CONTRACT TO PURCHASE AND SELL PROPERTY
This Contract to Purchase and Sell Property ("Contract") is made and
entered into as of July 24th, 1995 by and between Harbour AP XI, L.P., a South
Carolina limited partnership ("Seller"), and New Plan Realty Trust, a
Massachusetts Business Trust ("Purchaser").
Background
The Purchaser desires to purchase and the Seller desires to sell certain
real property pursuant to the terms of this Contract.
Seller filed a voluntary petition for relief under Chapter 11 of the
Bankruptcy Code (the "Bankruptcy Action") with the United States Bankruptcy
Court, for the District of South Carolina (the "Bankruptcy Court") on April 1,
1994 (Case No. 94-71593).
The Bankruptcy Court has entered an order approving Seller's plan of
reorganization, a copy of which order is annexed hereto as Exhibit G (the
"Order").
Statement of Agreement
For and in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Sale of the Property
Section 1.1 Property. For the consideration and upon and subject to the
terms, provisions and conditions of this Contract, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, Seller's respective
rights, titles and interests in and to all of the following described property
(collectively, the "Property"):
(a) All of Seller's rights, titles and interests in and to that
certain tract or parcel of land ("Land") located in Richland County, South
Carolina more particularly described on Exhibit A attached hereto and made
a part hereof for all purposes commonly known as Harbour Landing
Apartments, together with all improvements, structures and fixtures, if
any, located on the Land ("Improvements"), and all rights, titles and
interests of Seller appurtenant to the Land and Improvements, including,
without limitation, appurtenant easements, adjacent roads, highways and
rights-of-way;
(b) All tangible personal property of any kind ("Personalty")
owned by Seller and attached to or located on the Land or Improvements;
(c) All of Seller's rights, titles and interests under any leases
or other agreements demising space in or providing for the use or
occupancy of the Improvements or Land ("Tenant Leases"), and all unapplied
deposits, whether security or otherwise ("Deposits"), paid by tenants
("Tenants") under the Tenant Leases;
(d) All of Seller's rights, titles and interests in and to all
service contracts, warranties, guaranties and bonds in effect at Closing
relating to the Land, the Improvements or the Personalty, to the extent
the same are assignable ("Contracts");
(e) All certificates, permits, licenses, franchises,
authorizations and approvals relating to the Property and/or the
Personalty or the ownership, use, access, occupancy, repair, maintenance
or operation thereof or any part thereof, running to or in favor of Seller
or the Property and/or the Personalty, and which Purchaser hereafter
elects to accept;
(f) All right, title and interest of landlord and of Seller as
landlord or otherwise in and to all Occupancy Leases, together with all
collateral therefor, all guarantees by third parties of the agreements and
obligations thereunder of Tenants and, except to the extent otherwise set
forth in Section 8.6, all rentals, unapplied security deposits, advance
rentals, receivables, reimbursements and other items payable by Tenants;
(g) All right, title and interest of Seller of every kind and
description in and to the following: All drawings, plans and
specifications covering the Property or any part thereof; all rights to
the name "Harbour Landing Apartments" with respect to the Property or any
other project in the Richland County, South Carolina area, and all
trademarks, trade names, service marks, registrations, logos,
applications, good will and other rights (including the right to sue for
past and present infringements thereof) associated therewith; all other
intellectual property used in connection with the ownership and operation
of the Property or any part thereof; all telephone numbers; all tenant
files; all operating and maintenance files; and all books, records and
other files which are used in connection with the ownership and operation
of the Property or any part thereof and the conduct of the business of
Seller relating to the Property or any part thereof; and
(h) All other rights, privileges and appurtenances owned by Seller
and in any way relating to the above-described properties.
ARTICLE II
Purchase Price
Section 2.1 Purchase Price. The total Purchase Price ("Purchase Price")
to be paid by Purchaser to Seller for the Property shall be Four Million Nine
Hundred Thousand Dollars ($4,900,000). The Purchase Price shall be payable at
the Closing (as defined below) in cash or Current Funds (as defined below).
ARTICLE III
Earnest Money Deposit
Section 3.1 Amount and Timing. Within one (1) business day after the
Effective Date (as defined below), Purchaser shall deliver to Commonwealth Land
Title Insurance Company, as provided in Section 13.1 below ("Title Company"),
Seventy Five Thousand Dollars ($75,000) ("Earnest Money Deposit") in cash or
Current Funds, to be held by the Title Company in escrow to be applied or
disposed of by the Title Company as is provided in this Contract. In the event
Purchaser fails to deposit the Earnest Money Deposit with the Title Company as
herein provided, this Contract shall automatically terminate, and neither Seller
nor Purchaser shall have any further obligations hereunder except that the
provisions of Sections 5.1 and 11.1 of this Contract shall survive the
termination of this Contract. As used in this Contract, the term "Current Funds"
shall mean wire transfers, certified funds or a cashier's check in a form
acceptable to the Title Company which would permit the Title Company to
immediately disburse such funds.
Section 3.2 Application and Interest. If the purchase and sale
contemplated hereunder is consummated, then the Earnest Money Deposit shall be
applied to the Purchase Price at Closing. In all other events, the Earnest
Money Deposit shall be disposed of by the Title Company as provided in this
Contract. The Earnest Money Deposit shall be invested in an interest-bearing
account with a financial institution and in a manner reasonably acceptable to
Seller. All interest earned on the Earnest Money Deposit is part of the Earnest
Money Deposit, to be applied or disposed of in the same manner as the Earnest
Money Deposit under this Contract.
ARTICLE IV
Title and Survey
Section 4.1 Title Commitment. Not later than thirty (30) days after the
Effective Date, Purchaser shall obtain at its expense from the Title Company a
current ALTA Commitment for Title Insurance ("Title Commitment") issued by the
Title Company. The Title Commitment shall set forth the state of title to the
Property, including a list of conditions or exceptions to title affecting the
Property that would appear in an Owner's Policy of Title Insurance, if one were
issued. The Title Commitment shall contain the expressed commitment of the
Title Company to issue the Title Policy (as defined below) to Purchaser in the
amount of the Purchase Price, insuring the title to the Property specified in
the Title Commitment. At such time as the Title Commitment is furnished to
Purchaser, the Title Company also shall furnish to Purchaser copies of
instruments or documents ("Exception Documents") that create or evidence
conditions or exceptions to title affecting the Property, as described in the
Title Commitment. Purchaser shall have the right to negotiate with the Title
Company for additional endorsements, and Seller shall reasonably cooperate with
Purchaser in obtaining those endorsements (at no additional cost to Seller).
Section 4.2 Survey. Not later than four (4) days after the Effective
Date, Seller shall provide to Purchaser a copy of the most complete survey of
the Land and Improvements, if any, in Seller's possession. Purchaser shall pay
for any survey update or new survey required by Purchaser or the Title Company
(any such updated or new survey hereinafter referred to as the "Survey").
Section 4.3 Review of Title and Survey. Purchaser shall have until thirty
(30) days after the Effective Date in which to notify Seller in writing of any
objections Purchaser has to any matters shown or referred to in the Title
Commitment, the Exception Documents, or on the Survey. Any title encumbrances,
exceptions or other matters which are set forth in the Title Commitment, the
Exception Documents, or on the Survey, and to which Purchaser does not object in
writing within the aforementioned thirty (30) day period, shall be deemed to be
permitted exceptions to the status of Seller's title (such encumbrances,
exceptions or other matters, together with such other matters included pursuant
to other provisions of this Agreement, shall be referred to as the "Permitted
Exceptions").
Section 4.4 Objections to Status of Title and Survey. If Purchaser
objects to any item shown or referred to in the Title Commitment, Exception
Documents or Survey within the time set forth in Section 4.3, Seller shall be
given a fifteen (15) day period to notify Purchaser whether or not Seller will
cure, prior to Closing and at Seller's option and sole discretion but without
any obligation to do so, any objection to the condition of title timely raised
by Purchaser. If Seller notifies Purchaser that it elects not to cure any such
objections, then Purchaser may, at its option exercisable in writing within five
(5) days following the date of receipt by Purchaser of written notice from
Seller stating that Seller is unable or unwilling to cure such objections,
either (a) accept such title as Seller can deliver, in which case all exceptions
to title set forth in the Title Commitment, Exception Documents and Survey which
are not removed shall be deemed to be Permitted Exceptions, or (b) terminate
this Contract by notice in writing to Seller in which event the Title Company
shall return the Earnest Money Deposit to Purchaser and neither party shall have
any further rights, duties or obligations hereunder, except as otherwise
provided in Sections 5.1 and 11.1 hereof. In the event Purchaser fails to
notify Seller, within such five (5) day period, that Purchaser has elected to
proceed under either subpart (a) or (b) of the immediately preceding sentence,
Purchaser shall be deemed to have elected to proceed under subpart (a), and this
Contract shall remain in full force and effect. If Seller notifies Purchaser
that it elects to cure any such objections but is unable to cure such objections
by Closing or if Seller fails to notify Purchaser of its intentions with respect
to such objections and fails to cure such objections by Closing, then Purchaser
may, at its option, either (x) accept such title as Seller can deliver in which
case the parties shall proceed with Closing and all exceptions to title set
forth in the Title Commitment, Exception Documents and Survey which are not
removed shall be deemed to be Permitted Exceptions, or (y) terminate this
Contract by notice in writing to Seller at Closing, in which event the Title
Company shall return the Earnest Money Deposit to Purchaser and neither party
shall have any further rights, duties or obligations hereunder except as
otherwise provided in Sections 5.1 and 11.1 hereof.
