EXHIBIT 99
AGREEMENT OF SALE
THIS AGREEMENT OF SALE ("Agreement") is dated as of the 24th day of
January, 2005 between BOARDWALK REALTY PARTNERS, INC., a California corporation,
whose address is 4929 Wilshire Boulevard, Suite 910, Los Angeles, CA 90010
("Purchaser"), and CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV, a Delaware limited
partnership, whose address is 24 Frank Lloyd Wright Drive, Lobby L, Fourth
Floor, Ann Arbor, Michigan 48105 ("Seller").
RECITALS:
Seller is the owner of certain real property and improvements located
at the address set forth in the Fundamental Sale Provisions below.
Purchaser desires to purchase, and Seller is willing to sell the real
property and improvements thereon upon the terms and conditions set out below.
In consideration of the terms, covenants and conditions set forth in
this Agreement, Seller and Purchaser agree as follows:
1. FUNDAMENTAL SALE PROVISIONS. Unless otherwise defined herein,
capitalized terms used in this Agreement shall have the meanings listed in the
following Fundamental Sale Provisions.
Land: That certain real property commonly known as a United
Supermarket located at the northwest corner of 24th
Street and Columbia Street, Plainview, Texas and more
particularly described in the attached Exhibit "A".
Real Estate Lease: That certain Lease, dated September 3, 1999, as
amended, ("Real Estate Lease"), between Plainview
Columbia, L.L.C. (and subsequently assigned to
Seller), as landlord, and United Supermarkets, Inc.,
(and subsequently assigned to United Supermarkets,
Ltd. ), as tenant ("Tenant") and guaranteed by
Pamplemousse, L.L.C. ("Guarantor") pursuant to that
certain Guaranty, dated September 30, 2001
("Guaranty").
Deposit: An initial deposit of One Hundred Thousand Dollars
($100,000), payable as set forth in Section 3(a)
below ("Initial Deposit") and an additional deposit
of One Hundred Thousand Dollars ($100,000), payable
as set forth in Section 3(a) below ("Additional
Deposit"). The Initial Deposit and the Additional
Deposit (when paid as provided in Section 3(a) below)
are collectively referred to as the "Deposit."
Purchase Price: Six Million Dollars ($6,000,000), payable as set
forth in Section 3 below.
Title Company: LandAmerica Title Company, 10 South LaSalle Street,
Suite 2500, Chicago, IL 60603, Attention: Sharon
Sayre.
Inspection Period: Thirty (30) days after the later of: (a) the date of
this Agreement or (b) Purchaser's receipt of the Due
Diligence Items set forth in Section 4 below.
Financing Period: None.
Closing: To occur within forty-five (45) days following
Purchaser's satisfaction or waiver of the
contingencies set forth in Section 5 below.
Seller's Broker: CB Richard Ellis, Inc., a Delaware corporation, with
an address at 505 North Brand Boulevard, Suite 100,
Glendale, CA 91203 Attention: Sterling Champ.
Purchaser's Broker: California Realty Partners, Inc., a California
corporation, with an address at 20656 Ventura
Boulevard, Woodland Hills, CA 91364 Attention: Diane
N. Pechenick.
2. AGREEMENT TO SELL AND CONVEY. Seller agrees to sell and convey to
Purchaser, and Purchaser agrees to purchase from Seller, subject to the terms
and conditions set forth in this Agreement, all of Seller's right, title and
interest in and to:
(a) Project. All buildings, structures, and improvements (the
"Improvements") on the Land (the "Project");
(b) Easements. All of the recorded easements benefiting, and
recorded rights of access appurtenant to, the Land;
(c) Rights and Appurtenances. All and singular, the rights and
appurtenances pertaining to the Land, including any adjacent streets, roads,
alleys, accesses, and rights-of-way; and
(d) Real Estate Lease. The Real Estate Lease, together with
all prepaid rentals (to the extent applicable) to a period beyond the date of
Closing, any security deposits held by Seller under the Real Estate Lease as of
the date of Closing and Seller's interest in the Guaranty.
All of the items described in clauses (a), (b), (c) and (d) above are
collectively referred to as the "Real Property" or the "Property".
3. PURCHASE PRICE; DEPOSIT. The Purchase Price for the Property shall
be payable as follows:
(a) Deposit. Within three (3) business days of the date of
this Agreement, Purchaser shall place the Initial Deposit in escrow with the
Title Company. On or before the expiration date of the Inspection Period,
Purchaser shall place the Additional Deposit in escrow with the Title Company.
The Deposit shall be held in accordance with the terms of this Agreement and the
laws of the State of Michigan and applied to the Purchase Price at Closing (if
the transaction is consummated). The Deposit shall be held in a money market
account reasonably acceptable to Purchaser and Seller and all interest shall be
paid to the party entitled to the Deposit. Upon the expiration of the Inspection
Period, assuming Purchaser has not otherwise elected to terminate this
Agreement, the Deposit shall be deemed non-refundable (except in the event of
Seller's failure to consummate the transactions described herein as a result of
Seller's default hereunder); and
(b) Balance of Purchase Price. The balance of the Purchase
Price (plus or minus closing adjustments, as the case may be), together with the
Deposit, shall be paid to the Title Company, as escrow closing agent, prior to
the Closing and shall be disbursed at the Closing in accordance with escrow
closing instructions mutually satisfactory to Seller and Purchaser. Payment
shall be by wire transfer of immediately available U.S. funds in accordance with
wire transfer instructions provided by Seller prior to the Closing as required
by the Title Company. In exchange for such payment at the Closing, Seller shall
deliver to Purchaser a deed to the Project (in the form required by the State of
Texas) whereby Seller only warrants against its own acts and/or omissions (the
"Deed"). The Deed shall be substantially in the form attached as Exhibit "B" and
shall convey title to Purchaser, subject to the Lease, the liens for taxes which
are not yet due and payable and such other exceptions to title which are
disclosed in the Title
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Commitment (defined below) and to which Purchaser consents in writing or waives
its objection thereto pursuant to this Agreement.
