AGREEMENT FOR PURCHASE AND SALE
This Agreement For Purchase and Sale ("Agreement") is made as of the
last date written below by and between ACI FINANCING, L.L.C., a Missouri limited
liability company ("Seller"), and DBSI HOUSING INC., an Idaho corporation, its
nominee or assigns ("Purchaser") (sometimes collectively referred to herein as
the "Parties").
1. Definitions. As used in this Agreement, the following terms shall have
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the following meanings:
1.1 "Property" means:
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(a) the Real Property located at 000 Xxxxx 000xx Xxxxxx,
Xxxxx, Xxxxxxxx, and more particularly described on Exhibit "A" attached hereto
and incorporated herein by reference, together with any and all improvements
thereon and appurtenances thereto (the "Realty");
(b) the personal property associated with the ownership,
operation and maintenance of the Realty, and owned by Seller, if any (the
"Personalty"); and
(c) all right, title, and interest, if any, in intangible
personal property, including, without limitation:
1. leases with tenants;
2. assignable warranties and guarantees on property
purchased, if any;
3. assignable licenses, permits, governmental
approvals or similar documentation;
4. the name "ACI Building", and any telephone numbers
associated therewith, related trademarks,
service marks;
5. rights-of-way, rights of ingress and egress;
6. drawings, plans, specifications, and other
architectural and engineering work product;
7. security and other reserve and deposit accounts
made as security for the fulfillment of any of
Seller's obligations;
8. assignable guaranties, warranties, or other
assurances of performance received.
Agreement for Purchase and Sale
Page 1
1.2 "Escrow Holder" means Assured Quality Title Company.
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1.3 "Title Insurer" means Assured Quality Title Company.
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1.4 "Seller's knowledge". Wherever the phrase "Seller's knowledge",
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"to the best of Seller's knowledge", or "to Seller's knowledge" or similar
phrase is used herein, such phrase shall be interpreted as referring to the
actual knowledge of Seller and Seller's agents.
1.5 "Effective Date" means the date on which an original of this
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Agreement has been signed by and delivered to both Purchaser and Seller.
1.6 "Closing". Closing shall be deemed to have occurred at such
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time as the Escrow Holder is in receipt of all Closing Documents (as defined in
Section 9 herein) and is able to comply with Seller's and Purchaser's closing
instructions. In no event shall Closing occur prior to the date set forth in
Section 6 below, unless otherwise agreed to in writing by the Parties.
2. Purchase and Sale. Seller agrees to sell to Purchaser, and Purchaser
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agrees to purchase from Seller, fee simple title to all of Seller's right,
title, and interest in and to the Property, on the terms and conditions set
forth in this Agreement.
3. Purchase Price. The Purchase Price for the Property is Eight Million
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Two Hundred Two Thousand Five Hundred and 00/100 Dollars ($8,202,500.00).
3.1 Xxxxxxx Money. Purchaser shall deposit with Escrow Holder
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Xxxxxxx Money in the sum of Fifty Thousand and 00/100 Dollars ($50,000.00)
within five (5) business days of the Effective Date of this Agreement, and an
additional Fifty Thousand and 00/100 Dollars ($50,000.00) within five (5)
business days of Purchaser's approval of its Due Diligence Review of the
Property (as defined below). Except as otherwise provided in this Agreement,
upon Purchaser's deposit of the additional Xxxxxxx Money, the Xxxxxxx Money
shall become nonrefundable.
3.2 Escrow Holder shall deposit the Xxxxxxx Money in an insured,
interest-bearing account. All Xxxxxxx Money and accrued interest ("Xxxxxxx
Money") shall be applied to the Purchase Price at Closing. The Xxxxxxx Money and
accrued interest shall be refundable and returned to Purchaser without further
instruction from either party to the Escrow Holder, and any and all rights or
obligations of Seller and Purchaser under this Agreement shall terminate and be
of no further force or effect at such time as Purchaser has or is deemed to have
rejected the Property or otherwise terminated this Agreement as otherwise
provided in this Agreement.
3.3 Balance of Purchase Price. On or before Closing, Purchaser
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shall deposit with Escrow Holder the balance of the Purchase Price in cash or
other immediately available funds, plus any other sums necessary to close, less
the balance of the existing loan to be assumed by Purchaser from Principal
Commercial Funding, LLC, a Delaware limited liability company ("Lender") with an
outstanding balance of approximately Four Million One Hundred Thousand
Agreement for Purchase and Sale
Page 2
and 00/100 Dollars ($4,100,000.00) (as of December 2002) at the interest rate of
8.63% per annum, and maturing August 1, 2010.
4. Title and Title Insurance.
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4.1 At Closing, title shall be free of (and title insurance shall
insure that title is free of) liens, encumbrances, easements or defects, except
instruments of record listed as exceptions to Title that are approved in writing
by Purchaser ("Permitted Exceptions"), pursuant to Section 4.2 below.
4.2 Within ten (10) days following the Effective Date of this
Agreement, Seller will request and make arrangements with Title Insurer to make
available to Purchaser a commitment for title insurance ("Preliminary
Commitment"), along with legible copies of all listed exceptions issued by Title
Insurer showing the condition of Seller's title to the Realty. Purchaser shall
give written notice to Seller (on or before twenty (20) days following the date
of receipt of Seller's most current existing ALTA survey, the Preliminary
Commitment and legible copies of all listed exceptions) of any listed exceptions
in Seller's title to which Purchaser objects in its sole discretion
("Purchaser's Objection Notice"). Within ten (10) days of receipt of Purchaser's
Objection Notice, Seller shall notify Purchaser in writing ("Seller's Exception
Notice") whether Seller intends to remove prior to Closing the listed exceptions
to title to which Purchaser objects; provided, however, that Seller shall not be
obligated to incur any expense or liability in connection with the attempted
removal of such exceptions. In the event Seller notifies Purchaser that Seller
will remove any of the listed exceptions objected to by Purchaser, Seller shall
have removed all such listed exceptions on or before Closing. In the event
Seller notifies Purchaser that Seller will not remove any or all of the listed
exceptions objected to by Purchaser, Purchaser must elect to accept such listed
exceptions in Seller's title as Seller declines or fails to cure or,
alternatively, elect to terminate this Agreement by delivering written notice to
Seller within ten (10) days following Seller's Exception Notice. Notwithstanding
any provision otherwise provided in this Agreement to the contrary, in the event
Purchaser so elects to terminate this Agreement, Escrow Holder shall refund the
Xxxxxxx Money and accrued interest to Purchaser without further instruction from
either party, and any and all rights or obligations of Seller and Purchaser
under this Agreement shall terminate and be of no further force or effect,
except as otherwise set forth herein. If Purchaser does not receive Seller's
Exception Notice within the time required above, Seller shall be deemed to have
declined to cure the listed exceptions set forth in the Purchaser's Objection
Notice.