Section 4.5 Other Permitted Exceptions. The Permitted Exceptions shall
include those matters shown in the Title Commitment and the Survey which become
Permitted Exceptions pursuant to Sections 4.3 and 4.4 above and, in addition,
the following: (a) the Tenant Leases; (b) taxes and assessments for the year in
which the Closing occurs and subsequent years; (c) liens and encumbrances
arising after the date hereof to which Purchaser consents in writing; and (d)
any liens or encumbrances of a definite or ascertainable amount, provided that
Seller causes such liens or encumbrances to be cured or discharged from the
public record at closing so that such liens or encumbrances do not appear as an
exception in the Owner's Policy of Title Insurance issued to Purchaser pursuant
to the Title Commitment (the "Owner's Policy").
ARTICLE V
Inspection By Purchaser
Section 5.1 Inspection Period.
5.1.1 Purchaser shall have a period of time commencing on the
Effective Date and expiring at 5:00 p.m., Greenville, South Carolina, time
on the thirtieth (30th) day thereafter (the "Inspection Period") within
which to examine the Property and to conduct its feasibility study
thereof. The Inspection Period shall be inclusive of the Effective Date.
Seller agrees that, during the Inspection Period, Seller will allow
Purchaser and Purchaser's agents access to the Property during normal
business hours to conduct soil and engineering, hazardous waste,
marketing, feasibility, zoning and other studies or tests and to otherwise
determine the feasibility of the Property for Purchaser's intended use.
Notwithstanding the foregoing, (a) the costs and expenses of Purchaser's
investigation shall be borne solely by Purchaser, (b) prior to the
expiration of the Inspection Period, Purchaser shall restore any damage to
the Property caused by Purchaser or its agents to the condition which
existed prior to Purchaser's entry thereon and investigation thereof, (c)
Purchaser shall not unreasonably interfere, interrupt or disrupt the
operation of Seller's business on the Property and, further, such access
by Purchaser and/or its agents shall be subject to the rights of Tenants
under Tenant Leases, (d) Purchaser shall not permit any mechanic's or
materialman's liens or any other liens to attach to the Property by reason
of the performance of any work or the purchase of any materials by
Purchaser or any other party in connection with any studies or tests
conducted pursuant to this Section 5.1, (e) Purchaser shall give notice to
Seller forty-eight (48) hours prior to entry onto the Property and shall
permit Seller to have a representative present during all investigations
and inspections conducted with respect to the Property, and (f) Purchaser
shall take all reasonable actions and implement all reasonable protections
necessary to ensure that all actions taken in connection with the
investigations and inspections of the Property, and all equipment,
materials and substances generated, used or brought onto the Property in
the course of such investigations and inspections pose no material threat
to the safety of persons or the environment and cause no damage to the
Property or other property of Seller or other persons.
5.1.2 If following the end of the Inspection Period (a) any
additional title encumbrances become effective against the Property which
Seller does not cause to be cured or insured around so that such matters
do not appear as an exception in the Owner's Policy or (b) a survey update
reveals any new adverse matters which Seller does not cure by Closing,
then Purchaser may terminate this Contract in accordance with Section
5.2(b); provided, Seller shall cause any such encumbrance of a monetary
nature to be satisfied or discharged from the public record at closing.
5.1.3 All information made available by Seller to Purchaser in
accordance with this Contract or obtained by Purchaser in the course of
its investigations shall be treated as confidential information by
Purchaser (except to the extent Purchaser is required by law or legal
process to disclose such information), and, prior to the purchase of the
Property by Purchaser, Purchaser shall use reasonable efforts to prevent
its agents and employees from divulging such information to any third
parties except as reasonably necessary to third parties engaged by
Purchaser for the limited purpose of analyzing and investigating such
information for the purpose of consummating the transaction contemplated
by this Contract, including Purchaser's attorneys and representatives,
prospective lenders and engineers.
5.1.4 Purchaser shall indemnify, defend and hold harmless Seller and
its general partner and each of their affiliates and their respective
affiliates' officers, directors, employees, agents and representatives
from and against any claims, liabilities, causes of action, damages,
liens, losses, fines, fees and expenses (including, without limitation,
attorneys' fees and expenses) incident to, resulting from or in any way
arising out of any intentional, reckless or negligent infliction of injury
or distress to persons or damage to property caused by Purchaser or its
agents on the Property. The agreements contained in this Section 5.1
shall survive the Closing forever (subject to any applicable statutes of
limitation) and shall not be merged therein and shall also survive any
termination of this Contract.
Section 5.2 Approval of Inspections. If (a) Purchaser determines at any
time prior to the expiration of the Inspection Period that the Property is not
satisfactory to Purchaser, then (b) Purchaser may terminate this Contract by
delivery of written notice to Seller within such Inspection Period given in
accordance with the provisions of Section 13.1 hereof, in which event the Title
Company shall return the Earnest Money Deposit to Purchaser and neither party
shall have any further rights or liabilities hereunder, except as provided in
Sections 5.1 and 11.1 hereof. If Purchaser does not timely deliver to Seller
written notice of termination within such Inspection Period, the conditions of
this Section 5.2 shall be deemed satisfied, and Purchaser may not thereafter
terminate this Contract pursuant to this Section 5.2.
Section 5.3 Matters to be Delivered by Seller. No later than five (5)
days (unless otherwise noted) from the Effective Date, Seller shall deliver to
Purchaser the following items (collectively, the "Submission Matters"):
(a) Deleted
(b) A copy of the form used for Tenant Leases with respect to the
Property;
(c) Within ten (10) days, a certified inventory of all Personalty
owned by Seller and located on, related to, or used in connection with the
Property, current to within thirty (30) days prior to the Effective Date;
(d) Within ten (10) days, copies of any and all service,
maintenance, management or other contracts in Seller's possession or
control relating to the ownership and operation of the Property;
(e) Within ten (10) days, complete copies of any and all
warranties and guarantees in Seller's possession or control relating to
the Property, or any part thereof, or to the Personalty owned by Seller
and located on, attached to, or used in connection with the Property;
(f) Copies of all plans and specifications in Seller's possession
or control with respect to the Property and copies of all licenses and
permits in Seller's possession or control with respect to the ownership
and operation of the Property, including building permits and certificates
of occupancy;
(g) A certificate of fire, hazard, extended coverage, liability
and other insurance policies held by Seller with respect to the Property;
and
(h) Copies of the most recent real estate and personal property
tax statements in Seller's possession applicable to the Property.
ARTICLE VI
Representations and Warranties; Disclaimers and Waivers
Section 6.1 Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller as of the date hereof and as of the Closing
Date as follows (which representations and warranties shall survive the
Closing): (a) Purchaser is a Massachusetts Business Trust, which is duly
authorized and validly existing under the laws of the State of Massachusetts;
(b) Purchaser has full right and authority to enter into this Contract and to
consummate the transactions contemplated herein; (c) each of the persons
executing this Contract on behalf of Purchaser is authorized to do so; and (d)
this Contract constitutes a valid and legally binding obligation of Purchaser,
enforceable in accordance with its terms. Provided, each of the representations
and warranties of Purchaser above shall survive the Closing for only twelve (12)
months except as to any such representation or warranty as to which Seller has
within such twelve (12) month period asserted with a reasonable basis a claim
against Purchaser.
Section 6.2 Representations and Warranties of Seller. Seller represents
and warrants to Purchaser as of the date hereof and as of the Closing Date as
follows, provided, each of the representations and warranties of Seller below
shall survive the Closing for only twelve (12) months except as to any such
representation or warranty as to which Purchaser has within such twelve (12)
month period asserted with reasonable basis a claim against Seller:
(a) Seller (i) is a duly organized and validly existing limited
partnership under the laws of the State of South Carolina; (ii) is duly bound by
the actions and execution hereof by the general partner of Seller who executed
this Contract; (iii) has the authority and power to enter into this Contract
and to consummate (including the execution of all necessary documents and
contracts) the transaction provided for herein; and (iv) is the owner of the
landlord's interest in the Tenant Leases.
