seller, the
----
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers to Purchaser: (1) the Tangible Personal Property (2) to
the extent assignable, the right to use the trade name "▇▇▇▇▇▇ Springs Shopping
Plaza"; and (3) to the extent assignable and obtained, all certificates of
occupancy and other permits, licenses and certificates held by Seller with
respect to the Property (collectively, the "Personal Property"). Seller makes no
warranties or representations as to the Personal Property. The Personal Property
is transferred "AS IS" and ALL WARRANTIES OF QUALITY, FITNESS AND
MERCHANTABILITY ARE HEREBY EXCLUDED.
3. Limited Liability. The liability of Seller hereunder shall be limited
-----------------
as set forth in Sections 12.J. and 12.L. of the Agreement.
4. Surviving Provisions of Agreement. Notwithstanding anything contained
---------------------------------
herein to the contrary, nothing contained in this ▇▇▇▇ of Sale shall limit or
modify, of be deemed to limit or modify, the surviving provisions of the
Purchase Agreement.
26
IN WITNESS WHEREOF, Seller has executed this ▇▇▇▇ of Sale the day and year
first above written.
SELLER:
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII, a
Florida limited partnership
By: First Capital Financial, L.L.C., a Florida limited
liability company, its general partner
By:__________________________________
Name:________________________________
Title:_______________________________
27
EXHIBIT F
---------
_________________, 2001
Dear Tenant:
This is to advise you that effective ____________, 2001, ▇▇▇▇▇▇ Springs
Shopping Plaza been sold to ______________________.
All payments of rent and other charges due under your lease, including the
next scheduled installment of rent, should now be paid as directed by
______________________.
_____________________ has also been assigned, and is responsible for
disposition of, your security deposit.
If you have any questions concerning this notice, please feel free to
contact __________________ at ______________________.
Very truly yours,
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII,
a Florida limited partnership
By: First Capital Financial, L.L.C., a Florida
limited liability company, its general partner
By:___________________________________
Name:_________________________________
Title:________________________________
28
EXHIBIT G
---------
ASSIGNMENT AND ASSUMPTION
OF LEASES AND SECURITY DEPOSITS
THIS ASSIGNMENT AND ASSUMPTION OF LEASES AND SECURITY DEPOSITS (this
"Assignment") is entered into as of the ____ day of ____________, 2001, between
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII, a Florida limited
partnership ("Assignor") with an office at c/o Equity Properties & Development,
L.L.C., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
______________________, a ____________ ("Assignee"), with an office at
_____________________________________________.
1. Property. The "Property" shall mean the real property located in the
--------
County of ▇▇▇▇, State of Tennessee, legally described in Exhibit "A" attached to
-----------
this Assignment, together with the building, structures and other improvements
located thereon.
2. Leases and Tenancies. The "Leases" shall mean all leases, including
--------------------
any rents, issues and profits, if any, affecting the Property, or any part
thereof, including the leases listed on Exhibit "B" attached to this Assignment.
3. Security Deposits. "Security Deposits" shall mean the security
-----------------
deposits held by Assignor under the Leases and for which Assignee has received a
credit at the closing of the transaction in connection with which this
Assignment has been executed and delivered. The Security Deposits are set forth
on attached Exhibit "B".
-----------
4. Assignment. For good and valuable consideration received by Assignor,
----------
the receipt and sufficiency of which are hereby acknowledged, Assignor hereby
assigns to Assignee the entire right, title and interest of Assignor in and to
the Leases and the Security Deposits.
5. Assumption. Assignee hereby assumes, and agrees to be bound by and to
----------
perform, all of the covenants, agreements and obligations of Assignor under the
Leases accruing on or after the date hereof, and Assignee further assumes all
liability of Assignor for the proper refund or return of the Security Deposits
if, when and as required on or after the date hereof by the Leases or otherwise
by law.