Notwithstanding the foregoing, Purchaser shall have the right
to object to any additional title matters that appear on a new survey or update
of the existing survey that did not appear on Seller's existing survey
("Additional Title Matters") within five (5) business days after Purchaser's
receipt of such new ALTA or equivalent TLTA survey or update of the existing
survey. The parties shall deal with the Additional Title Matters as set forth
above in this Section 4.2.
4.3 Title Insurer shall deliver to Purchaser at Closing, an
extended Form ALTA owner's policy of title insurance insuring Purchaser's fee
simple title to the Realty in the face
Agreement for Purchase and Sale
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amount of the purchase price containing no exceptions other than the Permitted
Exceptions ("Title Policy"). Seller agrees to provide affidavits and/or
indemnities as required to obtain such coverage.
5. Due Diligence Period/Right of Entry.
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5.1 For a period of sixty (60) days from the Effective Date ("Due
Diligence Period"), Purchaser and its representatives shall, at its sole
expense, conduct its due diligence review which may include, without limitation,
entry upon the Realty to make inspections, investigations, and other
examinations of the Property, including any third party inspections,
investigations, and other examinations not provided by Seller, and all books,
records, and files relating to the Property, including the documents listed on
Exhibit "B" attached hereto and incorporated herein (the "Due Diligence
Documents"). Seller shall provide Purchaser with the Due Diligence Documents, in
Seller's possession or economically attainable by Seller, within three (3) days
of the Effective Date. Purchaser shall have the entire Due Diligence Period to
perform and complete its due diligence review. Purchaser may extend the Due
Diligence Period an additional thirty (30) days for the sole purpose of
obtaining the Lender's Approval Notice as defined in Section 6.1(b) below.
5.2 Such inspections and review may include, without limitation, a
review, inspection, and acquisition of the following: structural matters; the
roof; the HVAC; the mechanical and electrical systems of the Property; the
environmental condition of the Property; all title documents; tenant leases; all
government permits and approvals; the area where the Property is located; the
past and potential financial performance of the Property including the latest
three (3) years' financial records/operating statements; the availability of
government permits and approvals; suitability of the surrounding amenities; soil
conditions; and all other matters affecting the feasibility of the Property for
Purchaser's intended purpose and other examinations of the Property; and the
documents listed on Exhibit "B" ("Due Diligence Review").
5.3 If Purchaser wishes to inspect portions of the Realty occupied
by tenants, Purchaser shall give reasonable notice to Seller of the time for
inspection, and Seller shall give advance notice to such tenants. Neither the
Purchaser nor its broker or any affiliates will contact any of the tenants or
their representatives without the Seller's prior written consent. Purchaser
shall indemnify, defend, and hold Seller and the Property harmless from and
against physical damage to the Property directly caused from Purchaser's entry
on or about the Property pursuant to this Section 5, excepting such damage
resulting from the Seller's misrepresentation, breach of warranty, conditions
existing on the Property, or Seller or its agent's own misconduct or negligence.
Purchaser shall immediately repair and restore any damage caused by any such
activities. Seller represents and warrants that Seller has the right and
authority to grant Purchaser these rights.
5.4 Seller hereby grants to Purchaser access to the Property for
the purposes of this Section 5, subject to the conditions imposed herein.
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5.5 Notwithstanding any provision in this Agreement to the
contrary, in the event the results of the Due Diligence Review are not
satisfactory to Purchaser for any reason whatsoever, in Purchaser's unrestricted
and sole discretion, this Agreement shall terminate, as provided below, and
Escrow Holder shall return all Xxxxxxx Money to Purchaser without further
instruction from either party hereto.
5.6 On or before the expiration of the Due Diligence Period,
Purchaser shall either: (1) notify Seller in writing that it accepts the
Property and place into escrow the additional Xxxxxxx Money, subject any
remaining Conditions to Close set forth in Section 6.1 hereof; or (2) advise
Seller that Purchaser is not satisfied with the Property and all Xxxxxxx Money
will be returned to Purchaser as set forth herein. Purchaser's failure to notify
Seller in writing within the Due Diligence Period that Purchaser is satisfied
with the Property shall be deemed Purchaser's dissatisfaction and disapproval
thereof.
6. Conditions to Close and Closing. The following are conditions precedent
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("Condition(s) to Close"), each of which must be satisfied fully or waived in
writing by Purchaser in its sole discretion before Purchaser is obligated to
purchase the Property and before any Xxxxxxx Money becomes nonrefundable. All
Conditions must remain satisfied (if not waived) as of Closing, which Conditions
are for Purchaser's sole benefit and may be waived only by Purchaser. Should the
Conditions to Close remain unsatisfied on the date of Closing, Purchaser may
choose to waive such remaining Conditions to Close in writing and proceed with
Closing. Notwithstanding any provision in this Agreement to the contrary, should
Purchaser choose not to waive the remaining Conditions to Close, Escrow Holder
shall return all Xxxxxxx Money to Purchaser without further instruction from
either party hereto, and, except as specifically provided herein, all rights and
obligations of Seller and Purchaser under this Agreement shall terminate and be
of no further force or effect.
6.1 Conditions to Close. The Conditions to Close are:
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(a) On or before the expiration of the Due Diligence Period,
Purchaser's approval, in its sole discretion, of the form and terms of any
Existing Loan on the Property.
(b) Lender's unconditional written approval of Purchaser's
assumption of any Existing Loan ("Lender's Approval Notice"), and consummation
of such assumption of the Existing Loan on or before Closing, in which case
Purchaser will be responsible for all costs of assumption and mortgage
insurance.
(c) On or before the expiration of the Due Diligence Period,
Purchaser's approval of a current ALTA survey of the Property to be obtained and
paid for by Seller, prepared by a surveyor licensed in the state in which the
Property is located, in form and content (including certification) satisfactory
to Purchaser. The legal description on the survey shall be the description used
in the deed conveying the Property to Purchaser and in the title insurance
policy.
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Page 5
(d) The Title Insurer is unconditionally prepared to issue to
Purchaser or its nominee, at Closing, an ALTA Owner's Extended Coverage Title
Policy (or equivalent extended coverage) in the full amount of the Purchase
Price, insuring fee simple title to the Property to be vested in Purchaser or
its nominee, together with endorsements available to Purchaser, subject only to
the Permitted Exceptions ("Title Policy").