(b) The execution and delivery by Seller of, and the performance
and compliance by Seller with the terms and provisions of this Contract do not
violate any of the terms, conditions or provisions of (i) any judgment, order,
injunction, decree, regulation or ruling of any court or other governmental
authority to which Seller is subject, or (ii) any agreement or contract listed
on any Schedule to this Contract or any other agreement or contract to which
Seller is a party or to which it or the Property is subject; and no consent,
waiver or approval by any third party is required in connection with the
execution and delivery by Seller of this Contract or the performance by Seller
of obligations to be performed by Seller under this Contract.
(c) Seller is the sole owner of, and has good and marketable title
to, the Personalty free and clear of all liens, encumbrances, claims and
demands, other than the Existing Loan and the Permitted Title Exceptions.
Seller has not entered into any agreement to sell, mortgage, lease (other than
to residential tenants for personal occupancy) or otherwise encumber or dispose
of its interest in the Property or any part thereof, except for the Existing
Loan, the Permitted Title Exceptions and this Contract.
(d) Seller has not received any notice of (nor to its knowledge
are) any actions, suits, proceedings or claims (including employee grievance
claims) pending or threatened against or affecting Seller (in respect of the
Property) or the Property, at law or equity or before or by any governmental
authority, and has not commenced any actions, suits or proceedings in respect of
the Property, except as shown on Schedule 6.2(d).
(e) (i) All tenants and occupants of the Property as of the
date of the Rent Roll attached hereto as Schedule 6.2(e), the space leased, the
Lease expiration dates, the security deposits, arrearages, the rentals and the
concessions, if any, granted to the tenants are identified on such Rent Roll.
(ii) No tenant has been given free rent, any concession in
the payment of rent or any abatement in the payment of rent, except as set forth
on Schedule 6.2(e).
(iii) Seller has paid all costs required to be paid by the
landlord to the tenants listed in Schedule 6.2(e) in connection with the
preparation of space for occupancy (whether to be performed before or after
occupancy) and has paid all obligations for brokerage commissions and finders'
fees incurred in entering into those Tenant Leases and, if any additional Tenant
Leases are executed after the date of this Contract and prior to Closing, Seller
shall pay or provide for the payment of all such costs and commissions prior to
Closing. As of the date of the Rent Roll, no payment default exists under any
Tenant Lease except as shown on Schedule 6.2(e) and no written notice of a
default has been received or given by Seller except as shown on Schedule 6.2(e).
(iv) Since Seller's or its General Partner's acquisition of
the Property in January, 1993, Seller and its General Partner have had no and
continue to have no agreement or other arrangement involving the Property with
any governmental authority for or in respect of subsidized tenants or housing or
rents or similar benefits.
(f) The operating statements provided by Seller to Purchaser were
prepared on a modified cash/accrual basis (except for the provisions for accrual
of real estate taxes and insurance premiums, if any) and are true and correct in
all material respects.
(g) All Contracts (written or oral) affecting the Property as of
the date of this Contract are identified on Schedule 6.2(g) and will be made
available to Purchaser; Seller is not in default under any of these Contracts;
Seller will not enter into any other Contract that cannot be terminated on 30
days notice without the prior written consent of Buyer and will give notice at
or before Closing terminating such existing Contracts as are designated by
Purchaser before the Closing Date.
(h) Except for the Management Agreement with Insignia Management
Group, Inc. ("Manager") which will be cancelled at Closing there are no
unrecorded agreements outstanding respecting operations at the Property after
Closing between Seller and any person controlled by, controlling or under common
control with Seller.
(i) With the possible exception of the sign for the Property
located adjacent to Garner's Ferry Road, the continued maintenance and operation
of the Property is not now, and on the Closing Date will not be, dependent to
any extent on facilities located on any other property (except for public
utilities and public streets) and the continued maintenance and operation of any
other property is not dependent to any extent on facilities located on the
Property.
(j) To the best of Seller's knowledge, there are no condemnation
or eminent domain proceedings affecting the Property now pending or threatened.
(k) Seller has not received any of the following:
(i) A written notice from a governmental authority that any
building or other structure not a part of the Property relies to any extent on
the Property or any part thereof or any interest therein to fulfill any legal
requirements or that any of the Improvements relies to any extent on any
property (other than the public highways and public utilities) not included
within the Property to fulfill any legal requirement.
(ii) A written notice from any governmental authority or any
public utility that the water supply or sewage disposal systems are inadequate
to distribute the water supply and dispose of the sewage for the Property or of
the need to obtain any permits for access to the water supply and sewage
systems, that there is any impairment (other than temporary outages) of the
electrical, gas or telephone service, or that there is need for any additional
approval of any governmental authority or public utility or need for
construction by the owner for the use of these utilities.
(iii) Any written notice from a governmental authority that
the Improvements and the operation of the Property does not comply in all
material respects with all legal requirements governing or regulating the use,
construction and operation thereof or any written notice from the beneficiary of
any Permitted Exceptions that the Improvements and the operation of the Property
does not comply with that Permitted Exceptions.
(iv) Any written notice from a governmental authority
requiring Seller to obtain any permit (other than the Permits now held by
Seller) for the occupancy of the Property for use as multifamily apartments and
the operation of the Improvements as now being operated.
(v) Any written notice from any governmental authority of
the disposal of any hazardous or toxic materials on the Property or of a
violation of any environmental legal requirements.
(l) Seller has not received any environmental site assessment or
written report with respect to the Property, or other written notice of any
disposal of any hazardous or toxic materials on the Property or the violation of
any environmental legal requirements.
(m) Seller has no employees working on site at the Property.
(n) Seller has received no written notice and otherwise has no
knowledge of any increases in the real estate tax assessments for the Premises
subsequent to the 1995 assessment notices received by Seller.
(o) To the actual knowledge of Seller, without independent
investigation or inquiry, and except for such matters as may be disclosed by the
environmental report to be performed by Purchaser or its agents during the
Inspection Period, (i) no Hazardous Substances exist on the Property and no
leak, spill, release or discharge of Hazardous Substances has occurred on the
Property, and (ii) neither the Property nor any land adjacent to the Property is
in violation or subject to any existing, pending or threatening investigation by
and governmental authority under any applicable federal, state or local law,
regulation or ordinance pertaining to Hazardous Substances or other
environmental matters. "Hazardous Substances" means all chemical substances,
asbestos, oil, petroleum products, formaldehyde, PCBs, toxic, carcinogenic,
radioactive or hazardous waste or materials, existing in such concentrations or
amounts as are regulated or prohibited by applicable federal, state or local
laws, regulations or ordinances, and also shall include any underground storage
tanks.
(p) To the actual knowledge of Seller, no entity owned or
controlled 10% or more by Insignia Financial Group, Inc. owns any real property
contiguous to the Property.
For purposes of this Section 6.2, the actual knowledge of Seller shall be
deemed to include the actual knowledge of the Manager's current (as of the date
of this Contract) Property Manager, District Manager and Regional Manager
(collectively, "Manager's Representatives") having authority as to the Property;
provided, Manager and Manager's Representatives shall have no liability
whatsoever to Purchaser or its Related Parties with respect to the Property or
this Contract or any matters arising therefrom.
Section 6.3 No additional representations or warranties of Seller.
Purchaser acknowledges and agrees that, except as expressly specified in this
Contract or the special warranty deed or other documents to be delivered at
closing, Seller has not made, and Seller hereby specifically disclaims, any
warranty, guaranty or representation, oral or written, past, present or future,
of, as to, or concerning, (a) the nature and condition of the property,
including, without limitation, the water, soil and geology, and the suitability
thereof and of the property for any and all activities and uses which Purchaser
may elect to conduct thereon; (b) the existence, nature and extent of any right-
of-way, lease, right to possession or use, lien, encumbrance, license,
reservation, condition or other matter affecting title to the property; and (c)
whether the use or operation of the property complies with any and all laws,
ordinances or regulations of any government or other regulatory body. Except as
expressly specified in this Contract or the special warranty deed or other
documents to be delivered at Closing, Purchaser agrees to accept the Property,
and acknowledges that the sale of the property as provided for herein is made by
Seller, on an "as is, where is, and with all faults" basis. Except as expressly
specified in this Contract or the special warranty deed or other documents to be
delivered at Closing, Purchaser expressly acknowledges that Seller makes no
representation or warranty of any kind, oral or written, express or implied, or
arising by operation of law, with respect to the property, including, but not
limited to, any warranties or representations as to habitability,
merchantability, fitness for a particular purpose, title (other than Seller's
warranty of title to be set forth in the special warranty deed), zoning, tax
consequences, physical or environmental condition, utilities, operating history
or projections, valuation, governmental approvals, the compliance of the
premises with governmental laws, the truth, accuracy or completeness of any
information (including, without limitation, the submission matters) provided by
or on behalf of Seller to Purchaser, or any other matter or thing regarding the
property. Purchaser acknowledges that except as expressly specified in any
written instrument delivered by Seller to Purchaser, Seller makes no
representation or warranty of any kind, oral or written, express or implied, or
arising by operation of law regarding or with respect to any such information
(including, without limitation, the submission matters) provided or to be
provided by Seller regarding the Property.