6. Third Parties. No third party shall have the benefit of any of the
-------------
provisions of this Assignment, nor is this Assignment made with the intent that
any person or entity other than Assignor or Assignee rely hereon.
7. Enforcement. If Assignor or Assignee resorts to a court of law or
-----------
equity in order to enforce the provisions of this Assignment as against the
other, the non-prevailing party shall pay the reasonable attorneys' fees and
expenses of the prevailing party.
29
8. Limited Liability. The liability of Assignor hereunder shall be
-----------------
limited as set forth in Sections 12.J. and 12.L. of that certain Purchase and
Sale Agreement dated __________, 2001 (the "Purchase Agreement") by and between
Assignor and Assignee.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII, a
Florida limited partnership
By: First Capital Financial, L.L.C., a Florida limited
liability company, its general partner
By:______________________________________
Name:____________________________________
Title:___________________________________
ASSIGNEE:
_________________________________________
_________________________________________
_________________________________________
30
EXHIBIT H
---------
ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS
----------------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS (this "Assignment")
is entered into as of the ____ day of ____________, 2001, between FIRST CAPITAL
INCOME PROPERTIES, LTD. - SERIES VIII, a Florida limited partnership
("Assignor") with an office at c/o Equity Properties and Development, L.L.C.,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and
_______________________, a _______________ ("Assignee"), with an office
at____________________________.
1. Property. The "Property" shall mean the real property located
--------
in the County of ▇▇▇▇, State of Tennessee, commonly known as ▇▇▇▇▇▇ Springs
Shopping Plaza.
2. Service Contracts. "Service Contracts" shall mean the service
-----------------
contracts listed on Exhibit A attached to this Assignment.
3. Assignment. For good and valuable consideration received by
----------
Assignor, the receipt and sufficiency of which are hereby acknowledged, Assignor
hereby assigns to Assignee the entire right, title and interest of Assignor in
and to the Service Contracts.
4. Assumption. Assignee accepts this Assignment and assumes and
----------
agrees to be bound by and perform all of the obligations of Assignor under the
Service Contracts accruing on or after the date of this Assignment.
5. Enforcement. If Assignor or Assignee resorts to a court of
-----------
law or equity in order to enforce the provisions of this Assignment as against
the other, the non-prevailing party shall pay the reasonable attorney's fees and
expenses of the prevailing party.
6. Limited Liability. The liability of Assignor hereunder shall
-----------------
be limited as set forth in Sections 12.J. and 12.L. of that certain Purchase and
Sale and Contribution Agreement dated ___________, 2001 (the "Purchase
Agreement") by and between Assignor and Assignee.
7. Third Parties. No third party shall have the benefit of any
-------------
of the provisions of this Assignment, nor is this Assignment made with the
intent that any person or entity other than Assignor or Assignee rely hereon.
31
IN WITNESS WHEREOF, Assignor and Assignee have executed this
Assignment the day and year first above written.
ASSIGNOR:
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII,
a Florida limited partnership
By: First Capital Financial, L.L.C., a Florida
limited liability company, its general partner
By:________________________________
Name:______________________________
Title:_____________________________
ASSIGNEE:
___________________________________
___________________________________
___________________________________
32
EXHIBIT I
---------
NON-FOREIGN CERTIFICATION BY TRANSFEROR
1. The undersigned hereby certifies the following to ___________:
A. That the Transferor, FIRST CAPITAL INCOME PROPERTIES, LTD.
- SERIES VIII, a Florida limited partnership, is not a foreign entity
(as said term is defined in the Internal Revenue Code and Income Tax
Regulations) with respect to the transfer of that certain real property
located in the County of ▇▇▇▇, State of Tennessee.
B. The Transferor's tax identification number is
______________.
C. The office of the Transferor is located at Suite ▇▇▇, ▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
2. The Transferor understands that this Certification may be disclosed to
the Internal Revenue Service by Transferee and that any false statement
contained herein could be punishable by fine, imprisonment or both.
Dated the _____ day of ___________,
2001 in __________, ___________.
