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PURCHASE AND SALE AGREEMENT
BY AND BETWEEN
APPALACHIAN OIL COMPANY, INC. AND APPCO-KY,
INC.
SELLER
AND
YA LANDHOLDINGS, LLC AND YA LANDHOLDINGS 7,
LLC
PURCHASER
TABLE OF CONTENTS
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Section
1.
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Purchase
and Sale of the Property
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1
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1.1
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Land
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1
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1.2
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Improvements
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1
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1.3
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Appurtenances
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2
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1.4
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Leases
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2
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1.5
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Awards
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2
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1.6
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Intangible
Property
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2
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Section
2.
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Real
Estate Purchase Price; Closing; Due Diligence Materials and
Inspections
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2
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2.1
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Real
Estate Purchase Price
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2
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2.2
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Due
Diligence Materials
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2
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2.3
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Inspections;
Indemnity
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2.4
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Surveys
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3
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2.5
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Title
Commitments
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3
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2.6
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Estoppels
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Section
3.
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Prorations
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3.1
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Revenues
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3.2
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Property
Taxes
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4
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3.3
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Security
Deposits
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3.4
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Utility
Charges
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3.5
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Service
Contracts
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3.6
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Licenses
and Permits
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5
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3.7
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Operating
Expenses
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5
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Section
4.
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Conditions
Precedent to Closing
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4.1
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Purchaser’s
Conditions to Closing
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4.2
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Closing
Conditions for Seller
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7
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Section
5.
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Closing
Documents
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5.1
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Deed
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5.2
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Assignment
and Assumption of Leases
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5.3
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Tenant
Notices
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8
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5.4
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Assignment
and Assumption of Service Contracts and Intangible
Property
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5.5
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Service
Contract Notices
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5.6
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Settlement
Statement
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8
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5.7
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Non-Foreign
Status Affidavit
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8
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5.8
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Other
Documents
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8
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Section
6.
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Closing
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6.1
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Closing
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6.2
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Time
and Place
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6.3
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Payment
of Real Estate Purchase Price
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6.4
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Possession
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6.5
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Closing
Costs
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9
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Section
7.
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Covenants,
Representations and Warranties of Seller
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9
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7.1
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Seller’s
Covenants
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9
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7.2
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Seller’s
Representations and Warranties
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10
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7.3
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To
Seller’s Knowledge
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14
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7.4
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Survival
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14
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Section
8.
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Purchaser’s
Representations and Warranties
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14
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8.1
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Entity
and Authorization Matters
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14
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8.2
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No
Conflict with or Breach of Other Agreements
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15
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8.3
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Survival
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15
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8.4
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Indemnification
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14
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Section
9.
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Casualty
and Condemnation
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15
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9.1
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Risk
of Loss
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9.2
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Purchaser’s
Option to Terminate
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9.3
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Failure
to Terminate
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Section
10.
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Default
and Remedies
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10.1
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Purchaser’s
Default
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10.2
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Seller’s
Default
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Section
11.
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Brokerage
Commissions
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Section
12.
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Miscellaneous
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12.1
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Entire
Agreement
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12.2
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Waiver
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17
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12.3
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Further
Assurances
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12.4
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Notices
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12.5
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Successors
and Assigns
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18
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12.6
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Governing
Law and Venue
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12.7
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No
Third Parties Benefited
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12.8
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Legal
Fees
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12.9
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Construction
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19
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12.10
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Time
of Essence
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12.11
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Counterparts
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Local
Law Provisions
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[To be added]
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19
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Attachments :
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Schedule
1.2
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Excluded
Personal Property
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Schedule
7.2.8.1
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Leases
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Schedule
7.2.8.2
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Lease
Matters
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Schedule
7.2.9
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Service
Contracts
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Schedule
7.2.12.1
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Hazardous
Materials
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Schedule
7.2.12.2
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Releases
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Schedule
7.2.12.3
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Underground
Storage Tanks
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Description
of Properties
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Exhibit
B
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Lease
Estoppel Certificate
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Exhibit
C
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Special
Warranty Deed
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PURCHASE
AND SALE AGREEMENT
THIS
PURCHASE AND SALE AGREEMENT ("
Agreement ")
is made and entered into and is effective as of the 17th day of
September, 2007 (the "
Effective Date "),
by and between Appalachian Oil Company, Inc. and APPCO-KY, Inc.
