EXHIBIT 10.50
REAL ESTATE PURCHASE AGREEMENT
THIS REAL ESTATE PURCHASE AGREEMENT is made and entered as the 15th day
of October, 1996, by and between (i) GRAYLYN SHOPPING CENTER ASSOCIATES, L.P., a
Delaware limited partnership (hereinafter referred to as "Seller") and (ii)
FIRST WASHINGTON REALTY LIMITED PARTNERSHIP or its assignees (hereinafter
referred to as "Purchaser").
W I T N E S S E T H:
WHEREAS, Seller is the record and beneficial owner of all that certain
real property containing acres and located in Brandywine, New Castle County,
Delaware, as more particularly described on Exhibit A attached hereto (the
"Land") together with a shopping center containing approximately 65,746 square
feet as shown on "Exhibit A" attached hereto and all other buildings and
improvements situated thereon (collectively, the "Building"), all personal
property and fixtures located therein (the "Personalty"), and all appurtenances,
rights, easements, rights-of-way, tenements and hereditaments incident thereto
(the "Additional Property") (the Land, Building, Personalty and Additional
Property are hereinafter collectively referred to as the "Property"); and
WHEREAS, Purchaser desires to purchase the Property from Seller and
Seller desires to sell and transfer the same to Purchaser.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements herein contained and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Purchase and Sale. Purchaser agrees to buy and Seller agrees to sell
and convey the Property for and in consideration of the purchase price and upon
the terms and conditions set forth herein.
2. Purchase Price. The purchase price for the Property (the "Purchase
Price") shall be Seven Million Two Hundred Thousand Dollars ($7,200,000.00),
payable at Closing (as hereinafter defined) in cash, cashier's check, certified
check or bank wire transfer.
3. Deposit.
(a) Within three (3) days after the date of delivery to
Purchaser of an original of this Agreement executed by Seller, together with
completed Exhibits hereto (the date of such delivery by Seller being the
"Acceptance Date"), Purchaser shall deliver to Commercial Settlements, Inc.,
0000 X Xxxxxx, X.X., Xxxxxxxxxx, XX 00000 (the "Title Company"), as escrow
agent, a deposit (the "Initial Deposit") of One Hundred
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Thousand Dollars ($100,000.00) by a check payable to the Title Company. If
Purchaser shall fail to deliver the Initial Deposit when required to do so, this
Agreement shall become null and void and the parties hereto shall be relieved of
all further liability and obligation to each other.
(b) Within three (3) days after the end of the Feasibility
Period (as defined in Section 13(b)), Purchaser shall deliver to the Title
Company, as escrow agent, an additional deposit (the "Additional Deposit") of
Fifty Thousand Dollars ($50,000.00) by check payable to the Title Company.
(c) The Initial Deposit and Additional Deposit and all accrued
interest thereon are hereinafter referred to collectively as the "Deposit". The
Title Company will immediately provide Seller with written evidence of receipt
of such Deposit. The Title Company shall place the Deposit in an
interest-bearing account within three (3) days after the date of receipt
thereof, and interest on the Deposit shall accrue to the benefit of Purchaser.
The Deposit shall be held by the Title Company pursuant to the terms and
conditions of this Agreement.
(d) In the event that, at any time prior to Closing, Seller or
Purchaser provides Title Company with a certification (a copy of which shall be
delivered contemporaneously to the other party) that the Seller or Purchaser, as
the case may be, is entitled to the Deposit pursuant to the terms of this
Agreement, Title Company shall deliver the Deposit to such party within seven
(7) business days after receipt of said notice, unless the other party disputes
such certification by written notice to Title Company (a copy of which shall be
delivered contemporaneously to the other party) delivered within five (5)
business days of Title Company's receipt of the initial certification. In such
event, Title Company shall hold the Deposit pending resolution of such dispute.
(e) The parties acknowledge that Title Company is acting
solely as a stakeholder at their request and for their convenience, that Title
Company shall not be deemed to be the agent of either of the parties, and Title
Company shall not be liable to either of the parties for any act or omission on
its part unless taken or suffered in bad faith, in willful disregard to this
Agreement or involving gross negligence. Seller and Purchaser shall jointly and
severally indemnify and hold Title Company harmless from and against all costs,
claims and expenses, including reasonable attorneys' fees, incurred in
connection with the performance of Title Company's duties hereunder, except with
respect to actions or omissions taken or suffered by Title Company in bad faith,
in willful disregard of this Agreement or involving gross negligence on the part
of Title Company.
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4. Closing. Except as otherwise provided in this Agreement, the
purchase and sale contemplated herein shall be consummated at the "Closing",
which shall take place on the date (the "Closing Date") specified by Purchaser
on not less than ten (10) days notice to Seller, provided that the Closing Date
shall not be later than sixty (60) days after the end of the Feasibility Period
(as defined and described in Section 13(b) hereof). The Closing shall take place
at the offices of the Purchaser, or at such other place as may mutually agreed
upon by Seller and Purchaser and in no event shall occur prior to 1/1/97.
5. Representations and Warranties of Seller. In order to induce
Purchaser to enter into this Agreement and to purchase the Property, Seller
hereby makes the following representations and warranties, each of which is
material and shall, together with all covenants, agreements and indemnities set
forth in or made pursuant to this Agreement, survive Closing, notwithstanding
any investigation at any time made by or on behalf of Purchaser:
(a) Authority of Seller. Seller is a limited partnership duly
organized and existing and in good standing under the laws of the State of
Delaware. Seller has all necessary power and authority and has taken all
necessary partnership or corporate action to execute, deliver and perform this
Agreement and consummate all of the transactions contemplated by this Agreement.
This Agreement is the valid and binding obligation of Seller, enforceable
against it in accordance with its terms.
(b) Title. Seller is the sole owner of fee simple title to the
Property with the authority to sell and convey the Property to Purchaser without
the consent of any other party, and such title is marketable and good of record
and free and clear of all liens, encumbrances, covenants, conditions,
restrictions and other matters affecting title, except for the Permitted
Exceptions (as defined in Section 8(a)(iii)).