4. DUE DILIGENCE ITEMS. Unless a longer time period is specifically
identified below, within five (5) business days of the date of this Agreement,
and at its sole cost and expense, Seller shall furnish or cause Broker to
furnish to Purchaser the following (hereinafter collectively referred to as the
"Due Diligence Items"):
(a) Title Work. A copy of the owner's policy of title
insurance issued to Seller for the Project. Within twenty (20) days of the date
of this Agreement, and provided Purchaser has delivered evidence to Seller that
the Initial Deposit has been tendered to the Title Company, Seller shall provide
a commitment for an owner's policy of title insurance for the Project (the
"Title Commitment"), which shall: (i) be issued by Title Company in favor of
Purchaser without so called "Standard Exceptions", (ii) be dated after the date
of this Agreement, (iii) provide for coverage in an amount equal to the Purchase
Price, (iv) show the state and quality of title to the Project, together with
all liens, encumbrances and other charges and items affecting the Project; and
(v) be accompanied by legible copies of all documents referenced in the Title
Commitment. Any endorsements to the Title Commitment shall be obtained by
Purchaser at Purchaser's sole cost and expense;
(b) Survey. A copy of the existing ALTA as-built survey of the
Land in Seller's possession (if any) (the "Survey");
(c) Phase I Report. A copy of the existing "Phase I"
environmental assessment for the Project in Seller's possession (if any);
(d) Property Condition Report. A copy of the existing property
condition reports for each Project in Seller's possession (if any);
(e) Real Estate Lease Documents. A complete copy of the Real
Estate Lease, along with the Guaranty; and
(f) existing contracts or agreements affecting the Property,
if any, in the Seller's possession
Purchaser shall promptly deliver to Seller written
acknowledgement of Purchaser's receipt of each Due Diligence Item. Within seven
(7) business days after the date of this Agreement, Purchaser shall notify
Seller in writing in the event that Purchaser has not yet received any Due
Diligence Item (which notice shall specify any Due Diligence Item not yet
received); otherwise, Purchaser shall be deemed to have received all of the Due
Diligence Items.
Purchaser acknowledges and agrees that, except for such items
which are in the public records, the Due Diligence Items are proprietary and
confidential in nature and have been and/or will be made available to Purchaser
solely to assist Purchaser in determining the feasibility of purchasing the
Property. Purchaser agrees not to disclose the Due Diligence Items, or any of
the provisions, terms or conditions thereof to any party outside of Purchaser's
organization except: (i) to Purchaser's accountants, attorneys, lenders,
prospective lenders, environmental consultants, investors and/or prospective
investors (collectively, "Permitted Outside Parties") in connection with the
transactions contemplated by this Agreement, or (ii) as may be required by law.
Purchaser shall take such actions as are necessary so as to ensure that the
Permitted Outside Parties also protect the confidential nature of the Due
Diligence Items to the same extent as Purchaser is obligated to so under this
Agreement. In permitting Purchaser and the Permitted Outside Parties to review
the Due Diligence Items, Seller has not waived any privilege or claim
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of confidentiality with respect thereto and no third party benefits of any kind,
either expressed or implied, have been offered, intended or created by Seller
and any such claims are expressly rejected by Seller and waived by Purchaser on
its own behalf and on behalf of the Permitted Outside Parties.
Purchaser shall return to Seller all of the Due Diligence
Items (including all copies Purchaser has made of the Due Diligence Items) at
such time as this Agreement is terminated for any reason. Purchaser's
obligations under this Section 4 shall survive the termination of this
Agreement.
Purchaser acknowledges that most of the Due Diligence Items
were prepared by third parties and, in many instances, were prepared prior to
Seller's ownership of the Property. Purchaser further acknowledges and agrees
that, except as specifically set forth herein: (i) neither Seller nor any of its
directors, officers, partners, members, agents, employees or contractors have
made any warranty or representation regarding the truth, accuracy or
completeness of the Due Diligence Items or the sources thereof, (ii) neither
Seller nor any director, officer, partner, member, employee or agent acting on
Seller's behalf is authorized or empowered to make any warranties or
representations of whatsoever kind or nature regarding the truth, accuracy or
completeness of the Due Diligence Items or the Property (other than as expressly
set forth in this Agreement) (iii) Seller has not undertaken any independent
investigation as to the truth, accuracy and completeness of the Due Diligence
Items and (iv) Seller is providing the Due Diligence Items to Purchaser (or
making the Due Diligence Items available to Purchaser) solely as an
accommodation to Purchaser. Purchaser further acknowledges and agrees that
Purchaser shall be solely responsible for reviewing, analyzing and determining
the truth, completeness, accuracy and adequacy of the Due Diligence Items.
5. CONDITIONS TO PURCHASER'S OBLIGATIONS.
(a) Objection Notice. Purchaser shall have until the close of
Seller's business on the date the Inspection Period expires to deliver written
notice to Seller indicating whether the Property is unsatisfactory to Purchaser
for any or no reason, in Purchaser's sole and absolute discretion ("Objection
Notice"). In the event Seller does not receive an Objection Notice within the
time period set forth in the preceding sentence, Purchaser shall be deemed to
have accepted the Due Diligence Items, the condition of the Property, and title
thereto, as disclosed in the Due Diligence Items, at which time the Deposit
shall, except as provided in the following sentences, become non-refundable. In
the event Purchaser delivers a timely Objection Notice to Seller and Title
Company, the Title Company shall return the deposit to Purchaser, upon written
direction of Purchaser, and except as expressly set forth in this Agreement,
neither Seller nor Purchaser shall have any further obligations under this
Agreement. The Deposit shall also be refundable in the event Seller fails to
consummate the transactions described herein as a result of Seller's default
hereunder and Purchaser elects to terminate this Agreement as provided below.
(b) Responses to Notice of Title Defect. In the event that
Purchaser discovers and informs Seller in writing of, or Seller informs
Purchaser of, any change in the status of title to the Property occurring after
the date of this Agreement and resulting in an encumbrance on the Real Property
in addition to the Real Estate Lease and the Permitted Exceptions (as defined
below) (each a "Title Defect"), Seller may promptly undertake to cure the items
specified in the Objection Notice or eliminate any such Title Defect to the
reasonable satisfaction of Purchaser and/or, to the extent possible, cause the
Title Company to insure over any Title Defect to the reasonable satisfaction of
Purchaser and accordingly modify the Title Commitment. In the event Seller
elects not to effect such cure or is either unable to do so or have the Title
Company so insure over Purchaser's objections within ten (10) days after receipt
by Seller of the notice of any Title Defect, Purchaser may, at its option: (1)
waive any of its objections set forth in the Notice relating to the Title
Defect, without any adjustment in the Purchase Price or (2) Purchaser may
terminate this Agreement. Purchaser shall deliver to Seller prompt written
notice of which option Purchaser has elected pursuant to the preceding sentence.