(collectively referred to herein as "
Seller "),
and YA Landholdings, LLC and YA Landholdings 7, LLC (collectively
referred to herein as "
Purchaser ").
Recitals
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A.
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Seller
is the owner of the Property (as defined below).
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B.
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Upon
the satisfaction of, and subject to, the terms and conditions set
forth in this Agreement, Seller has agreed to sell the Property to
Purchaser, and Purchaser has agreed to purchase the Property from
Seller.
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Agreement
NOW,
THEREFORE, in consideration of the foregoing recitals, the
mutual covenants set forth in this Agreement, and other good
and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, Purchaser and Seller hereby
agree as set forth below.
Section
1.
Purchase and Sale of the Property .
Subject
to and in accordance with the terms and conditions contained
in this Agreement, Seller agrees to sell, assign, convey, and
transfer to Purchaser in the manner herein provided all
Seller’s right, title and interest in and to the
following (collectively, the ("
Property "),
and Purchaser hereby agrees to purchase and accept the
Property:
| 1.1 |
Land .
Subject to general and special real estate taxes and assessments
not yet due and payable, and the Permitted Exceptions (as defined
below), fee title to those certain tracts of real property located
in Kentucky, Tennessee and Virginia, which real property is more
particularly described on
Exhibit A attached
hereto (the "
Land ").
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| 1.2 |
Improvements .
All fixtures and improvements located on the Land (collectively,
the "
Improvements "),
it being understood and agreed, however, that Purchaser shall not
have the right, pursuant to this Agreement, to purchase any of such
fixtures and improvements as shall be the property of the tenants
of the Land (the "
Tenants ")
under the Leases (as defined below) or the personal property of
Seller, the ownership of which is being transferred on or prior to
the Effective Date pursuant to that certain Stock Purchase
Agreement dated July 17, 2007, by and between Appalachian Oil
Company, Inc., the James R. Maclean Revocable Trust, Sara G.
Maclean, the Linda R. Maclean Irrevocable Trust and Jeffrey H.
Benedict and Titan Global Holdings, Inc., all of such excluded
property being more particularly described on
Schedule 1.2 (the
"
Excluded Personal Property ").
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| 1.3 |
Appurtenances .
All rights, privileges and easements appurtenant to the Land, all
water, wastewater and other utility rights relating to the Land and
any and all easements, rights-of-way and other appurtenances used
in connection with the beneficial use and enjoyment of the
Land.
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| 1.4 |
Lease
s
.
All leases, subleases, licenses, concessions, and other forms of
agreement, granting to any party or parties the right of use or
occupancy of any portion of the Land and/or Improvements, and all
renewals, modifications, amendments, guarantees, and other
agreements affecting the same to the extent shown on
Schedule 7.2.8.1 (collectively,
the "
Leases ").
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| 1.5 |
Awards .
All right, title and interest to any unpaid insurance claims or
proceeds or awards for damages to the Land and/or Improvements
resulting from any casualty or any taking in eminent domain or by
reason of change of grade of any street.
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| 1.6 |
Intangible Property .
Except for the name of the Seller or affiliated entities, all of
the interest of Seller in any intangible property now or hereafter
owned by Seller and used or designed for use in connection with the
Land and/or Improvements, and any contract or lease rights,
licenses, permits, certificates of occupancy, franchises,
agreements, utility contracts, unexpired claims, warranties,
guaranties and sureties belonging to Seller, or other rights
relating to the ownership, development, construction, design, use
and operation of the Land and/or Improvements, to the extent
assignable (collectively, "
Intangible Property ").
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Section
2.
Real Estate Purchase Price; Closing; Due Diligence
Materials
and Inspections .
| 2.1 |
Real Estate Purchase Price .
