RICHMOND PLAZA
AUGUSTA, GEORGIA
REAL ESTATE SALE AGREEMENT
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THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the ____
day of _______, 1997, by and between FIRST CAPITAL INCOME PROPERTIES, LTD.-
SERIES IX, a Florida limited partnership ("Seller"), with an office at Two Xxxxx
Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and DRA ADVISORS, INC., a
___________________ ("Purchaser"), with an office at 1180 Avenue of the
Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS
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A. Seller is the owner of a certain parcel of real estate (the "Real
Property") in the City of Augusta, County of Richmond, State of Georgia,
commonly known as Richmond Plaza, which parcel is more particularly described in
attached EXHIBIT A.
B. Seller desires to sell to Purchaser, and Purchaser desires to purchase
from Seller, 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
Subject to and in accordance with the terms and conditions set forth in
this Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (i) all buildings and improvements
located thereon that are owned by Seller (collectively, the "Improvements") and
any and all of Seller's rights, easements, licenses and privileges presently
thereon or appertaining thereto; (ii) Seller's right, title and interest in and
to the leases and any guarantees thereof (the "Leases") affecting the Property
or any part thereof; (iii) the interest of Seller in all security deposits held
by Seller that have been paid by tenants under the Leases and not applied by
Seller in accordance with the terms of this Agreement, the Leases and/or
applicable law, if any (the "Security Deposits"); (iv) all accrued but unpaid
interest on the Security Deposits owed by Seller pursuant to applicable law
and/or a particular Lease, if any ("Security Deposit Interest"); (v) all of the
furniture, furnishings, fixtures, equipment, maintenance vehicles, tools and
other tangible personalty owned by Seller, located on the Property and used in
connection therewith including those that are listed on EXHIBIT C attached
hereto but specifically excluding all software installed in or used in
connection with the computers, monitors, printers, modems and other computer
equipment located in the regional management office of the Property in Maitland,
Florida ("Regional Office") and all data stored in such computers, on diskettes
or other storage media (the "Personal Property"); (vi) all right, title and
interest of Seller under any and all of the maintenance, service, advertising
and other contracts and agreements with respect to the ownership and operation
of the Property that are listed on EXHIBIT D attached hereto (the "Service
Contracts"); (vii) if and to the extent transferable, all of Seller's right,
title and interest in and to all warranties and bonds with respect
to the Improvements and all certificates, licenses and permits issued by
governmental authorities and held by Seller relating to the use, maintenance,
occupancy or operation of the Property (collectively, the "Intangibles"); and
(viii) if and to the extent transferable, all of Seller's right, title and
interest in and to the name "Richmond Plaza" (the "Name"); all to the extent
applicable to the period from and after the "Closing" (as such term is
hereinafter defined) (items (i) through (viii) above, together with the Real
Property, are collectively referred to in this Agreement as the "Property"). All
of the foregoing expressly excludes (a) all property owned by tenants or other
users or occupants of the Property except to the extent that any Security
Deposits and/or Security Deposit Interest are deemed to be "owned" by a tenant
under applicable law and (b) any refund of taxes applicable to the period prior
to the Closing Date except as may otherwise be provided in Section 4(c) below.
2. PURCHASE PRICE
The purchase price to be paid by Purchaser to Seller for the Property is
Ten Million Seven Hundred Fifty Thousand Dollars ($10,750,000.00) (the "Purchase
Price"). The Purchase Price shall be paid as follows:
X. Xxxxxxx Money.
(i) Upon execution of this Agreement by Purchaser and Seller,
Purchaser shall deliver to Titleserv Inc., New York, New York
("Escrowee") xxxxxxx money in the sum of One Hundred Twenty-Five
Thousand Dollars ($125,000.00) and within one (1) business day
after expiration of the Due Diligence Period (unless Purchaser
terminates this Agreement in accordance with Section 8),
Purchaser shall deliver to Escrowee additional xxxxxxx money in
the sum of One Hundred Twenty-Five Thousand Dollars ($125,000)
(such xxxxxxx money deposits, together with any interest earned
thereon net of investment costs, is referred to in this Agreement
as the "Xxxxxxx Money") and Purchaser, Seller and Escrowee shall
execute a joint order escrow agreement in the form of EXHIBIT F
attached hereto. The Xxxxxxx Money shall be invested as Seller
and Purchaser so direct. Any and all interest earned on the
Xxxxxxx Money shall be reported to Purchaser's federal tax
identification number.
(ii) If the transaction closes in accordance with the terms of this
Agreement, at Closing, the Xxxxxxx 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 Xxxxxxx Money shall be delivered by Escrowee to
Seller as liquidated and agreed-upon damages in accordance with
Section 7(B) below. If the transaction fails to close due to a
default on the part of Seller or if this Agreement is terminated
for any reason other than a default of Purchaser hereunder, the
Xxxxxxx Money shall be delivered by Escrowee to Purchaser,
subject to the provisions of Section 7(A) below.
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B. Cash at Closing. At Closing, Purchaser shall pay to Seller, by
wire transferred current federal funds, an amount equal to the Purchase Price,
minus the sum of the Xxxxxxx Money which Seller receives at Closing from the
Escrowee, 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
A. Title Commitment.
Purchaser shall promptly after receipt thereof, cause to be
delivered to Seller a commitment for a 1992 ALTA Owner's Title Insurance Policy
(the "Title Commitment") which has been ordered by Purchaser, in the amount of
the Purchase Price, issued by Escrowee as agent for Xxxxxxx Title Guaranty
Company (the "Title Insurer"). Purchaser's obligation to close the transaction
contemplated herein shall be conditioned upon Escrowee delivering to Purchaser
at closing a later-dated title commitment from the Title Insurer in the amount
of the Purchase Price reflecting the conveyance of the Property to Purchaser,
subject only to those exceptions to title which are more fully described on
attached EXHIBIT B and exceptions to title which become Permitted Exceptions
pursuant to this Section 3 (collectively, the "Permitted Exceptions").
B. Survey.
Seller has, prior to the date of this Agreement, delivered to
Purchaser Seller's most recent survey of the Real Property (the "Survey").
Subsequent to the date of this Agreement and as soon as reasonably possible
prior to expiration of the Due Diligence Period, Seller shall deliver to
Purchaser an updated Survey (the "Updated Survey"), bearing Purchaser's survey
requirements.
C. Review of Title Commitment and Survey.
If the Title Commitment or Updated Survey disclose (i) exceptions
to title other than those Permitted Exceptions which are noted on attached
EXHIBIT B, (ii) violations of the Permitted Exceptions that would render title
to the Property unmarketable (individually, a "Title Violation", and
collectively, "Title Violations") or (iii) encroachments of the Improvements
onto adjacent properties or easements burdening the Property that would render
title to the Property unmarketable or encroachments of improvements located on
adjacent properties onto the Property which adversely impact the use or value of
the Property (individually, an "Encroachment", and collectively,
"Encroachments"), then Purchaser shall have until 5:00 p.m. (Chicago, Illinois
time) on the 30th day after date of the Agreement (such period, the "Due
Diligence Period") to notify Seller of any such exceptions to title, Title
Violations or Encroachments to which Purchaser objects (collectively, "Existing
Matters"). If any additional exceptions to title, Title Violations or
Encroachments arise between the date of the Title Commitment or the Updated
Survey, and the Closing (collectively, "New Exceptions"), Purchaser shall have
five (5) business days after its receipt of notice of same within which to
notify Seller of any such New Exceptions to which Purchaser objects. Any such
Existing Matters or New Exceptions not objected to by Purchaser as aforesaid
shall become Permitted Exceptions. If Purchaser objects to any Existing Matters
or New Exceptions, Seller shall have until Closing to remove such Existing
Matters or New Exceptions. Seller shall take reasonable
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actions in order to cause the Title Insurer to remove such Existing Matters and
New Exceptions provided, however, that Seller shall not be obligated to threaten
or commence legal proceedings, incur any liability or expend more than Fifty
Thousand Dollars ($50,000.00) in the aggregate in order to cause the Title
Insurer to remove (if permitted) such Existing Matters or New Exceptions. If
Seller fails to remove any such Existing Matters or New Exceptions as aforesaid,
Purchaser may, as its sole and exclusive remedy, terminate this Agreement and
obtain a return of the Xxxxxxx Money. If Purchaser does not elect to terminate
this Agreement, Seller shall give Purchaser a credit against the Purchase Price
equal to the lesser of (A) $50,000.00 or (B) the remaining amount required to
cure any such New Exceptions and Existing Matters not removed by Seller as
aforesaid and Purchaser shall consummate the Closing and accept title to the
Property subject to all such Existing Matters and New Exceptions (in which
event, all such exceptions to title, Title Violations and Encroachments shall be
deemed "Permitted Exceptions"). Notwithstanding anything in this Section 3(C) to
the contrary, Seller shall be obligated, at Closing, to cause the Title Insurer:
(1) to remove any exceptions to title in connection with Seller's existing
outstanding mortgage financing encumbering the Property if any and (2) remove
any "Unpermitted Exceptions" (as hereinafter defined). For purposes of this
Agreement, the term "Unpermitted Exceptions" shall be defined to mean the
following exceptions to title (if any): tax liens to which Seller has acquiesced
or consented to (other than liens with respect to real estate taxes not yet due
and payable provided that Seller credits Purchaser for all such real estate
taxes with respect to the period prior to Closing as more particularly provided
in Section 4(C) below), judgment liens and any other New Exception intentionally
and affirmatively granted or consented to by Seller after the date of this
Agreement. Seller shall be deemed to have "removed" an Existing Matter or New
Exception if Seller induces the Title Insurer to endorse over such Existing
Matter or New Exception provided that (i) with respect to Existing Matters,
Seller has notified Purchaser at least five (5) days prior to expiration of the
Due Diligence Period that it intends to endorse over such Existing Matter or
(ii) with respect to New Exceptions, either (A) said New Exception can be
endorsed over by the payment of money not exceeding $100,000 or (B) Purchaser
consents to Seller endorsing over said exception.
4. CLOSING
A. Closing Date. The "Closing" of the transaction contemplated
by 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 11:00 a.m. (New York, New York time) on the fifth
(5th) day after expiration of the Due Diligence Period, at the New York, New
York office of counsel to Purchaser, or at such other time and place as Seller
and Purchaser shall agree in writing. The "Closing Date" shall be the date of
Closing. 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.
Purchaser or Seller shall each have the right to adjourn the Closing once for a
period of up to ten (10) days upon written notice to the other party at least
two (2) business days prior to the scheduled closing date.