In the event Purchaser elects to
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terminate this Agreement, the Deposit shall be returned to Purchaser and, except
as expressly set forth in this Agreement, neither Seller nor Purchaser shall
have any further obligations under this Agreement.
(c) Financing Contingency. If the Purchaser and Seller have
initialed that "Financing Contingency Applies" below, Purchaser's obligations
hereunder are contingent upon Purchaser's ability to obtain a loan ("Loan") to
finance its purchase obligation hereunder. Purchaser shall: (i) apply for such
Loan within seven (7) days of the date of this Agreement, and (ii) shall have
the Financing Period in which to obtain a commitment for financing
("Commitment"). In the event Purchaser is unable to obtain the Commitment prior
to the expiration of the Financing Period, Purchaser shall have the right to
terminate this Agreement by delivering written notice thereof to Seller and the
Title Company prior to the expiration of the Financing Period. The failure by
Purchaser to timely deliver such notice of termination prior to the expiration
of the Financing Period shall be an election by Purchaser to waive such
financing contingency, thereby causing the Deposit to become non-refundable. In
the event of Purchaser's timely election to terminate this Agreement, the entire
portion of the Deposit then held by the Title Company shall be delivered to
Purchaser, subject to Purchaser's continuing obligations to return the Due
Diligence Items and Purchaser's indemnity obligations under Section 15.
Financing Contingency Applies:
Seller's Initials Purchaser's Initials:
------- -------
Financing Contingency Does Not Apply:
Seller's Initials /s/ Purchaser's Initials: /s/
------- -------
(d) SNDA and Estoppel Certificate. Upon expiration or waiver
of the Inspection Period set forth above, Seller will make a one time request
from Tenant for a current estoppel certificate and, if the Financing Contingency
applies (see above), a subordination, non-disturbance and attornment agreement
("SNDA"), in the form(s) (if any) contemplated by the Real Estate Lease. If the
form of Tenant estoppel certificate and/or SNDA is not prescribed by the Real
Estate Lease and Purchaser submits to Seller the form of estoppel certificate
and/or SNDA (as the case may be) preferred by Purchaser or required by
Purchaser's lender (if any), Seller will submit such form of estoppel
certificate and SNDA to the Tenant if such form is reasonable (as determined by
Seller in its sole and absolute discretion). Notwithstanding anything contained
herein to the contrary, in the event Tenant fails to provide the agreed upon
estoppel certificate and/or SNDA or alleges that there are outstanding material
events of default under the Real Estate Lease which cannot be resolved to
Purchaser's reasonable satisfaction by the Closing, then, in such event,
Purchaser's sole remedy shall be to either waive the requirement or terminate
this Agreement by written notice to Seller and the Title Company and receive the
prompt return of its Deposit from the Title Company. Seller shall be under no
obligation to update any estoppel certificate and/or SNDA received from any
Tenant.
6. PERMITTED EXCEPTIONS. Seller shall convey the Property to Purchaser
subject to any easements, liens, exceptions, and other encumbrances, except such
encumbrances which have been placed of record at the direction of the Seller or
because of a direct action of the Seller, which may be removed by the payment of
money, which shall be Seller's obligation, noted in the Title Commitment, the
Survey and the Real Estate Lease (collectively the "Permitted Exceptions").
7. REPRESENTATIONS AND WARRANTIES OF SELLER. Seller represents and
warrants to Purchaser as to the following matters, each of which is true and
correct as of the date of this Agreement, and each of which shall be true and
correct as of the date of Closing. As used in this Section, the phrase "to
Seller's knowledge" means Seller's actual knowledge, without duty of inquiry.
(a) Authority. Seller is duly formed in the State of Delaware,
Seller has obtained all necessary approvals for the execution of this Agreement
and the performance of its obligations arising hereunder.
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(b) Compliance. Except as may be disclosed in writing to
Purchaser by Seller within ten (10) business days of the date of this Agreement,
Seller has received no written notice from any governmental agency alleging a
violation of any statute, ordinance, regulation or code with respect to the
Property which violation has not been cured;
(c) Litigation. Except as may be disclosed in writing to
Purchaser by Seller within ten (10) business days of the date of this Agreement,
there is no pending nor, to Seller's knowledge, threatened matters of
litigation, administrative action or examination, claim or demand relating to
the Property or Seller's interest in the Property;
(d) Eminent Domain. Except as may be disclosed in writing to
Purchaser by Seller within ten (10) business days of the date of this Agreement,
there is no pending nor, to Seller's knowledge, contemplated or threatened
eminent domain, condemnation or other governmental takings or proceedings
relating to the Property or any part thereof; and
(e) Foreign Entity. Seller is not a foreign person or entity
under the Foreign Investment in Real Property Tax Act of 1980, as amended, and
no taxes or withholding under the such act shall be assessed against or imposed
upon Purchaser in connection with the transaction contemplated by this
Agreement.
Seller acknowledges and agrees that the warranties and
representations set forth above shall survive the Closing for a period of six
(6) months. If, prior to Closing, Purchaser receives written notice from Seller
that any material representation or warranty of Seller is untrue and cannot be
remedied, or Purchaser becomes aware that any material representation or
warranty of Seller is untrue and can not be remedied, Purchaser shall, as
Purchaser's sole and exclusive remedy, be entitled to terminate this Agreement
by written notice delivered to Seller on or before the Closing, in which event,
the Deposit shall be refunded to Purchaser, and, except for the terms and
provisions of this Agreement which specifically survive the termination of this
Agreement, the parties shall have no further obligations hereunder. If Purchaser
is so advised and Purchaser fails to terminate this Agreement within such
period, Purchaser shall be deemed to have waived the breach of such
representation or warranty and shall have no further rights or remedies as a
result of the breach of such representation or warranty. Seller does not, by
this Agreement, represent or warrant that there will be no changes in any of the
matters referred to in Seller's representations or warranties after the date
same are made through the acts and/or omissions of persons other than Seller,
and shall have no liability or responsibility in the event that any
representation or warranty becomes false or misleading as a result of any change
in circumstances after the date such representations or warranties are made.