The total purchase price payable by Purchaser to Seller for the
Property (the "
Real Estate Purchase Price ")
is Fifteen Million and No/100 Dollars ($15,000,000). On the Closing
Date, Purchaser will pay the Real Estate Purchase Price, subject to
proration as provided below, by wire transfer to an account
designated by Seller.
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| 2.2 |
Due Diligence Materials .
Seller has caused or shall cause its agents to copy and deliver to
Purchaser copies of the Leases and the Service Contracts, as
hereinafter defined, and Seller shall make available, at a time and
place reasonably acceptable to Purchaser, for Purchaser’s
inspection (and shall provide copies upon request), Seller’s
books and records related to the Property.
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| 2.3 |
Inspections; Indemnity .
Purchaser and its employees and agents have had and shall continue
to have the right and permission through Closing to enter upon the
Property or any part thereof at all reasonable times, in a manner
not to disturb the Tenants nor damage or injure the Property, to
inspect all aspects of the Property, at Purchaser’s sole
risk, cost and expense, and to make such inspections, studies and
tests of the Property which Purchaser deems necessary or advisable.
Any entry by Purchaser also shall be in compliance with the terms
of the Leases and any testing that requires a material invasion of
the Improvements shall require Seller’s consent, which
consent shall not be unreasonably withheld (it being agreed that
the standard testing and gathering of samples for a customary Phase
I and II environmental study shall be permitted). Purchaser shall
INDEMNIFY AND HOLD HARMLESS Seller and its employees and agents
from all claims and liability for personal injury or property
damage to the extent attributable to any activities of Purchaser or
its authorized representatives on the Property during such
inspections, studies and tests. The foregoing indemnification
obligation of Purchaser shall survive Closing or any termination of
this Agreement.
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| 2.4 |
Survey
s
.
Purchaser may, at its expense, cause current, on-the-ground surveys
of the Land to be prepared by a licensed surveyor, conforming to
the requirements of an ALTA/ACSM survey and certified as Purchaser
deems appropriate (the "
Surveys ").
Copies of the Surveys shall be delivered to Seller. As part of the
Surveys, the surveyor shall prepare metes-and-bounds descriptions
of the Land and such descriptions shall be used in all documents to
be delivered at Closing if the Surveys are prepared. If Purchaser
does not elect to have Surveys of the Land prepared, Seller shall
indemnify Purchaser from all claims and liability for survey
related matters. The foregoing indemnity shall survive
Closing.
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| 2.5 |
Title
Commitment s
.
Purchaser has caused selected local counsel and title companies
(collectively, the "
Title Company ")
to prepare and deliver to Purchaser (i) commitments for an
Owner’s Policy of Title Insurance in the form and with the
exceptions described in Section 4.1.4 (the "
Title Commitments ")
setting forth the status of the title to the Land, and (ii) copies
of all documents (the "
Underlying Documents ")
referred to in the Title Commitments, including but not limited to,
deeds, lien instruments, plats, reservations, restrictions and
easements. The exceptions showed on the Title Commitments shall be
deemed to be "
Permitted Exceptions "
for all purposes hereunder, other than the liens which Seller is
required to remove as a condition to closing set forth in Section
4.1.4.
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| 2.6 |
Estoppels .
Seller shall obtain prior to closing an estoppel certificate
("
Tenant Estoppel ")
to be executed by the Tenant of the Land identified as Appco 44
on
Exhibit A substantially
in the form attached hereto as
Exhibit B ,
with such changes thereto as the Tenant may request and Purchaser
shall accept in its reasonable judgment.
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Section
3.
Proration s .
The
following items shall be prorated as of the Closing Date as to
the Land (the "
YA 7 Land ”)
identified as Appco 4, Appco 5, Appco 44 and
Appco 55 on
Exhibit A,
respectively (except as otherwise expressly provided below), and
such prorations shall be reflected on the settlement statements
prepared by the Escrow Agent on the Closing Date and shall serve to
adjust the Real Estate Purchase Price. Such prorations shall be
made on the basis of a 365-day year, as of 11:59 p.m. on the day
preceding the Closing Date.
| 3.1 |
Revenues .