(e) On or before the expiration of the Due Diligence Period,
Purchaser or Purchaser's lender obtaining an acceptable appraisal of the
Property indicating a value at least equal to the Purchase Price.
(f) Seller delivering to Escrow Holder on or before the date
scheduled for Closing a duly executed, acknowledged, and recordable Special
Warranty Deed conveying fee simple title to Purchaser subject only to the
Permitted Exceptions of record.
(g) Purchaser's approval of estoppel certificates from all
tenants of the Property which have leases with expiration dates ending in 2004
or beyond or have an option to renew that would carry into or past 2004, which
estoppel certificates shall be delivered at least five (5) business days prior
to Closing in a form reasonably approved by the Purchaser. Said estoppel
certificates shall confirm, without limitation, that (1) the lease (to be
attached to the estoppel) is in full force and effect with no default existing;
(2) the amount of the rent is correct and current; (3) the rent payment terms
have not been altered; and (4) that such tenants have no claims against Seller.
Should Seller fail to provide such tenant estoppel certificates prior to
Closing, Purchaser may terminate this Agreement and Escrow Holder shall return
all Xxxxxxx Money to Purchaser without further instruction from either party.
(h) There has been no material adverse change in the condition
of the Property between the date of expiration of the Due Diligence Period and
the Closing, normal wear and tear excepted.
6.2 Closing. Except as otherwise provided in this Agreement,
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Closing shall occur in escrow in the office of Escrow Holder within thirty (30)
days after Purchaser's receipt of Lender's Approval Notice and lender's final
assumption checklist). Purchaser or Seller may extend the Closing date an
additional thirty (30) days for purposes of finalizing the assumption or their
respective 1031 exchange.
6.3 At Closing, Seller shall convey fee simple title to Purchaser
or its nominee by recordable Special Warranty Deed, subject only to the
Permitted Exceptions of record.
6.4 Any expenditure, commitment, or other action taken by Seller
or Purchaser pursuant to this Agreement, or otherwise in contemplation of the
Closing, is taken by it at its own risk. No such expenditure, commitment, or
action shall obligate Purchaser to purchase the Property unless and until all
Conditions to Close are satisfied or waived as provided herein.
Agreement for Purchase and Sale
Page 6
7. Prorations.
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7.1 Real property taxes shall be prorated as of Closing based
upon a three hundred sixty-five (365) day year. At Closing, Purchaser shall be
given a credit for all such taxes and assessments which occur prior to Closing
but which are not yet due. All payments and installments due through the Closing
Date on bonds, special taxes, or assessments shall be paid by Seller.
7.2 All rents and charges due under leases of the Property shall
be prorated as of Closing based upon figures supplied to the Escrow Holder by
Seller and reasonably approved by Purchaser. If, at Closing, there are any past
due rents or charges owed by tenants with respect to periods prior thereto,
Purchaser shall not pay to Seller, in addition to the Purchase Price, the amount
of such delinquencies; but Purchaser shall thereafter account to Seller for any
sums received from such tenants. If Seller receives any prepaid rents or other
charges from tenants applicable to periods after Closing, then Purchaser shall
be credited through escrow with such rents and charges or, if received after
Closing, such amounts shall be paid promptly to Purchaser.
7.3 Purchaser shall be credited through escrow with the amount
of any refundable or nonrefundable tenant security deposits and any other
refundable or nonrefundable tenant deposits or fees previously received by
Seller or on behalf of Seller that have not been, as of Closing, expended or
applied to tenant obligations pursuant to the leases, including, without
limitation, cleaning deposits. "Credit check" fees shall not be considered to be
a tenant deposit or fee.
7.4 Water, electricity, gas, and other utility payments or
charges shall not be adjusted through escrow if readings can be made at Closing
by the utility companies. Purchaser agrees to open accounts with the respective
utilities and to cooperate with Seller in requesting readings on Closing. In the
event that appropriate readings cannot possibly be obtained as of Closing, then
adjustments shall be made by Purchaser and Seller through escrow on the basis of
estimates from the latest bills available.
7.5 All other expense and income associated with the Property
shall be adjusted through escrow, based upon figures supplied by Seller and
reasonably approved by Purchaser. Seller and Purchaser shall each provide
preliminary figures to the other no later than five (5) days prior to Closing.
7.6 Seller shall assume and pay all debts, charges, claims,
damages, and liabilities attributable to leases or the operation of the Property
accruing and/or arising prior to Closing and shall hold Purchaser harmless
therefrom and indemnify and defend against same, except liabilities expressly
assumed in writing by Purchaser, including, without limitation, obligations of
landlord under the tenant leases.
7.7 Purchaser shall assume and pay all debts, charges, claims,
damages, and liabilities attributable to leases or the operation of the Property
accruing and/or arising after Closing and shall hold Seller harmless therefrom
and indemnify and defend against same, except liabilities
Agreement for Purchase and Sale
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expressly retained in writing by Seller, including, without limitation,
obligations of landlord under the tenant leases.
7.8 Within ninety (90) days after Closing, Purchaser and Seller
shall reconcile the actual amount of revenues or liabilities upon receipt or
payment thereof, to the extent those items were prorated or credited at Closing
based upon estimates.
7.9 To the extent in Seller's possession, Seller shall furnish
to Purchaser with the documents identified on Exhibit "B" and in accordance with
Section 5 above, a certified listing of all rental deposits and move-in fees of
whatever nature, including redecoration, cleaning, and processing charges. All
such deposits, fees, and move-in charges shall be transferred to Purchaser at
Closing. Prior to Closing, Seller shall deliver to Purchaser the original of
each written lease and other rental agreement and a written description of each
oral lease or rental agreement which affects the real estate or improvements,
including all amendments and modifications thereof and options to renew or
extend the term thereof.
7.10 Seller shall pay any real estate or personal property,
transfer, excise, or sales taxes or any similar taxes due as a result of the
sale of the Property.
7.11 Mortgage and other reserves, if any, shall be assigned to
Purchaser at Closing. Purchaser shall not reimburse Seller for such reserves
assigned to Purchaser.
8. Closing Costs.
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8.1 Seller shall pay:
(a) one-half of Escrow Holder's fee;
(b) any excise, documentary transfer, sales, use or similar
taxes resulting from the conveyance of the Property and the Personalty;
(c) the cost of an ALTA owner's standard coverage policy of
title insurance;
(d) all real estate fees and commissions due as a result of
the sale as defined in Section 29 below, except any specifically contracted for
in writing by Purchaser;
(e) Seller's pro rata share of real estate taxes assessed
against the Property and due and payable or accrued in the year of Closing;
(f) Seller's legal counsel fees; and
(g) Seller's prorations as set forth in Section 7 above.