8. COVENANTS OF SELLER.
(a) Actions. From and after the date of this Agreement and
until the date of Closing, Seller shall: (i) use commercially reasonable efforts
to keep (or cause to be kept) the Property fully insured in accordance with
prudent and customary practice and as required by the Real Estate Lease; (ii)
not alienate, encumber or transfer the Property or any part thereof in favor of
or to any other person or entity unless required by law; and (iii) not amend the
Real Estate Lease without the prior written consent of Purchaser (which consent
shall not be unreasonably withheld, conditioned or delayed); and
(b) Change in Status. From and after the date of this
Agreement and until the date of Closing, Seller shall promptly give Purchaser
written notice of any change in the status of title to the Property, which
either changes the nature of any Permitted Exceptions or represents an
additional encumbrance on the Property.
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9. CLOSING. Seller and Purchaser shall consummate the transaction
contemplated by this Agreement at Closing through an escrow with the Title
Company and pursuant to escrow instructions acceptable to the Title Company,
Seller and Purchaser. The attorneys for Seller and Purchaser are authorized to
execute the escrow instructions letter, any amendments thereto and all
directions or communications thereunder.
10. SELLER'S OBLIGATIONS AT THE CLOSING. At the Closing, Seller shall:
(a) Deed. Execute and deliver the Deed to Purchaser;
(b) Title Policy. Cause the Title Company to furnish to
Purchaser an owner's policy of title insurance for the Project pursuant to the
Title Commitment (the "Title Policy");
(c) Closing Statement. Execute and deliver to Purchaser a
closing statement itemizing the Purchase Price and all adjustments thereto as
provided in this Agreement;
(d) Assignment of Lease. Execute and deliver to Purchaser an
assignment of all of Seller's right, title and interest in and to the Real
Estate Lease in substantially the form attached as Exhibit "C" (the
"Assignment"), together with such consents to and notices of the Assignment as
may be required under the Real Estate Lease;
(e) Affidavit. Execute and deliver to Purchaser a Non-Foreign
Persons Affidavit in substantially the form attached as Exhibit "D";
(f) Estoppel Certificates and SNDA. Deliver to Purchaser an
original of the estoppel certificate and SNDA (if any) from the Tenant in the
form required by Section 5(d) above;
(g) Notice to Tenant. Execute and deliver to Purchaser a
"Notice to Tenant" for the Real Estate Lease substantially in the form attached
as Exhibit "E"; and
(h) Additional Documents. Execute and deliver to Purchaser
such other documents or instruments as may be required under this Agreement, or
as otherwise required in Purchaser's reasonable judgment to effectuate the
Closing.
11. PURCHASER'S OBLIGATIONS AT CLOSING. Subject to the terms,
conditions, and provisions hereof, and contemporaneously with the performance by
Seller of its obligations under Section 10 above, Purchaser shall:
(a) Purchase Price. Pay Seller the Purchase Price;
(b) Closing Statement. Execute and deliver to Seller a closing
statement itemizing the Purchase Price and all adjustments thereto as provided
in this Agreement;
(c) Assignments of Leases. Acknowledge the Assignment for the
purpose of assuming the obligations of Seller under the Real Estate Lease; and
(d) Additional Documents. Execute and deliver to Seller such
other documents or instruments as may be required under this Agreement, or as
otherwise required in Seller's reasonable opinion to effectuate the Closing.
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Purchaser's obligation to close shall be specifically
contingent upon the Title Company furnishing to Purchaser the Title Policy for
the Project and the Tenant executing and delivering to Purchaser an agreed upon
estoppel certificate. Purchaser acknowledges that Seller's failure to deliver
the foregoing items shall not constitute a default by Seller hereunder, nor
expose Seller to damages, but, in such circumstances, Purchaser shall
nonetheless be able to terminate this Agreement by written notice to Seller and
receive the immediate return of the Deposit.
12. CLOSING COSTS. At the Closing, Seller shall pay: (a) the cost of
preparation of the Deed and the Assignment, and (b) all premiums and fees
related to the Title Policy, but excluding endorsement premiums or any charges
for extended coverage endorsements. Seller and Purchaser shall each pay half of
any escrow charges or fees, and shall further pay their own attorneys' fees.
Real estate commissions or compensation shall be payable as set forth in Section
21 below. All other costs and expenses of the Closing including, but not limited
to, real estate transfer taxes and fees payable upon recordation of the Deed
and/or the Assignment shall be paid by Purchaser. Purchaser shall be responsible
for: (a) the costs and expenses of any additional endorsements and/or additional
title insurance coverage requests by Purchaser and (b) any other expenses, taxes
and fees related to Purchaser's Loan, including any mortgage taxes and any
premiums and fees related to any lender's policies of title insurance.
13. PRO-RATIONS.
(a) Taxes. Purchaser acknowledges that the Real Estate Lease
obligates the Tenant to pay the property taxes directly to the taxing authority.
Accordingly, the parties shall not prorate property taxes between Purchaser and
Seller, it being acknowledged that the Tenant shall be responsible for same. In
no event shall Seller be responsible for the payment of any real estate taxes,
personal property taxes and/or assessments applicable during its period of
ownership in the event the Tenant has defaulted in the prompt payment of same
provided that such payment is Tenant's obligation.
(b) Rent. Rent actually paid for the month in which the
Closing occurs shall be prorated between Seller and Purchaser as of the close of
business on the date of Closing, with Purchaser receiving a credit for amounts
attributable to time periods following such date. To the extent either party
hereto receives rent after Closing to which the other has a claim, such party
shall remit same to the party entitled thereto within ten (10) days of receipt.
To the extent any rent arrearages exist under the Real Estate Lease, Seller
shall have the right, to the extent it is holding a security deposit under the
Real Estate Lease, to set-off against such security deposit for such arrearages.