All rentals, receipts and other revenues from the Leases on the
YA 7 Land which have been actually received by Seller and
which are allocable to the period from and after the Closing Date
shall be credited to Purchaser. Purchaser shall be entitled to
collect all rentals, receipts and other revenues from such Leases
which are due on or after the Closing Date. All rentals, receipts,
and other revenues of any kind whatsoever (together, "
Revenues ")
from such Leases collected by Purchaser shall be credited: if
specifically identified by reference by invoice or month to the
month of Closing, to such invoice or month related to the month of
Closing; and if not so specifically identified: first to current
Revenues not delinquent, and second to delinquent Revenues, in the
inverse order of delinquency. Any such delinquent Revenues when
applied as provided herein which relate in whole or in part to any
period prior to the Closing Date shall be remitted by Purchaser to
Seller when collected by Purchaser (net only of any reasonable
collection expenses actually incurred by Purchaser). Any such
delinquent Revenues when applied as provided herein, which relate
in whole or part to any period on or subsequent to the Closing Date
shall be remitted by Seller to Purchaser when and if collected by
Seller (net only of any reasonable collection expenses actually
incurred by Seller). Purchaser shall have no obligation to file or
prosecute any lawsuit to collect any Revenues.
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| 3.2 |
Property Taxes .
Seller shall be responsible for all ad valorem taxes and
assessments, general and special, with respect to all of the
Property for periods prior to the calendar year containing the
Closing Date. Ad valorem taxes and assessments, general and
special, with respect to the YA 7 Land for the calendar year
containing the Closing Date shall be prorated between Seller and
Purchaser at Closing, as of the Closing Date. All ad valorem tax
prorations shall be based on tax rates and assessments for the
calendar year containing the Closing Date unless such rates and/or
assessments are unavailable. If either the tax rates or the tax
assessments for the Property for the calendar year containing the
Closing Date are not available, then such proration shall be made
based on the tax rates and assessments for the prior year (or if
only the assessed value for the calendar year containing the
Closing Date is known, then based on the prior year’s tax
rates and the current year’s assessed value), and shall be
adjusted between Seller and Purchaser after the Closing as soon as
such rates and assessments for the year of the Closing are
available. The provisions of this Section 3.2 shall survive
Closing.
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| 3.3 |
Security Deposits .
All security and other deposits paid or deposited by Tenants
pursuant to Leases of the YA 7 Land, if any, including any
accrued interest thereon if such interest is required to be
remitted to Tenants pursuant to their respective Leases, shall be
credited to Purchaser, and Escrow Agent shall deliver a notice
signed by Seller to such Tenants advising them that: (i) Purchaser
has purchased the Property, and (ii) the security deposit, if any,
is the responsibility of Purchaser.
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| 3.4 |
Utility Charges .
Final meter readings on all utilities charged to the YA 7 Land
shall be made as of the day preceding the Closing Date. Seller
shall arrange for and pay for final billings of utilities for such
Land to the day preceding the Closing Date, and Purchaser (or the
Tenants under the Leases) shall be responsible for utilities used
on or after the Closing Date. Any prepaid water, sewer, and other
utility charges allocable to the period from and after the Closing
Date shall be credited to Seller.
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| 3.5 |
Service Contracts .
Seller shall remain liable for all charges due and all obligations
pursuant to the Service Contracts (as defined in Section 7.2.9),
Purchaser is not assuming any Service Contracts. The provisions of
this Section 3.5 shall survive Closing.
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| 3.6 |
Licenses and Permits .
Prepaid charges allocated to the period from and after the Closing
Date in connection with any licenses or permits for the YA 7
Land shall be credited to Seller at Closing. Accrued and unpaid
charges allocable to the period prior to the Closing Date in
connection with any such licenses or permits shall be credited to
Purchaser at Closing.
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| 3.7 |
Operating Expenses .