Further, and without in any way limiting any other provision of this
Contract, except as expressly specified in this Contract or the special warranty
deed or other documents to be delivered at Closing, Seller has made and makes no
representation, warranty or guaranty, and hereby specifically disclaims any
warranty, guaranty or representation, oral or written, past, present or future,
with respect to the presence or disposal on or beneath the Property (or any
parcel in proximity thereto) of hazardous substances or materials which are
categorized as hazardous or toxic under any local, state or federal law,
statute, ordinance, rule or regulation pertaining to environmental or substance
regulation, contamination, cleanup or disclosure (including, without limitation,
petroleum products and asbestos) (collectively, "Hazardous Materials") and shall
have no liability to Purchaser therefor (except for a breach of Seller's
representations or warranties set forth in Section 6.2(k)(v), (l) or (o).
Without limitation of the preceding sentence, except as expressly specified in
this Contract or the special warranty deed or other documents to be delivered at
Closing, Seller specifically disclaims any representation, warranty or guaranty
regarding the accuracy of any environmental reports which may be included within
the submission matters. By acceptance of this Contract and the special warranty
deed to be delivered by Seller at the Closing, Purchaser acknowledges that
Purchaser's opportunity for inspection and investigation of the Property (and
other parcels in proximity thereto) will be adequate to enable Purchaser to make
Purchaser's own determination with respect to the presence or disposal on or
beneath the Property (and other parcels in proximity thereto) of such hazardous
substances or materials.
Section 6.4 No Reliance on Documents. Except as expressly stated herein,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information (including, without
limitation, the Submission Matters) delivered by Seller, or its general partner
or their respective affiliates or representatives to Purchaser in connection
with the transaction contemplated hereby. Except as expressly stated herein,
Purchaser acknowledges and agrees that all materials, data and information
(including, without limitation, the Submission Matters) delivered by Seller, its
general partner or their respective affiliates or representatives to Purchaser
in connection with the transaction contemplated hereby are provided to Purchaser
as a convenience only and that any reliance on or use of such materials, data or
information by Purchaser shall be at the sole risk of Purchaser.
Section 6.5 Effect and Survival of Disclaimers. Seller and Purchaser
agree that the provisions of Sections 6.3 and 6.4 shall survive Closing and the
termination of this Contract forever.
ARTICLE VII
Conditions Precedent to Purchaser's and
Seller's Performance
Section 7.1 Conditions to Purchaser's Obligations. Purchaser's obligation
under this Agreement to purchase the Property is subject to the fulfillment of
each of the following conditions (any or all of which may be waived by
Purchaser):
(a) Seller shall be ready, willing and able to deliver title to
the Property in accordance with the terms and conditions of this Contract;
(b) The representations and warranties of Seller contained herein
shall be true, accurate and correct as of the Closing Date; and
(c) Seller shall have delivered all the documents and other items
required pursuant to Section 8.2(a), and shall have performed, in all
material respects, all other covenants, undertakings and obligations, and
complied with all conditions required by this Contract to be performed or
complied with by Seller at or prior to the Closing.
(d) Seller shall have timely filed any and all motions in
Bankruptcy Court which may be necessary in order for Seller to assume all
Occupancy Leases pursuant to Section 365 of the Bankruptcy Code, and
Seller shall have assumed all Occupancy Leases.
If any of the above conditions are not satisfied by Closing, then
Purchaser may terminate this Contract in accordance with Section 5.2(b).
Section 7.2 Conditions to Seller's Obligations. Seller's obligation under
this Agreement to sell the Property to Purchaser is subject to the fulfillment
of each of the following conditions (all or any of which may be waived by
Seller):
(a) the representations and warranties of Purchaser contained
herein shall be true, accurate and correct as of the Closing Date; and
(b) Purchaser shall have delivered the funds required hereunder
and all the documents to be executed by Purchaser set forth in Section
8.2(b).
ARTICLE VIII
Closing
Section 8.1 Time and Place. The consummation of the purchase and sale of
the Property ("Closing") shall take place at the office of Purchaser on the
fifteenth (15th) day after the end of the Inspection Period or at such earlier
date and time as Purchaser and Seller may mutually agree ("Closing Date");
provided, Purchaser will reasonably cooperate with Seller in accomplishing the
Closing by mail using appropriate escrows if Seller so requests.
Section 8.2 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver, or cause to be
delivered, to Purchaser each of the following items:
(i) A Special Warranty Deed duly executed and
acknowledged by Seller in the form attached hereto as
Exhibit B and made a part hereof for all purposes sufficient
to convey to Purchaser good title to the Property free and
clear of all liens and encumbrances except for the Permitted
Exceptions.
(ii) An Assignment and Assumption of Leases
("Assignment of Leases") duly executed and acknowledged by
Seller in the form attached hereto as Exhibit C .
(iii) A Blanket Conveyance, Bill of Sale and Assignment
("Bill of Sale") duly executed by Seller in the form attached
hereto as Exhibit D .
(iv) All keys and master keys to all locks located on
the Property that are in Seller's possession or control.
(v) All original Tenant Leases that are in Seller's
possession or control together with letters addressed to the
Tenants of the Property ("Notice Letters") in the form
attached hereto as Exhibit F , or in such other form as may be
mutually agreed upon by Seller and Purchaser.
(vi) All original Contracts relating to the Property
that are in Seller's possession or control. Purchaser shall
have the right to accept or reject any Contract (except for
the laundry machinery equipment contract which Purchaser
hereby agrees to accept) at least fifteen (15) days prior to
Closing. All Contracts not accepted by Purchaser, including
the Management Agreement, shall be terminated by Seller, and
Seller shall be solely liable for any termination penalty.
(vii) A Non-Foreign Affidavit in the form attached
hereto as Exhibit E.
(viii) All amounts owing to Purchaser by Seller under
Article IX hereof.
(ix) Evidence satisfactory to the Title Company that
the person or persons executing this Contract and the closing
documents on behalf of Seller have full right, power and
authority to do so.
(x) A rent roll prepared with respect to the Property in the
form attached hereto as Schedule 6.2(e) which shall be certified, to
Seller's knowledge, as being true and correct as of a date not more
than three (3) days prior to Closing.
(xi) Other items reasonably requested by the Title
Company for the sale of the Property in accordance with this
Contract or for administrative requirements for consummating
the Closing.
(xii) At the Property, all tenant files and other files which
are used in connection with the ownership and operation of the
Property or any part thereof and the conduct of the business of
Seller relating to the Property or any part thereof.
(xiii) Duly executed closing statement.
(xiv) Seller's duly executed certificate of reaffirmation and
remaking dated as of the Closing Date, confirming that the
warranties and representations of Seller are true and correct as of
the Closing Date.
(xv) An official bank (cashier's) check or attorney's trust
account check payable to Purchaser in the amount of all unapplied
deposits held and all advance rentals received under Tenant Leases,
together with a certified list of each Tenant who has made such a
deposit or advance rental and the amount thereof.
(xvi) A certificate from the Manager to the effect that the
Management Agreement has been terminated and that the Manager has no
claim whatsoever against Purchaser and the Property or any part
thereof under or in connection with the Management Agreement, the
agreements and obligations thereunder or otherwise.
(xvii) An opinion of counsel, addressed to Purchaser and
dated as of the Closing Date, stating in substance as follows:
(A) The Order has not been amended, or that the Order
has not been amended so as to prohibit consummation of
Seller's obligations under this Contract;
(B) The Order permits Seller's sale of the Property for
the $4,900,000 Purchase Price;
(C) The order is final and non-appealable; and
(D) The unsecured creditors have been paid as
contemplated by the Order and the Plan, as amended, referenced
in the Order.
(b) Purchaser. At the Closing, Purchaser shall deliver to Seller
each of the following items:
(i) The cash portion of the Purchase Price in Current
Funds.
(ii) The Assignment of Leases, duly executed and
acknowledged by Purchaser.