B. Closing Documents.
(i) Seller. At Closing, Seller shall deliver to Purchaser
the following:
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(a) a Limited Warranty Deed (the "Deed"), subject to the
Permitted Exceptions, in form acceptable to the Title
Insurer;
(b) a limited warranty xxxx of sale (the "Xxxx of Sale") in
the form of EXHIBIT K attached hereto, executed by
Seller;
(c) a letter from Seller or its property manager advising
tenants under the Leases of the change in ownership of
the Property, that all Security Deposits and Security
Deposit Interest transferred to Purchaser at Closing
are held by and are the responsibility of Purchaser and
directing the tenants to pay all payments of rent with
respect to the period from and after the Closing Date
to Purchaser and, to the extent required under their
Leases, provide to Purchaser new certificates and/or
policies of insurance naming Purchaser as an additional
insured thereunder;
(d) four (4) counterparts of an assignment and assumption
of the Leases, Security Deposits and Security Deposit
Interest in the form of EXHIBIT G attached hereto (the
"Lease Assignment"), executed by Seller and in the case
of any Security Deposit in form other than cash, an
instrument assigning Seller's rights to Purchaser (to
the extent assignable), including payment by Seller of
any transfer fees;
(e) four (4) counterparts of an assignment and assumption
of Service Contracts with respect to those Service
Contracts for which written agreements exist, in the
form of EXHIBIT H attached hereto (the "Service
Contract Assignment"), executed by Seller;
(f) an affidavit stating, under penalty of perjury,
Seller's U.S. taxpayer identification number and that
Seller is not a foreign person within the meaning of
Section 1445 of the Internal Revenue Code and a Georgia
Seller's withholding certificate;
(g) four (4) counterparts of a closing statement (the
"Closing Statement") to be executed by Seller and
Purchaser, containing the "Closing Delinquency
Schedule" (as defined below) and setting forth the
prorations and adjustments to the Purchase Price as
required by Section 4(C) below, executed by Seller;
(h) all executed "Estoppel Certificates" (as hereinafter
defined) received by Seller as of the Closing Date;
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(i) any "Seller Estoppel Certificates" (as hereinafter
defined) to be delivered by Seller under Section 9(C)
below;
(j) all original Leases and guarantees thereof (or [for
tenants for whom no Estoppel Certificate is received or
for tenants whose Estoppel Certificates do not certify
that a true and correct copy of their lease is attached
thereto] copies of such Leases for which originals are
not available certified by Seller to be true and
correct (Purchaser hereby acknowledging that, as more
particularly provided in Section 10(C) below, Seller's
liability under such certifications shall terminate on
a date no later than one year after the Closing Date))
(a "Certified Lease Instrument"), (to be delivered to
Purchaser at the Closing or at the Property);
(k) all original commencement date agreements with respect
to any Lease for which original commencement date
agreements were not delivered by Seller in accordance
with Subsection 4(B)(i)(j) above and for which executed
Estoppel Certificates were not received by Purchaser
and/or provided by Seller in accordance with Subsection
4(B)(i)(i) above, (or [for tenants for whom no Estoppel
Certificate is received or for tenants whose Estoppel
Certificates do not certify their lease commencement
date] copies of such commencement date agreements for
which originals are not available, certified by Seller
(also, a Certified Lease Instrument) to be true and
correct (Purchaser hereby acknowledging that, as more
particularly provided in Section 10(C) below, Seller's
liability under such certifications shall terminate on
a date no later than one year after the Closing Date);
(l) all original Service Contracts in Seller's possession
(to be delivered to Purchaser at the Closing or at the
Property);
(m) to the extent that Service Contracts are written,
copies of those Service Contracts (the "Certified
Service Contracts") not delivered by Seller in
accordance with Subsection 4(B)(l) above, certified by
Seller to be true and correct (Purchaser hereby
acknowledging that, as more particularly provided in
Section 10(C) below, Seller's liability under such
certifications shall terminate on a date no later than
one year after the Closing Date);
(n) an ALTA Statement substantially in the form of EXHIBIT
N attached hereto, and a "GAP undertaking", if
required, executed by Seller;
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(o) any transfer tax declaration and/or real property
conveyance statement of value (the "Transfer Tax
Declaration") that Seller is required by law to execute
in order to record the Deed with the Richmond County,
Georgia recorder, executed by Seller;
(p) a letter from Seller advising the vendors under the
Service Contracts assigned and assumed pursuant to the
Service Contract Assignment of the change in ownership
of the Property and of such assignment and assumption;
(q) a letter from Seller or its property manager advising
the vendors under those Service Contracts not assigned
and assumed pursuant to the Service Contract Assignment
of the change in ownership of the Property and the fact
that Seller is terminating such Service Contracts,
effective as of Closing;
(r) all of Seller's correspondence to and from tenants
under the Leases that is located at the Regional
Office, if any, together with copies of xxxxxxxx to
tenants that are located at the Regional Office, if
any;
(s) all of Seller's vendor files located at the Regional
Office with respect to assigned Service Contracts, if
any (to be delivered to Purchaser at Closing or at the
Property);
(t) four (4) counterparts of an assignment and assumption
of the Intangibles and the Name in the form of Exhibit
P attached hereto (the "Intangibles Assignment")
executed by Seller; and
(u) originals, to the extent in Seller's possession, of all
warranties, bonds, certificates, licenses and permits
assigned hereunder (or copies if originals are
unavailable).
(ii) Purchaser. Purchaser shall deliver or cause to be delivered
to Seller at Closing:
(a) the funds required pursuant to Section 2(B) above;
(b) four (4) counterparts of the Lease Assignment, executed
by Purchaser;
(c) four (4) counterparts of the Service Contract
Assignment, executed by Purchaser;
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(d) four (4) counterparts of the Closing Statement,
executed by Purchaser;
(e) copies of any executed Estoppel Certificates received
by Purchaser as of the Closing Date, if any;
(f) the Transfer Tax Declaration, executed by Purchaser;
and
(g) four (4) counterparts of the Intangibles Assignment,
executed by Purchaser.
C. Closing Prorations and Adjustments.
(i) The following items are to be prorated or adjusted (as
appropriate) as of the Closing Date, it being understood
that for purposes of prorations and adjustments, Seller
shall be deemed the owner of the Property on the day
preceding the Closing Date and Purchaser shall be the owner
of the Property on the Closing Date; provided, however, that
if Seller receives the Purchase Price in immediately
available funds after 4:00 p.m., Chicago time on the Closing
Date, then, for purposes of prorations and adjustments,
Seller shall be deemed the owner of the Property on the
Closing Date and Purchaser shall be deemed the owner of the
Property on the day after the Closing Date:
(a) real estate and personal property taxes and assessments
(on the basis of the fiscal period in which Closing
occurs);
(b) (i) the "minimum" or "base" rent payable by tenants
under the Leases ("Base Rent"); provided, however, that
rent and all other sums which are due and payable to
Seller 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,
subject, however, to the remaining provisions of this
Section 4(C)(i)(b). At Closing, Seller shall deliver
to Purchaser a schedule (the "Closing Delinquency
Schedule") of all such past due but uncollected rent
and other sums owed by tenants, including any
"Operating Expense Reimbursements" (defined below) owed
to Seller by tenants (collectively, the "Past Due
Rents"). Purchaser shall include the amount of the
Past Due Rents in the first bills thereafter submitted
to the tenants in question after the Closing, and shall
continue to do so for six (6) months thereafter.
Purchaser shall promptly remit to Seller any such Past
Due Rents (net of reasonable actual costs incurred by
Purchaser to unaffiliated third parties in connection
with such collection) paid by tenants set forth on the
Closing Delinquency
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Schedule, but only if the applicable tenants are
otherwise current in the payment of all obligations due
for the period following Closing. The amount of any
Base Rents and Operating Expense Reimbursements to be
paid by any tenant shall be paid in accordance with
such tenant's Lease as now existing (Purchaser hereby
covenanting and agreeing not to modify the Leases after
Closing to change the date and/or method for payment of
amounts attributable to the period prior to Closing
until after the occurrence of the reprorations
described in Section 4(C)(iii) below). Provided that
Purchaser is complying with its obligations herein with
respect to the Past Due Rents, Seller shall not be
permitted (during said six month period) to institute
any collection actions against any tenants whose Lease
has not terminated or any tenants that are still in
valid possession of the premises demised under their
Lease, but Seller may continue any such action provided
such action does not affect the tenant's possession or
involve enforcing a landlord's lien or result in
termination of the Lease in question.
Uncollected reimbursements by tenants of real estate
taxes, common area maintenance, utility charges, water
and sewer charges, insurance, and all other charges to
or contributions by tenants under the Leases other than
Base Rent (such costs and expenses being collectively
referred to herein as the "Operating Expenses" and the
amount reimbursable by tenants under the Leases whether
or not paid being collectively referred to herein as,
the "Operating Expense Reimbursements") which shall be
shown on the Closing Delinquency Schedule shall be
prorated as follows: the amount of Operating Expense
Reimbursements to be paid by any tenant shall be paid
in accordance with such tenant's Lease as now existing
(Purchaser hereby covenanting and agreeing not to
modify the Leases after Closing to change the date
and/or method for payment of amounts attributable to
the period prior to Closing until after the occurrence
of the reprorations described in Section 4(C)(iii)) and
Purchaser shall, after Closing, promptly pay to Seller
its prorata portion of such Operating Expense
Reimbursement, based upon apportionment being made as
of the Closing Date, promptly after the date when such
Operating Expense Reimbursement is received from the
tenant but only if the applicable tenant is otherwise
current in the payment of all obligations due for the
period following Closing;
(ii) To the extent not set forth on the Closing
Delinquency Schedule, "percentage" or "overage" rent,
shall be
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prorated as follows: percentage rent payable by
tenants, as collected, shall be prorated based upon
actual percentage rent payable for such lease year
under a Lease based upon the actual sales in each
party's respective period of ownership, after taking
into account each party's proportionate share of the
breakpoint and/or any recaptures for calculating
percentage rent under such Lease, such share to be
determined on the basis of a per diem method of
allocation. Upon receipt by Purchaser, Purchaser shall
furnish to Seller copies of all sales reports from
Tenants relative to the percentage rent, including,
without limitation, all sales reports with respect to
any Tenants whose lease years have expired as of the
Closing but whose sales reports were not available on
Closing and sales reports of any Tenants whose lease
years expire after the Closing, and the amount of any
percentage rent shall be paid in accordance with such
Tenant's Lease as now existing, and Purchaser shall pay
to Seller a pro rata portion of such percentage rent,
calculated in the manner provided above, promptly after
the date when such rent is received from the Tenant.
Notwithstanding the foregoing, the allocation of sales
used to compute percentage rent as of the Closing Date
shall be based on "number of days" (instead of "actual
sales") in the following circumstances: (i) for any
Tenant that only reports sales on an annual basis,
sales shall be prorated as of the Closing Date in
proportion to the relative number of days in that
Tenant's lease year occurring prior to and subsequent
to the Closing Date; (ii) for any Tenant that only
reports sales on a monthly basis, the sales for such
Tenant with respect to the month of Closing shall be
prorated as of the Closing Date in proportion to the
relative number of days in the month of Closing
occurring prior and subsequent to the Closing Date; and
(iii) for any Tenants that pay percentage rent only (in
lieu of minimum or base rent) under its Lease, the
sales for such Tenant with respect to the month of
Closing shall be prorated as of the Closing Date in
proportion to the relative number of days in the month
of Closing occurring prior and subsequent to the
Closing Date.