14. POSSESSION. Subject to the rights of Tenant under the Real Estate
Lease, Seller shall deliver possession of the Property to Purchaser at Closing.
15. INSPECTION. From and after the date of this Agreement and until the
expiration of the Inspection Period, Seller agrees that Purchaser and its agents
and representatives shall, subject to arranging all onsite visits with Seller,
Seller's Broker and Tenant, be entitled to enter upon the Property for
inspection, soil tests, examination, and for any due diligence investigation
relating to Purchaser's proposed ownership of the Property, subject in every
case to the rights of Tenant under the Real Estate Lease. As to any such
investigation, Purchaser shall restore the Property to the same condition as
existed prior to any such investigation, and shall not: (i) perform any invasive
tests without Seller's and Tenant's prior consent, or (ii) interfere with the
possessory rights of Tenant. Purchaser shall indemnify and hold harmless Seller
from and against, and shall reimburse Seller with respect to, any and all
claims, demands, causes of action, loss, damage, liabilities, costs and expenses
(including reasonable attorneys' fees and disbursements) asserted against or
incurred by Seller by reason of or arising out of any such on-site
investigation, it being acknowledged that all such obligations shall survive the
termination of this Agreement.
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16. ACKNOWLEDGEMENT. Purchaser understands and acknowledges that other
than as expressly set forth in this Agreement, Seller has not made and does not
make any representation or warranties whatsoever, oral or written, express or
implied, to Purchaser with respect to the condition, state of repair or
operability of the Property (including but not limited to environmental
protection, pollution or land use laws, rules, regulations, orders or
requirements, including the existence in, on, or under the Property of any
hazardous materials or substances, soil or sub-soil conditions, all improvements
thereon, the structural portions thereof, and the personal property, mechanical,
plumbing, electrical, sewer, sanitary disposal, heating, ventilating and air
conditioning systems and other building service equipment therein), with respect
to the suitability or fitness for the Purchaser's intended use or purpose or
with respect to the appreciation or income potential of the Property, the zoning
of the Property, the platting of the Property, the availability or adequacy of
utilities to the Property, access to the Property, requirements in connection
with any development of the Property or any other matter whatsoever. Purchaser
further acknowledges and agrees that Purchaser has investigated or will
investigate all matters of concern to Purchaser with respect to the Property and
that Purchaser is not relying and hereby expressly waives any reliance on any
representation or warranty, oral or written, express or implied, of Seller with
respect to such matters. Purchaser agrees to purchase the Property and all
Improvements thereon and mechanical systems therein delivered to Purchaser, "as
is and where is", with all faults. Notwithstanding any provision of this
Agreement to the contrary, Purchaser releases Seller from any liability, claims,
damages, expenses of any kind or nature, or any other claim resulting from the
presence, removal or other remediation of hazardous materials or substances in,
on, under or about the Property or which has migrated from adjacent lands onto
the Property or from the Property to adjacent land. The provisions of this
Section 16 shall survive the Closing.
17. FURTHER ASSURANCES. Seller and Purchaser agree to perform such
other acts, and to execute, acknowledge, and/or deliver subsequent to the
Closing such other instruments, documents and other materials as Seller or
Purchaser may reasonably request in order to effectuate the consummation of the
transaction contemplated in this Agreement and to vest title to the Property in
Purchaser. The provisions of this Section 17 shall survive the Closing.
18. DEFAULT BY SELLER. In the event that Seller should fail to
consummate the transactions contemplated by this Agreement for any reason,
excepting Purchaser's default or the failure of any of the conditions to
Seller's obligations hereunder to be satisfied or waived, Purchaser may
terminate this Agreement by giving prompt written notice thereof to Seller, or
specifically enforce this Agreement; provided, however, that in the event that
such failure of Seller was beyond Seller's reasonable control, Purchaser's sole
remedy shall be to terminate this Agreement; provided, further, in the event
Purchaser elects to specifically enforce this Agreement, it must institute such
action within thirty (30) days following Seller's default, failing which,
Purchaser shall be deemed to have waived the right to pursue specific
performance.
19. DEFAULT BY PURCHASER. In the event Purchaser should fail to
consummate the transactions contemplated in this Agreement for any reason,
except default by Seller or the failure of any of the conditions to Purchaser's
obligations hereunder to be satisfied or waived, Seller may retain the Deposit
and terminate this Agreement by giving prompt written notice thereof to
Purchaser.
20. ATTORNEY'S FEES. Should either Seller or Purchaser employ an
attorney or attorneys to enforce any of the provisions of this Agreement or to
protect its interest in any matter arising under this Agreement or to recover
damages for the breach of this Agreement, the losing party in any final judgment
agrees to pay the prevailing party all reasonable costs, charges, and expenses,
including reasonable attorney's fees, expended or incurred by it in connection
therewith.
9
21. BROKERAGE COMMISSIONS. Seller represents to Purchaser that no
brokers other than Seller's Broker (who represents Seller in the transaction)
have been involved on behalf of Seller in this transaction. Purchaser represents
to Seller that no brokers other than Purchaser's Broker and Purchaser's in-house
broker (who both represents Purchaser in the transaction) have been involved on
behalf of Purchaser in this transaction. In the event that this transaction is
consummated and Closing occurs, Seller shall pay Seller's Broker a real estate
commission as set forth in a separate written agreement between Seller and
Broker. In the event that this transaction is consummated and Closing occurs,
Purchaser shall pay Purchaser's Broker a real estate commission in the amount of
one percent (1%) of the current Purchase Price. Seller and Purchaser agree that
if any other claims for brokerage commissions are ever made against Seller or
Purchaser in connection with this transaction, all claims shall be handled and
paid by the party whose actions or alleged commitments form the basis of such
claim. Seller agrees to indemnify and hold Purchaser harmless from any loss,
liability, damage, cost, or expense (including, without limitation, reasonable
attorney's fees) paid or incurred by Purchaser by reason of any claim to any
broker's, finder's, or other fee in connection with this transaction by any
party claiming by, through, or under Seller. Except as provided in the foregoing
sentence, Purchaser agrees to indemnify and hold Seller harmless from any loss,
liability, damage, cost or expense (including, without limitation, reasonable
attorney's fees) paid or incurred by Seller by reason of any claim to any
broker's, finder's, or other fee in connection with this transaction by any
party claiming by, through, or under Purchaser, which obligation of each party
shall survive the Closing. The foregoing notwithstanding, Seller and Purchaser
agree to amend this Agreement to increase the Purchase Price to provide for the
payment of compensation by Seller to Purchaser's in-house broker equal to the
difference between the current Purchase Price and the increased Purchase Price,
so long as such payment is at no other cost or expense to Seller. For example,
Purchaser shall pay any excess title fees (including but not limited to any
increases in premium), and excess transfer, documentary or stamp taxes and any
other fees imposed on Seller as a result of any increase in the Purchase Price
as a result of this provision, provided however, that Seller shall obtain from
Seller's Broker a waiver of any increased commission because of an increase in
the Purchase Price under this Section 21.