8.2 Purchaser shall pay:
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(a) one-half of Escrow Holder's fee;
(b) recording fees for sale documents;
(c) all real estate fees and commissions specifically
contracted for in writing by Purchaser;
(d) Buyer's legal counsel fees;
(e) Purchaser's prorations as set forth in Section 7 above;
(f) the cost of a new ALTA survey or update to the existing
ALTA survey;
(g) the difference between the ALTA owner's standard policy
and extended coverage and any other endorsements available to Purchaser; and
(h) Purchaser shall pay all loan assumption fees and
expenses of Lender.
8.3 Any other Closing Costs not specifically provided for
herein shall be divided fifty percent (50%) each to Seller and Purchaser.
9. Closing Documents. On or before Closing, Seller and Purchaser shall
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cause to be delivered into escrow fully executed originals conforming to the
terms and conditions of this Agreement and satisfactory in form and substance to
Seller and Purchaser of the following documents, together with escrow
instructions, funds required to close, and any other documents reasonably
required to close and any other documents reasonably required to complete the
transactions contemplated herein:
(a) a duly executed, acknowledged, and recordable Special
Warranty Deed conveying fee simple title in the Realty to Purchaser subject only
to the Permitted Exceptions of record. Said Special Warranty Deed shall be
substantially in the same form attached hereto as Exhibit "D";
(b) a Xxxx of Sale including standard warranties as to title
and absence of liens conveying title to the Personalty to Purchaser in the form
attached hereto as Exhibit "C";
(c) a Rent Roll certified as correct by Seller identifying each
unit, the tenant of each unit, the lease expiration date, the monthly rent, the
status of payment of rent, deposits made by the tenant, and any concessions to
tenant then in effect; and such Rent Roll shall be certified as correct as of
the date of Closing;
(d) an assignment and assumption of Lessor's interest in all
leases, including standard warranties as to Seller's compliance thereto
assigning to Purchaser Seller's interest in all leases affecting the Property;
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Page 9
(e) an assignment and assumption of all contracts and
agreements assigning to Seller's rights and obligations under all contracts and
agreements with respect to the Property approved by Purchaser pursuant to
Section 5;
(f) an assignment to Purchaser of Seller's rights under any
third party warranties pertaining to the Property and an assignment of plans,
specifications, and general intangibles;
(g) an affidavit stating that Seller is not a "foreign person"
under the Foreign Investment in Real Property Tax Act of 1980;
(h) any loan documents as required;
(i) any transfer, excise tax, sales/use tax returns, and any
affidavit or certificate required by the state of Nebraska to be filed in
connection with the conveyance of the Property or the Personalty, if applicable;
(j) assignment of Seller's (Borrower's) interest in reserve
accounts with respect to the property tax and insurance reserves held by
Seller's underlying lender;
(k) any required estoppels, subordination, nondisturbance and
attornment agreements the Purchaser deems reasonably necessary;
(l) Purchaser's Closing Instructions;
(m) Seller's Closing instructions; and
(n) Escrow Control Account Agreement.
10. Seller's Obligations Pending Closing.
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(a) From the Effective Date until the Closing date, Seller will
continue to conduct its business on the Property in a good and efficient manner
and will maintain the Property in good order and condition, subject to normal
wear and tear. Seller will continue to lease space on the Property on the same
or better basis than now being leased. Seller has not previously entered into
any agreements with respect to the operation of the business conducted on the
Property (other than tenant leases and any other agreements described in Exhibit
"B" attached to this Agreement) which will be binding on Purchaser after the
Closing date, and Seller will not enter into any such agreements which will be
binding on Purchaser without the consent in writing of Purchaser. Seller will
not sell, assign, or convey any right, title, or interest in the Property to any
third party without Purchaser's written approval or permit to exist any lien,
encumbrance, or charge thereon without discharging the same prior to Closing.
(b) Until the Closing date, Seller will maintain all-risk
property damage insurance on the Property on a full replacement cost basis and
in an amount sufficient to avoid application of any coinsurance clause.
Agreement for Purchase and Sale
Page 10
11. Default.
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11.1 Seller's Default.
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(a) Notwithstanding any provision otherwise provided in
this Agreement to the contrary, upon Seller's uncured default or breach of any
terms or conditions herein contained, Escrow Holder shall return all Xxxxxxx
Money to Purchaser without further instruction from either party hereto;
Purchaser may: (1) terminate its obligation to further perform under this
Agreement whereby all Xxxxxxx Money shall be returned to Purchaser and all
rights and obligations of the Parties under this Agreement shall terminate and
be of no further force and effect; or (2) force Seller to consummate the
transaction contemplated herein by commencing legal action for specific
performance of Seller's obligations under this Agreement, which shall include,
without limitation, filing of a lis pendens against the Property.
(b) As a condition precedent to Seller's breach or default;
the effective exercise of Purchaser's option to terminate this Agreement; or
take other action, pursuant to this Section 11, Purchaser shall give Seller
notice in writing, in accordance with the notice provisions of this Agreement,
which notice shall state, with particularity, the alleged breach or default or
nonperformance of Seller and the action required by Seller to cure such breach
or default. Seller shall have a period of ten (10) days (five (5) days in case
of a monetary default) after receipt of such notice to cure the alleged default,
breach, or nonperformance to Purchaser's reasonable satisfaction, and to thereby
cure the breach or default and prevent termination of this Agreement or other
action by Purchaser.
11.2 Purchaser's Default.
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(a) Notwithstanding any provision in this Agreement to the
contrary, if the sale and purchase of the Property contemplated by this
Agreement is not consummated because of the Purchaser's uncured breach or
default, Seller as its sole and exclusive remedy may terminate this Agreement by
written notice of its election and receive the Xxxxxxx Money as liquidated
damages.
(b) As a condition precedent to Purchaser's breach or
default; the effective exercise of Seller's option to terminate this Agreement;
or take other action, pursuant to this Section 11, Seller shall give Purchaser
notice in writing, in accordance with the notice provisions of this Agreement,
which notice shall state, with particularity, the alleged breach or default or
nonperformance of Purchaser and the action required by Purchaser to cure such
breach or default. Purchaser shall have a period of ten (10) days (five (5) days
in case of a monetary default) after receipt of such notice to cure the alleged
default, breach, or nonperformance to Seller's reasonable satisfaction, and to
thereby cure the default and prevent termination of this Agreement.