FIRST CAPITAL INCOME PROPERTIES, LTD. - SERIES VIII,
a Florida limited partnership
By: First Capital Financial, L.L.C., a Florida
limited liability company, its general partner
By:__________________________________
Name:________________________________
Title:_______________________________
33
EXHIBIT J
---------
ESCROW AGREEMENT
----------------
THIS ESCROW AGREEMENT ("ESCROW AGREEMENT") made and entered into as of
the 30th day of November, 2001, by and among FIRST CAPITAL INCOME PROPERTIES,
LTD. - SERIES VIII, a Florida limited partnership ("Seller"), CURSOR PROPERTIES,
L.L.C., a South Carolina limited liability company ("Purchaser") and FIRST
AMERICAN TITLE INSURANCE COMPANY (hereinafter referred to as "Escrow Agent");
WITNESSETH:
WHEREAS, Seller and Purchaser entered into a certain Purchase and Sale
Agreement ("Contract") dated as of the 30th day of November, 2001, for the sale
and purchase of certain improved property located in ▇▇▇▇ County, Tennessee, as
more particularly described in the Contract; and
WHEREAS, pursuant to Section 2.A of the Contract, certain sums are to
be deposited with Escrow Agent as constituting the ▇▇▇▇▇▇▇ Money deposit (as
defined in said Section 2.A of the Contract), said deposited sums hereinafter
referred to as the "Escrowed Deposit"; and
WHEREAS, Seller and Purchaser desire to have Escrow Agent hold the
Escrowed Deposit in escrow as required under the Contract pursuant to the terms
thereof.
NOW, THEREFORE, in consideration of the premises and of good and
valuable consideration the receipt and sufficiency whereof is hereby
acknowledged, the parties hereto hereby covenant and agree as follows:
1. Seller and Purchaser hereby appoint First American Title Insurance
Company as Escrow Agent under the Contract and hereunder.
2. Promptly following Escrow Agent's receipt of any sums comprising the
Escrowed Deposit, in the form of cash or other immediately available funds,
Escrow Agent agrees to provide a written acknowledgment to Seller and Purchaser
of the amount of the Escrowed Deposit so received, stating the date of receipt,
and to deposit said Escrowed Deposit in an interest bearing escrow account
controlled solely by Escrow Agent and to hold and disburse said Escrowed
Deposit, and any interest earned thereon, as hereinafter provided.
3. All interest accruing on the Escrowed Deposit shall become part of
the Escrowed Deposit and shall be disbursed as ▇▇▇▇▇▇▇ Money in accordance with
the terms hereof.
4. Upon Escrow Agent's receipt of joint written notification from
Seller and Purchaser directing Escrow Agent to apply the Escrowed Deposit to the
payment of the Purchase Price at Closing, Escrow Agent shall apply the Escrowed
Deposit in accordance with such written notification.
5. (a) Upon Escrow Agent's receipt of written notification from Seller
(such notice to be simultaneously forwarded to the Purchaser by Seller) that the
Contract has been terminated, or that a contemplated Closing under the Contract
shall otherwise not take place, in circumstances which entitle Seller to the
Escrowed Deposit, Escrow Agent shall promptly forward a copy of such notice to
Purchaser. Escrow Agent shall, on the fifth (5/th/) business day after the date
on which Escrow Agent provides a copy of such notice to Purchaser, disburse the
34
Escrowed Deposit to Seller, provided that Escrow Agent has not received notice
from the Purchaser that the claim is in dispute.
(b) Upon Escrow Agent's receipt of written notification from
Purchaser (such notice to be simultaneously forwarded to the Seller by
Purchaser) that the Contract has been terminated, or that the contemplated
Closings under the Contract shall otherwise not take place, in circumstances
which entitle Purchaser to the Escrowed Deposit, Escrow Agent shall promptly
forward a copy of such notice to Seller. Escrow Agent shall, on the fifth (5th)
business day after the date on which Escrow Agent forwards a copy of such notice
to Seller, disburse the Escrowed Deposit to Purchaser, provided that Escrow
Agent has not received notice from the Seller that the claim is in dispute.