22. RISK OF LOSS. All risk of loss or damage to the Property prior to
Closing, including, without limitation, loss by reason of eminent domain or
condemnation proceedings or by reason of fire, windstorm, or other casualty,
shall rest with Seller. If, prior to the Closing, the Property is subject to
eminent domain or condemnation proceedings or is damaged as a result of fire or
other casualty, Seller shall give Purchaser written notice thereof and Purchaser
shall have the option, exercisable by written notice to Seller within ten (10)
days after receipt of such notice, to either:
(a) Accept Title. Accept title to the Property without any
reduction of the Purchase Price, in which event, at the Closing and subject to
the rights of the Tenant, Seller shall assign to Purchaser any eminent domain or
condemnation award or insurance proceeds payable to Seller or its successors or
assigns, as well as any other third party reimbursements, if any, by reason of
such eminent domain or condemnation proceedings or damage or casualty, and pay
over to Purchaser any monies theretofore received by Seller in connection with
such eminent domain or condemnation proceedings or fire or other casualty; or
(b) Terminate. Purchaser may terminate this Agreement, in
which event, neither Seller nor Purchaser shall have any further obligations
under this Agreement and the Purchaser shall receive the prompt return of the
Deposit.
In the event Purchaser shall fail to exercise any such option
within such ten (10) day period, Purchaser shall be deemed to have elected the
option set forth in Section 22(b).
10
23. ASSIGNMENT OF AGREEMENT. This Agreement may not be assigned by
Purchaser without the prior written consent of Seller, which consent may not be
unreasonably withheld or delayed. Notwithstanding anything to the contrary in
this Agreement, this Agreement may be assigned by Purchaser, without the consent
of Seller, to an affiliate of Purchaser or of Purchaser's investors, or to any
entity which is wholly or partially owned or controlled by or under common
control with the Purchaser or of Purchaser's investors; provided that, Purchaser
shall deliver written notice of such assignment to Seller at least five (5)
business days prior to Closing and, further provided that, such assignment shall
not release Purchaser from any of his duties, obligations and/or liabilities
arising under this Agreement.
24. NOTICES. Any notice to be given or to be served upon either party
in connection with this Agreement must be in writing and shall be given by
certified or registered mail (return receipt requested), by overnight express
delivery or by facsimile (followed by hard copy by either of the two preceding
methods of delivery) and shall be deemed to have been given upon receipt.
Notices shall be sent to the addresses set forth on the signature page of this
Agreement and shall be deemed delivered upon delivery or on the date when the
receiving party first refuses to accept such delivery. Either party may at any
time, by giving five (5) days written notice to the other, designate any other
address in substitution of any of the foregoing addresses to which such notice
shall be given and other parties to whom copies of all notices under this
Agreement shall be sent.
25. BINDING EFFECT. This Agreement shall be binding upon and shall
inure to the benefit of the Seller and Purchaser and their respective permitted
successors and assigns.
26. ENTIRE AGREEMENT. This Agreement represents the entire agreement
between Seller and Purchaser with respect to the subject matter hereof, and all
prior agreements between Seller and Purchaser with respect to such subject
matter shall have no further force or effect, including, without limitation, any
proposal letters.
27. GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Michigan, without giving effect to
principles of conflicts of law.
28. MODIFICATION. This Agreement may only be modified or otherwise
amended by a written instrument executed by duly authorized representatives of
Seller and Purchaser.
29. TIME OF ESSENCE. Time is of the essence of this Agreement.
30. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall constitute an original, and all of which
together shall constitute one and the same instrument.
31. 1031 EXCHANGE. In the event, prior to Closing, Purchaser shall
desire to structure this transaction as a part of a tax deferred exchange,
pursuant to Section 1031 of the Internal Revenue Code, Purchaser may assign its
rights, but not its obligations, to a Qualified Intermediary under Treasury
Regulation 1.103(k)-(1)(9)(4) and Seller, as an accommodation to Purchaser,
shall enter into and execute any such amendatory documentation as Purchaser may
reasonably request; provided, however, that Seller shall not incur any
additional cost, expense, risk or potential liability whatsoever on account
thereof. Seller shall have no liability to Purchaser whatsoever in the event the
subject transaction is found, held or adjudicated not to qualify as or as a part
of a tax deferred exchange pursuant to Section 1031 of the Internal Revenue
Code.
[Signature page to follow]
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
effective as of the date first written above.
PURCHASER: SELLER:
BOARDWALK REALTY PARTNERS, INC. CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV
By: GP4 Asset Acquisition, LLC
By: /s/ Mark Mandelbaum Its: General Partner
Print Name: Mark Mandelbaum
Its: President By: /s/ Gary A. Bruder
Print Name: Gary A. Bruder
Its: Vice President
Send Notices To:
Send Notices To:
Mark Mandelbaum
c/o Boardwalk Realty Partners, Inc. Captec Franchise Capital Partners L.P. IV
4929 Wilshire Boulevard, Suite 910 Attention: Steven Willison
Los Angeles, CA 90010 24 Frank Lloyd Wright Drive
Telephone: 323-692-0199 Lobby L, Fourth Floor, P.O. Box 544
Facsimile: 323-692-0197 Ann Arbor, Michigan 48106-0544
Telephone: 734-994-5505
Facsimile: 734-994-1376
With a Copy To:
Diane N. Pechenick With a Copy To:
California Realty Partners, Inc. Shumaker Loop & Kendrick LLP
20656 Ventura Boulevard Attention: James I. Rothschild, Esq.
Woodland Hills, CA 91364 North Courthouse Square
Telephone: 818-348-8700 Ext. 20 1000 Jackson
Facsimile: 818-348-8707 Toledo, OH 43624-1573
Telephone: 419-321-1232
And Facsimile: 419-241-6894
Bernard P. Wiesel, Esq.