(iii) Such additional funds in cash or Current Funds,
as may be necessary to cover Purchaser's share of the closing
costs and prorations hereunder.
(iv) Evidence satisfactory to the Title Company that
the person or persons executing this Contract and the closing
documents on behalf of Purchaser have full right, power and
authority to do so.
(v) The Notice Letters duly executed by Purchaser.
(vi) Other items reasonably requested by the Title
Company for the sale of the Property in accordance with this
Contract or for administrative requirements for consummating
the Closing.
Section 8.3 Costs of Closing. The escrow fees of the Title Company shall
be paid equally by Seller and Purchaser. Any deed stamp/transfer taxes shall be
paid by Seller. All recording costs and all costs relating to the Title Policy
and the Survey shall be paid by Purchaser except as otherwise expressly provided
herein. All other expenses incurred by Seller and Purchaser with respect to the
Closing, including, but not limited to, the attorneys' fees and costs and
expenses incurred in connection with negotiating, preparing and closing the
transaction contemplated by this Contract, shall be borne and paid exclusively
by the party incurring such expense. Seller shall pay all sales, use, excise
and other similar taxes, documentary stamp taxes, deed taxes and all other
similar taxes or imposts of any kind relating to its sale of the Property or the
Personalty. Seller shall reimburse Purchaser at Closing up to $2,000 for
termite/pest inspection and bond fees paid to third parties by Purchaser with
respect to the Property.
Section 8.4 Prorations.
8.4.1 All normal and customarily proratable items, including,
without limitation, rents, operating expenses and other expenses and fees,
and payments relating to any agreements affecting the Property which
survive the Closing, shall be prorated as of, and including, the Closing
Date, Seller being charged and credited for all of same attributable to
the period up to, and including, the day prior to the Closing Date (and
credited for any amounts paid by Seller attributable to the period
thereafter) and Purchaser being responsible for, and credited or charged,
as the case may be, for all of same attributable to the period on and
after the Closing Date.
8.4.2 All unapplied Deposits under Tenant Leases in the possession
of Seller, if any, shall be transferred by Seller to Purchaser at the
Closing. There shall be no application of security deposits to unpaid
rent unless the tenant has vacated.
8.4.3 Any real estate ad valorem or similar taxes for the Property,
or any installment of assessments payable in installments which
installment is payable in the year of Closing, shall be prorated to the
date of Closing, based upon actual days involved. In connection with the
proration of real property taxes or installments of assessments, such
proration shall be based upon the assessed valuation and tax rate figures
for the year in which the Closing occurs to the extent the same are
available; provided, that in the event that actual figures (whether for
the assessed value of the Property or for the tax rate) for the year of
Closing are not available at the Closing Date, the proration shall be made
using figures from the preceding year for the figures which are
unavailable for the year of Closing. The proration shall be final and
unadjustable except as provided in the following paragraph. In the event
the Property has been assessed for property tax purposes at such rates as
would result in "roll back" taxes upon the changes in land usage or
ownership of the Property, Seller agrees to pay all such taxes and hereby
indemnifies, holds harmless and agrees to defend Purchaser from and
against any and all causes of action, costs, expenses, fees liens, fines,
damages, claims, losses and liabilities for or relating to such taxes.
8.4.4 Prorations should be governed by the following additional
provisions:
(a) Utilities, if any, payable by Seller, shall be
prorated. Seller shall endeavor to obtain meter readings on the
Proration Date (a date selected by Seller no more than five (5) days
prior to Closing), and if such readings are obtained, there shall be
no proration of such items and Seller shall pay the bills therefor
for the period to the Proration Date, and Purchaser shall pay the
bills therefor for the period subsequent to the Proration Date as
and when rendered. If Seller is unable to obtain meter readings as
of the Proration Date, utilities shall be prorated at the Proration
Date based upon the most recent utility bills, adjusted for
seasonality, and reprorated upon issuance of the actual bills. In
addition, if there are any utility charges submetered to Tenants and
payable by them directly to Seller, Seller shall use reasonable
efforts to obtain readings thereof at the Proration Date, and such
items shall be prorated in mode and manner as with respect to rents.
(b) Prepaid and unpaid expenses and charges respecting
utilities and all other expenses incurred in the operation of the
Property shall be prorated at and as of the Proration Date.
(However, fees paid by Seller with respect to certificates, permits,
licenses, franchises, authorizations and approvals assigned by
Seller to Purchaser at the Closing shall not be prorated, but shall
be paid for and assumed entirely by Seller.)
(c) Income from coin telephones, vending and other coin
operated machines, or from the use of other facilities forming a
part of, or located upon, the Property shall be apportioned. If
they are to be received after the Proration Date, they shall be
apportioned when the income is received.
(d) In the case of any charges payable by Tenants to
Seller applicable to periods of time ending before the Proration
Date but to become payable thereafter when bills are rendered (such
as service charges, supply charges and utility charges), Seller
shall after settlement prepare and promptly deliver to Purchaser the
information necessary to prepare the bills to the tenants. Seller
warrants and represents that such information will be true, complete
and correct. All such charges shall be paid to Purchaser and
adjusted as provided herein.
Except as otherwise provided herein, prorations shall be made
as of the end of business on the day prior to the Closing Date.
Unapplied security deposits in the possession or control of Seller
shall be transferred at the Closing, together with an explanation of
any missing security deposits.
The provisions of this Section 8.4 shall survive the Closing and the
termination of this Contract forever.
If any of the items subject to proration under the foregoing provisions of
this Section 8.4 cannot be prorated at the Closing because of the unavailability
of the information necessary to compute such proration, or if any errors or
omissions in computing prorations at the Closing are discovered subsequent to
the Closing, then such item shall be reapportioned and such errors and omissions
corrected as soon as practicable after the Closing Date and the proper party
reimbursed, which obligation shall survive the Closing for a period of one
hundred twenty (120) days after the Closing Date as hereinafter provided.
Neither party hereto shall have the right to require a recomputation of a
Closing proration or a correction of an error or omission in a Closing proration
unless within the aforestated one hundred twenty (120) day period one of the
parties hereto (i) has obtained the previously unavailable information or has
discovered the error or omission, and (ii) has given notice thereof to the other
party together with a copy of its good faith recomputation of the proration and
copies of all substantiating information used in such recomputation. The
failure of a party to obtain any previously unavailable information or discover
an error or omission with respect to an item subject to proration hereunder and
to give notice thereof as provided above within one hundred twenty (120) days
after the Closing Date shall be deemed a waiver of its right to cause a
recomputation or a correction of an error or omission with respect to such item
after the Closing Date.
Section 8.5 Possession and Closing. Possession of the Property shall be
delivered to Purchaser by Seller at the Closing, subject to the Permitted
Exceptions and the rights of the Tenants. Purchaser shall make its own
arrangements for the provision of public utilities to the Property and Seller
shall terminate its Contracts with such utility companies that provide services
to the Property as of the end of business on the Closing Date.
Section 8.6 Delinquent Rent.
(a) Application of Delinquent Rent. If on the Closing Date any
Tenant is in arrears in the payment of any rent under any Tenant Lease
(the "Delinquent Rent") payable by it, any Delinquent Rent received by
Purchaser and Seller from such Tenant after the Closing shall be applied
to amounts due and payable by such Tenant during the following periods in
the following order of priority: (A) first, to the period of time after
the Closing Date, and (B) second, to the period of time before the Closing
Date. Provided, if Seller initiates legal action to collect Delinquent
Rent for the period prior to Closing, Seller shall be entitled to retain
any Delinquent Rent collected as a result of such legal action. The
provisions of this Section 8.6(a) shall survive the Closing and the
termination of this Contract forever.
(b) Collection of Delinquent Rent. Purchaser shall have no
obligation to collect past due rentals and other amounts from Tenants
after the Proration Date. Seller retains its rights in and to such past
due rentals, but shall not disturb or otherwise interfere with any Tenant
in its occupancy and use and enjoyment of its demised premises.
ARTICLE IX
Condemnation or Casualty
Section 9.1 Condemnation.
(a) If all or any Significant Portion (as defined in Section
9.1(b)) of the Property is condemned or taken by eminent domain or
conveyed by deed in lieu thereof, or if any condemnation proceeding is
commenced for all or any Significant Portion of the Property, prior to
Closing, then Purchaser may elect to terminate this Contract by written
notice thereof to Seller within ten (10) days after Seller notifies
Purchaser of the condemnation, taking or deed in lieu or institution of
such condemnation proceeding (which notice Seller shall deliver to
Purchaser within ten (10) days of Seller's receipt thereof). If Purchaser
does not terminate this Contract pursuant to this Section 9.1(a), then
both parties shall proceed to close the transaction contemplated herein
pursuant to the terms hereof, in which event Seller shall, except as
limited in Section 9.1(b) hereof, deliver to Purchaser at the Closing any
proceeds actually received by Seller attributable to the Property from
such condemnation, eminent domain proceeding or deed in lieu thereof
(except for proceeds previously used to restore or repair the Property )
and assign its interest in and to any such proceeds, and there shall be no
reduction in the Purchase Price.