(c) Compliance with Existing Laws. To the best of Seller's
knowledge, Seller is not in violation of, and has complied with, any and all
applicable building, zoning, environmental or other ordinances, statutes or
regulations of any governmental agency, in respect to the ownership, use,
maintenance, condition and operation of the Property or any part thereof. To the
best of Seller's knowledge, Seller possesses all licenses, certificates, permits
and authorizations necessary for the use and operation of the Property in the
manner in which it is currently being operated by Seller, and the requisite
certificates of the fire marshalls or board of fire underwriters have been
issued for the Property. To the best of Seller's knowledge, the Building and all
related facilities are now in conformance with all applicable zoning laws and no
variance, exception or other modification of such laws was necessary in order to
authorize the use or occupancy of any portion thereof.
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(d) Leases. True, correct and complete copies of all of the
leases of the Property and any amendments thereto (collectively, the "Leases")
have been delivered to Purchaser. Attached hereto as Exhibit B is a description
of all of the Leases and a current rent schedule ("Rent Schedule") covering the
Leases. There are no leases or tenancies of any space in the Property other than
those set forth in Exhibit B or any subleases or subtenancies unless otherwise
noted therein. Except as otherwise set forth in Exhibit B or elsewhere in this
Agreement:
(i) The Leases are in full force and effect and
constitute a legal, valid and binding obligation of Seller and
are assignable by Seller to Purchaser;
(ii) no tenant has an option to purchase the
Property;
(iii) no renewal or expansion options have been
granted to the tenants, except as provided in the Leases;
(iv) to the best of Seller's knowledge, Seller is not
in default under the Leases;
(v) the rents set forth on the Rent Schedule are
being collected on a current basis and there are no arrearages
in excess of one month nor has any tenant paid any rent,
additional rent or other charge of any nature for a period of
more than thirty (30) days in advance;
(vi) all work for tenant alterations and other work
or materials contracted for by Seller and any tenant has been
completed by Seller, and all work and materials have been
fully paid for;
(viii) Seller has not sent written notice to any
tenant claiming that such tenant is in default, which default
remains uncured, and to the best of Seller's knowledge, no
tenant is in default under its Lease;
(ix) no action or proceeding instituted against
Seller by any tenant is presently pending in any court; and
(x) there are no security deposits other than those
set forth in Exhibit B.
(e) Service Contracts. Attached hereto as Exhibit C is a
complete and correct list of all contracts or agreements relating to the
management, leasing, operation, maintenance or repair of the Property (the
"Service Contracts"). True and correct copies of all of the Service Contracts
have been delivered to Purchaser. No
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Service Contract which Purchaser agrees to assume will be terminated, amended,
modified or supplemented prior to the Closing Date without Purchaser's prior
written approval.
(f) Tax Bills. Attached hereto as Exhibit D are true and
correct copies of tax bills issued by any applicable federal, state or local
governmental authority to Seller with respect to the Property for the most
recent past and current tax years, and any new assessment received with respect
to a current or future tax year.
(g) Insurance. The Property is insured for its replacement
value against loss or damage sustained as a result of fire or other casualty.
Attached hereto as Exhibit E are copies of all hazard, liability and other
insurance certificates presently affording coverage with respect to the
Property. Seller shall maintain in full force and effect all such policies until
the Closing Date and shall cause its insurer to name Purchaser as an additional
insured as a contract party on its rent loss policy with respect to the
Property.
(h) Condition. Possession of Property shall be delivered to
Purchaser at Closing in "as is, where is" condition as of the date of
Purchaser's execution of this Agreement. Seller has no knowledge of any material
defect in the condition of the Property, the structural elements thereof or the
mechanical systems therein.
(i) Tenant Estoppel. Seller represents and warrants that it
shall use its best efforts to obtain and deliver to Purchaser within thirty (30)
days after the Acceptance Date, a tenant estoppel letter in the form attached
hereto as Exhibit F (or such other customary form as reasonably required by
Purchaser's mortgage lender within 30 days after delivery of such document to
Seller) from each of the tenants of the Property. Seller hereby agrees that
Purchaser shall have full participation in connection with the procurement of
said tenant estoppel letter(s).
(j) Condemnation Proceedings. No condemnation or eminent
domain proceedings are pending or, to the best of Seller's knowledge, threatened
against the Property or any part thereof, and Seller has made no commitments to
and has received no notice, oral or written, of the desire of any public
authority or other entity to take or use the Property or any part thereof
whether temporarily or permanently, for easements, rights-of-way, or other
public or quasi-public purposes.
(k) Litigation. No litigation is pending or, to the best of
Seller's knowledge, threatened, including administrative actions or orders
relating to governmental regulations, affecting the Property or any part thereof
or Seller's right to sell the Property.
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(l) No Defaults. Neither the execution of this Agreement nor
the consummation of the transactions contemplated hereby will to the best of
Seller's knowledge: (i) conflict with, or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, any agreement or
instrument to which Seller is a party or by which the Property is bound, (ii)
violate any restriction, requirement, covenant or condition to which the Seller
is subject or by which the Property is bound, (iii) constitute a violation of
any applicable code, resolution, law, statute, regulation, ordinance, rule,
judgment, decree or order, or (iv) result in the cancellation of any contract or
lease pertaining to the Property.
(m) Entrances. To the best of Seller's knowledge, all driveway
entrances to the Land are permanent, and no special access or other permits from
governmental authorities or from any private parties are required to operate and
maintain such driveway entrances. To the best of Seller's knowledge, access to
any portion of the Land is not obtained from adjoining public roads by means of
easements, rights-of-way or licenses across lands or premises not included
within the Property.
(n) Separate Tax Lot and Subdivision. To the best of Seller's
knowledge, the Land is the subject of a separate subdivision, and the Land is
assessed for tax purposes as a separate and distinct parcel.