In the event Seller or Purchaser shall bring any suit
or action to enforce this Agreement or any term or provision hereof, the
prevailing party shall be entitled to a
Agreement for Purchase and Sale
Page 11
reasonable sum as attorneys' fees and all costs and expenses incurred in
connection with such suit or action or any appeal thereof.
12. Seller's Covenants, Representations, and Warranties. Except as otherwise
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provided in this Agreement and the Special Warranty Deed set forth in Exhibit D,
the Property is being sold "as-is, where is, with all faults." Seller hereby
covenants, represents, and warrants (which are deemed restated and remade as of
Closing) to Purchaser that to the best of Seller's knowledge:
12.1 Hazardous Material. (i) no "Hazardous Material" is or has been
transported to or from, or generated, placed, held, released, located, stored,
or disposed of on, under, or at the Property; (ii) neither the Property nor any
part of any improvements and equipment thereon contains any asbestos or
polychlorinated biphenyls; (iii) Seller has not received any notice of any
action or proceeding relating to any Hazardous Material or notice of any release
or threatened release thereof on, under or at the Property or any notice
contrary to (i) and (ii) above; and (iv) no underground or above ground storage
tanks are or have been located on the Property.
"Hazardous Material" means, without limitation, any substance
or material defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous waste", "acutely
hazardous waste", "restricted hazardous waste", "toxic substances" (including
toxic mold) or "known to cause cancer or reproductive toxicity" (or words of
similar import), petroleum products (including crude oil or any fraction
thereof) or any other chemical, substance or material which is prohibited,
limited or regulated under any federal, state or local law, ordinance,
regulation, order, permit, license, decree, common law, or treaty regulating,
relating to or imposing liability or standards concerning materials or
substances known or suspected to be toxic or hazardous to health and safety, the
environment, or natural resources. For purposes of this Section, laws and
regulations shall include, but not be limited to, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
U.S.C. ss. 9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C.
ss. 1901, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. ss.
901, et seq.; the Federal Water Pollution Control Act, 33 U.S.C. ss. 1251, et
seq.; the Clean Air Act, 42 U.S.C. ss. 7401, et seq.; the Toxic Substances
Control Act, 15 U.S.C. ss. 2601, et seq.; the Oil Pollution Act of 1990, 33
U.S.C. ss. 2701, et seq.; the Occupational Safety and Health Act, 29 U.S.C. ss.
651, et seq.; the Emergency Planning and Community Right-To-Know Act, 42 U.S.C.
ss. 11001, et seq.; A.R.S. xx.xx. 49-201(16), 49-901(3), and 49-921(5); and in
the regulations adopted pursuant to such laws; and any substance or material
which has been determined by a state, federal or local governmental authority
with jurisdiction over the Property to be capable of posing a risk of injury to
health or safety.
12.2 Pending Assessments. There are no pending proceedings for the
-------------------
imposition of any special assessment, or the formation of a special assessment
district, which would affect in any manner any portion of the Property.
12.3 No Litigation or Other Breach. No litigation, administrative,
-----------------------------
or other proceeding, order or judgment is pending or outstanding, or to Seller's
knowledge, threatened against or relating to any portion of the Property.
Agreement for Purchase and Sale
Page 12
12.4 Compliance with Laws. The Property, and every portion thereof,
is in full compliance with all building, environmental, land use, health,
insurance and, other applicable laws governing the use and operation thereof,
nor does there exist any facts or circumstances which with notice or the passage
of time would constitute such a violation.
12.5 Liens. No labor has been performed, nor materials supplied for
the Property which the Seller has not fully paid, or for which mechanic's lien
or materialman's lien or other lien or liens may be claimed by any person or
entity.
12.6 Condemnation. There are no condemnation proceedings pending,
or to Seller's knowledge, contemplated against the Property, or any part
thereof, and the Seller has received no notice, oral or written, or the intent
or desire of any public authority or public utility to take or use the Property
or any part thereof.
12.7 Other Agreements. There are no service, license, or concession
agreements or other contracts with respect to the Property or employees of
Seller, or of any affiliate or Seller, currently employed in the operation or
maintenance of the Property, other than those disclosed in writing to the
Purchaser within twenty (20) days after the mutual signing of this Agreement
excepting such contracts whereby tenants of the Property and the parties other
than Purchaser and Seller are parties thereto; all employment or maintenance
contracts are terminable at will and shall be terminated by Seller at Closing
unless Purchaser gives contrary instructions to Seller. No collective bargaining
agreements between Seller and any labor organization apply to the operation
and/or management of the Property.
12.8 Existing Leases. All lease agreements related to the Property
are in full force and effect, and Seller is not in default thereunder, and the
tenants under said leases are not in default thereunder.
12.9 Seller. Neither the execution, delivery, and performance of
this Agreement by Seller, the consummation by Seller of the transaction
contemplated hereby, nor the fulfillment of or compliance with the terms and
conditions of this Agreement:
(a) requires the consent, waiver, approval, license, or
authorization of any person or public authority, except as expressly set forth
herein;
(b) violates, with or without the giving of notice or the
passage of time or both, any provision of law or regulation applicable to
Seller; or
(c) will conflict with or result in a breach of any mortgage,
trust deed, license, indenture, or other agreement or instrument, or any order,
judgment, decree, statute, regulation, or any other restriction or any kind or
character, to which Seller is a party or by which Seller or any of its assets
may be bound.
Agreement for Purchase and Sale
Page 13
12.10 Pending Actions. There are no proposed or pending changes in
---------------
zoning or roadway, water, or sewer construction affecting any portion of the
Property, nor of any special or unusual environmental condition affecting any
portion of the Property.
12.11 Seller's Authority. Seller has the authority to enter into
------------------
this Agreement. Entering into this Agreement and the consummation of the
transactions contemplated hereby have been authorized by all necessary corporate
action, or otherwise, and do not violate Seller's articles of incorporation,
bylaws, or any other agreement to which Seller is a party.
12.12 Intentionally omitted.
12.13 Concessions. Seller warrants that absolutely no concessions
-----------
of any type are being offered or will be offered or given to tenants as of the
date of this Agreement or during the time between the date of this Agreement and
the Closing, except as may be authorized in writing by Purchaser.
The foregoing representations and warranties shall be deemed
to be remade as of the Closing. Seller covenants and agrees to immediately
notify Purchaser of any state of facts which would constitute a breach of or
render inaccurate any of the foregoing warranties immediately after becoming
aware of such state of facts. Failure to notify Purchaser within five (5)
business days after becoming aware of such facts shall constitute a breach by
the Seller of the warranties hereunder.