(b) For purposes of Section 9.1(a), "Significant Portion" of the
Property shall be deemed to be any portion of the Property with either a
fair market value or replacement cost in an amount equal to or greater
than $250,000. Notwithstanding anything to the contrary contained in
Section 9.1(a), if Purchaser has not timely elected to terminate in
accordance with Section 9.1(a), and if the proceeds payable with respect
to the Property as a result of condemnation exceed the Purchase Price for
the Property, then the portion of such proceeds in excess of the Purchase
Price shall be paid to Purchaser at the Closing. The foregoing provision
shall survive the Closing and the termination of this Contract forever.
(c) If less than a Significant Portion of the Property is
condemned, taken by eminent domain, conveyed by deed in lieu thereof or is
the subject of a condemnation proceeding, then Purchaser shall not have
the right to terminate this Contract, but Seller shall deliver to
Purchaser at Closing any proceeds actually received by Seller attributable
to the Property from such condemnation or eminent domain proceeding or
deed in lieu thereof, and assign its interest in and to such proceeds to
Purchaser, and there shall be no reduction of the Purchase Price.
Section 9.2 Casualty.
(a) If all or any Substantial Portion (as defined in Section
9.2(b)) of the Property shall be damaged or destroyed by fire or other
casualty prior to Closing, then Purchaser may terminate this Contract by
written notice thereof to the Seller within ten (10) days after Seller
notifies Purchaser of the casualty (which notice Seller shall deliver to
Purchaser within ten (10) days of Seller's receipt thereof). If Purchaser
does not terminate this Contract as aforesaid, then both parties shall
proceed to close the transaction contemplated herein pursuant to the terms
hereof, in which event Seller shall, except as limited in Section 9.2(b)
hereof, deliver to Purchaser at the Closing any insurance proceeds
actually received by Seller attributable to the Property from such
casualty (except for proceeds previously used to repair the Property) and
assign to Purchaser all of Seller's right, title and interest in and to
any claims which Seller may have under the insurance policies covering the
Property, and Purchaser shall receive a proration credit at Closing in the
aggregate amount of any deductible and there shall be no reduction in the
Purchase Price. If less than a Substantial Portion of the Property shall
be damaged or destroyed by fire or other casualty prior to Closing, then
the parties shall proceed in accordance with the second sentence in this
Section 9.2(a).
(b) For the purposes of Section 9.2(a), a "Substantial Portion" of
the Property shall be deemed to be any portion of the Property with either
a fair market value or replacement cost in an amount equal to or greater
than $250,000. Notwithstanding anything in Section 9.2(a) to the contrary,
if Purchaser has not timely elected to terminate in accordance with
Section 9.2(a), and if the proceeds payable with respect to the Property
as a result of casualty exceed the Purchase Price for the Property, then
the portion of such proceeds in excess of the Purchase Price shall be paid
to Purchaser at the Closing. The foregoing provision shall survive the
Closing and the termination of this Contract forever.
ARTICLE X
Defaults and Remedies
Section 10.1 Default by Purchaser. Notwithstanding anything set forth
in Section 13.16.6 to the contrary: if Seller is not in default hereunder and
Purchaser refuses or fails to consummate the Closing under this Contract for
reasons other than as expressly set forth in Section 4.4, Section 5.2, or
Article IX hereof or other than due to a failure of a condition precedent to
Purchaser's obligation to close as set forth in Section 7.1 hereof, Seller may
terminate this Contract in which event neither party shall have any further
rights, duties, or obligations hereunder except as provided in Sections 5.1 and
11.1 hereof, and, as its sole and exclusive remedy for Purchaser's failure to
close, Seller shall be entitled to receive or retain the Earnest Money Deposit
as liquidated damages (Seller and Purchaser hereby acknowledging that the amount
of damages in the event of Purchaser's default is difficult or impossible to
ascertain but that such amount is a fair estimate of such damage).
Notwithstanding anything contained in this Section to the contrary, in the event
of any other default by Purchaser under this Contract (including, without
limitation, breach of any covenant, representation or indemnity) which survives
the Closing or termination of this Contract, Seller shall have any and all
rights and remedies available at law or in equity by reason of such default.
Section 10.2 Default by Seller. If Purchaser shall not be in default
hereunder and if Seller refuses or fails to consummate the Closing under this
Contract other than due to a termination permitted hereunder or a failure of a
condition precedent to Seller's obligation to close as set forth in Section 7.2
hereof, Purchaser may, at Purchaser's sole option, as its sole and exclusive
remedy, either (a) terminate this Contract and receive from Seller $37,000
liquidated damages, in which event neither party shall have any further rights,
duties or obligations hereunder except as provided in Sections 5.1 and 11.1
hereof, and Purchaser shall be entitled to a refund of the Earnest Money
Deposit, or (b) enforce specific performance of this Contract against Seller.
In no event shall Seller be liable to Purchaser for any damages, including,
without limitation, any actual, punitive, speculative or consequential damages
or damages for loss of opportunity or lost profit.
Section 10.3 Attorneys' Fees. If it shall be necessary for either
Purchaser or Seller to employ an attorney to enforce its rights pursuant to this
Contract, the non-prevailing party shall reimburse the prevailing party for the
prevailing party's reasonable attorneys' fees.
ARTICLE XI
Brokerage Commissions
Section 11.1 Brokerage Commission. Seller and Purchaser represent each
to the other that each has had no dealings with any broker, finder or other
party concerning the purchase of the Property except Insignia Mortgage and
Investment Corporation ("Broker"). Seller hereby agrees to pay at Closing
commissions due to Broker arising out of an agreement executed by Seller and
Broker and provide to Purchaser a receipt signed by Broker confirming payment in
full; provided, however, that Seller's obligation to pay, and Broker's right to
receive, this commission or any other amount with respect to this Contract or
the Property is expressly conditioned upon Closing the sale of the Property and
Seller's receipt of the Purchase Price. Broker shall have no right to receive
this commission or any other amount with respect to this Contract or the
Property unless and until Closing shall be final and fully consummated and
Seller shall have received the Purchase Price as provided in this Contract.
Seller agrees to indemnify Purchaser and its officers, directors, trustees,
shareholders, representatives and agents and hold each of them harmless from any
loss, liability, damage, cost or expense (including, without limitation,
reasonable attorneys' fees and expenses) arising out of or 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 (including, without limitation, Broker). Purchaser agrees to indemnify
and defend Seller and its general partner and their respective affiliates and
their and their affiliates' officers, directors, employees, agents and
representatives, and hold each of them harmless from any and all loss,
liability, damage, claim, cause of action, fine, fee, lien, cost or expense
(including, without limitation, reasonable attorneys' fees and expenses )
arising out of or paid or incurred by any of them 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 or its affiliates (excluding Broker).
Notwithstanding anything to the contrary contained herein, the indemnities set
forth in this Article XI shall survive the Closing and the termination of this
Contract forever.
ARTICLE XII
Operation of the Property Prior to the Closing
During the term of this Contract, Seller agrees as follows:
(a) Seller shall not sell or convey, nor enter into any other
contract for sale of the Property nor voluntarily create any liens,
encumbrances, defects in title, restrictions or easements affecting the Property
(except for mechanic's and materialmen's liens arising in the normal course of
business, all of which Seller will satisfy at the Closing).
(b) Seller shall operate and maintain the Property in
substantially the same manner as operated and maintained prior to the date of
this Contract.
(c) Seller shall lease apartment units in substantially the same
manner as leased prior to the date of this Contract, including, without
limitation leasing for terms not exceeding one (1) year, not granting rent
concessions greater than one month's free rent, and renewing leases only within
the last 60 days of the expiring leases.
(d) Seller shall deliver statements of income and expense promptly
after those reports have been prepared for each month during the term of this
Contract, all written notices of violations of legal requirements, whenever
received, and all written notices of default by Seller in the performance of any
Lease or Contract affecting the operation of the Property in a material respect.
(e) Seller shall not settle any protest or appeal of the real
estate tax assessment for the Property for the current tax year or for any prior
tax year if the settlement would increase, or compromise Purchaser's ability to
challenge, the assessment for the current tax year or any future tax year
without Purchaser's prior written consent.