Except as otherwise expressly provided herein to the contrary,
Seller shall be responsible for and bear all operating expenses for
the YA 7 Land accrued for the period prior to the Closing Date
and Purchaser shall be responsible for and bear all operating
expenses of the YA 7 Land accrued for the period on and after
the Closing Date. Prorations of items under Sections 3.5, 3.6 and
3.7, shall be made at Closing on the best information available
with an adjustment and reconciliation to the extent necessary on a
mutually agreed date within ninety (90) days following the Closing
Date, with payment from one party to the other (to the extent
required) to be made within thirty (30) days following
reconciliation. Such prorations, as adjusted as of the ninetieth
(90th) day following the Closing Date, shall be considered final
and binding for all purposes absent material mistake of fact. To
the extent that any Lease provides for any adjustment of previously
paid estimated amounts of real estate tax or operating expense
reimbursements on a date subsequent to the Closing Date, Seller
shall be entitled to receive, or shall be responsible to pay, as
the case may be (when such amounts are actually received or payable
by Purchaser), Seller’s pro rata share of any such adjusted
amounts that are applicable to periods ending prior to the Closing
Date. After Closing, Seller agrees to reasonably cooperate with
Purchaser in providing Purchaser access to Seller’s books and
records relating to such adjustments under the Leases so that
Purchaser may adequately perform such adjustments.
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There
shall e no proration of items described in Sections 3.1, 3.2,
3.3, 3.4, 3.5, 3.6 or 3.7 with respect to the Property that is
not YA 7 Land because Seller shall remain liable for
those items after the Closing Date pursuant to separate lease
agreement(s) of even date herewith between Seller, as tenant
and Purchaser, as landlord. The provisions of this Section 3
shall survive Closing.
Section
4.
Conditions Precedent to Closing .
| 4.1 |
Purchaser’s Conditions to Closing .
The obligation of Purchaser to purchase the Property from Seller,
and to perform the obligations required to be performed by
Purchaser at the Closing, are subject to each of the following
conditions ("
Purchaser’s Conditions "),
unless waived in writing by Purchaser:
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4.1.1
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Closing Documents .
Seller shall have tendered at Closing all Closing Documents to
which Seller is a party.
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4.1.2
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Compliance with Agreement .
Seller shall have performed and complied in all material respects
with its obligations under this Agreement such that any default or
failure of performance of Seller as to which Purchaser has
delivered written notice to Seller shall be cured prior to or at
Closing.
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4.1.3
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Representations and Warranties .
All of Seller’s representations and warranties under Section
7.2 are true and correct in all respects as of Closing (and any
such representations and warranties qualified as to the knowledge
of such party shall be deemed not to be so qualified for purposes
of this sentence).
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4.1.4
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Title .
Seller shall have delivered to Purchaser evidence of the release,
cancellation and satisfaction in full of any liens other than
Permitted Exceptions on the Property. The Title Company shall be
prepared to issue an Owner’s policy of title insurance and
corresponding mortgagee’s title policy for the benefit of
Purchaser’s lender in the amount of the Real Estate Purchase
Price (the "
Title Policy ")
insuring Purchaser’s fee simple title to the Land and the
Improvements and any easements appurtenant thereto, as hereinafter
amended (and, with respect to the mortgagee title policy, a valid
first lien against the Property in favor of mortgagee), showing no
exceptions other than the Permitted Exceptions; provided, however,
that (i) the exception as to standby fees and taxes shall be
limited to standby fees and taxes for the year of Closing and
subsequent years, and subsequent assessments for prior years due to
changes in land usage or ownership, (ii) the exception for parties
in possession shall be deleted except for the Tenants under the
Leases, (iii) the standard exception as to restrictive covenants
shall be deleted except only as to any restrictive covenants that
are Permitted Exceptions and (iv) the standard printed exception
dealing with area, boundaries and other matters shall be deleted,
except for "shortages in area". The Title
Policy shall include such endorsements as Purchaser and its lender
may reasonably request and shall otherwise be reasonably acceptable
to Purchaser and its lender.
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4.1.5
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Material Permits and Licenses .