(o) Hazardous Waste. Except as otherwise disclosed in "Exhibit
F-1", Seller has no knowledge of any discharge, spillage, uncontrolled loss,
seepage or filtration (a "Spill") of oil, petroleum or chemical liquids or
solids, liquid or gaseous products or any hazardous waste or hazardous substance
(as those terms are used in the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, the Resource Conservation
and Recovery Act of 1976, as amended, or in any other applicable federal, state
or local laws, ordinances, rules or regulations relating to protection of public
health, safety or the environment, as such laws may be amended from time to
time) at, upon, under or within the Land or any contiguous real estate. Seller
has not caused or permitted to occur, and shall not permit to exist any
condition which may cause a Spill at, upon, under or within the Land or any
contiguous real estate. To the best of Seller's knowledge, there is no
proceeding or action pending or threatened by any person or governmental agency
regarding the environmental condition of the Property. The Building is totally
free of asbestos.
(p) Certificates of Occupancy. Attached hereto as Exhibit G
are true and correct copies of the certificates of occupancy for all of the
Property. Seller will not amend such certificates and will maintain them in full
force and effect.
(q) Licenses and Permits. All licenses and permits have been
issued to Seller by all applicable governmental authorities which are necessary
for the ownership, management and operation of the Property (the "Licenses").
Seller has
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received no notice, nor has any knowledge, that it is lacking any required
permit or license.
(r) Operating Statements. Attached hereto as Exhibit H are
true and correct operating statements of the Property for 1993, 1994, 1995 and
the indicated portion of 1996. These statements were prepared in accordance with
generally accepted accounting principles consistently applied except as noted.
There has been no adverse change in the Property or the operation thereof which
would materially adversely affect the economic condition of the Property. Also
attached as Exhibit H is a copy of the 1996 operating budget detailed as to
amounts by month and operating department in reasonably sufficient detail.
(s) Utilities. To the best of Seller's knowledge, adequate,
usable public sewers, public water facilities, gas and electrical facilities
necessary to the operation of the Property are installed in and are duly
connected to the Property and can be used without any charge except the normal
deposits, if any, and usual metered utility charges and sewer charges.
(t) Personal Property. Attached hereto as Exhibit I is a true,
correct and complete inventory of all personal property ("Personal Property"),
if any, used in the management, maintenance and operation of the Property (other
than trade fixtures or personal property of tenants).
(u) Leasing Commissions. There are, and at Closing shall be,
no outstanding or contingent leasing commissions or fees payable with respect to
the Property.
(v) Flood Plain. To the best of Seller's knowledge, the Land
is not located in a flood plain.
6. Obligations of Seller Pending Closing. From and after the date of
this Agreement through the Closing Date, Seller covenants and agrees as follows:
(a) Maintenance and Operation of Premises. Seller will cause
the Property to be maintained in its present order and condition, normal wear
and tear excepted, and will cause the continuation of the normal operation
thereof, including the purchase and replacement of fixtures and equipment, and
the continuation of the normal practice with respect to maintenance and repairs
so that the Property will, except for normal wear and tear, be in substantially
the same condition on the Closing Date as of the Acceptance Date.
(b) Licenses. Seller shall use it best efforts to preserve in
force all Licenses and to cause those expiring to be renewed.
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(c) Changes in Representations. Seller shall notify Purchaser
promptly, and Purchaser shall notify Seller promptly, if either becomes aware of
any occurrence prior to the Closing Date which would make any of its
representations, warranties or covenants contained herein not true in any
material respect.
(d) Obligations as to Leases. Except as set forth in Paragraph
11(e), Seller shall not, without Purchaser's prior written consent, amend,
modify, renew or extend any Lease in any respect unless required by law, or
enter into new leases or approve any assignment of leases or subletting of
leased space, or terminate any Lease. Seller hereby further agrees that if any
space is vacant on the Closing Date, Purchaser shall accept the Property subject
to such vacancy, provided that the vacancy was not permitted or created by
Seller in violation of any restrictions contained in this Agreement. Prior to
Closing, Seller shall not apply all or any part of the security deposit of any
tenant unless such tenant has vacated the Property.
7. Representations and Warranties of Purchaser. In order to induce
Seller to enter into this Agreement and to sell the Property, Purchaser hereby
makes the following representations and warranties, each of which is material
and shall survive Closing, notwithstanding any investigation at any time made by
or on behalf of Seller:
(a) Authority of Purchaser. Purchaser is a limited partnership
duly organized and existing and in good standing under the laws of the State of
Maryland. Subject to the approval of the Board of Directors of FWRT, Purchaser
has all necessary power and authority to execute, deliver and perform this
Agreement and consummate all of the transactions contemplated by this Agreement.
Subject to the approval of the Board of Directors of FWRT, this Agreement is the
valid and binding obligation of Purchaser, enforceable against it in accordance
with its terms.
(b) No Defaults. To the best of Seller's knowledge, neither
the execution of this Agreement nor the consummation of the transactions
contemplated hereby will: (i) conflict with, or result in a breach of, the
terms, conditions or provisions of, or constitute a default under, any agreement
or instrument to which Purchaser is a party, (ii) violate any restriction,
requirement, covenant or condition to which the Purchaser is subject, and (iii)
constitute a violation of any applicable code, resolution, law, statute,
regulation, ordinance, rule, judgment, decree or order.
8. Conditions Precedent to Closing.
(a) It shall be a condition precedent of Purchaser's
obligation to make a full settlement hereunder that each and every one of the
following conditions shall exist on the Closing Date:
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(i) Representations and Warranties. Seller's
representations and warranties hereunder shall be true and
correct in the same manner and with the same effect as though
such representations and warranties had been made on and as of
the Closing.
(ii) Zoning. No proceedings shall have occurred or be
pending to change, redesignate or redefine the zoning
classification of the Property to a more restrictive
classification than presently exists on the date of
Purchaser's execution of this Agreement.
(iii) Title. Title to the Property shall be
marketable, good of record, and insurable by the Title Company
at standard rates or less, pursuant to a full coverage ALTA
Form-B (Rev. 1970 and 1984) owner's title insurance policy in
the amount of the Purchase Price (or an unconditional
commitment therefor) without any exceptions ("Printed form" or
otherwise) other than the Permitted Exceptions, and in
addition, providing affirmative coverage satisfactory to
Purchaser insuring against any mechanic's or materialmen's
lien arising from goods, labor or materials provided to the
Property prior to the Closing Date. The "Permitted Exceptions"
are:
(A) the lien of current real estate taxes
and special assessments not yet due and payable; and
(B) such other matters which are not
unacceptable to Purchaser under this subsection B.