(c) (i) with respect to tenant improvement costs,
allowances, rental abatements, leasing commissions or
reasonable legal fees (collectively, "Lease Expenses")
relating to "New Leases" (as hereinafter defined),
Seller and Purchaser agree that such Lease Expenses
shall be prorated over the term of any such New Lease
with Seller being responsible for a portion of such
Lease Expenses based on the ratio of Base Rent payments
payable to Seller
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through the Closing Date to the total Base Rent payable
over the term of the particular New Lease which amount
Seller shall either credit Purchaser at Closing or
provide proof that such Leasing Expenses have been paid
to the appropriate parties and, in the event that
Seller has paid or incurred such Lease Expenses prior
to Closing, Purchaser shall reimburse Seller at Closing
for the amount of any such Lease Expenses paid by
Seller, based on the above-described proration;
(ii) Seller shall be responsible for and incur all
Lease Expenses related to the existing Lease for the
Tenant commonly known as "Paradise Island", which
amount Seller shall either credit Purchaser at Closing
or provide proof that such Leasing Expenses have been
paid to the appropriate parties. To the extent
Purchaser receives rent (whether by payment, or credit
at Closing) for the Xxxxxxx Xxxxxxxx Lease applicable
to the period from and after Closing ("Xxxxxxx Xxxxxxxx
Rent"), then Purchaser shall pay (promptly after
expiration of the Paradise Island abatement period) to
Seller the amount equal to the Xxxxxxx Xxxxxxxx Rent up
to the amount of any rental abatement under the
Paradise Island Lease with respect to the period after
the Closing Date.
(d) the amount of the Security Deposits and Security
Deposit Interest held by Seller as of the Closing Date,
if any, with Purchaser receiving a credit at Closing
against the Purchase Price in the amount of the
Security Deposits and Security Deposit Interest held by
Seller as of the Closing Date, if any;
(e) water, sewer, electric, telephone and all other utility
and fuel charges, fees and use charges, fuel on hand
(at cost plus sales tax), and any assignable deposits
with utility companies (to the extent possible, utility
prorations will be handled by meter readings on the day
immediately preceding the Closing Date);
(f) amounts due and prepayments for not more than thirty
(30) days in advance under the Service Contracts;
(g) assignable license and permit fees;
(h) Purchaser shall receive a credit in the amount of
$64,764.19 (or such lesser amount claimed by Kroger
with respect to roof repairs pursuant to its Estoppel
Certificate) representing the remaining reimbursement
due to Kroger by the landlord in connection with
certain roofing repairs
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performed by Kroger to its premises and Purchaser shall
be responsible for paying such amount to Kroger when
due;
(i) Purchaser will pay to Seller, promptly upon receipt,
any amounts it receives from Paradise Island in payment
of the $2500 owed by Paradise Island to the landlord
for signage costs; and
(j) other similar items of income and expenses of
operation.
(ii) Notwithstanding any other provision of this Section 4(C) and
subject to Sections 4(C)(iii) below, Seller shall in all
events be entitled to retain Operating Expense
Reimbursements paid by tenants for Operating Expenses
charged to tenants under the Leases as of the Closing.
(iii) As soon as practical after Closing, but in no event later
than August 1, 1998, Seller and Purchaser shall, with
respect to any amounts paid, prorated or adjusted at Closing
pursuant to Section 4(C)(i) above based on estimates or
formulae, as applicable, jointly determine and reapportion
such amounts in accordance with Section 4(C)(i) above upon
determination of the actual costs or expenses with respect
thereto. In the event that the amount credited to Purchaser
by Seller at Closing exceeds the amount of the credit that
Purchaser should have received had such actual amounts been
available at Closing, Purchaser shall promptly remit such
excess amount to Seller. In the event that the amount of
Operating Expense Reimbursements retained by Seller at
Closing is less than the amount of Operating Expense
Reimbursements to which Seller is entitled after calculation
of Seller's share of actual Operating Expenses for the
period prior to Closing, Purchaser shall (x) to the extent
such amounts have already been collected by Purchaser from
the tenants, promptly remit such amounts to Seller, and (y)
to the extent such amounts have not yet been collected from
tenants, Purchaser shall promptly xxxx the tenants for such
amounts and continue to xxxx such tenants for such amounts
each month for six (6) months thereafter, and, promptly upon
receipt thereof, pay such amounts to Seller. In the event
that: (1) the amount credited to Seller by Purchaser at
Closing exceeds the amount of the credit that Seller should
have received at Closing had such actual amounts been
available at Closing; and/or (2) the amount of the Operating
Expense Reimbursements retained by Seller at Closing exceed
the amount of the Operating Expense Reimbursements that
Seller should have retained at Closing had the actual
amounts of Operating Expenses for the period prior to
Closing been available at Closing, Seller shall remit such
excess amounts (net of amounts due Seller from any tenant)
to Purchaser and Purchaser shall be thereafter obligated to
12
promptly remit the applicable portion to the particular
tenants entitled thereto (and Purchaser shall indemnify,
defend and hold Seller, its beneficiaries, their partners,
and their respective directors, officers, employees and
agents, and each of them, harmless from and against any
losses, claims, damages and liabilities [including, without
limitation, reasonable attorneys' fees and expenses incurred
in connection therewith] arising out of or resulting from
Purchaser's failure to remit any amounts to tenants that
Purchaser is obligated to so remit in accordance with this
Section 4(C)(iii)).
(iv) If Seller has not received all Past Due Rents or other
amounts owed to Seller by tenants within six (6) months
after the Closing Date, Seller at its sole cost and expense,
shall be entitled at any time within the twelve (12) month
period after such date to commence such actions not
affecting possession or enforcing landlord's liens or
resulting in termination of the Lease in question as Seller
shall desire to collect any such Past Due Rents or other
amounts owed to Seller by Tenants, and Purchaser shall
cooperate with Seller in any such action.
(v) For purposes of this Section 4(C), the amount of any expense
credited by one party to the other shall be deemed an
expense paid by that party. The terms and provisions of
this Section 4(C) shall survive Closing and the delivery of
the Deed.
D. Transaction Costs.
Seller shall be responsible for and pay upon Closing (i) one-half
of the cost of the Updated Survey, (ii) one-half of the transfer taxes or
documentary stamps owed in connection with the Deed (and Seller and Purchaser
shall timely execute and deliver such forms and returns as are necessary in
connection therewith), (iii) one-half of the base cost of the owner's title
insurance policy (the "Owner's Policy") to be delivered to Purchaser in
accordance with the provisions of the marked-up title commitment described in
Section 3(A) above, it being understood that Seller shall not be obligated to
pay for any endorsements requested by Purchaser, (iv) one-half of Title
Insurer's standard escrow fees (the "Escrow Fees"), if any, (v) one-half of
Title Insurer's fee (the "GAP Fee"), if any, to perform a "New York Style"
closing in which the Title Insurer insures the "gap" period between the date of
the most recent date down of the title commitment and the Closing Date and
issues a marked-up title commitment at Closing, and (vi) charges to record
releases of Seller's existing mortgage financing. Purchaser shall be responsible
for and pay upon Closing (i) one-half of the cost of the Updated Survey, (ii)
one-half of the transfer taxes or documentary stamps owed in connection with the
Deed, (iii) title insurance premiums for any endorsements requested by
Purchaser, (iv) one-half of the cost of the Owner's Policy, (v) one-half of the
Escrow Fees, (vi) one-half of the GAP Fee, and (vii) any remaining recording
charges, together with all other charges customarily paid by a purchaser of
improved real estate in the State of Georgia, whether or not the Closing occurs.
Seller and Purchaser shall, however, be responsible for the fees of their
respective attorneys.
00
X. Xxxxxxxxxx.
Xxxx Xxxxxxx, Seller shall deliver to Purchaser possession of the
Property, subject only to such matters as are permitted by or pursuant to this
Agreement.
5. CASUALTY LOSS AND CONDEMNATION
If, prior to Closing, the Property or any part thereof shall be taken
or condemned (or a condemnation is threatened in writing), or destroyed or
damaged by fire or other casualty, Seller shall promptly so notify Purchaser. In
such event, provided that either: (i) the reasonable cost to restore the
Property due to such damage or destruction is greater than Two Hundred Fifty
Thousand and No/100 Dollars ($250,000.00), or (ii) such damage or destruction
permits the tenants known as Kroger or Service Merchandise to (x) terminate its
Lease or (y) xxxxx a portion of its rent under any such Leases and the insurance
proceeds that would be paid to Purchaser as described below in this Section 5 do
not include rental interruption payments for all such abated amounts (items (i)
and (ii) are each referred to herein as a "Material Casualty") or (iii) a taking
or condemnation materially, adversely affects the value of the Property or
includes any taking of parking or access (item (iii) is referred to hereinafter
as a "Material Condemnation"), then Purchaser shall have the option to terminate
this Agreement by delivery of a written termination notice to Seller within
twenty (20) days after Seller's delivery to Purchaser of its notice of a
Material Condemnation or the occurrence of a casualty loss. If (a) the damage or
destruction is not a Material Casualty, (b) a taking or condemnation is not a
Material Condemnation, or (c) Purchaser does not elect to terminate this
Agreement pursuant to the provisions of the preceding sentence (time being of
the essence with respect to any such election), then Seller and Purchaser shall
consummate the transaction contemplated by this Agreement without abatement of
the Purchase Price and Purchaser shall be entitled to approve the terms of any
insurance settlement, such approval not to be unreasonably withheld or delayed,
and to receive at Closing the taking, condemnation or insurance proceeds (or an
assignment of the right to such proceeds) (less any costs incurred or income
lost by Seller as a result of such occurrence) together with a credit against
the Purchase Price in an amount equal to the amount of any deductibles payable
under applicable casualty insurance and Seller shall, at Closing, execute and
deliver to Purchaser all customary proofs of loss, assignments of claims and
other similar items. If Purchaser elects to terminate this Agreement pursuant to
the provisions of this Section 5 and Purchaser is not in default under this
Agreement, the Xxxxxxx Money shall be returned to Purchaser by the Escrowee, 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; provided, however, that the foregoing shall not limit
Seller's recourse against Purchaser under Sections 6, 8 and 11(J).
6. BROKERAGE
Seller, pursuant to a separate written agreement, is obligated to pay
upon Closing (but not otherwise) a brokerage commission to Xxx Xxxxxx
Associates, Inc. ("Broker") for services rendered in connection with the sale
and purchase of the Property. Seller shall indemnify and hold Purchaser harmless
from and against any and all claims of Broker related to the purchase and sale
of the Property, including, without limitation, reasonable attorneys' fees and
expenses incurred by Purchaser in connection with such claim. Seller and
Purchaser shall each indemnify and hold the other harmless from and against any
and all claims of all brokers and finders (other than a claim by Broker against
Seller of the type described in the preceding
14
sentence, which claim Seller shall be obligated to indemnify Purchaser against
in accordance with the preceding sentence) 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, reasonable
attorneys' fees and expenses incurred by the indemnified party in connection
with such claim.