6. In the event that Seller or Purchaser objects to a written
notification filed by the other party pursuant to Section 5 hereof, Escrow Agent
shall, during the pendency of such dispute and prior to its receipt of joint
written instructions from Seller and Purchaser to the contrary, be entitled to
tender unto the registry or custody of any court of competent jurisdiction all
money or property in its hands held under the terms of this Escrow Agreement,
together with such legal pleading as it deems appropriate, and thereupon be
discharged.
7. The parties hereto covenant and agree that in performing any of its
duties under this Escrow Agreement, Escrow Agent shall not be liable for any
loss, costs or damage which it may incur as a result of serving as Escrow Agent
hereunder, except for any loss, costs or damage arising out of its willful
default or gross negligence.
Accordingly, Escrow Agent shall not incur any liability with respect to
(i) any action taken or omitted to be taken in good faith upon advice of its
counsel given with respect to any questions relating to its duties and
responsibilities hereunder, or (ii) any action taken or omitted to be taken in
reliance upon any document, including any written notice of instruction provided
for in this Escrow Agreement, not only as to its due execution and the validity
and effectiveness of its provisions, but also to the truth and accuracy of any
information contained therein, which Escrow Agent shall in good faith believe to
be genuine, to have been signed or presented by a proper person or persons and
to conform with the provisions of this Escrow Agreement.
8. Any and all notices and other communications required or permitted
under this Escrow Agreement shall be deemed adequately given if in writing and
the same shall be delivered either by hand, by telecopier with written
acknowledgment of receipt, or by mail or Federal Express or similar expedited
commercial carrier, addressed to the recipient of the notice, postpaid and
registered or certified with return receipt requested (if by mail), or with all
freight charges prepaid (if by Federal Express or similar carrier).
All notices required or permitted to be sent hereunder shall be deemed
to have been given for all purposes of this Escrow Agreement upon the date of
acknowledged receipt, in the case of a notice by telecopier, and, in all other
cases, upon the date of receipt or refusal, except that whenever under this
Escrow Agreement a notice is either received on a day which is not a Business
Day or is required to be delivered on or before a specific day which is not a
Business Day, the day of receipt or required delivery shall automatically be
extended to the next Business Day.
35
All such notices shall be addressed as follows:
If to Seller: First Capital Income Properties, Ltd. -
Series VIII
c/o Equity Properties and Development,
L.L.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: 312/▇▇▇-▇▇▇▇
Telecopier No.: 312/454-0826
with copies to: ▇▇▇▇, Gerber & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esquire
Telephone No.: 312/▇▇▇-▇▇▇▇
Telecopier No.: 312/269-1747
If to Purchaser: Cursor Properties, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Telephone No.: 212/▇▇▇-▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
with copies to: ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.A.
Attorneys At Law
Suite 600, Bank of America Plaza
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone No.: 803/▇▇▇-▇▇▇▇
Telecopier No.: 803/254-2682
If to Escrow Agent:
First American Title Insurance Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone No.: 312/▇▇▇-▇▇▇▇
Telecopier No.: 312/553-0480
By notice given as herein provided, the parties hereto and their
respective successors and assigns shall have the right from time to time and at
any time during the term of this Escrow Agreement to change their respective
addresses effective upon receipt by the other parties of such notice and each
shall have the right to specify as its address any other address within the
United States of America.
[SIGNATURES TO FOLLOW ON NEXT PAGE]
36
IN WITNESS WHEREOF, the undersigned have caused this instrument to be
duly executed and its seal to be affixed thereto as of the day and year first
above written.