9430 Olympic Blvd., Ste. 400
Beverly Hills, CA 90212
Telephone: 310-277-4434
Facsimile: 310-556-1484
12
SCHEDULE OF EXHIBITS
A -- Legal Description of the Land
B -- Form of Deed
C -- Form of Assignment of Lease
D -- Form of Non-Foreign Persons Affidavit
E -- Form of Notice to Tenant
13
EXHIBIT "A"
LEGAL DESCRIPTION
Tract "A", United Supermarket Addition to the City of Plainview, Hale County,
Texas, being a replat of Lots 1B, 1C, 1D and 1E, Kruse Subdivision, Unit No. 1,
according to the map, plat and/or dedication deed thereof recorded in Volume
841, Page 361, Deed Records of Hale County, Texas and a portion of that tract of
land conveyed to Pioneer Oil Company in Volume 676, Page 181, Deed Records of
Hale County, Texas, being further described as follows:
BEGINNING at a 1/2" iron rod found in the West right-of-way line of Columbia
Street at the Northeast corner of this tract which is the Northeast corner of
Lot 1E, Kruse Subdivision, Unit No. 1;
THENCE South 00 degrees 01 minute East along said West right-of-way line a
distance of 296.80 feet to a 1/2" iron rod with cap set for the most Easterly
Southeast corner of this tract;
THENCE South 47 degrees 50 minutes 45 seconds West, continuing along said
right-of-way line, a distance of 26.85 feet to a 1/2" iron rod with cap set in
the North right-of-way line of West 24th Street for the most Southerly Southeast
corner of this tract;
THENCE North 89 degrees 59 minutes 20 seconds West, along said North
right-of-way line, a distance of 598.47 feet to a 1/2" iron rod found a the
Southwest corner of this tract and the Southeast corner of Lot 8A, Kruse
Subdivision, Unit No. 1;
THENCE North 00 degrees 03 minutes West, along the East line of said Lot 8A, a
distance of 315.00 feet to a 1/2" iron rod found at the Northwest corner of this
tract and the Northeast corner of said Lot 8A;
THENCE South 89 degrees 58 minutes 20 seconds East, a distance of 618.56 feet to
the POINT OF BEGINNING.
A-1
EXHIBIT "B"
FORM OF DEED
[Note: Modify to conform to recording/other requirements of the State of Texas.]
LIMITED/SPECIAL WARRANTY DEED
For the consideration of Six Million Dollars ($6,000,000), CAPTEC FRANCHISE
CAPITAL PARTNERS L.P. IV a Delaware limited partnership, whose address is 24
Frank Lloyd Wright Drive, Lobby L, 4th Floor, P.O. Box 544, Ann Arbor, Michigan
48106-0544 ("Grantor") does hereby convey to BOARDWALK REALTY PARTNERS, INC., a
California corporation, whose address is 4929 Wilshire Boulevard, Suite 910, Los
Angeles, CA 90010 ("Grantee") the following described property in the Town of
Plainview, County of Hale, State of Texas:
See Exhibit A attached hereto and made a part hereof.
Commonly known as 2401-2403 N. Columbia Street, Plainview, Texas
Tax Parcel ID # [#]
Subject to: Current taxes and other assessments, and all easements, rights of
way, encumbrances, liens, covenants, conditions, restrictions, obligations and
liabilities, if any, and further subject to that certain Lease, between
Plainview Columbia, L.L.C. (and subsequently assigned to Grantor) and United
Supermarkets, Inc. (and subsequently assigned to United Supermarkets, Ltd.),
dated September 3, 1999, as amended.
The Grantor hereby binds itself and its successors to warrant and defend the
title, against all acts of the Grantor herein, and no other, subject to the
matters set forth herein.
Dated:____________________, 2005.
WITNESSES: CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. IV
By: GP4 Asset Acquisition, LLC
Its: General Partner
________________________________ By: ________________________________
Print name: Print name:
________________________________ Its:________________________________
Print name:
B-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 2005, by ___________________________, who is personally known to
me, as Vice President of GP4 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. IV, a
Delaware limited partnership, on behalf of the limited partnership.
___________________________________
Name: _____________________________
State of Michigan, County of Washtenaw
My Commission Expires: ____________
Acting in the County of Washtenaw
Prepared by and recorded
at the request of:
_________________________________
_________________________________
_________________________________
When recorded return to:
_________________________________
_________________________________
_________________________________
Send subsequent tax bills to:
Grantee
B-2
EXHIBIT C
FORM OF ASSIGNMENT OF LEASE
[Note: Modify to conform to recording/other requirements of the State of Texas.]
ASSIGNMENT OF LEASE
THIS ASSIGNMENT OF LEASE ("Assignment") is made as of _____, 2005, by
and between CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV a Delaware limited
partnership, whose address is 24 Frank Lloyd Wright Drive, Lobby L, 4th Floor,
P.O. Box 544, Ann Arbor, Michigan 48106-0544 ("Assignor") and BOARDWALK REALTY
PARTNERS, INC., a California corporation, whose address is 4929 Wilshire
Boulevard, Suite 910, Los Angeles, CA 90010 ("Assignee").
RECITALS:
Assignor leases to United Supermarkets, Ltd., a Texas limited
partnership ("Tenant"), the Leased Premises (as defined in the Lease described
below), located at 2401-2403 N. Columbia Street, Plainview, Texas ("Premises"),
pursuant to a Lease dated as of September 3, 1999, as amended, a true and
complete copy of which is attached as Exhibit 1 ("Lease").
In connection with, and in consideration of, the acquisition of the
Leased Premises by the Assignee, Assignor has agreed to assign, transfer and
convey to Assignee all of Assignor's right, title and interest in and to: (a)
the Lease, and (b) the security deposit(s), if any, paid by Tenant under the
Lease ("Security Deposit") and (c) the guaranty of Tenant's duties and
obligations under the Lease, given by Pamplemousse, L.L.C., dated September 30,
2001, as amended, a true and complete copy of which is attached as Exhibit 2
("Guaranty").