7. DEFAULT AND REMEDIES
A. Seller's Failure.
(i) Notwithstanding anything to the contrary contained in this
Agreement, if (1) Seller fails to perform in accordance with the terms of this
Agreement and the Closing does not occur as a result of such failure, and (2)
Purchaser is not otherwise in default hereunder, then, as Purchaser's sole and
exclusive remedy hereunder and at Purchaser's option, either (x) the Xxxxxxx
Money shall be returned to Purchaser, in which event this Agreement shall be
null and void, and neither party shall have any rights or obligations under this
Agreement except as provided in Sections 6, 8 and 11(J), or (y) upon notice to
Seller not less than thirty (30) days after the date then scheduled for Closing
hereunder, and provided an action is filed within ninety (90) days thereafter,
Purchaser may seek specific performance of this Agreement, but not damages.
Purchaser's failure to seek specific performance as aforesaid shall constitute
its election to proceed under clause (x) above.
(ii) In the event that Seller has, prior to Closing, sold and
conveyed the Property in violation of this Agreement and this Agreement has not
been terminated in accordance with any provision of this Agreement and, as a
result of such sale and conveyance, the remedy of specific performance is not
available to Purchaser, Purchaser shall be entitled to pursue a claim against
Seller due to Seller's failure to perform in accordance with the terms of this
Agreement. Furthermore, in the event that Seller's failure to perform in
accordance with the terms of this Agreement as described in Section 7(A)(i)
above is as a result of an intentional, willful and bad faith breach by Seller,
the remedy of specific performance is available and Purchaser does not seek
specific performance in accordance with clause (y) of Section 7(A)(i) above,
Purchaser shall be entitled to pursue a claim for damages against Seller for
reimbursement of actual, out of pocket expenses incurred in connection with its
proposed purchase of the Property as contemplated in this Agreement, of up to
One Hundred Thousand Dollars.
B. If (i) Purchaser fails to perform in accordance with the terms of
this Agreement and Closing does not occur, and (ii) such failure is not as a
result of a default by Seller in its obligations hereunder, the Xxxxxxx Money
may be retained by Seller as liquidated and agreed-upon damages and as Seller's
sole and exclusive remedy with respect thereto at which time this Agreement
shall terminate and be of no further force and effect; provided, however, that
the foregoing shall not limit Seller's recourse against Purchaser under Sections
6, 8 and 11(J) above. Purchaser and Seller acknowledge and agree that (1) the
Xxxxxxx 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; (2) 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; (3) Purchaser seeks to limit its liability under
this Agreement to the
15
amount of the Xxxxxxx Money in the event this Agreement is terminated and the
transaction contemplated by this Agreement does not close due to a default of
Purchaser under this Agreement; and (4) the Xxxxxxx Money shall be and
constitute valid liquidated damages.
C. After Closing, 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, except that neither Seller nor Purchaser shall be entitled
to recover from the other punitive, consequential or special damages.
8. PURCHASER'S INSPECTION AND REVIEW OF THE PROPERTY
A. Purchaser shall have until expiration of the Due Diligence
Period, within which to satisfy itself as to all matters concerning its
acquisition, ownership and operation of the Property, including, without
limitation, matters concerning title, survey, zoning, subdivision laws,
environmental matters, review and approval of leases, contracts and financial
matters affecting the Property, existence of all required licenses, permits and
approvals, approval of the condition of the improvements on the Property, all
soil, landscaping and other physical conditions of the Property, availability
and sufficient quantities of all utilities, and other matters in its discretion.
From the date this Agreement is executed until the Closing, Seller hereby grants
to Purchaser and its agents full access to the Property and all of Seller's
operational and financial records pertaining to the Property in order to conduct
such inspections, samplings and tests as Purchaser deems necessary. Purchaser's
right of inspection pursuant to this Section 8.A. shall be subject to the rights
of tenants under the Leases and other occupants and users of the Property. No
physical samplings shall be undertaken without twenty-four (24) hour prior oral
notice to Seller and Seller's prior consent. Seller shall have the right to be
present at any inspections involving physical samplings.
B. In the event Purchaser gives written notice to Seller and Escrow
Agent on or before 5:00 CST on the last day of the Due Diligence Period that it
elects to terminate this Agreement pursuant to Section 8.A. hereof, the Xxxxxxx
Money theretofore deposited (less $100.00 as consideration to Seller for
entering into this Agreement) shall be returned to Purchaser, and neither party
shall have any further obligation to the other, except as set forth herein. If
Purchaser fails to give such notice on or before 5:00 CST on the last day of the
Due Diligence Period, Purchaser shall be deemed to have waived its right to
terminate this Agreement under Section 8.A.
C. All of the tests, investigations and studies to be conducted
under this Section 8 by Purchaser shall be at Purchaser's sole cost and expense
and Purchaser shall restore the Property to the condition existing prior to the
performance of such tests or investigations by or on behalf of Purchaser.
Purchaser shall have no liability to cure or remediate any condition discovered
by Purchaser other than to restore the Property to the condition existing prior
to the performance of such tests or investigation. Purchaser shall defend,
indemnify and hold Seller and any affiliate, partner or parent of Seller, and
all shareholders, employees, officers and directors of Seller or Seller's
affiliate, partner or parent (hereinafter collectively referred to as "Affiliate
of Seller") harmless from any and all damage, liability, cost and expense
(including without limitation, reasonable attorney's fees, court costs and costs
of appeal) suffered or incurred by Seller or Affiliates of Seller for injury to
persons or property or otherwise caused by Purchaser's investigations and
inspection of the Property. Purchaser shall undertake its obligation to defend
set forth in the preceding sentence using
16
attorneys selected by Purchaser and reasonably acceptable to Seller.
Notwithstanding anything contained herein to the contrary, the terms of Section
8 shall survive the Closing and the delivery of the Deed and termination of this
Agreement.
D. Purchaser acknowledges that it will have, prior to Closing, had
an opportunity to inspect the Property, review the Leases, the Service
Contracts, all disclosures provided by Seller and make such other inquiries and
investigations and obtain such reports and analyses it deemed adequate in
connection with its decision to purchase the Property, and, as a result thereof,
Purchaser, agrees that, except as otherwise specifically set forth in this
Agreement, it shall purchase the Property in its "AS IS, WHERE IS" condition,
subject to ordinary wear and tear and as more particularly provided in Section
11(H).
9. ESTOPPEL CERTIFICATES
A. Seller shall on or about December 5, 1997 send estoppel
certificates (individually, an "Estoppel Certificate" and collectively, the
"Estoppel Certificates") in the form of EXHIBIT E attached hereto (the "Form
Tenant Estoppel Certificate") to each tenant occupying space at the Property as
of the date of this Agreement.
B. 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, dated no more than thirty (30)
days prior to Closing, executed by (i) the tenants known as Kroger, Service
Merchandise, Burger Xxxx, Xxxxx Xxxxx, Old Country Buffet and Xxxxx X. Cheese
("Major Tenants") and (ii) tenants (excluding Xxxxxxx-Xxxxxxxx) occupying not
less than fifty percent (50%) of the remaining net usable square footage of
leased space at the Property as of the date of this Agreement (together with
Major Tenants, collectively, the "Required Tenants"). The Estoppel Certificates
executed by tenants shall be in substantially the form of the Form Tenant
Estoppel Certificate (showing no material defaults which Seller does not commit
to cure (by a method agreed to by Purchaser) or cure by Closing) and not
materially inconsistent with the Rent Roll and any other representations made
herein by Seller with respect to the Leases, except that (i) an Estoppel
Certificate executed by a tenant shall be deemed an acceptable Estoppel
Certificate for purposes of this Section 9 as long as it (x) is in the form or
contains such specified information as the Lease requires the tenant to provide
and Seller may not require additional information (except that the Kroger
Estoppel Certificate will not be acceptable in any event if it does not contain
a statement setting forth that it is due no more than $64,764.19 in connection
with the roof repairs unless Seller agrees to credit Purchaser for the amount of
any excess so claimed) and/or (y) does not contain item 16 from the Form Tenant
Estoppel Certificate (unless Seller has, pursuant to the Lease, the right to
require the tenant to include such statement). Furthermore, an estoppel
certificate shall be deemed an acceptable Estoppel Certificate for purposes of
this Section 9 if it contains the qualification by the tenant of any statement
as being to its knowledge or as being subject to any similar qualification (the
aforesaid acceptable Estoppel Certificates to be delivered are collectively
referred to as the "Required Estoppel Certificates").
C. In the event that Seller is unable to provide the Required
Estoppel Certificates to Purchaser at the Closing and Seller has provided
Estoppel Certificates from the Major Tenants, Purchaser or Seller may, at its
option, elect that Seller execute and deliver to Purchaser certificates
(individually, a "Seller Estoppel Certificate", and, collectively, the "Seller
Estoppel Certificates") substantially in the form as the certificate attached
hereto as Exhibit M
17
(the "Form Seller Estoppel Certificate") covering the particular tenants
necessary so that Purchaser shall receive, at Closing, Required Estoppel
Certificates and Seller Estoppel Certificates with respect to the Required
Tenants (except that Seller may not elect to deliver a Seller Estoppel
Certificate for Xxxxxxx-Xxxxxxxx). In the event that Purchaser or Seller makes
such election, Seller shall have the right to designate the particular tenants
for which Seller shall deliver Seller Estoppel Certificates. In the event that
Purchaser or Seller elects that Seller deliver such Seller Estoppel
Certificates, each certification 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 Required Estoppel
Certificate signed by the Tenant under the Lease in question which complies with
the requirements of this Section. If Purchaser receives an estoppel certificate
which contains some but not all of the matters set forth in the Estoppel
Certificate for tenants other than Major Tenants (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 the 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. In addition, in the event that Seller has delivered a Certified
Lease Instrument at Closing as to all or a portion of a Lease for which an
Estoppel Certificate is not provided at Closing and Purchaser receives, after
Closing, an executed Estoppel Certificate signed by the Tenant under such Lease
which confirms the accuracy of the Certified Lease Instrument delivered with
respect to such Lease, then the liability of Seller under the certificate
delivered with such Certified Lease Instrument shall terminate upon the date on
which Purchaser has received the aforesaid Estoppel Certificate.
D. In the event that Seller is unable to provide to Purchaser the
Required Estoppel Certificates at Closing and neither Purchaser nor Seller
elects that Seller provide Seller Estoppel Certificates to Purchaser in
accordance with Section 9(C) above, Purchaser may either: (x) elect not to
purchase the Property, in which event this Agreement terminate and be of no
further force and effect, the Escrowee shall promptly return the Xxxxxxx Money
to Purchaser and thereafter neither Seller nor Purchaser shall have any further
rights or obligations under this Agreement, provided, however, that the
foregoing shall not limit Seller's recourse against Purchaser under Sections 6,
8 or 11(J); or (y) elect to purchase the Property notwithstanding Purchaser's
decision not to require Seller to provide the Required Estoppel Certificates, in
which event Seller shall not be obligated to provide any additional Estoppel
Certificates to Purchaser after Closing.
E. 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 9, 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. If any Estoppel Certificate contains
statements confirming any of Seller's representations or warranties, then Seller
shall be relieved of any liability with respect to such representations or
warranties to the extent confirmed in the Estoppel Certificate.