(f) Seller shall promptly deliver to Purchaser copies of all
written notices of violations of laws, ordinances, orders, regulations or
requirements, including but not limited to zoning, building, health, safety,
pollution control, environmental, fire or similar laws, ordinances, orders and
regulations issued by, filed by or served by, any governmental agency having
jurisdiction over the Property, against or affecting the Property as of the date
hereof (hereinafter referred to as "Violations"). Seller shall comply with all
Violations which are of record as of the Effective Date or of which Seller has
received written notice as of the Effective Date, at Seller's sole cost and
expense.
ARTICLE XIII
Miscellaneous
Section 13.1 Notices. Any notice provided or permitted to be given
under this Contract must be in writing and may be served by (a) depositing same
in the United States mail, addressed to the party to be notified, postage
prepaid and registered or certified with return receipt requested, (b)
delivering the same in person to such party via a hand delivery service, Federal
Express or any other nationally recognized courier service that provides a
return receipt showing the date of actual delivery of same to the addressee
thereof, or (c) facsimile transmission. Notice given in accordance herewith
shall be effective upon receipt at the address of the addressee. For purposes
of notice, the addresses of the parties shall be as follows:
If to Seller: Harbour AP XI, L.P.
c/o Insignia Financial Group, Inc.
One Insignia Financial Plaza
Greenville, South Carolina 29601
Attention: Marcus S. McCall
Facsimile No.: (803) 239-1066
Telephone No.: (803) 239-1076
With copies to: Insignia Financial Group, Inc.
One Insignia Financial Plaza
Greenville, South Carolina 29601
Attention: John K. Lines, General Counsel and Secretary
Facsimile No.: (803) 239-1096
Alan G. Dexter, Esq.
Parker, Poe, Adams & Bernstein
2500 Charlotte Plaza
Charlotte, North Carolina 28244
Facsimile No.: (704) 334-4706
Telephone No.: (704) 335-9042
If to Purchaser: New Plan Realty Trust
1120 Avenue of the Americas
12th Floor
New York, New York 10036
Attention: President
Facsimile No.: 212-302-4776
Telephone No.: 212-869-3000
With a copy to: Hofheimer Gartlir & Gross, LLP
633 Third Avenue
New York, New York 10017
Attention: Donald M. Weisberg, Esq.
Facsimile No.: 212-661-3132
Telephone No.: 212-818-9000
If to Title
Company: Commonwealth Land Title Insurance Company
c/o Coastal Abstract Service, Inc.
21 East 40th Street, 10th Floor
New York, New York 10016
Facsimile No.: 212-686-6483
Telephone No.: 212-686-3062
Section 13.2 Governing Law. THIS CONTRACT IS BEING EXECUTED AND
DELIVERED, AND IS INTENDED TO BE PERFORMED IN, THE STATE OF SOUTH CAROLINA, AND
THE LAWS OF SUCH STATE SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION OF THIS CONTRACT.
Section 13.3 Entirety and Amendments. This Contract embodies the
entire agreement between the parties and supersedes all prior agreements and
understandings, if any, relating to the transaction described herein, and may be
amended or supplemented only by an instrument in writing executed by the party
against whom enforcement is sought.
Section 13.4 Parties Bound. Subject to the provisions of Section 13.5
hereof, this Contract shall be binding upon and inure to the benefit of Seller
and Purchaser, and their respective heirs, personal representatives, successors
and assigns.
Section 13.5 Assignment. This Contract may not be assigned in whole or
in part by Purchaser without the prior written consent of Seller, which consent
may be granted or withheld by Seller in Seller's sole and absolute discretion.
Any assignment of this Contract by Purchaser without Seller's prior written
consent shall, at Seller's option, be null and void and of no effect. The
parties hereto acknowledge and agree that one of the conditions to Seller's
consent to a proposed assignment of this Contract by Purchaser may be that any
and all sums received, or to be received, by Purchaser in connection with or in
consideration for such assignment shall be immediately delivered and paid to
Seller by Purchaser and the Purchase Price shall be correspondingly increased to
reflect any such additional sums received by Seller. In the event Seller
consents to an assignment of this Contract by Purchaser, Purchaser shall not be
released from any liability or obligations hereunder.
Notwithstanding anything above to the contrary, Purchaser shall be
entitled to assign the Contract to any affiliates, provided Purchaser remains
liable under the Contract.
Section 13.6 Headings. Headings used in this Contract are used for
reference purposes only and do not constitute substantive matter to be
considered in construing the terms of this Contract.
Section 13.7 Survival. Except as otherwise expressly provided herein,
no representations, warranties, covenants, acknowledgments or agreements
contained in this Contract shall survive the Closing of this Contract and the
delivery of the Special Warranty Deed by Seller to Purchaser.
Section 13.8 Interpretation. The parties acknowledge that each party
and its counsel have reviewed this Contract, and the parties hereby agree that
the normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Contract or any amendments or exhibits hereto. In case any one or more
of the provisions contained in this Contract shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and this Contract
shall be construed as if such invalid, illegal or unenforceable provisions had
never been contained herein. When the context in which words are used in this
Contract indicates that such is the intent, words in the singular number shall
include the plural and vice versa, and words in the masculine gender shall
include the feminine and neuter genders and vice versa.
Section 13.9 Exhibits. All references to "Exhibits" contained herein
are references to exhibits attached hereto, all of which are hereby made a part
hereof for all purposes.
Section 13.10 Time of Essence. It is expressly agreed by the parties
hereto that time is of the essence with respect to this Contract and Closing
hereunder.
Section 13.11 Multiple Counterparts. This Contract may be executed in a
number of identical counterparts. If so executed, each of such counterparts is
to be deemed an original for all purposes, and all such counterparts shall,
collectively, constitute one agreement, but, in making proof of this Contract,
it shall not be necessary to produce or account for more than one such
counterpart.
Section 13.12 Risk of Loss. Risk of loss or damage to the Property, or
any part thereof, by fire or any other casualty following Seller's delivery of
the special warranty deed transferring title to the Property to the Purchaser
will be on the Purchaser; the risk of loss prior to the Closing remains on
Seller.
Section 13.13 Effective Date. As used herein, the term "Effective Date"
shall mean for all purposes in this Contract the date on which the Title Company
acknowledges by telefax notice to Purchaser and Seller receipt of an original of
the Contract executed by Purchaser and Seller.
Section 13.14 Business Days. All references to "business days" contained
herein are references to normal working business days, i.e., Monday through
Friday of each calendar week, exclusive of federal and national bank holidays.
Section 13.15 No Recordation of Contract. In no event shall this
Contract or any memorandum hereof be recorded in the public records of the place
in which the Property is situated, and any such recordation or attempted
recordation shall constitute a breach of this Contract by the party responsible
for such recordation or attempted recordation.
Section 13.16 General.
13.16.1 Seller acknowledges that Purchaser shall not be liable to
any employees of Seller for or in respect of salaries, employee benefit
plans or programs, welfare benefits plans, retirement plans, excess
benefit plans, plans maintained to provide workers' compensation or
unemployment benefits and pay practices which Seller has funded or been
obligated to fund for its past or present employees, independent
contractors or either of their beneficiaries or dependents.
13.16.2 A. Seller shall indemnify, defend and hold harmless
Purchaser and any person or entity affiliated with or owning or
controlling, in whole or in part, directly or indirectly, Purchaser,
the joint venturers, partners, trustees, officers, directors,
shareholders, employees, agents and attorneys at any time and from
time to time of any of the foregoing, and the heirs, legal
representatives, successors and assigns of each and all of the
foregoing (collectively "Related Parties") of and from any and all
claims, demands, damages, losses, injuries, liabilities, penalties,
costs and expenses (including without limitation reasonable
attorneys' fees), incurred or suffered by Purchaser or its Related
Parties arising out of or in connection with any one or more of the
following:
1. any use, occupancy, ownership or operation of any of
the Property or any occurrence in, on or about the Property
before the Closing;
2. any accident, injury (including death) or damage,
regardless of the cause thereof to any person or property
occurring in, on or about the Property before Closing.
Provided, Seller shall have no obligation or liability to
indemnify, defend or hold harmless Purchaser or its Related Parties
of or from any claims, demands, damages, losses, injuries,
liabilities, penalties, costs, expenses (including without
limitation reasonable attorneys' fees), incurred or suffered by
Purchaser or its Related Parties arising out of or in connection
with the threatened or actual existence of Hazardous Materials or
other environmental conditions relating to the Property.