Except for those permits and licenses which the failure to obtain
would not have a material adverse effect on the operation or value
of the Property or would not result in any fine or penalty against
Purchaser, all permits and licenses required for the ownership and
operation of the Property as presently operated are transferred to
Purchaser and all required third party consents or notices with
respect to same have been obtained or made.
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4.1.6
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Estoppel Certificates .
Purchaser shall have received the Tenant Estoppel defined in
Section 2.6 above.
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4.1.7
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Termination of Service Contracts .
Purchaser will not assume any Service Contracts at Closing, and
Seller agrees that Seller shall remain fully responsible for
obligations under such Service Contracts.
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4.1.8
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Condition of Property .
The Property, all aspects thereof and all documents related
thereto, including by way of illustration but not limitation, all
physical and environmental matters relating to the Property, shall
be acceptable to Purchaser in its sole discretion.
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4.1.9
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Closing of Stock Purchase .
Closing is conditioned upon the consummation of the acquisition by
Titan Global Holdings, Inc. of all of the issued and outstanding
shares of capital stock of Appalachian Oil Company, Inc. and
Management Properties, Inc.
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If
any of the Purchaser Conditions have not occurred or been
satisfied within the time periods and in accordance with the
terms set forth herein, then Purchaser shall have the right to
(i) terminate this Agreement by written notice to Seller, in
which event all obligations of the parties hereto shall
thereupon cease and this Agreement shall thereafter be of no
further force and effect or (ii) waive any of such Purchaser
Conditions and proceed to Closing without a reduction in the
Real Estate Purchase Price.
| 4.2 |
Closing Conditions for Seller .
Seller’s obligations to close on the Closing Date are
conditional and contingent on the following, unless waived in
writing by Seller:
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4.2.1
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Real Estate Purchase Price .
Purchaser shall have tendered the Real Estate Purchase Price into
escrow with Escrow Agent.
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4.2.2
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Closing Documents .
Purchaser shall have tendered at Closing all Closing Documents to
which Purchaser is a party.
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4.2.3
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Compliance with Agreement .
Purchaser shall have performed and complied in all material
respects with its obligations under this Agreement such that any
default or failure of performance of Purchaser as to which Seller
has delivered written notice to Purchaser shall be timely cured
prior to or at Closing.
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4.2.4
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Representations and Warranties .
All of Purchaser’s representations and warranties under
Section 8.2 are true and correct in all respects as of
Closing.
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Section
5.
Closing Documents .
On
the Closing Date, Seller shall deliver, or cause to be
delivered, to Escrow Agent the following fully executed
documents and/or items, acknowledged where appropriate, and in
form and substance reasonably satisfactory to Purchaser
(collectively referred to herein as the "
Closing Documents "):
| 5.1 |
Deed .
A Special Warranty Deed ("
Deed ")
conveying good and indefeasible fee simple title to the Land, the
Improvements, and the Appurtenances to Purchaser, subject only to
current, non-delinquent real property taxes and assessments and the
Permitted Exceptions, in the form attached hereto as
Exhibit C .
Seller will execute and deliver to Purchaser and the Title Company
all other documents reasonably and customarily required by the
Title Company from a seller to enable the Title Company to issue
the Title Policy.
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| 5.2 |
Assignment and Assumption of Leases .
An Assignment and Assumption of Leases in the form agreed upon by
Purchaser and Seller assigning to Purchaser all of Seller’s
interest as landlord in all Leases together with an assumption
thereof by Purchaser of all obligations accruing from and after the
Closing Date. All original Leases in Seller’s possession will
be delivered to Purchaser immediately after the
Closing.
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| 5.3 |
Tenant Notices .
Notices to Tenants under Leases in the form agreed upon by
Purchaser and Seller informing such Tenants of the sale of the
Property to Purchaser.
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| 5.4 |
Assignment and Assumption of Intangible Property
.
An Assignment of Intangible Property in the form agreed upon by
Purchaser and Seller assigning to Purchaser the Intangible
Property, together with an assumption thereof by Purchaser of all
obligations accruing from and after the Closing Date.
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| 5.5 |
Settlement Statement .