18
10. REPRESENTATIONS AND WARRANTIES
------------------------------
A. Seller represents and warrants to Purchaser that, as of the date
hereof (or as of such other date set forth below) and as of Closing, the
following:
(i) To the Actual Knowledge of Seller (as hereinafter defined),
except as set forth on EXHIBIT I attached hereto, Seller
has received no written notice from any governmental
authority of any violation of any, state or federal law,
rule or regulation concerning the Property or any part
thereof which has not been cured prior to the date of this
Agreement.
(ii) To the Actual Knowledge of Seller, and except for the
property management agreement that will be terminated by
Seller effective as of Closing, the list attached hereto as
EXHIBIT D lists all of the maintenance, management,
service, advertising and other contracts and agreements
with respect to the ownership and operation of the
Property, the vendor under each such contract or agreement,
a description of the service provided thereunder and, if
such contract or agreement is written, the date of the
contract or agreement.
(iii) To the Actual Knowledge of Seller, except as set forth on
EXHIBIT J attached hereto, Seller is neither a party to any
existing litigation with respect to the Property nor has it
received written notice of any pending litigation with
respect to the Property.
(iv) Seller has the requisite power and authority to enter into
this Agreement and consummate the transaction contemplated
in this Agreement.
(v) To the Actual Knowledge of Seller, Seller has received no
written notice of any pending condemnation proceedings
affecting the Property.
(vi) To the Actual Knowledge of Seller, (a) the list (the "Rent
Roll") attached hereto as Exhibit L accurately sets forth
the information thereon as of the date of this Agreement
and (b) Seller has delivered true and correct copies of the
Leases to Purchaser.
(vii) Except: (1) as set forth on EXHIBIT O attached hereto,
and/or (2) as set forth in any New Lease approved (or
deemed to be approved) by Purchaser hereunder, or (3) in
any commission or leasing agreement approved (or deemed to
be approved) by Purchaser hereunder, no commission or other
compensation is presently payable, or in the future will
become payable by Seller or any other owner of the
Property, to any broker or finder in
19
connection with any Lease pursuant to any agreement
currently in effect (in amplification of, and without
limitation of, Section 11 below, no third parties shall have
the benefit of this Section 10(A)(vii), nor is the
representation and warranty set forth in this Section
10(A)(vii) made with the intent that any person or entity
other than Seller and Purchaser shall rely on this Section
10(A)(vii)).
(viii) Seller is not a "foreign person" within the meaning of
Section 1445 of the Internal Revenue Code of 1986, as
amended.
(ix) Seller has no employees working at the Property.
(x) The Property is not subject to any union or collective
bargaining agreements that will be enforceable against any
owner of the Property after Closing.
(xi) Seller has not instituted any currently pending real estate
tax appeal (or similar proceedings) affecting the Property.
(xii) To the Actual Knowledge of Seller and except as set forth on
Exhibit L attached hereto, (A) no tenant is in default in
the payment of rent or additional rent, (B) no tenant is in
material default under any of its other obligations under
its respective Lease, and (C) Seller is not in material
default under any Lease.
(xiii) To the Actual Knowledge of Seller, Seller has received no
written notice of a default by Seller, or any other claim
against Seller, under any recorded easement, license, or
right of way agreement benefiting or burdening the Property.
(xiv) To the Actual Knowledge of Seller, except for the Leases,
the Service Contracts, Permitted Exceptions and agreements
described on Exhibit O there are no other contract or
agreement affecting the Leases or the Property, or the
operation or use thereof which will be binding on Purchaser
or the Property after the Closing.
(xv) To the Actual Knowledge of Seller, there is no violation of
any restriction, exclusive use or prohibited use contained
in any instrument affecting or benefiting the Property.
(xvi) Seller is deemed a resident of Georgia under O.C.G.A.
Section 48-7-128. At Closing, Seller will execute and
deliver a Seller's Certificate of Exemption in the form
annexed hereto as Exhibit Q.
(xvii) The remaining reimbursement due Kroger by Seller in
connection with certain roofing repairs performed by Kroger
is no more than $64,764.19.
20
B. When used in this Agreement, the term "Actual Knowledge of Seller"
shall mean and be limited to the actual (and not imputed, implied or
constructive) current actual knowledge of Xxxxxx Xxxxxx and Xxxxxx Xxxxxx.
Notwithstanding anything herein to the contrary, neither Xxxxxx Xxxxxx and
Xxxxxx Xxxxxx shall have any personal liability or obligation whatsoever with
respect to any of the matters set forth in this Agreement or any of Seller's
representations and/or warranties herein being or becoming untrue, inaccurate or
incomplete in any respect. Any knowledge of or notice given to any of Seller's
other agents, servants or employees shall not be imputed to Seller.
C. The representations and warranties set forth in this Section 10,
and the certifications set forth in the Seller's Estoppel Certificates shall,
subject to the provisions of Section 9(C) and Section 10(E), survive the Closing
and the delivery of the Deed for a period of one hundred eighty (180) days from
the Closing Date ("Expiration Date") and the certifications of Seller made in
the certificates attached to the Certified Lease Instruments and the
certificates attached to the Certified Service Contracts shall survive the
Closing and the delivery of the deed for a period of one year from the Closing
Date, subject to the provisions of Section 9(C) and 10(E). Notice of any claim
as to a breach of any such representations or warranties or with respect to
material inaccuracy in the certifications of Seller made in the certificates
attached to the Certified Lease Instruments or the certifications of Seller made
in the certificates attached to the Certified Service Contracts must be made to
Seller prior to the expiration of the applicable survival period as set forth in
the previous sentence or Purchaser shall be deemed to have waived the right to
assert such claim. Notwithstanding the two (2) preceding sentences of this
Section 10(C) and subject to Section 9(C) and Section 10(E), to the extent that
any of the representations and warranties set forth in this Section 10, the
certifications of Seller made in the certificates attached to the Certified
Lease Instruments, the certificates attached to the Certified Service Contracts
and the certifications set forth in the Seller's Estoppel Certificates contain
information necessary to accomplish any of the reprorations described in Section
4(C)(iii) and subsequent xxxxxxxx and/or refunds payable to tenants in
connection with such reprorations, then the portion of such representations,
warranties and certifications necessary to accomplish such reprorations,
xxxxxxxx and refunds shall, subject to Section 9(C) and Section 10(E) below,
survive (such survival period being the "Reproration Survival Period") until the
earlier of (i) thirty (30) days after the date of such reprorations, xxxxxxxx
and/or refunds, and (ii) December 31, 1998. Notice of any claim as to a breach
of any representations, warranties or certifications necessary to describe the
reprorations, xxxxxxxx and refunds described in the preceding sentence must be
made to Seller prior to the expiration of the Reproration Survival Period or it
shall be deemed a waiver of the right to assert such claim.
D. Seller does not represent and warrant that any particular Service
Contract or (subject to Section 10G) any Lease will be in force or effect as of
the Closing or that tenants under Leases or the parties to the Service Contracts
will not be in default under their respective Leases or Service Contracts, and
neither the existence of any default by any tenant under its Lease nor the
default of any party under any Service Contract shall affect the obligations of
Purchaser hereunder; provided, however, the foregoing shall not affect the
conditions contained in Section 9 above.
E. In the event that, prior to Closing, Purchaser obtains, pursuant to
any written instrument or other written information, knowledge or notice that
Seller is in breach of any of the representations and warranties set forth in
Section 10(A) above, or that the
21
information set forth in the Certified Service Contracts, the Certified Lease
Instruments or any Seller Estoppel Certificates is untrue and the Closing
occurs, then such representation, warranty or Certificate shall be deemed
modified accordingly and if Purchaser closes, Purchaser shall be deemed to have
waived such breach or inaccuracy. If Purchaser elects not to close as a result
thereof, then subject to Section 7A(ii) as Purchaser's sole remedy, the Xxxxxxx
Money shall be paid to Purchaser in which event this Agreement shall be null and
void, and neither party shall have any rights or obligations under this
Agreement except as provided in Sections 6, 8, and 11(J).
F. Purchaser represents and warrants to Seller than as of the date
hereof and as of Closing that Purchaser has the requisite power and authority to
enter this Agreement and consummate the transaction contemplated in this
Agreement.
G. If on or prior to the Closing any Major Tenant has vacated its
space or is a debtor in a bankruptcy proceeding, Purchaser may elect to cancel
this Agreement in which event the Xxxxxxx Money shall be returned to Purchaser
and thereafter neither Seller nor Purchaser shall have any further rights or
obligations under this Agreement except as provided in Sections 6, 8 or 11(J).
11. 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 Purchaser and Seller. Purchaser
further acknowledges that, except as expressly provided in this Agreement,
neither Seller nor any agent or representative of Seller has made, and Seller is
not liable for or bound in any manner by, any express or implied warranties,
guaranties, promises, statements, inducements, representations or information
pertaining to the Property.
B. Neither this Agreement nor any interest hereunder shall be assigned
or transferred by Purchaser without the written consent of Seller, which consent
may be withheld in the sole and absolute discretion of Seller except for an
assignment of the type described in the next sentence. Purchaser shall be
permitted to assign its rights and obligations under this Agreement to an entity
(a "Permitted Assignee") controlled by or under common control with Purchaser or
to a client of DRA Advisors, Inc. and, upon such an assignment such Permitted
Assignee shall execute and deliver an agreement to Seller in which such
Permitted Assignee assumes all of the obligations of Purchaser under this
Agreement. Upon an assignment of this Agreement to a Permitted Assignee: (1)
Purchaser shall not be relieved of any subsequently accruing liability under
this Agreement, and (2) as used in this Agreement, the term "Purchaser" shall be
deemed to include such Permitted Assignee. Subsequent to Closing, Seller may
assign or otherwise transfer its interest under this Agreement. As used in this
Agreement, the term "Seller" shall be deemed to include any assignee or other
transferee of any Seller. Subject to the foregoing, this Agreement shall inure
to the benefit of and shall be binding upon Seller and Purchaser and their
respective successors and assigns.
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.
22
E. This Agreement shall be governed and interpreted in accordance with the
laws of the State of Georgia.
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, addressed as follows:
1. If to Seller:
c/o Equity Properties and Development Limited Partnership
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx
With a copy to:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Suite 0000
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esq.
2. If to Purchaser:
DRA Advisors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xx. Xxxxx Xxxxx
23
With a copy to:
Xxxxxx, Xxxxxxxxxx LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx Xxxxxx, Esq.
All notices given in accordance with the terms hereof shall be deemed received
forty-eight (48) hours after posting, or when delivered personally or otherwise
received. 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 11(F).