Assignee agrees to accept the assignment of those items described in
Section 1 above and Assignee further agrees to perform all of the Assignor's
obligations under or relating to the Lease and the Security Deposit, if any, and
the Guaranty, arising from and after the date of this Assignment.
In consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are acknowledged, Assignor
and Assignee agree as follows:
1. Assignment and Assumption. Assignor hereby assigns to Assignee all
of Assignor's right, title and interest in, to and under the Lease and the
Security Deposit and the Guaranty, and Assignee assumes all of Assignor's duties
and obligations under the Lease and the Security Deposit and the Guaranty and
agrees to perform and to be bound by all of the terms and provisions of the
Lease and the Security Deposit and the Guaranty in the place and stead of
Assignor arising from and after the date of this Assignment. Assignee further
agrees to indemnify and hold harmless Assignor from and against all claims,
awards, liabilities or damages resulting from the acts and/or omissions of
Assignee from and after the date of this Assignment.
2. Representation. To Assignor's knowledge, the Lease and the Guaranty
are in full force and effect and have not been modified, amended or restated
(except as identified in Exhibit 1 and/or Exhibit 2 attached hereto).
C-2
3. Miscellaneous. This Assignment shall bind and inure to the benefit
of the parties hereto, their successors and assigns. This Assignment shall be
governed by and construed in accordance with the laws of the State where the
Leased Premises is located, without giving effect to principles of conflicts of
law. This Assignment may be executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same
instrument.
This Assignment has been executed as of the day and year noted above.
WITNESSES:
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. IV
By: GP4 Asset Acquisition, LLC
Its: General Partner
By:
- ---------------------- ------------------------------
Print Name: Print Name:
Its:
- ---------------------- ----------------------------------
Print Name:
BOARDWALK REALTY
PARTNERS, INC.
By:
- ---------------------- ------------------------------
Print Name: Print Name: Mark Mandelbaum
Its: President
- ----------------------
Print Name:
C-3
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this __ day of
______________, 2005, by ___________________________, who is personally known to
me, as Vice President of GP4 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. IV, a
Delaware limited partnership, on behalf of the limited partnership.
--------------------------------
Name:
----------------------
State of Michigan, County of Washtenaw
My Commission Expires:
----------
Acting in the County of Washtenaw
STATE OF CALIFORNIA )
)ss.
COUNTY OF
--------------- )
The foregoing instrument was acknowledged before me this ____ day of
______, 2005, by Mark Mandelbaum, who is personally known to me, as President of
Boardwalk Realty Partners, Inc., a California corporation, on behalf of the
company.
------------------------------
Notary Public
-------------- County, California
My Commission Expires:
-------
[Notary's Seal]
Prepared by and recorded
at the request of: Grantor
When recorded return to: Grantee
C-4
EXHIBIT 1
TO
ASSIGNMENT OF LEASE
[Attach copy of Lease]
C-5
EXHIBIT 2
TO
ASSIGNMENT OF LEASE
[Attach copy of Guaranty]
C-6
EXHIBIT D
FORM OF NON-FOREIGN PERSONS AFFIDAVIT
NON-FOREIGN PERSONS AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a transferee
(purchaser) of a United States real property interest must withhold tax if the
transferor (seller) is a foreign person. To inform BOARDWALK REALTY PARTNERS,
INC., a California corporation ("Transferee"), that withholding of tax is not
required upon the disposition of a United States real property interest by
CAPTEC FRANCHISE CAPITAL PARTNERS L.P. IV, a Delaware limited partnership
("Transferor"), the undersigned certifies the following on behalf of Transferor:
1. Transferor is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the Internal
Revenue Code and Income Tax Regulations);
2. Transferor's United States Employer Identification Number is
38-3304096;
3. Transferor's office address is 24 Frank Lloyd Wright Drive, Lobby L,
Fourth Floor, Ann Arbor, Michigan 48105.
Transferor understands that this certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct,
and complete, and I further declare that I have authority to sign this document
on behalf of Transferor.
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. IV
By: GP4 Asset Acquisition, LLC
Its: General Partner
By:
----------------------------------
Print Name:
Its:
----------------------------------
Dated as of , 2005.
----------
D-1
STATE OF MICHIGAN )
)ss.
COUNTY OF WASHTENAW )
The foregoing instrument was acknowledged before me this____day of__________,
2005, by_____________________________, who is personally known to
me, as Vice President of GP4 Asset Acquisition LLC, a Michigan limited liability
company and the general partner of Captec Franchise Capital Partners L.P. IV, a
Delaware limited partnership, on behalf of the limited partnership.
--------------------------------
Name:
---------------------------
State of Michigan, County of Washtenaw
My Commission Expires:
------------
Acting in the County of Washtenaw
D-2
EXHIBIT E
FORM OF NOTICE TO TENANT
, 2005
-------------
United Supermarkets, Ltd.
7830 Orlando Avenue
PO Box 6840
Lubbock, TX 79423
Ladies and Gentlemen:
This is to inform you that on __________________, 2005 the interest of
Captec Franchise Capital Partners L.P. IV ("Seller") in that certain Lease,
dated as of September 3, 1999 ("Lease"), between Seller's predecessor in
interest, Plainview Columbia, L.L.C., as landlord, and Tenant's predecessor in
interest, United Supermarkets, Inc., as tenant, for the real property located at
2401-2403 N. Columbia Street, Plainview, Texas, has been assigned to BOARDWALK
REALTY PARTNERS, INC., a California corporation. Accordingly, all future
payments owed, and notices to be given, to the landlord under the Lease should
be delivered to BOARDWALK REALTY PARTNERS, INC., attention: Mark Mandelbaum at
the following address:4929 Wilshire Boulevard, Suite 910, Los Angeles, CA 90010.
Very truly yours,
CAPTEC FRANCHISE CAPITAL
PARTNERS L.P. IV
By: GP4 Asset Acquisition LLC
Its: General Partner
By
--------------------------
Print Name:
Its Vice President
E-1