13. Purchaser's Covenants, Representations, and Warranties. Purchaser
------------------------------------------------------
represents and warrants to Seller, that to the best of Purchaser's knowledge:
13.1 Purchaser is a corporation duly organized, validly existing,
and in good standing under the laws of the state of Idaho, and has the full
power and authority to execute and deliver this Agreement and to perform and
carry out all covenants and obligations to be performed and carried out by
Purchaser hereunder.
13.2 This Agreement constitutes the legal, valid, and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
respective terms.
13.3 No consent, approval, authorization, registration,
qualification, designation, declaration, or filing with any governmental
authority is required in connection with the execution and delivery of this
Agreement by Purchaser.
13.4 The execution, delivery, and performance of this Agreement by
Purchaser and the consummation of the transaction contemplated herein will not
constitute or result in the violation or breach by Purchaser of any judgment,
order, writ, injunction, or decree issued against or imposed upon Purchaser, or
result in the violation of any applicable law, rule, or regulation of any
governmental authority.
Agreement for Purchase and Sale
Page 14
13.5 There are no actions, suits, proceedings, or investigations
pending, or to the best of Purchaser's knowledge, threatened against Purchaser,
which question the validity or enforceability of the transaction contemplated
herein.
14. Possession. Possession of the Property shall be delivered by Seller to
----------
Purchaser as of Closing, subject to the rights of tenants.
15. Condemnation. Notwithstanding any provision otherwise provided in this
------------
Agreement to the contrary, if, prior to Closing, any portion of the Property is
taken by eminent domain (or is the subject of a pending or contemplated taking
which has not been consummated), Purchaser shall have the option to terminate
this Agreement upon notice to Seller given not later than ten (10) days after
Purchaser receives written notice of such taking. If this Agreement is so
terminated, the Xxxxxxx Money and accrued interest shall be returned to
Purchaser without further instruction to Escrow Holder from either Party. Seller
and Purchaser shall each pay one-half the cost of any cancellation fees or costs
of Escrow Holder and Title Insurer, and neither Purchaser nor Seller shall have
any further rights or obligations under this Agreement. If Purchaser does not so
terminate this Agreement, then Purchaser and Seller shall proceed to close
pursuant to the terms of this Agreement, except that the Purchase Price shall be
reduced by the amount of any awards for such taking awarded as of Closing, and
Seller shall assign and turn over to Purchaser, and Purchaser shall be entitled
to receive and retain, any awards for such taking not awarded as of Closing.
Seller agrees to give Purchaser prompt notice of any threat of or act of
condemnation of the Property.
16. Destruction of Improvements. Notwithstanding any provision otherwise
---------------------------
provided in this Agreement to the contrary, if, prior to Closing, the Property
is materially damaged or destroyed by fire or other casualty Seller shall notify
Purchaser of such fact. Purchaser shall have the option to terminate this
Agreement upon notice to Seller given not later than ten (10) days after receipt
of Seller's notice. If this Agreement is so terminated, then the Xxxxxxx Money
and accrued interest shall be refunded to Purchaser, Purchaser and Seller shall
each pay one-half the cost of any cancellation fees and costs of Escrow Holder
or Title Insurer, and neither Purchaser nor Seller shall have any further rights
or obligations under this Agreement.
If Purchaser does not so terminate this Agreement, then neither
Purchaser nor Seller shall have the right to terminate this Agreement by reason
of such damage or destruction, but Seller, at Closing, shall assign and turn
over to Purchaser all insurance proceeds payable with respect to such damage or
destruction, and Purchaser and Seller shall proceed to close pursuant to the
terms of this Agreement, without modification of the terms of this Agreement,
except for a reduction in the Purchase Price equal to the difference between the
amount required to repair or restore the damaged or destroyed Property and the
amount due under the terms of any applicable insurance policy.
17. Notices. All notices, requests, demands, and other communications
-------
(collectively, "Notices") hereunder shall be in writing and given by (i)
established express delivery service which maintains delivery records, (ii) hand
delivery, (iii) certified or registered mail, postage
Agreement for Purchase and Sale
Page 15
prepaid, return receipt requested, to the parties at the following addresses, or
at such other address as the parties may designate by notice in the above
manner, or (iv) facsimile:
Seller:
------
ACI Financing, L.L.C.
Attention: Xxxxxx X. Xxxxxxx
000 Xxxxxx Xxxx
Xxxxx Xxxxxx Xxxx, XX
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
--------------
Xxxxxx X. Xxxxxxxx
Attorney at Law
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Purchaser:
---------
DBSI Housing Inc.
Attention: Legal Department (Acquisitions)
0000 Xxxxx Xxxx Xxxx
Xxxxxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Each such notice or other communication shall be deemed given upon hand
delivery; or deposit with an established express delivery service that maintains
delivery records; or certified or registered mail, postage prepaid, return
receipt requested. Any party to this Agreement may give notice of a change of
its address to the other party to this Agreement.
Notices by way of facsimile are effective upon confirmed delivery, or
upon attempted delivery if delivery is refused or impossible because of failure
to provide a reasonable means for accomplishing delivery.
18. Entire Agreement. This Agreement contains the entire agreement between
----------------
the parties to this Agreement with respect to the subject matter of this
Agreement and supersedes all prior understandings, agreements, representations,
and warranties, if any, with respect to such subject matter.
Agreement for Purchase and Sale
Page 16
19. Modification in Writing. This Agreement may only be modified by a
-----------------------
writing executed by Purchaser and Seller.
20. Headings. The headings of the various paragraphs of this Agreement
--------
have been inserted only for convenience and shall not be deemed in any manner to
modify or limit any of the provisions of this Agreement or be used in any manner
in the interpretation of this Agreement.
21. Interpretation. Whenever the context so requires, all words used in
--------------
the singular shall be construed to have been used in the plural (and vice
versa), each gender shall be construed to include any other genders, and the
word "person" shall be construed to include a natural person, a corporation, a
firm, a partnership, a joint venture, a trust, an estate, or any other entity.
This Agreement shall be interpreted and construed only by the contents hereof,
and there shall be no presumption or standard of construction in favor of or
against either Seller or Purchaser. The words "herein," "hereof," "hereunder,"
and other similar compounds of the word "here" when used in this Agreement shall
refer to the entire Agreement and not to any particular provision or section.
22. Dates of Performance. Whenever a date for an action required to be
--------------------
performed or any other period of time set forth in this Agreement falls on a
Saturday, Sunday, or federal holiday, then such date shall be extended to the
following business day.