G. Omitted.
H. Acknowledging the prior use of the Property and Purchaser's opportunity
to inspect the Property and except as specifically provided in this Agreement,
Purchaser agrees to take the Property "as is, where is" with all faults and
conditions thereon. 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 or warranties. Purchaser shall not rely on
such Disclosures, but rather, Purchaser shall rely only on its own inspection of
the Property. PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY
PROVIDED IN THIS AGREEMENT, SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR
GUARANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL
OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO
(A) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT
LIMITATION, THE WATER, SOIL AND GEOLOGY, (B) THE INCOME HERETOFORE DERIVED OR TO
BE DERIVED FROM THE PROPERTY, (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, (D) THE COMPLIANCE
OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, (E) THE
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE
PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE PROPERTY, AND SPECIFICALLY
DISCLAIMS ANY REPRESENTATIONS REGARDING TERMITES OR WASTES, AS DEFINED BY THE
U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 C.F.R., OR ANY HAZARDOUS
SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE ENVIRONMENTAL RESPONSE COMPENSATION
AND LIABILITY ACT OF 1980 ("CERCLA"), AS AMENDED, AND REGULATIONS PROMULGATED
THEREUNDER.
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
24
or other action or claim against Seller or its affiliates, directors, officers,
employees, agents, attorneys, or assigns (collectively, "Seller and its
Affiliates") 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.
I. In any lawsuit or other proceeding initiated by Purchaser under
or with respect to this Agreement, Purchaser waives any right it may have to
trial by jury.
J. Purchaser acknowledges that all information (other than
information which is publicly available) with respect to the Property furnished
or to be furnished to Purchaser is, has been and will be so furnished on the
condition that Purchaser maintain the confidentiality thereof. Accordingly,
Purchaser shall, and shall cause its employees, consultants, agents, directors,
officers and other personnel and representatives to hold in strict confidence,
and not disclose to any other party without the prior written consent of Seller
or unless the Closing occurs: (i) any of the information with respect to the
Property delivered to Purchaser by Seller or any of its agents, representatives
or employees, or (ii) the existence of this Agreement or any term or condition
thereof, or (iii) the results of any inspections or studies undertaken in
connection herewith. In addition, neither Purchaser nor Purchaser's employees,
consultants, agents, directors, officers and other personnel and representatives
shall solicit offers to purchase the Property to any other party without the
prior written consent of Seller and unless the Closing occurs. Notwithstanding
the above, Purchaser may disclose such information to individuals or entities
necessary for Purchaser to consummate the transaction contemplated herein (such
as lenders, engineers, prospective management companies, environmental
consultants, accountants and tax advisors) and as required by law. Purchaser
shall instruct such parties to whom the existence of this Agreement or any
information with respect to the Property is disclosed of the confidentiality
provisions of this Section 11(J) and that such parties shall treat such
information in compliance with this Section 11(J). In the event the Closing does
not occur and this Agreement is terminated, Purchaser shall, upon written
request by Seller, promptly return to Seller all copies of all such information
without retaining any copy thereof or extract therefrom.
K. If for any reason Purchaser does not consummate the Closing, then
Purchaser shall, upon Seller's request, assign and transfer to Seller 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. Seller hereby
acknowledges that it shall not be entitled to rely on any such studies, reports,
surveys, other information, data and/or documents.
L. Seller hereby covenants and agrees with Purchaser that:
1. Prior to the expiration of the Due Diligence Period, Seller
may enter into any New Lease (hereafter defined) provided (1) base
rent exceeds seven dollars ($7.00) per square foot and (ii) a copy
thereof is delivered to Purchaser at least five (5) days prior to
expiration of the Due Diligence Period, and Purchaser's failure to
terminate this Agreement under Section 8 shall be deemed Purchaser's
approval of any such New Lease. From and after the end
25
of the Due Diligence Period through the Closing, Seller shall deliver for
Purchaser's review (a "New Lease Notice") a copy of any proposed new Lease, or
any modification, amendment, restatement or renewal of any existing Lease
(individually, a "New Lease" and collectively, "New Leases"), and Purchaser
shall have the right to approve or disapprove of any New Lease by responding in
writing to Seller's New Lease Notice within five (5) business days after
Purchaser's receipt of the new lease notice. If Purchaser fails to approve or
disapprove of such New Lease within such five (5) business day period, Purchaser
shall be deemed to have conclusively approved of such New Lease, provided
further that Purchaser shall be deemed to approve any amendment (including
renewals and expansions) to any Lease which by the terms of such Lease is
automatic or which seller is required to enter into pursuant to the terms of
such lease, and any such document shall be deemed an approved New Lease.
2. All tenant improvement costs and/or allowances and leasing commissions
relating to New Leases entered into by Seller after the date of this Agreement
which Purchaser approves (or is deemed to approve) in accordance with Section
11(L)(1) above shall be prorated in accordance with Section 4(C)(i)(c) above.
3. Between the date of this Agreement and the Closing Date, Seller shall
not enter into any Service Contracts unless they are cancelable by Seller prior
to Closing.
4. Between the date of this Agreement and the Closing Date, Seller shall
maintain the liability and casualty insurance coverage with respect to the
property in effect as of the date of this Agreement.
5. Between the date of this Agreement and the Closing Date, Seller shall
operate the Property in the normal course of Seller's business and maintain the
Property in the same condition as of the date of this Agreement, ordinary wear
and tear excepted and subject to Section 5 above. Notwithstanding anything in
the preceding sentence to the contrary, in no event shall Seller be required to
make any capital improvements to the Property.
6. Between the date of this Agreement and the Closing Date and except as
required by law or by any of the instruments set forth on EXHIBIT B attached
hereto or as otherwise permitted under this Agreement, Seller shall not grant an
easement, right-of-way or license on, under or about the Property or for the use
of the Property.
7. Between five (5) days prior to the end of the Due Diligence Period and
the Closing Date, Seller shall not apply any Security Deposit against any
delinquent amounts owed by tenants and shall neither terminate any lease nor
enter into an agreement with any tenant wherein such tenant is permitted to
vacate the space demised under its Lease. Prior to five (5) days prior to the
expiration of the Due Diligence Period, Seller may take any such action provided
26
written notice thereof is delivered to Purchaser at least five (5)
days prior to expiration of the Due Diligence period.
8. Prior to Closing, Seller shall refund all amounts owed to,
and validly claimed by, tenants for overpayment of Operating Expense
Reimbursements with respect to real estate taxes for tax year 1996 and
prior tax years.
9. Effective as of Closing, any and all management agreements
affecting the Property will be terminated.
M. Notwithstanding anything to the contrary herein contained,
Purchaser acknowledges that it is accepting the roof in "as is" condition and
agrees that Seller shall have no obligation to perform any maintenance, repairs,
or replacements with respect to said roof (except that Seller shall patch actual
leaks in the roof occurring prior to Closing in accordance with past practice)
and further agrees that any references to disrepair or other defects related to
the roof in any Estoppel Certificate (other than the Estoppel Certificate for
Service Merchandise (if the reference is related to its premises other than the
storage area) or the Estoppel Certificate for Kroger) or Seller Estoppel
Certificate (other than the Seller Estoppel Certificate for Service Merchandise
(if the reference is related to its premises other than the storage area) or the
Seller Estoppel Certificate for Kroger) will not cause such estoppel certificate
to fail to comply with the requirements of Section 9.
N. Seller and Purchaser hereby designate Escrowee 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 Escrowee to
execute at Closing, a Designation Agreement, designating Escrowee as the
reporting person with respect to the transaction contemplated by this Agreement.
O. This Agreement may be executed in two or more counterparts, each
of which shall be deemed to be an original and all of which taken together shall
constitute one and the same instrument.
P. Seller and Purchaser acknowledge and agree that neither this
Agreement nor a memorandum thereof shall be recorded against the Property.
Q. Purchaser acknowledges and agrees that any recovery against
Seller that Purchaser may be entitled to as a result of any and all claims,
demands or causes of action that Purchaser may have against Seller with respect
to this Agreement and the transactions contemplated herein and the documents
delivered at Closing shall be limited to direct and actual damages and only be
recoverable against Seller to the extent of Seller's interest in the Property
and the amount of the proceeds received by Seller from the sale of the Property
to Purchaser. Neither Seller's partners nor affiliates, nor any of their
shareholders, partners, officers, directors, agents or employees shall have any
personal liability by reason of any matter whatsoever under, in connection with
or arising out of this Agreement or the transactions contemplated herein and
Purchaser waives for itself and anyone who may claim by, through or under
Purchaser any and all rights to recover on account of any such personal
liability.
27
R. OMITTED
S. Except as specifically provided for herein, the representations,
warranties, covenants and agreements of Seller set forth in this Agreement shall
not survive the Closing.
T. OMITTED
U. EXHIBIT O sets forth leasing commissions in connection with
Leases. Seller and Purchaser acknowledge and agree that: (i) Purchaser shall
assume those commissions designated as "Purchaser's Responsibility" thereon and
shall not be obligated to assume at Closing such obligations designated as
"Seller's Responsibility" thereon, or any other brokerage obligations in
connection with the Leases, except as set forth in Section 4(C)(i)(c), (ii) in
the event that a broker entitled to a commission seeks payment after Closing,
the responsible party shall be obligated: (1) to either promptly pay such
leasing commission to the broker or negotiate a settlement with such broker as
to the broker's request for such a commission, and (2) to indemnify, defend and
hold the other party harmless from and against claims of any such broker related
thereto. Seller's obligations in the preceding sentence shall terminate on the
Expiration Date. Notice of any claim by Purchaser with respect to the
obligations of Seller set forth in this Section 11(U) must be made prior to the
Expiration Date or it shall be a waiver of the right to assert such a claim. In
the event that a party is obligated to act as provided in this Section 11(U),
the other party agrees that it shall reasonably cooperate in order for the
responsible party to pursue remedies against third parties for reimbursement of
amounts paid by it. In amplification of, and without limitation of, Section
11(V) below, no third party shall have the benefit of this Section 11(U), nor
are the agreements of Seller set forth in this Section 11(U) made with the
intent that any person or entity other than Seller and Purchaser shall rely on
this Section 11(U).
V. Except as specifically provided herein, no third parties shall
have the benefit of any of the provisions of this Agreement, nor is this
Agreement made with the intent that any person or entity other than Seller and
Purchaser shall rely hereon.
28
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 IX, a Florida limited
partnership
By: First Capital Financial Corporation
--------------------------------------
its general partner
By:______________________________
PURCHASER:
DRA ADVISORS, INC., a ___________________
By:______________________________________
Title:___________________________________
29
LIST OF EXHIBITS
----------------
A - Legal Description
B - Permitted Exceptions
C - Personal Property
D - Service Contracts
E - Form Tenant Estoppel Certificate
F - Joint Order Escrow Agreement
G - Assignment and Assumption of Leases and
Security Deposits
H - Assignment and Assumption of Service Contracts
I - Notices of Violations of Laws
J - List of Litigation
K - Limited Warranty Xxxx of Sale
L - Rent Roll
M - Form Seller Estoppel Certificate
N - Owner's Affidavit
O - Commissions
P - Assignment of Intangibles
Q - Exemption Certificate
EXHIBIT A
LEGAL DESCRIPTION
-----------------
EXHIBIT B
PERMITTED EXCEPTIONS
--------------------
1. Acts of Purchaser, and those claiming by, through and under Purchaser.
2. General and special taxes and assessments not yet due to payable as of
Closing (but subject to apportionment or payment as described in Section
4(C) of the Agreement).