Promptly after the date of execution of this
Agreement by Seller, Purchaser shall request an
interim title binder from the Title Company and
within fifteen (15) days after receipt thereof shall
notify Seller of all exceptions to title to the
Property which are unacceptable to Purchaser, in its
sole discretion. Seller shall act diligently, and its
sole expense, to correct such conditions at least
thirty (30) days prior the Closing Date. If such
conditions are not corrected by thirty (30) days
prior to the Closing Date hereunder, Purchaser, in
addition to any other rights it may have, shall have
the right and option (i) to terminate this Agreement,
or (ii) to extend the Closing Date for a period not
to exceed six (6) months until such time as Seller
has corrected such defects, or (iii) to close on the
purchase of the Property and waive such defects in
title. In the event of termination of this Agreement,
Seller and Purchaser shall be relieved of all
liabilities under this Agreement and the Deposit
shall be returned to Purchaser.
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(iv) Existing Mortgages. Seller shall have delivered
to the Title Company such releases or other instruments
necessary to release of record and beneficially any and all
existing mortgages, deeds of trust, financing statements or
other security documents affecting the Property (collectively,
the "Existing Mortgages") or assurances that same will be
produced upon, and in return for, payment of such obligations
at Closing.
(v) Employees. Seller shall terminate the employment
of all persons employed in connection with the Property.
(vi) Leasing Brokerage and Property Management
Agreements. Seller shall have terminated any and all leasing
brokerage and property management agreements with respect to
the Property effective as of the Closing. All responsibility
for dealings with any such brokers, including the payment of
any claims (if deemed warranted by Seller) shall be the sole
responsibility of Seller. Seller agrees that it will indemnify
and hold Purchaser, its successors, assigns, partners, agents
and employees, harmless against any such claims and/or losses
which might be incurred by such indemnitees in connection with
any additional and/or contingent leasing commissions or fees
or management fees. The provisions of this subparagraph (vi)
shall survive Closing.
(vii) Performance by Seller. Seller shall have
complied with and not be in breach of any of its covenants or
obligations under this Agreement.
(viii) Tenant Estoppels. Purchaser shall have received a
tenant estoppel letter substantially in the form attached
hereto as Exhibit F from each of the tenants of the Property
(or in such form as required by Purchaser's mortgage lender),
confirming the information set forth in the Lease and Rent
Schedule attached hereto as Exhibit B, and any subordination
and attornment agreements required by Purchaser's mortgage
lender.
(ix) FWRT Board Approval. The Board of Directors of
FWRT shall have approved this Agreement and the transactions
contemplated hereby. In the event that the aforesaid condition
is not satisfied by the end of the Feasibility Period,
Purchaser may elect to terminate this Agreement by giving
Seller written notice thereof within one (1) day after the end
of the Feasibility Period in which event the Deposit and any
interest thereon shall be returned to Purchaser and neither
party shall have any further obligations or liabilities to the
other.
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(b) Failure of Condition. In the event of the failure by the
Closing Date of any condition precedent set forth above, except for the FWRT
Board approval, which shall be satisfied or waived by the first day following
the Feasibility Period, then Purchaser, at its sole election, may (a) terminate
this Agreement, in which event the Deposit and any interest thereon shall be
returned to Purchaser and, except as otherwise provided in Paragraph 16 hereof,
neither party shall have any further obligations or liabilities to the other; or
(b) proceed to Closing and avail itself of any legal or equitable remedy
Purchaser may have except as to any default of Seller waived in writing by
Purchaser on or before the Closing Date, and except as to any default of Seller
which is not a result of a material misrepresentation, fraud, wrongful refusal
to close or willful misconduct of Seller which legal remedy therefor shall be
limited to specific performance; or (c) extend the Closing Date for such
reasonable time period as may be determined by Purchaser (but in no event for
more than three (3) months from the Closing Date then in effect) in order to
permit the satisfaction of any condition precedent not so fulfilled.
9. Seller's Deliveries. Seller shall execute, acknowledge and deliver
to Purchaser at the Closing the following documents, dated on the Closing Date:
(a) a special warranty deed, in form and substance
satisfactory to Purchaser and Title Company, conveying good and marketable fee
simple title to the Property, free and clear of all liens, encumbrances,
easements and restrictions of every nature and description, except for the
Permitted Exceptions;
(b) a xxxx of sale which shall convey to Purchaser good title
to all the Personalty, free and clear of all liens and encumbrances;
(c) an affidavit setting forth that all of Seller's
representations and warranties are true and correct in all material respects on
the Closing Date;
(d) an assignment of the Leases and security deposits,
together with all originally executed Leases, and the security deposits shall be
paid to Purchaser;
(e) an assignment of Licenses, permits and Service Contracts,
if any, which are to be assumed by Purchaser at Purchaser's request, together
with the originally executed Service Contracts which are to be assumed;
(f) a schedule updating the Rent Schedule and setting forth
all arrearages in rents and all prepayments of rents;
(g) copies of books, records, operating reports, files and
other materials related to the ownership, use and operation of the Property, to
the extent that any exist and are in the possession of Seller, which obligation
shall survive Closing;
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(h) Tenant estoppel letters and subordination and attornment
agreements from each tenant of the Property dated within thirty (30) days of
Closing to the extent and, in the form required by Purchaser's lender;
(i) an original letter executed by Seller advising the tenants
of the sale of the Property to Purchaser and directing that rents and other
payments thereafter be sent to Purchaser or as Purchaser may direct;
(j) possession of the Property in the condition required by
this Agreement, and the keys therefore;
(k) the Certification of Non-foreign Status as provided in
Treas. Reg. 1.1445-2T(b)(2)(iii)(B) or in any other form as may be required by
the Internal Revenue Code or the regulations issued thereunder;
(l) such other customary items and instruments as shall be
required by the Title Company in connection with the issuance of its title
insurance policy to Purchaser pursuant to Section 8(a)(iii) (including customary
Seller's or owner's affidavit) or as shall be reasonably requested by counsel to
Purchaser and consistent with the terms of this Agreement;
(m) any and all documents necessary to release the letter of
credit and/or cash constituting the Deposit from escrow with the Title Company
and to have said letter of credit and/or cash returned to Purchaser; and
(n) any other documents required by this Agreement to be
delivered by Seller.