23. Successors and Assigns. This Agreement is not assignable without
----------------------
Seller's prior written consent, which consent shall not be unreasonably
withheld; provided, however, Purchaser may assign its rights hereunder to a
partnership or other entity created by Purchaser or potential tenants in common
for the purpose of financing, acquiring, and owning the Property, without
Seller's prior consent. Subject to any restriction on transferability contained
in this Agreement, this Agreement shall be binding upon and shall inure to the
benefit of the successors-in-interest and assigns of each party to this
Agreement. Seller shall not transfer or convey any interest in the Property and
shall not assign its rights and obligations under this Agreement without
Purchaser's prior written consent.
24. Effectiveness. This Agreement shall become effective when it has been
-------------
signed by, and delivered to, both Purchaser and Seller.
25. Further Assurances. Each party to this Agreement shall execute all
------------------
instruments and documents and take all actions as may be reasonably required to
effectuate this Agreement.
26. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all of which when
taken together shall constitute but one and the same Agreement.
27. Governing Law. The validity, meaning and effect of this Agreement
-------------
shall be determined in accordance with the laws of the state of Nebraska.
Agreement for Purchase and Sale
Page 17
28. Authority. The officers or agents signing this Agreement on behalf of
---------
Purchaser or Seller each warrant that he or she is authorized to execute this
Agreement on behalf of Purchaser and Seller, respectively.
29. Brokers.
-------
(a) Seller will pay all real estate commissions and finder's fees to
CB Xxxxxxx Xxxxx due as a result of the purchase and sale as contemplated herein
and that otherwise may arise in connection with the sale of the Property in
accordance with a separate agreement. The commissions shall be paid out of
escrow at Closing. Seller will indemnify and hold Purchaser harmless from any
and all other demands for real estate commissions and/or finder's fees from said
brokers to the extent not specifically contracted for in writing by Purchaser.
(b) Purchaser will pay all other real estate commissions and finder's
fees that it has specifically contracted to in writing in connection with the
sale of the Property. Purchaser will indemnify and hold Seller harmless from any
such contractual obligations of Purchaser.
(c) Purchaser discloses, and Seller acknowledges, that affiliates of
Purchaser are real estate licensees in the state of Idaho on inactive status.
30. Attorneys' Fees. If a Party commences a legal proceeding to enforce
---------------
any of the terms of this Agreement, the prevailing Party in such action shall
have the right to recover reasonable attorneys' fees and costs from the other
Party to be fixed by the court in the same action.
31. Tax-Free Exchange. Purchaser may acquire the Property by a tax-free
-----------------
exchange under Section 1031 of the Code. In connection therewith, Seller agrees
to execute such documents as are reasonably necessary or appropriate and to
otherwise cooperate with Purchaser to effectuate such exchange; provided Seller
and Seller's representatives shall have a reasonable opportunity to review such
documents prior to Closing. Purchaser hereby indemnifies and holds Seller free
and harmless from any liability (including, but not limited to, the tax
ramification to Purchaser of such tax-free exchange) arising by reason of
performing the acts required hereby to effectuate such exchange, except insofar
as any such liability is attributable to the failure of Seller to perform as
required hereunder. Seller shall not take title to or otherwise assume any
liability with respect to the property to be exchanged with the Property. Seller
also intends to exchange the Property by tax free exchange under Section 1031
and Purchaser shall cooperate with Seller in a like manner.
32. Survival / No Merger. The provisions of this Agreement, the
--------------------
representations, warranties, and the indemnity agreements set forth herein shall
survive any expiration or termination of this Agreement for one (1) year after
Closing.
33. Exhibits. Exhibits "A", "B","C", and "D" attached hereto are
--------
incorporated herein by this reference.
Agreement for Purchase and Sale
Page 18
34. Waiver. The failure of a Party to insist upon strict performance of
------
any of the terms set forth herein shall not be deemed a waiver of any rights or
remedies that said Party may have and shall not be deemed a waiver of any
subsequent breach or default in the performance of any of the terms contained
herein by the same or any other Party.
35. Severability. If any term or provision of this Agreement or the
------------
application of it to any person or circumstance shall, to any extent, be invalid
or unenforceable, the remainder of this Agreement or the application of such
term or provision to persons or circumstances, other than those as to which it
is invalid or unenforceable, shall not be affected thereby, and each term and
provision of this Agreement shall be valid and shall be enforced to the extent
permitted by law.
36. Time is of Essence. Time is expressly made of the essence of all the
------------------
provisions of this Agreement.
37. Time for Acceptance. Should Purchaser or Seller provide the other
-------------------
party an executed copy or original of this Agreement, the receiving party shall
have until 5:00 P.M. Mountain Time (Boise, Idaho) five (5) business days from
the date of said receiving party's receipt of said executed copy or original of
this Agreement to accept this offer. Acceptance is not effective until a copy or
original of this Agreement, which has been signed and dated by said receiving
party, is actually received by the other party hereto. If such offer is not
accepted, it shall expire upon the expiration of said five (5) day period.
38. Risk of Loss. Seller shall bear the risk of loss to the Property
------------
prior to Closing.
39. Pricing Information. Upon Purchaser's acceptance and approval of its
-------------------
Due Diligence Review, Seller agrees to immediately remove and shall cause its
agents to remove all references to the asking price, Capitalization ("CAP")
Rate, and Net Operating Income ("NOI") in all marketing materials for the
Property until such time as this Agreement for Purchase and Sale is terminated.
Such removal shall include, without limitation, removal of the Property asking
price, NOI, and CAP Rate information from all website listings and removal from
any other national or local real estate listings. The parties and their agents
shall keep the terms of this sale confidential and shall not disclose the terms
of this sale after Closing. Purchaser agrees to compensate Seller for reasonable
costs incurred for such removal of the Property asking price information.
THE SUBMISSION OF THIS AGREEMENT FOR EXAMINATION OR ITS NEGOTIATION OR THE
NEGOTIATION OF THE TRANSACTION DESCRIBED HEREIN DOES NOT CONSTITUTE AN OFFER TO
PURCHASE OR SELL AND THE EXECUTION OF THIS AGREEMENT BY SELLER OR PURCHASER DOES
NOT CONSTITUTE A BINDING CONTRACT UNTIL SUCH TIME AS THIS AGREEMENT HAS BEEN
APPROVED BY THE GOVERNING REAL ESTATE COMMITTEE OF PURCHASER AND SELLER,
EXECUTED BY AUTHORIZED OFFICERS OF PURCHASER AND SELLER AND DELIVERED TO
PURCHASER AND SELLER.