WITNESS: SELLER:
FIRST CAPITAL INCOME PROPERTIES, LTD. -
SERIES VIII, a Florida limited partnership
By: First Capital Financial, L.L.C.,
a Florida limited liability company,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
-------------------------------------------
Title: Vice President
------------------------------------------
WITNESS: PURCHASER:
CURSOR PROPERTIES, L.L.C.,
a South Carolina limited liability company
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------------------
Title:__________________________________________
WITNESS: ESCROW AGENT:
FIRST AMERICAN TITLE INSURANCE COMPANY
By:_____________________________________________
Name:___________________________________________
Title:_________________________________________
37
EXHIBIT K
---------
Omitted
38
EXHIBIT L
---------
Lease Schedule - Part I
-----------------------
Security Deposits of tenants at the Property:
Tenant: Security Deposit as of 9/30/01:
------ ------------------------------
1. Kingston Pike Antique Mall $13,500.00
2. Canton Chinese $ 5,668.00
3. Party City $ 9,674.00
4. Smoothie King $ 1,654.63
39
EXHIBIT L
---------
Lease Schedule - Part II
------------------------
1. Barnhills:
Lease - 02/06/90
First Amendment - 02/23/90
Possession Letter - 03/02/90
Second Amendment - 11/30/90
Landlord consent to Assignment and Assumption and Amendment to Lease -
6/9/00
Letter Agreement - 07/23/98
Assignment and Assumption Agreement between OCB and ▇▇▇▇▇▇▇▇ - 4/27/00
2. Canton Chinese:
Lease - 09/20/93
First Amendment - 01/22/97
3. CVS:
Lease - 03/06/72
Lease Modification Agreement I - 07/12/73 and 07/31/73
Lease Modification Agreement II - 08/01/73 and 08/08/73
Letter Agreement - 08/08/73
Consent for HookX to purchase SuperX - 05/21/87
Lease Renewal Letter - 10/27/97
4. Kingston Pike:
Lease - 06/30/00
5. Kroger/Books-A-Million:
Lease - 03/02/72
Lease Modification Agreement I - 07/12/73 and 07/31/73
Lease Modification Agreement II - 08/01/73 and 08/09/73
Lease Modification Agreement III - 08/18/88 and 08/29/88
Sublease - 08/29/88
Sublease Modification Agreement - 10/28/92
Lease Amendment - 08/29/88
6. Party City:
Lease - 01/31/94
First Amendment - 09/03/97
7. Rush Fitness Center:
Lease - 01/15/01
Agreement Regarding Security Interest in Tenant's Personal Property -
07/25/01
Specialty Lease - 01/15/01
8. Smoothie King:
Lease - 06/09/00
40
EXHIBIT M
---------
Omitted
-------
EXHIBIT N
---------
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
To: __________________________
__________________________
__________________________
RE: Lease between __________________________________ as Landlord ("Landlord")
(or its predecessor in interest) and ___________________________ as Tenant
("Tenant"), which was executed with respect to ________________________
(the "Premises") (the "Lease")
Gentlemen:
Tenant understands that Landlord intends to sell the property which is the
subject of the Lease to ___________________________ ("Purchaser") and in
connection with such sale Tenant hereby certifies as follows:
1. The date and caption of the Lease and all amendments/assignments is as
follows:
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
A complete and accurate copy of the Lease, as amended and/or assigned
or subjected to any sublease referenced above, is attached hereto as
Exhibit "A" and there are no other agreements or commitments between
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Tenant and Landlord relating to the Premises other than as expressly
set forth in the attached Exhibit "A".
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2. The Premises contains ______________ net rentable square feet.
3. The Lease Commencement Date was __________________________.
4. The Lease Termination Date is _____________________.
5. The Lease is in full force and effect.
6. Tenant has accepted possession of the Premises, which have been completed
in accordance with the requirements of the Lease.
7. There is no free rent or other rent concessions and no offsets or
credits against rentals or other monetary obligations under the Lease;
there are no outstanding claims or defenses to enforcement of the
Lease; and all of Landlord's obligations of an inducement nature have
been fulfilled.