10. Purchaser's Performance. At Closing, simultaneously with the
deliveries of Seller pursuant to the provisions of Xxxxxxxxx 0, Xxxxxxxxx shall
pay to Seller the Purchase Price in the manner specified in Paragraph 2,
whereupon the Deposit, and any interest accrued thereon, shall be returned to
Purchaser by the Title Company or, at the option of Purchaser, shall be applied
against the payment of Purchase Price.
11. Settlement Charges; Prorations and Adjustments. Purchaser shall pay
for the title examination, the title insurance premium, notary fees and other
such charges incident to Closing. The cost of preparation of the deed for the
Property shall be borne by Seller. Any real estate transfer and recording fees
and taxes and documentary stamps in connection with this transaction shall be
borne equally by Seller and by Purchaser. Purchaser and Seller shall each pay
its own legal fees related to the preparation of this Agreement and all
documents required to settle the transaction contemplated hereby. In addition to
the foregoing, at the Closing, the following
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adjustments and prorations shall be computed as of the Closing Date and the
Purchase Price shall be adjusted to reflect such prorations, as follows:
(a) Taxes. Real estate and personal property taxes shall be
apportioned as of the Closing Date.
(b) Assessments. All special assessments and other similar
charges which have become or may become a lien upon the Property or any part
thereof at the Closing Date, whether or not same are then past due or are
payable thereafter (in installments or otherwise), or which have been confirmed
by a public authority at the Closing Date, shall, at Purchaser's option, either
be paid in full by Seller at the Closing or credited against the cash portion of
the Purchase Price and assumed by Purchaser.
(c) Rent. Rent for the month of Closing collected by Seller
prior to Closing. If any tenant is in arrears in the payment of rent on the
Closing Date, rents received from such tenant after the Closing shall be applied
in the following order of priority: (a) first, to the payment of current rent
then due; (b) second, to delinquent rent for any period after the Closing Date;
and (c) third, to delinquent rent for any period prior to the Closing Date.
Purchaser does not guarantee or undertake any obligation to xxx or take other
action for collection of arrearages in rents due from tenants as of the Closing
Date. If rents or any portion thereof received by Seller or Purchaser after the
Closing Date are payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fee,
costs and expenses of collection thereof, shall be promptly paid to the other
party, which obligation shall survive the Closing.
If any tenants are required to pay percentage rents,
escalation charges for real estate taxes, operating expenses, cost-of-living
adjustments or other charges of a similar nature ("Additional Rents") and any
Additional Rents are collected by Purchaser after the Closing which are
attributable in whole or in part to any period prior to the Closing, then
Purchaser shall promptly pay to Seller Seller's proportionate share thereof,
less a proportionate share of any reasonable attorneys' fees, costs and expenses
of collection thereof, if and when the tenant paying the same has made all
payments of rents and Additional Rent then due to Purchaser pursuant to the
tenant's Lease, which obligation shall survive the Closing.
(d) Miscellaneous. All other charges and fees customarily
prorated and adjusted in similar transactions, including utilities, insurance
premiums and charges for Service Contracts to be assumed by Purchaser, shall be
prorated as of the Closing Date. In the event that accurate prorations and other
adjustments cannot be made at Closing because current bills are not obtainable
or the amount to be adjusted is not yet ascertainable (as, for example, in the
case of utility bills) the parties shall prorate on the best available
information, subject to further adjustment promptly upon receipt of the
-13-
final xxxx or upon completion of final computations. Seller agrees that an
appropriate amount in respect of water consumption charges may be held in escrow
by the Title Company in connection with its issuance of a title insurance policy
to Purchaser. Seller shall use its best efforts to have all utility meters read
on the Closing Date so as to accurately determine its share of current utility
bills. If any claims or liabilities are asserted at any time subsequent to
Closing against the Property or the Purchaser, which were not taken into
consideration for adjustment hereunder, including without limitation, claims by
governmental agencies, and if such claims or liabilities are based upon or arise
out of any occurrence prior to Closing or any act or omission by Seller, Seller
shall satisfy such claims or liabilities and shall indemnify and hold Purchaser
harmless therefrom.
(e) Vacancy Adjustments. Seller acknowledges that the tenant
spaces at the Property formerly occupied by White Xxxxxxx Real Estate (2,800
square feet at $14.50/s.f. NNN) and Graylyn Liquors (1,600 square feet at
$17.00/s.f. NNN) are vacant (collectively referred to herein as the "Vacant
Spaces"). Prior to Closing, Seller shall use reasonable efforts to relet these
two (2) tenant spaces at rents equal to or greater than the rents reflected in
the parentheticals above (collectively referred to as the "Threshold Rents") and
shall incur any and all costs and expenses associated with such reletting
(including without limitation tenant improvement costs and allowances and
leasing commissions). In the event that either or both of the Vacant Spaces are
leased prior to Closing at a rental rate less than the Threshold Rents set forth
herein, Purchaser and Seller agree that the Purchase Price shall be reduced by
an amount based upon a ten percent (10%) capitalization rate for the income
differential between the Threshold Rent(s) and the actual rent. In the event
that either or both the Vacant Spaces are not leased prior to Closing, Purchaser
and Seller agree that the Purchase Price shall be reduced by an amount equal to
one years' rent (using the Threshold Rents (and the NNN pass-throughs)) plus
$10.00 per square foot for tenant improvements/allowances and leasing
commissions, or, in the alternative at Seller's option, Seller may guarantee for
the one (1) year period after Closing the Threshold Rents (including the NNN
pass-throughs) and tenant improvement and leasing commissions at $10.00 per
square foot for such unleased vacant spaces by posting such amount in an escrow
account.