A settlement statement prepared by the Escrow Agent and acceptable
to Purchaser and Seller showing all cash receipts and disbursements
to be made by Escrow Agent on the Closing Date.
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| 5.6 |
Non-Foreign Status Affidavit .
An Affidavit of Non-Foreign Status executed by Seller.
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| 5.7 |
Other Documents .
Other certificates and documents that are reasonably acceptable to
the signing party and are customarily required to effect the
closing of the sale of the Property and related transactions
contemplated by this Agreement.
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Section
6.
Closing .
| 6.1 |
Closing .
This transaction shall close, as evidenced by recordation of the
Deed and delivery of the Real Estate Purchase Price (net of
prorations and Seller’s share of closing costs pursuant to
this Agreement) (the "
Closing "),
on ___________ (the "
Closing Date ").
In no event shall the Closing Date occur later than September 12,
2007.
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| 6.2 |
Time and Place .
The Closing shall take place through escrow on the Closing Date at
[10:00 a.m. CST]. Upon the completion of the Closing, the parties
shall instruct the Escrow Agent to record the required releases of
liens and Deed in the appropriate land records (provided that Title
Company has committed to deliver the Title Policy) to effect the
transfer and conveyance of the Property to Purchaser. Upon such
recording and agreement to deliver the Title Policy as described in
this Agreement: (a) the parties shall cause the Escrow Agent to
disburse funds to Seller in the amount of the Real Estate Purchase
Price (subject to the prorations provided for herein and less
Seller’s share of closing costs provided for herein) and (b)
the parties shall cause the Escrow Agent to deliver all documents
executed in accordance with this Agreement to the parties in
accordance with written instructions received by the
parties.
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| 6.3 |
Payment of Real Estate Purchase Price .
Purchaser shall deliver to Escrow Agent on the Closing Date
immediately available funds in the amount of the Real Estate
Purchase Price plus any prorations credited to Seller, costs and
expenses hereunder payable by Purchaser, and less the amount of any
costs payable by Seller and prorations credited to Purchaser. The
net amount of the Real Estate Purchase Price due to Seller as shown
on the settlement statement approved by Seller shall be paid to
Seller on the Closing Date.
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| 6.4 |
Possession .
Possession of the Property shall be delivered to Purchaser on the
Closing Date, subject only to the rights of Tenants under the
Leases.
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| 6.5 |
Closing Costs .
Seller shall pay at Closing one-half of any escrow fees. Purchaser
shall pay the premium for the Title Policy, all costs associated
with any financing, the costs of all appraisals, reports and
studies which it may obtain, the costs of the Surveys, if any,
recording fees for the Deed to be delivered at Closing and one-half
of any escrow fees. Seller and Purchaser shall each be responsible
for providing information to the Escrow Agent sufficient to permit
their respective legal fees to be paid at Closing.
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Section
7.
Covenants, Representations and Warranties of Seller
.
| 7.1 |
Seller’s Covenants .
Seller hereby covenants and agrees as follows:
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7.1.1
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Insurance .
At all times from the date hereof to the date preceding the Closing
Date, Seller shall cause to be maintained in force, fire and
extended coverage insurance and commercial general liability
insurance upon the Property in amounts not less than the amounts of
the insurance coverage on the Property on the date
hereof.
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7.1.2
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Operation and Maintenance .
At all times from the date hereof to the date preceding the Closing
Date, Seller shall operate and maintain the Property in
substantially the same manner as it is now operated and maintained,
and Seller shall maintain the physical condition of the Property in
substantially its current condition and in compliance in all
material respects with laws, reasonable and ordinary wear and tear
and damage by Purchaser and its agents and by fire and casualty
excepted.
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7.1.3
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Title .
From and after the Effective Date, Seller shall not further
encumber the Property without the written consent of Purchaser,
such consent not to be unreasonably withheld, conditioned or
delayed (but subject to the provisions of Section 2.5 hereof) and
in all events Seller shall not place any further monetary liens on
the Property except those arising by operation of law. Without
limiting the generality of the foregoing, Seller shall not convey
the Prope
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