Agreement for Purchase and Sale
Page 19
IN WITNESS WHEREOF, this Agreement has been executed as of the last date written
below.
PURCHASER: SELLER:
DBSI HOUSING INC., ACI FINANCING, L.L.C.
an Idaho corporation
By: /s/ Xxxx Xxxx By: /s/ Xxxxxx X. Xxxxxxx
---------------------- ----------------------
Name: Xxxx Xxxx Name: Xxxxxx X. Xxxxxxx
---------------------- ----------------------
Maxus Realty Trust, Inc.
Its: EVP Its: Manager, Xxxxxx X. Xxxxxxx, Pres.
---------------------- ----------------------
Date: 4/28/04 Date: 4/26/04
---------------------- ----------------------
Agreement for Purchase and Sale
Page 20
EXHIBIT "A"
To Agreement for Purchase and Sale
LEGAL DESCRIPTION OF PROPERTY
[To be attached by Seller.]
Agreement for Purchase and Sale
Page 21
EXHIBIT "B"
To Agreement for Purchase and Sale
DUE DILIGENCE DOCUMENTS
1. Complete access to and copies of all tenant leases relating to the
Property.
2. Current property rent roll showing by unit: tenant's name, business,
current rental rate, any prepaid or delinquent rent, any deposits whether
refundable or nonrefundable, and any rental concessions.
3. Property operating statements for the past three (3) years and year-to-date
of Property operations.
4. Complete copies of federal income tax returns, if any, relating to the
Property.
5. Copies of current property tax and insurance bills.
6. Copies of utility bills for the past eighteen (18) months.
7. Copies of any existing management, service or maintenance contracts
pertaining to the operation of the Property, and invoices thereof for the
past eighteen (18) months.
8. Copies of any personal property rental agreements pertaining to personal
property or business equipment used in the operation of the Property.
9. Latest Property appraisal, environmental, engineering, structural and
environmental reports, if any exist.
10. Copies of all documents in connection with existing or proposed loans,
common area easements and maintenance, if applicable, and any Property use
restrictions.
11. A set of as-built drawings, if one exists.
12. Copy of the latest survey, if one exists.
13. Itemized list of personal property to be included in the sale.
14. Copies of certificates of occupancy, if in existence.
15. Copies of any zoning and/or conditional use or similar permits or actions
permitting the current use of the Property.
16. Any other items reasonably requested by Purchaser, provided that receipt
and approval of these items shall not delay the Closing date.
17. Aged receivables schedule.
18. Common area maintenance reimbursement reconciliation for the past two (2)
years.
Agreement for Purchase and Sale
Page 22
EXHIBIT "C"
To Agreement for Purchase and Sale
XXXX OF SALE
THIS XXXX OF SALE is executed and delivered pursuant to the provisions
of that certain Agreement for Purchase and Sale dated ___________, 200___
("Agreement") between __________________, an _____________ limited liability
company ("Seller"), and DBSI ________________ LLC, an Idaho limited liability
company, successor in interest to DBSI Housing Inc., an Idaho corporation
("Purchaser").
Seller, for consideration paid and other good and valuable
consideration to it paid by Purchaser, the receipt and sufficiency of which are
hereby acknowledged, has bargained, sold, assigned, transferred and conveyed,
and does by these presents bargain, sell, assign, transfer and convey to
Purchaser, its successors and assigns, all of Seller's right, title and interest
in and to the Personal Property as defined in Section 1.1(b) of the Agreement
and further identified on Exhibit "A" attached hereto and incorporated by this
reference.
Seller hereby warrants and represents that (i) Seller has good and
marketable title to the Property conveyed hereby; (ii) title to said Property is
free and clear of all liens except the lien of current state and local personal
property taxes not yet due and payable; and (iii) Seller has the right to convey
title to said Property as contemplated herein.
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be duly
executed as of the _____ day of __________, 200___.
-----------------------------------
By
--------------------------------
Its
--------------------------------
Agreement for Purchase and Sale
Page 23
STATE OF )
---------------------------
) ss.
County of )
-------------------------
On this ________ day of ___________, 200___, before me, the
undersigned, a Notary Public in and for said state, personally appeared
_____________________, known to be the _______________________of
_________________, an ___________ limited liability company, that executed the
foregoing instrument, and acknowledged to me that the said instrument is the
free and voluntary act and deed of said company, for the uses and purposes
therein mentioned, and on oath stated that they are authorized to execute the
said instrument.
WITNESS MY HAND and official seal hereto affixed the day, month and
year in this certificate first above written.
Notary Public for
---------------------
Residing at
---------------------
My Commission Expires
---------------------
Agreement for Purchase and Sale
Page 24
EXHIBIT "D"
To Agreement for Purchase and Sale
SPECIAL WARRANTY DEED
For the consideration of the sum of Ten and 00/100 Dollars ($10.00) and other
valuable consideration, _______________________ ("Grantor"), does hereby grant,
sell and convey unto _______________________, a(n) _______________________
("Grantee"), whose address is ______________________________ and its successors
and assigns forever, the following described real property located in
_________________ County, _____________, as described in Exhibit "A" attached
hereto and incorporated by this reference (the "Property").
TOGETHER WITH all and singular the tenements, hereditaments, easements, rights
and appurtenances thereunto belonging or in anywise appertaining, the reversion
and reversions, remainder and remainders, rents, issues, and profits thereof;
and all estate, right, and interest in and to the Property, as well in law as in
equity.
SUBJECT only to those matters set forth on Exhibit "B" attached hereto and
incorporated by this reference ("Permitted Exceptions").
Grantor hereby covenants to and with the Grantee that Grantor is the owner in
fee simple of the Property, and the Property is free and clear of all liens,
claims and encumbrances except the Permitted Exceptions of record, and Grantor
will warrant and defend Grantee from all other lawful claims of Grantor, but
none other.
IN WITNESS WHEREOF, the Grantor has caused these presents to be executed this
____ day of ______________, 200___.
-----------------------------------
By
--------------------------------
Its
--------------------------------
State of
------------------)
) ss.
County of )
----------------0
On ____________________ before me personally appeared __________________________
_______________________ personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/
her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
------------------------------------
NOTARY SIGNATURE
My commission expires:
--------------
NOTARY SEAL
Agreement for Purchase and Sale
Page 25
EXHIBIT "F"
To Agreement for Purchase and Sale
Agreement for Purchase and Sale
Page 26
EXHIBIT "G"
To Agreement for Purchase and Sale
Agreement for Purchase and Sale
Page 27