12. Risk of Loss. The risk of loss or damage to the Property by fire or
other casualty until recordation of the deed of conveyance shall be borne by
Seller. If prior to Closing (i) condemnation proceedings are commenced against
all or any portion of the Property, or (ii) if the Property is damaged by fire
or other casualty to the extent that the cost of repairing such damage shall be
One Hundred Thousand Dollars ($100,000.00) or more, or (iii) if the Property is
damaged by an uninsured risk; or (iv) the Property becomes subject to litigation
which may deprive Purchaser of any material benefit to which it would become
entitled pursuant to this Agreement, then Purchaser shall have the right, upon
notice in writing to the Seller delivered within thirty (30) days after actual
-14-
notice of such condemnation or fire or other casualty or litigation, to
terminate this Agreement, and thereupon the parties shall be released and
discharged from any further obligations to each other and the discharged from
any further obligations to each other and the Deposit shall be refunded to
Purchaser. If Purchaser does not elect to terminate this Agreement or in the
event of fire or other casualty not giving rise to a right to terminate this
Agreement by Purchaser, the Closing Date shall be postponed until not later than
sixty (60) days following the date (the "Determination Date") on which the
condemnation becomes final or the amount, if any, of insurance proceeds payable
on account of such fire or other casualty is determined or such litigation is
reduced to final judgment or settled. The Closing shall be held after thirty
(30) days and prior to sixty (60) days following the Determination Date upon at
least ten (10) days prior written notice from Purchaser to Seller, and the
Purchaser Price shall not be reduced except as hereinafter set forth, but
Purchaser shall be entitled to an assignment of all of Seller's share of the
proceeds of fire or other casualty insurance and rent insurance proceeds payable
with respect to the period after Closing or of the condemnation award, as the
case may be, and Seller shall have no obligation to repair or restore the
Property; provided, however, that the Purchase Price shall be reduced by an
amount equal to the sum of (a) the "deductible" applied by Seller's insurance
policy, or (c) if Seller is self-insured, the cost of repairing such damage.
Purchaser shall have the right to participate in the negotiation and settlement
of any litigation, casualty or condemnation-related claim.
13. Inspection of Property.
(a) Purchaser's Right of Inspection. Purchaser shall have the
right, at its own risk, cost and expense, at any time or times prior to Closing,
to enter, or cause its agents or representatives to enter, upon the Property for
the purpose of making surveys, or any tests, investigations and/or studies
relating to the Property or Purchaser's intended acquisition thereof which
Purchaser deems appropriate, in its sole discretion, during reasonable hours and
upon reasonable notice to Seller. Purchaser shall further have complete access
to all documentation, agreements and other information in the possession of
Seller related to the ownership, use and operation of the Property, to the
extent it is readily available to Seller, and shall have the right to make
copies of same.
(b) Feasibility Period. Any other provisions of this Agreement
to the contrary notwithstanding, Purchaser may, prior to the expiration of sixty
(60) days after the Acceptance Date (such 60-day period herein referred to as
the "Feasibility Period"), cause at Purchaser's sole cost and expense, such
boring, engineering, economic, water, sanitary and storm sewer, utilities,
topographic, structural, environmental and other tests, investigations, market
studies and other studies as Purchaser shall elect. Notwithstanding the
preceding sentence, purchaser shall not initiate or perform any subsurface
environmental investigation without Seller's prior consent which consent
-15-
shall not be unreasonably withheld or delayed. In the event that any of such
tests, investigations and/or studies indicate, in Purchaser's sole discretion,
that Purchaser's plans for the Property would not be feasible, then Purchaser
shall have the right, at its sole election on or before the last day of the
Feasibility Period, to terminate this Agreement by giving written notice thereof
to Seller, in which event this Agreement shall terminate, the Deposit shall be
returned to Purchaser and neither party shall have any further liabilities or
obligations to each other. Purchaser shall be liable for any damage to real or
personal property or injuries to persons caused by Purchaser's actions in
studying the Property during the Feasibility Period, and Purchaser agrees to
indemnify Seller against any and all loss, cost, expense, damage and liability
incurred as a result thereof. In the event Purchaser, in its sole discretion,
decides to terminate this Agreement, Purchaser agrees to provide Seller with
copies of those materials, studies and reports which Purchaser has undertaken
during the Feasibility Period and which Purchaser is authorized to provide to
Seller.
(c) Audit. Seller hereby agrees to allow its books and records
related to the Property to be audited (at Purchaser's sole expense) by an
independent, certified public accounting firm selected by Purchaser, and Seller
will cooperate and cause its employees and other agents to cooperate in such
auditing process. Purchaser shall provide Seller with prior notice of such audit
and execute a confidentiality agreement at Seller's request.
14. Indemnifications.
(a) Indemnification by Seller. Seller hereby indemnifies and
agrees to defend and hold harmless Purchaser and its partners and subsidiaries,
and any officer, director, employee or agent of any of them, and their
respective successors and assigns, from and against any and all claims,
expenses, costs, damages, losses and liabilities (including reasonable
attorneys' fees) which may at any time be asserted against or suffered by
Purchaser or the Property, or any part thereof, whether before or after the
Closing Date, as a result of, on account of or arising from (a) any breach of
any covenant, representation, warranty or agreement on the part of Seller made
herein or in any instrument or document delivered pursuant to this Agreement,
and/or (b) any obligation, claims, suit, liability, contract, agreement, debt or
encumbrance or other occurrence (other than encumbrances expressly approved by
Purchaser) created, arising or accruing prior to the Closing Date, regardless of
when asserted and relating to the Property or its operations.
(b) Seller's Environmental Indemnity. For a period of three
(3) years from Closing, Seller hereby indemnifies and agrees to defend and hold
harmless Purchaser and its partners and subsidiaries, and any officer, director,
employee or agent of any of them, and their respective successors and assigns,
from and against any and all claims, expenses, costs, damages, losses and
liabilities (including
-16-
reasonable attorneys' fees) which may at any time be asserted against or
suffered by any indemnitee, directly or indirectly, relating to the presence of
Hazardous Materials on the Property at Closing, or the removal of Hazardous
Materials from the Property prior to Closing, including any claim as a result of
any governmental action, action by a third party or actions taken by such
indemnitees based upon advice of a recognized environmental authority to the
effect that action may need to be taken to avoid, reduce or limit any
indemnitees exposure to liability or the risk of injury or damage of persons or
property.