3. Rights of tenants under the Leases, as tenants only, and those having
rights by, through and under said tenants under the Leases.
4. Zoning, building and other governmental and quasi-governmental laws, codes
and regulations.
5. Matters disclosed by the Survey.
6. Covenants, conditions, restrictions and easements of record which do not
render the Property unmarketable or adversely affect the use or value of
the Property.
EXHIBIT C
PERSONAL PROPERTY
-----------------
NONE
EXHIBIT D
SERVICE CONTRACTS
-----------------
EXHIBIT E
FORM TENANT ESTOPPEL CERTIFICATE
--------------------------------
_______________________
_______________________
_______________________
_______________________
_______________________
First Capital Income Properties Ltd. -
Series IX,
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
At the request of First Capital Income Properties Ltd., - Series IX, a
Florida limited partnership ("Landlord"), made in connection with the proposed
sale of the property known as Richmond Plaza, Augusta, Georgia (the "Property")
and Landlord's interest in the "Lease" (as hereinafter defined) to G&I Augusta
LLC ("Purchaser"), the undersigned hereby certifies to Landlord and Purchaser as
follows:
1. The undersigned is the tenant under a lease with Landlord, dated
__________, 19___, [as amended by _________________, dated __________, 19___
(collectively, the "Lease")][(the "Lease")] for suite(s) _______ at the Property
(the "Premises").
2. A true and correct copy of the Lease is attached hereto as EXHIBIT A.
3. The Lease sets forth the entire agreement between Landlord and the
undersigned with respect to the Premises, is in full force and effect and has
not been amended, modified or extended.
4. The monthly [base][minimum] rent of $________ due under the Lease has
been paid through _______, 199__ and all additional rent (consisting of
$_________ per month for estimated operating expenses and estimated real estate
taxes) due under the Lease has been paid through ______________, 199__.
5. The Landlord is not in default under the Lease.
6. The expiration date of the Lease is ____________________, 19___.
7. The amount of the security deposit currently held by Landlord under
the Lease is $ _______________.
8. There is no prepaid rent, except $ _____________ [explain to which
period and type of rent such prepayment relates].
9. The undersigned has not assigned any of its interest in the Lease or
subleased all or any portion of the Premises, except as follows:
_____________________________.
10. The undersigned has no defenses, counterclaims, set-offs or
concessions against rent or charges due or to become due under the Lease.
11. The undersigned has unconditionally accepted the Premises and [has
commenced payment of full rent] [or] [is entitled to _____ month's abatement of
base rent, as of the date hereof] under the Lease.
12. All work required to be performed by Landlord with respect to the
Lease and in connection with the Premises or otherwise has been completed by
Landlord to the satisfaction of Tenant except for _________________. All amounts
to be paid by Landlord under the Lease with respect to work in the Premises has
been paid by Landlord except for ________________.
13. The "base year" for operating expense reimbursements and real estate
taxes under the Lease is 19___.
14. The undersigned has no right or option pursuant to the Lease or
otherwise to purchase all or any part of the Premises or the Property.
15. To the undersigned's knowledge, the undersigned is not in default
under the Lease.
16. This Tenant Estoppel Certificate (this "Certificate") shall inure to
the benefit of, and may be relied upon by, Landlord, Purchaser and Purchaser's
mortgage lender ("Lender") (and/or Lender's trustee) and their respective
successors and assigns.
17. If we are a corporation, the undersigned is a duly appointed officer
of the corporation signing this Certificate and is the incumbent in the office
indicated under this Certificate and is the incumbent in the office indicated
under his or her name. In any event, the undersigned is duly authorized to
execute this Certificate.
Very truly yours,
______________________, Tenant
By:_____________________________________
___________________, Title
Date: ____________________, 1996
2
EXHIBIT F
JOINT ORDER ESCROW AGREEMENT
----------------------------
RICHMOND PLAZA
AUGUSTA, GEORGIA
Date: ________ ____,1997
TO: Titleserv Agency of New York, Inc.
The amount of One Hundred Twenty-Five Thousand Dollars ($125,000.00) (the
"Initial Deposit") is deposited with you in escrow on behalf of DRA Advisors,
Inc. the "Purchaser" under that certain Real Estate Sale Agreement (the
"Contract"), dated _________ ____, 1997 with First Capital Income Properties
Ltd. - Series IX, a Florida limited partnership, as the "Seller", with respect
to the purchase and sale of the property commonly known as Richmond Plaza,
Augusta, Georgia. The additional amount of One Hundred Twenty-Five Thousand
Dollars ($125,000.00) ("Additional Deposit") may subsequently be deposited with
you in escrow by Purchaser (the Initial Deposit and Additional Deposit,
together, the "Escrow Deposit").
As escrowee, you are hereby directed to hold, deal with and dispose of the
Escrow Deposit in accordance with the following terms and conditions:
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a joint
order by the undersigned Seller and Purchaser as to the disposition of the
Escrow Deposit; or (b) you are in receipt of a written demand (the
"Demand") from either Seller or Purchaser for the payment of the Escrow
Deposit or any portion thereof. Upon receipt of any Demand, you are
directed to so notify the non-demanding party, enclosing a copy of the
Demand. If within five (5) business days after the non-demanding party has
received or is deemed to have received your notice of your receipt of the
Demand, you have not received from the non-demanding
party its notice of objection to the Demand, then you are to disburse the
Escrow Deposit as requested by the Demand. If within said five business-day
period you receive from the non-demanding party its notice of objection to
the Demand, then you are to continue to hold the Escrow Deposit until you
are in receipt of a joint order as aforesaid, but after sixty (60) days you
may deposit the Escrow Deposit with a Court of competent jurisdiction.
2. Notwithstanding the foregoing, as escrowee, you are hereby expressly
authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any Court, and in case you obey
or comply with any such order, judgment or decree of any Court, you shall
not be liable to either of the parties hereto or any other person or entity
by reason of such compliance, notwithstanding any such order, judgment or
decree be entered without jurisdiction or be subsequently reversed,
modified, annulled, set aside or vacated. In case of any suit or proceeding
regarding these Escrow Instructions, to which you are or may at any time be
a party, the undersigned Seller and Purchaser agree that the non-prevailing
party shall pay to you upon demand all reasonable costs and expenses
incurred by you in connection herewith but solely for costs incurred in
your role as Escrowee.
3. Provided that the closing occurs, you shall not charge an escrow fee in
connection with your role as Escrowee hereunder. In the event that the
closing does not occur, you shall charge an escrow fee of no greater than
$150.00, with one-half of such fee to be paid by Seller and one-half of
such fee to be paid by Purchaser.
4. As escrowee, you shall invest the Escrow Deposit in an interest-bearing
account with a federally-insured bank or savings and loan as association or
as otherwise directed by both Purchaser and Seller in writing. Any interest
earned on the Escrow Deposit, after you deduct your customary investment
charges, shall become and be deemed to be a part of the Escrow Deposit. The
FEIN of Purchaser is ___________________.
2
5. All notices or other communications hereunder shall be in writing and shall
be personally delivered or sent by overnight courier (such as Federal
Express), by facsimile transmission or by first class United States Mail,
postage prepaid, registered or certified (return receipt requested) to the
respective addresses for the Seller, Purchaser and escrowee as herein
provided, together with copies to the attorneys for Seller and Purchaser at
the addresses for such attorneys set forth in Paragraph 6 below. All
notices given in accordance with the terms hereof shall be deemed received
forty-eight (48) hours after posting, or when delivered personally or
otherwise received.
6. Either Purchaser or Seller may act hereunder either directly or through its
attorney. The attorney for the Purchaser is:
Xxxxxx Xxxxxxxxxx, LLP
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention Xxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
The attorney for the Seller is:
Xxxxxxxxx & Xxxxxxxxxxx, P.C.
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
7. This Escrow Agreement is being entered into to implement the Contract and
shall not (nor be deemed to) amend, modify or supersede the Contract or act
as a waiver of any rights, obligations or remedies set forth therein;
provided, however, that you may rely solely upon these Escrow Instructions.
[signature page to Joint Order Escrow Agreement]
PURCHASER:
DRA ADVISORS, INC., a ______________________
3
By: _____________________________________
Title:
_____________________________________
ADDRESS OF PURCHASER:
1180 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
4
[signature page to Joint Order Escrow Agreement]
SELLER:
FIRST CAPITAL INCOME PROPERTIES, LTD. -
SERIES IX, a Florida limited partnership
By:___________________________________
its general partner
By:_____________________________
ADDRESS OF SELLER:
Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
ACCEPTED THIS ______ DAY OF ____________, 1997
ACCEPTED:
TITLESERV AGENCY OF NEW YORK, INC., a Escrowee
By: _____________________________
Title: ________________________________
ADDRESS OF ESCROWEE:
TITLESERV, INC.
0 X. 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
FAX: (000) 000-0000
Telephone: (000) 000-0000
5
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 __________, 1997,
by and between First Capital Income Properties Ltd., - Series IX, a Florida
limited partnership ("Assignor"), with an office at Xxx Xxxxx Xxxxxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and ________________________, a
_______________________ ("Assignee"), with an office at
________________________________________________.
1. Property. The "Property" shall mean the real property located in the
City of Augusta, County of Richmond, State of Georgia, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Richmond Plaza".
2. Leases. The "Leases" shall mean all leases affecting the Property, or
any part thereof, including the leases listed on the rent roll (the "Rent Roll")
attached to this Assignment as Exhibit B. "Lease" shall mean any one of the
Leases.
3. Security Deposits. "Security Deposits" shall mean all unapplied
security deposits: (i) held by Assignor under the Leases in the form of a letter
of credit and/or in a segregated bank account, and (ii) held by Assignor under
the Leases for which Assignee has received a credit on the "Closing Statement"
(as defined in the Contract). The Security Deposits are set forth on Exhibit C
attached hereto.
4. Security Deposit Interest. "Security Deposit Interest" shall mean all
accrued but unpaid interest on the Security Deposits owed pursuant to applicable
law and/or a particular Lease for which Assignee has received a credit on the
Closing Statement.
5. Contract. "Contract" shall mean that certain Real Estate Sale
Agreement dated _______ ___, 1997 by and between Assignor, as Seller, and
Assignee, as Purchaser, for the purchase and sale of the Property.
6. 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, the Security Deposits and the Security Deposit Interest as
applicable to the period from and after the date hereof.
7. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Leases as applicable
to the period from and after the date hereof, and Assignee further assumes all
liability of Assignor for the proper refund or return of the Security Deposits
and the Security Deposit Interest if, when and as required by the Leases or
otherwise by law. In addition, Assignee agrees to pay all of the brokerage fees,
leasing commissions and tenant improvement costs and/or allowances set forth on
EXHIBIT D attached hereto.
8. 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.
9. Third Parties. Except as set forth in Section 11 of this Assignment,
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.
10. Limited Liability. This Assignment is subject to Section 11(Q) of the
Contract.
11. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
ASSIGNEE:
EXHIBITS
--------
Property A - Legal Description of the
B - Rent Roll
C - Security Deposits
Allowances D - List of Commissions and
payable after Closing
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 __________, 1997, by and between
First Capital Income Properties Ltd., - Series IX, a Florida limited partnership
("Assignor"), with an office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, and _______________________, a ________________ ("Assignee"),
with an office at ______________________________________________
1. Property. The "Property" shall mean the real property located in the
City of Augusta, County of Richmond, State of Georgia, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Richmond Plaza".
2. Service Contracts. "Service Contracts" shall mean the service
contracts entered into with respect to the ownership and operation of the
Property that Assignee has assumed hereunder. The Service Contracts are listed
on Exhibit B 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 as applicable to the period from and after the date
hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in connection with the Service Contracts as
applicable to the period from and after the date hereof.
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. Third Parties. Except as set forth in Section 9 of this Assignment, 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 shall rely hereon.
7. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Service Contracts, and Assignor shall have no liability to Assignee in
the event that any or all of the Service Contracts (i) are not transferable to
Assignee or (ii) are canceled or terminated by reason of this assignment or any
acts of Assignee.
8. Limited Liability. This Assignment is subject to Section 11(Q) of the
Contract.
9. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
B - Service Contracts
EXHIBIT I
NOTICES OF VIOLATIONS OF LAWS
-----------------------------
NONE
EXHIBIT J
LIST OF LITIGATION
------------------
NONE
EXHIBIT K
RICHMOND PLAZA
AUGUSTA, GEORGIA
LIMITED WARRANTY XXXX OF SALE
-----------------------------
THIS LIMITED WARRANTY XXXX OF SALE (this "Xxxx of Sale") is executed as of
the ____ day of _________, 1997, by FIRST CAPITAL INCOME PROPERTIES, LTD.-SERIES
IX, a Florida limited partnership ("Seller"), having an office at Xxx Xxxxx
Xxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, in favor of
______________________________________________ ("Purchaser"), having an office
at _________________________________________________________.
1. Property. The "Property" shall mean the real property located in the
City of Augusta, County of Richmond, State of Georgia, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Richmond Plaza".
2. Contract. The "Contract" shall mean that certain Real Estate Sale
Agreement dated __________________, 199___ by and between Assignor, as Seller,
and Assignee, as Purchaser, for the purchase and sale of the Property.
3. Personal Property. The "Personal Property" shall mean the "Personal
Property", as defined in Contract, including the items of personal property set
forth in attached EXHIBIT C.
4. Sale. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property to Purchaser free of any liens or
encumbrances other than those matters set forth on Exhibit B attached hereto
(the "Permitted Exceptions"). Seller covenants and agrees to warrant and forever
defend title to the Personal Property listed on Exhibit C unto Purchaser against
all and every person or persons lawfully claiming the whole or any part thereof
by,
through or under Seller, and none other, but subject in any event to the
Permitted Exceptions. Except as set forth in the two (2) preceding sentences,
Seller makes no warranties or representations as to the Personal Property. The
Personal Property is transferred "AS IS, WHERE IS" and ALL WARRANTIES OF
QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY EXCLUDED.
5. Limited Liability. This Assignment is subject to Section 11Q of the
Contract.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale the day and year
first above written.
SELLER:
___________________________________
EXHIBIT L
RENT ROLL
---------
EXHIBIT M
FORM SELLER ESTOPPEL CERTIFICATE
--------------------------------
Ladies and Gentlemen:
Reference is herein made to that certain Real Estate Sale Agreement (the
"Agreement") dated ______________, 199___ by and between FIRST CAPITAL INCOME
PROPERTIES, LTD.-SERIES IX, a Florida limited partnership ("Seller"), and
__________________________ a _______________________ as assigned to G&I Augusta,
LLC ("Purchaser"), for the purchase and sale of the property known as Richmond
Plaza, Augusta, Georgia (the "Property"). All capitalized terms used herein but
not defined herein shall have the meanings ascribed to them in the Agreement.
Pursuant to Section 9 of the Agreement, Seller hereby certifies to Purchaser
that to the Actual Knowledge of Seller (as defined in that certain Real Estate
Sale Agreement dated _________________ between Seller and Purchaser) as follows:
1. The undersigned is the landlord under a lease with ______________, as
tenant (the "Tenant"), dated ____________, 19___, [as amended by ___________,
dated __________, 19___ (collectively, the "Lease") [(the "Lease")] for suite(s)
_______ on the ______ floor(s) of the Property (the "Premises").
2. A true and correct copy of the Lease is attached hereto as EXHIBIT A.
3. The Lease sets forth the entire agreement between the Seller and the
Tenant with respect to the Premises, is in full force and effect and has not
been amended, modified or extended.
4. The monthly [base][minimum] rent of $_________ due under the Lease has
been paid through ______________, 199__ and all additional rent (consisting of
$_______ per month for estimated "Operating Expenses [as defined in the
Agreement]) due under the Lease has been paid through ____________, 199___.
5. Seller has not received written notice from the Tenant of any default
by Seller under the Lease which has not been cured as of the date of this
certificate ("Certificate").
6. The expiration date of the Lease is __________, 19___.
7. The amount of the security deposit currently held by Seller under the
Lease is $____________.
8. There is no prepaid rent, except $___________ [explain to which period
and type of rent such prepayment relates].
9. To the Actual Knowledge of Seller, the Tenant has not assigned any of
its interest in the Lease or subleased all or any portion of the Premises,
except as follows: ______________________.
10. To the Actual Knowledge of Seller, Tenant has no defenses,
counterclaims, set-offs or concessions against rent or charges due under the
Lease.
11. To the Actual Knowledge of Seller, the Tenant has unconditionally
accepted the Premises and [has commenced payment of full rent] [or] [is entitled
to ________ month's abatement of base rent as of the date hereof] under the
Lease and, to the Actual Knowledge of Seller, the Tenant is the owner and holder
of the entire tenant's interest in the Lease.
12. All work required to be performed by Seller with respect to the
Premises under the Lease has been completed by Seller, and such work has, to the
Actual Knowledge of Seller, been completed to the satisfaction of Tenant except
for _________________. All amounts to be paid by Seller under the Lease with
respect to work in the Premises has been paid by Seller except for
_______________.
13. The "base year" for operating expense reimbursements and real estate
tax reimbursements under the Lease is 19___.
14. The Tenant has no right of option pursuant to the Lease or otherwise
to purchase all or any portion of the Premises or the Property.
This Certificate is executed by Seller solely for the benefit of Purchaser
and no third party shall have the benefit of any of the provisions of this
Certificate, nor is this Certificate made with the intent that any person other
than Purchaser shall rely thereon.
This Certificate is delivered to Purchaser in connection with, and subject
to the terms, provisions and limitations of Section 9 and Section 11(Q) of the
Agreement.
IN WITNESS WHEREOF, Seller has executed this Certificate as of the ____ day
of ___________, 1997.
EXHIBIT N
OWNER'S AFFIDAVIT
-----------------
To be agreed upon by Purchaser and Seller during the Due Diligence Period.
EXHIBIT O
COMMISSIONS
-----------
EXHIBIT P
ASSIGNMENT AND ASSUMPTION OF INTANGIBLES
----------------------------------------
THIS ASSIGNMENT AND ASSUMPTION OF INTANGIBLES (this "Assignment") is
entered into as of the ______________ day of __________, 1997, by and between
First Capital Income Properties Ltd., - Series IX, a Florida limited partnership
("Assignor"), with an office at Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxxx 00000, and _______________________, a ________________ ("Assignee"),
with an office at ______________________________________________
1. Property. The "Property" shall mean the real property located in the
City of Augusta, County of Richmond, State of Georgia, legally described in
Exhibit A attached to this Assignment, together with the building, structures
and other improvements owned by Assignor and located thereon and commonly known
as "Richmond Plaza". Capitalized terms not defined herein shall have the
meanings ascribed to them in that certain Real Estate Sale Agreement dated
________________ between ___________________ and _____________________.
2. Intangibles. "Intangibles" shall mean, to the extent transferable, all
of Assignor's right, title and interest in and to all warranties and bonds with
respect to the Improvements and all certificates, licenses and permits issued by
governmental authorities and held by Assignor relating to the use, maintenance,
occupancy or operation of the Property; and if and to the extent transferable,
all of Assignor's right, title and interest in and to the name "Richmond Plaza".
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 Intangibles as applicable to the period from and after the date hereof.
4. Assumption. Assignee hereby assumes all of the covenants, agreements
and obligations of Assignor under or in
connection with the Intangibles as applicable to the period from and after the
date hereof.
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. Third Parties. Except as set forth in Section 9 of this Assignment, 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 shall rely hereon.
7. No Representations or Warranties. This Assignment shall not be
construed as a representation or warranty by Assignor as to the transferability
of the Intangibles, and Assignor shall have no liability to Assignee in the
event that any or all of the Intangibles (i) are not transferable to Assignee or
(ii) are canceled or terminated by reason of this assignment or any acts of
Assignee.
8. Limited Liability. This Assignment is subject to Section 11(Q) of the
Contract.
9. Successors and Assigns. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment the
day and year first above written.
ASSIGNOR:
ASSIGNEE:
EXHIBITS
--------
A - Legal Description of Property
EXHIBIT Q
EXCEPTION CERTIFICATE
---------------------
_____________________________
___________________________________
Seller's Name Seller's Identification Number
(SSN or FEI)
____________________________________
________________________________________
_________________________________ Spouse's
Identification Number (if jointly owned)
_________________________________
INSTRUCTIONS
This form is provided to be executed by the seller and furnished to the buyer to
establish Georgia residency, such that withholding from the proceeds of the sale
of property are not subject to the withholding laws of this state. (See O.C.G.A.
(S)48-7-128)
Sellers are not subject to withholding from the proceeds of sale if either they
reside in Georgia, or they are deemed to be a Georgia resident by virtue of the
fact that they have filed Georgia tax returns in the preceding two years, do
business or own property in Georgia, intend to file a Georgia Tax return for the
current year, and if a corporation or limited partnership, are registered to do
business in this State.
The seller is to execute this affidavit by placing an initial in the blank
preceding statements which apply.
Seller is exempt from withholding on the sale of property because:
_____ Seller is a resident of Georgia.
Seller is not a resident of Georgia, but is deemed a resident for purposes
of withholding by virtue of the following:
_____Seller is a nonresident who has filed Georgia tax returns for the preceding
two years; and
_____Seller is an established business in Georgia and will continue
substantially the same business in Georgia after the sale OR the seller has
real property in the State at the time of closing of equal or greater value
than the withholding tax liability as measured by the 100% property tax
assessment of such remaining property; and
_____Seller will report the sale on a Georgia Income Tax return for the current
year and file by its due date; and
_____If seller is a corporation or limited partnership, seller is registered to
do business in Georgia.
Under penalty of perjury, I swear that the above information is, to the best of
my knowledge and belief, true, correct and complete.
_____________________________________
______________________________
Seller's signature (and Title, if applicable)
Sworn to and subscribed before me this
______ day of ____________________, 19____
________________________________ Notary Public
My commission expires ____________________