8. Tenant has the following option(s) to renew or extend the Lease term:
Number of renewal or extension terms ___________________.
Length of each renewal or extension term ___________________.
9. Tenant has the following option(s) to terminate the Lease prior to the
Termination Date:
__________________________________________________________________________
__________________________________________________________________________
10. Tenant does not have an option to acquire the Property.
11. Tenant has the following option(s) for first right of refusal or first
right of offer on additional space:_______________________________________
__________________________________________________________________________
12. The current monthly base rental is $______________ ($__________/psf
annually), and rent has been paid through the date of ______________, 2001
and not prepaid thereafter. Scheduled increases in base rental are as
follows:__________________________________________________________________
Tenant currently pays $__________ per month in addition to their base
rent. If this additional rent is based on the tenant paying its prorata
share, this amount is reconciled with actual charges for the year after
the first of the year as provided for in the lease.
Please check those that apply:
Tenant pays their full prorata share _______ or fixed __________ of the
following:
CAM Monthly _____ or Annually _____ Amount $_____
Taxes Monthly _____ or Annually _____ Amount $_____
Insurance Monthly _____ or Annually _____ Amount $_____
Other Monthly _____ or Annually _____ Amount $_____
If Percentage Rent is payable under the Lease, Percentage Rent is equal
to _____ percent. Tenant's year-to-date gross sales for January 1, 2001
through _________________ are $_________ and were $____________ for
January 1, 2000 through December 31, 2000.
13. No breaches or defaults exist under the Lease by Tenant or, to the best
of Tenant's knowledge, by Landlord, and no event has occurred which,
after the passage of time or the giving of notice, would constitute a
breach or default under the Lease or give Tenant any offset right or
claims under the Lease.
14. There are no leasing commission agreements between Tenant and any
representative, except:__________________________________________________
15. Tenant has paid a security deposit in the amount of $____________
pursuant to the Lease. [If none, so indicate]
16. Landlord does not owe or through the passage of time will not owe
Tenant any tenant improvement allowances or other concessions or
rebates except:________________________________
17. All notices to Tenant under the Lease should be sent to the following
address for Tenant:
______________________________________________________________________
______________________________________________________________________
Tenants federal taxpayer identification number is: ___________________
18. The person executing this certification is duly authorized to execute
the same on behalf of Tenant and this certificate is and shall be
binding on the Tenant, its successors and assigns.
Tenant acknowledges that Purchaser or its assignee will rely on the
statements contained herein in purchasing the property which is the
subject of the Lease. This certification is for the benefit of
Purchaser and its successors and assigns and any lender of Purchaser or
its successors or assigns.
Date: ________________________
TENANT:
___________________________________
By:__________________________(SEAL)
Print Name:________________________
Title:_____________________________
EXHIBIT O
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FORM SELLER ESTOPPEL CERTIFICATE
To: [Purchaser]
Re:
Gentlemen:
Reference is made to that certain (the "Lease") between ___________, as
landlord, and the undersigned, as tenant, dated ____________________, ______,
for certain space (the "Premises") located in the aforementioned shopping
center.
Knowing that you or your lenders and successors and assigns, are relying upon
the accuracy of the information contained herein, the undersigned certifies to
Seller's Knowledge (as defined in that certain Agreement dated __________) as
follows:
1. The Lease is in full force and effect, and Tenant is in actual possession
of the Premises.
2. The Lease has not been modified, supplemented or amended in any way, except
as indicated therein or by the following agreements:
3. There are no defaults under the terms of the Lease by the undersigned, and,
to the undersigned's knowledge, there are no defaults by Tenant under the Lease.
4. Tenant has not sublet the Premises or assigned the Leases except as
follows:______________________________________________________________________.
5. All rent and current sums due under the Lease have been paid as of
_________________.
6. Tenant has paid a security deposit in the amount of $_________ to Landlord.
Very truly yours,
By:__________________________ Date:__________________________
Authorized signatory