(c) Indemnification by Purchaser. Purchaser hereby indemnifies
and agrees to defend and hold harmless Seller and its partners and subsidiaries,
and any officer, director, employee or agent of any of them, and their
respective successors and assigns, from and against any and all claims,
expenses, costs, damages, losses and liabilities (including reasonable
attorneys' fees) which may at any time be asserted against or suffered by Seller
as a result of, on account of or arising from (a) any breach of any covenant,
representation, warranty or agreement on the part of Purchaser made herein or in
any instrument or document delivered pursuant to this Agreement, and/or (b) any
obligation, claims, suit, liability, contract, agreement, debt or encumbrance or
other occurrence created, arising or accruing after the Closing Date and
relating to the Property or its operations.
15. Brokerage Commission. Purchaser and Seller each recognize LRA
Realty Advisors (the "Broker") as the sole agent for this transaction. Any
commission due the Broker in connection with this transaction shall be paid by
Seller pursuant to a separate agreement with the Broker. Purchaser shall not be
obligated to pay for any commission or fee to the Broker. Seller and Purchaser
represent and warrant to each other that no other brokerage fee or real estate
commission is or shall be due or owing in connection with this transaction, and
Seller and Purchaser hereby indemnify and hold the other harmless from any and
all claims of any other broker or agent so claiming based on action or alleged
action of the other.
16. Default Provisions; Remedies.
(a) Purchaser's Default. If Purchaser fails to consummate the
purchase and sale contemplated herein when required to do so pursuant to the
provisions hereof, then the Title Company shall deliver the Deposit to Seller as
full and complete liquidated damages, and as the exclusive and sole right and
remedy of Seller, whereupon this Agreement shall terminate and neither party
shall have any further obligations or liabilities to any other party.
(b) Seller's Default. Except for any breaches waived in
writing by Purchaser, if Seller has breached any of its covenants or obligations
under this Agreement or has failed, refused or is unable to consummate the
purchase and sale
-17-
contemplated herein by the Closing Date or if any of the representations and
warranties made by Seller under this Agreement shall be inaccurate or incorrect
in any material respect, then Purchaser shall be entitled to (i) waive such
breach, default or failure, (ii) extend the Closing for such reasonable time or
times as may be necessary in order to enable Seller to remedy such breach,
default or failure, (iii) terminate this Contract and obtain the return of the
Deposit, and/or (iv) as its sole and exclusive remedy, institute proceedings in
any court of competent jurisdiction to specifically enforce the performance by
Seller of the terms of this Agreement (and if Purchaser is successful in
obtaining such specific performance, Seller shall indemnify Purchaser for all of
Purchaser's costs and expenses, including without limitation reasonable
attorney's fees and court costs). Notwithstanding the foregoing, if Seller's
default is as a result of a material misrepresentation, fraud, wrongful refusal
to close, or willful misconduct by Seller, then Purchaser may also recover from
Seller the damages actually incurred by Purchaser as a result of that default
including, but not limited to, reasonable attorney's fees.
17. Miscellaneous Provisions.
(a) Tax Deferred Like-Kind Exchange.
(i) Notwithstanding anything contained herein to the
contrary, in accordance with the terms set forth herein,
Seller shall be entitled, at its option, to structure the
transfer of the Property to Purchaser as part of a
tax-deferred "like-kind" exchange under Section 1031 of the
Internal Revenue Code of 1986. In this event, Seller will not
receive the consideration otherwise contemplated by this
Agreement but will instead receive, in whole or in part, other
real estate.
(ii) If Seller desires to effectuate a tax-deferred
exchange as aforesaid, Seller shall so notify Purchaser not
later than the date which is ten (10) days prior to Closing.
In this event, Purchaser shall nonetheless receive title to
the Property at Closing and shall at Closing provide only the
cash consideration contemplated by this Agreement.
Furthermore, although Purchaser will reasonably cooperate with
Seller to help Seller accomplish a tax-deferred like-kind
exchange, by so cooperating, Purchaser shall incur no extra
expenses, no delays, and no extra risks. Furthermore, neither
Purchaser nor Purchaser's legal counsel makes any
representations or warranties to Seller concerning the tax
consequences of Seller's actions in this regard. Apart from
the obligation to provide the consideration, Purchaser shall
have no obligation or liability whatsoever in connection with
the like-kind exchange and Seller shall indemnify and hold
Purchaser harmless from any damages, liability and claims,
including
-18-
reasonable attorney's fees, paid or incurred by Purchaser in
connection therewith.
(b) Completeness and Modification. This Agreement (together
with Exhibits A to I attached hereto) with respect to the transactions
contemplated herein, and it supersedes all prior discussions, understandings or
agreements between the parties. This Agreement shall not be modified or amended
except by an instrument in writing signed by all of the parties hereto.
(c) Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties hereto, and their respective successors and
assigns.
(d) Assignment. This Agreement shall be freely assignable by
Purchaser, without the consent of Seller. This Agreement shall not be assignable
by Seller.
(e) Waiver; Modification. Failure by Purchaser or Seller to
insist upon or enforce any of its rights hereto shall not constitute a waiver or
modification thereof.
(f) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of Delaware.
(g) Headings. The headings are herein used for convenience or
reference only and shall not be deemed to vary the content of this Agreement or
the covenants, agreements, representations and warranties herein set forth, or
the scope of any provision hereof.
(h) Continuing Documentation and Access. From and after
Closing, Seller shall afford Purchaser reasonable access to any and all
information in its possession concerning the ownership, use and operation of the
Property (including the right to copy same at the expense of Purchaser) for
purposes of any tax examination or audit or other similar purpose, subject to
the agreements of Purchaser concerning confidentiality set forth herein.
(i) All Warranties Joint and Several. Each and every warranty,
covenant, undertaking and agreement of Seller hereunder shall be deemed a joint
and several warranty, covenant, undertaking and agreement of each person and
entity collectively comprising the Seller.
(j) Counterparts. To facilitate execution, this Agreement may
be executed in as many counterparts as may be required; it shall be sufficient
that the signature of, or on behalf of, each party, or that the signatures of
the persons required
-19-
to bind any party, appear on one or more such counterparts. All counterparts
shall collectively constitute a single agreement.
(k) Notices. All notices, requests, consents and other
communications hereunder shall be in writing and shall be personally delivered
or mailed by first-class registered or certified mail, return receipt requested,
postage prepaid or delivered by commercial courier, telecopy or overnight
courier (e.g., Federal Express), against receipt, to the addresses indicated
below:
(i) if to Purchaser:
First Washington Realty Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxxxxxxxx, Esquire
First Washington Realty Limited Partnership
0000 Xxxx-Xxxx Xxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopy: (000) 000-0000
(ii) if to Seller:
Graylyn Shopping Center Associates, L.P.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Delle Donne
Telecopy: (000) 000-0000
with a copy to:
X.X. Xxxxxxx, Esq.
Delle Donne & Associates, Inc.
000 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
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Such notice shall be deemed given ont he date of
receipt by the addressee or the date receipt would have been effectuated if
delivery were not refused. Each party may designate a new address by written
notice to the other in accordance with this Paragraph 17(k).
(l) Business Days. A "business day" shall be Mondays through
Fridays, less and expecting all legal holidays observed by the United States
Government or the Government of the State of Maryland. Any date specified in
this Agreement which does not fall on a business day shall be automatically
extended until the first business day after such date.
IN WITNESS WHEREOF, the parties hereto have executed this Real Estate
Purchase Agreement as of the day and year first written above.
PURCHASER:
FIRST WASHINGTON REALTY
LIMITED PARTNERSHIP
By: First Washington Realty Trust, Inc.,
WITNESS: Its general partner
-------------------------- By: /s/
-------------------------------
Xxxxxx X. Xxxxxxx
Chairman of the Board
Date of execution by
Purchaser: May 6 , 1996
SELLER:
GRAYLYN SHOPPING CENTER
WITNESS: ASSOCIATES, L.P.
-------------------------- By: /s/
--------------------------------
Name: Xxxxxx X. Xxxxx Xxxxx
Title: General Partner
Date of execution by
Seller: October 15 , 1996
-21-
ACKNOWLEDGE BY TITLE COMPANY
The undersigned Title Company executes this Real Estate Purchase
Agreement solely to acknowledge receipt of the Deposit pursuant to Paragraph 3
hereof and to evidence its agreement to serve as escrow agent pursuant to the
terms of the foregoing Agreement.
COMMERCIAL SETTLEMENTS, INC.
By: /s/
-----------------------------
Name:
Title:
Date: October 18, 1996
---------------------------
-22-
LIST OF EXHIBITS
EXHIBIT A. Legal Description of Land Recitals
EXHIBIT B. Leases and Rent Schedule Section 5(d)
EXHIBIT C. Service Contracts Section 5(e)
EXHIBIT D. Tax Bills Section 5(f)
EXHIBIT E. Insurance Policies Section 5(g)
EXHIBIT F. Form of Tenant Estoppel Section 5(i)
EXHIBIT G. Certificates of Occupancy Section 5(p)
EXHIBIT H. Operating Statements and Operating Budget Section 5(r)
EXHIBIT I. Personal Property Section 5(t)
[Seller to Attach Foregoing at Acceptance of this Agreement]
-23-
EXHIBIT A
LEGAL DESCRIPTION OF LAND
-24-
EXHIBIT B
LEASES AND RENT SCHEDULE
-25-
EXHIBIT C
SERVICE CONTRACTS
-26-
EXHIBIT D
TAX BILLS
-27-
EXHIBIT E
INSURANCE POLICIES
-28-
EXHIBIT F
[Form of Tenant Estoppel]
ESTOPPEL CERTIFICATE
, 199
Re:
Lease with [name of Tenant]
Gentlemen:
Please be advised that the undersigned tenant hereby certifies as of
the date hereof as follows with respect to the Lease:
Name of Tenant:
Description of Leased Premises:
Date of Commencement of Lease:
Date of Termination of Lease:
Options to Renew:
Base Rental: Annual Rental of $ , payable monthly in arrears.
---------------
Tax Adjustments: $ payable monthly in arrears
----------------
Percentage Rent:
Common Area Maintenance Charges: $
Tenant in possession of the premises under the Lease?: Yes
The Lease is unmodified and in full force and effect except for modifications,
listed by number and date on Exhibit A attached hereto.
Amount of rent paid in advance: $
Amount of Security Deposit: $
Compliance with Construction Requirements: Landlord has complied with all
construction requirements of Tenant, and Tenant has accepted all of the leased
premises under the Lease.
-i-
Tenant has not made any claims against Landlord and has no knowledge of any
uncured default on the part of Landlord (If there is knowledge of any uncured
default, please note and attach separate sheet).
Tenant's Right to Purchase: Tenant has no option or right in the nature of a
right of first refusal to purchase or otherwise acquire any interest in the
leased premises.
Tenant's Right of Premature Termination or Option to Renew: Tenant has no right
to premature termination and no right or option to renew or extend the term
beyond its present term and no option to lease additional space, except as
expressly set forth in the Lease.
Anything in the Lease to the contrary notwithstanding, Tenant agrees that it
will not terminate the Lease or withhold any rents due thereunder because of
Landlord's default in the performance thereof until tenant has first given
notice to Landlord and to the holder of any deed of trust specifying the nature
of any such default by Landlord and allowing the said holder, at its option,
thirty (30) days after date of such notice to cure the default, or a reasonable
period of time in addition thereto if circumstances are such that the default
cannot be cured within a thirty (30) day period.
Tenant agrees to subordinate the Lease to any deed of trust on the leased
premises.
In the event of foreclosure, Tenant agrees to attorn to the purchaser of the
leased premises at the foreclosure sale.
TENANT:
[Name of Tenant]
By:
Name:
Title:
STATE OF )
) ss:
COUNTY OF )
Signed and sealed in my presence this day of , 199 .
---- --------- ---
Notary Public
[SEAL]
My Commission Expires:
-ii-
EXHIBIT G
CERTIFICATES OF OCCUPANCY
-iii-
EXHIBIT H
OPERATING STATEMENTS AND OPERATING BUDGET
-iv-
EXHIBIT I
PERSONAL PROPERTY
-v-