B. Purchaser shall indemnify, defend and hold harmless Seller
and any person or entity affiliated with or owning or controlling,
in whole or in part, directly or indirectly, Seller, the joint
venturers, partners, trustees, officers, directors, shareholders,
employees, agents and attorneys at any time and from time to time of
any of the foregoing, and the heirs, legal representatives,
successors and assigns of each and all of the foregoing
(collectively "Related Parties") of and from any and all claims,
demands, damages, losses, injuries, liabilities, penalties, costs
and expenses (including without limitation reasonable attorneys'
fees), incurred or suffered by Seller or its Related Parties arising
out of or in connection with any one or more of the following:
1. any use, occupancy, ownership or operation of any of
the Property or any occurrence in, on or about the Property on
or after the Closing;
2. any accident, injury (including death) or damage,
regardless of the cause thereof to any person or property
occurring in, on or about the Property on or after Closing.
13.16.3 Purchaser on the one hand and Seller on the other hand
shall use their best efforts to:
(i) promptly and timely file all filings, reports,
certificates and applications required to carry out the transactions
contemplated by this Agreement or to consummate the transactions
contemplated hereby required, if at all, by (i) the federal
securities laws, or (ii) the United States or any commission,
department, agency, law, rule or regulation thereof; and
(ii) promptly and timely prepare, file and prosecute all
filings, reports, certificates and applications required by the
State of South Carolina or any commission, agency or department
thereof.
13.16.4 Seller shall give to Purchaser and its representatives,
including accountants and counsel, reasonable access during normal
business hours, upon at least forty eight (48) hours prior notice to
Purchaser, to the books, records, files, contracts, commitments, employees
and agents of Seller relating to the Property, and will promptly furnish
to Purchaser and its representatives at the Property and/or at Seller's
principal place of business all such information and documents relating to
the Property as Purchaser shall request, including all interim financial
statements and reports as they are prepared and become available, and
Purchaser may make copies thereof.
13.16.5 Without limiting any other rights or remedies of
Purchaser, Purchaser shall have the right after the Closing upon at least
forty eight (48) hours prior notice to audit the books and records of
Seller in respect of the Property for those last two entire fiscal years
of Seller ending immediately preceding the Closing plus any "stub" period
thereafter to such Closing.
13.16.6 This Agreement and all documents, agreements,
understandings and arrangements relating to this transaction have been
negotiated, executed and delivered on behalf of Purchaser by the trustees
or officers thereof in their representative capacity under the Declaration
of Trust of New Plan Realty Trust dated as of July 31, 1972 as amended,
and not individually, and bind only the trust estate of Purchaser, and no
trustee, officer, employee, agent or shareholder of Purchaser shall be
bound or held to any personal liability or responsibility in connection
with the agreements, obligations and undertakings of Purchaser thereunder,
and any person or entity dealing with Purchaser in connection therewith
shall look solely to the trust estate for the payment of any claim or for
the performance of any agreement, obligation or undertaking thereunder.
Seller acknowledges and agrees that each agreement and other document
executed by Purchaser in accordance with or in respect of this transaction
shall be deemed and treated to include in all respects and for all
purposes the foregoing exculpatory provision.
13.16.7 At the Closing, the Escrow Agent shall retain the sum of
$75,000 (the "Comfort Sum") from the Purchase Price as an asset of Seller,
and shall not distribute same. Seller, Purchaser and Escrow Agent shall
enter into the Comfort Sum Escrow Agreement annexed to this Agreement as
Exhibit H. The Comfort Sum shall continue to be retained as aforesaid
until the date which is twelve (12) months after the Closing Date, at
which time it shall be distributed to Seller unless any claim is pending
against Seller by Purchaser pursuant to the terms of this Agreement (a
"Contract Claim"), in which case a portion of the Comfort Sum equal to the
aggregate amount of all Contract Claims shall be retained pending
resolution of each respective Contract Claim, with the balance distributed
by the Escrow Agent. Upon written agreement of Purchaser and Seller or if
Purchaser obtains a final non-appealable judgment against Seller regarding
a Contract Claim, then the Escrow Agent shall pay to Purchaser the amount
of such judgment out of the Comfort Sum. This provision shall survive the
Closing.
13.16.8 Angeles Partners XI GP Limited Partnership ("General
Partner") executes this Agreement in its capacity as general partner of
Seller, and Angeles Realty Corporation II ("Corporation") executes this
Agreement in its capacity as general partner of General Partner, but
Seller, General Partner and Corporation primarily, jointly and severally
make and assume responsibility for the agreements, representations and
warranties appearing in this Agreement. Nothing in this section shall
limit General Partner's and Corporation's rights to contribution from
Seller under applicable partnership law, but any such rights to
contribution shall be subordinate to Purchaser's rights.
SELLER:
Harbour AP XI, L.P.
a South Carolina limited partnership
By: Angeles Partners XI GP Limited Partnership,
a South Carolina limited partnership, in its
capacity as general partner and to confirm
its primary, joint and several liability
By: Angeles Realty Corporation II, a California
corporation, in its capacity as general
partner and to confirm its primary, joint
and several liability
By:/s/Robert D. Long, Jr.
Title:CAO/Controller
Dated: 7/24/95
SIGNATURES CONTINUED ON NEXT PAGE
SIGNATURES CONTINUED FROM PREVIOUS PAGE
PURCHASER:
New Plan Realty Trust
a ________________ corporation
By:_____________________________________
Its:___________________________________
Dated:__________________________________
RECEIPT OF EARNEST MONEY DEPOSIT
AND AGREEMENT OF TITLE COMPANY
Commonwealth Land Title Insurance Company (the "Title Company"), located
at Columbia, South Carolina, hereby acknowledges the receipt of one (1) fully
signed and executed copy of this Contract.
Upon receipt, the Title Company agrees to hold the Earnest Money Deposit
in escrow as escrow agent for the benefit of Seller and Purchaser and to dispose
of the Earnest Money Deposit in strict accordance with the terms and provisions
of this Contract.
Commonwealth Land Title Insurance Company
By:_________________________________
Name:____________________________
Title:_____________________________
Date:_______________________________
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description of the Property]
EXHIBIT B
SPECIAL WARRANTY DEED
STATE OF __________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _________
_________________________, a _______________ limited partnership
(hereinafter called "Grantor"), for and in consideration of the sum of TEN AND
No/100 ($10.00) and other good and valuable consideration (including, without
limitation, the assumption by Grantee of the indebtedness secured by the Trust
Deed listed on Exhibit B hereto pursuant to an Assumption Agreement dated
______________, 199___ by and between Grantor, Grantee and
_________________________) in hand paid by _________________________, a
______________ (hereinafter called "Grantee"), whose mailing address is
______________________________________, the receipt and sufficiency of which are
hereby acknowledged, has GRANTED, SOLD AND CONVEYED and by these presents does
GRANT, SELL AND CONVEY unto Grantee that certain tract or parcel of land
situated in ___________ County, ____________ and more particularly described on
Exhibit "A" attached hereto and made a part hereof for all purposes, together
with Grantor's rights and interests in all improvements, structures and fixtures
located thereon and all rights, titles and interests of Grantor appurtenant
thereto (all of the above-described properties being hereinafter collectively
referred to as the "Property"). This conveyance is made and accepted subject to
(a) general real estate taxes on the Property for the current year which Grantee
assumes and agrees to pay, (b) zoning laws and regulations and ordinances of
municipal and other governmental authorities, if any, affecting the Property,
and (c) the matters set forth on Exhibit "B" attached hereto and made a part
hereof for all purposes (all of the foregoing being hereinafter collectively
referred to as the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the
rights and appurtenances thereto in anywise belonging unto Grantee, its
successors and assigns forever, and Grantor does hereby bind itself, its
successors and assigns, to WARRANT AND FOREVER DEFEND all and singular the
Property unto Grantee, its successors and assigns, against every person
whomsoever lawfully claiming or to claim the same or any part thereof, by,
through or under Grantor, but not otherwise, subject, however, to the Permitted
Exceptions.
Current ad valorem taxes on the Property having been prorated, Grantee
hereby assumes the obligation for payment thereof.
IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor to
be effective for all purposes as of the _____ day of _____________, 199___.
GRANTOR:
Harbour AP XI, L.P.
a South Carolina limited partnership
By: Angeles Partners XI GP Limited Partnership,
a South Carolina limited partnership, in its
capacity as general partner and to confirm
its primary, joint and several liability
By: Angeles Realty Corporation II, a California
corporation, in its capacity as general
partner and to confirm its primary, joint
and several liability
By:______________________________________
Title:____________________________________
Dated:_________________________________
STATE OF ________
COUNTY OF ________
This instrument was acknowledged before me on this _____ day of
____________, 199___, by __________________________,
____________________________ of _______________________, a ___________
corporation acting in its capacity as general partner of _________________, a
__________ limited partnership, known to me to be the person whose name is
subscribed to the foregoing instrument, and acknowledged to me that he executed
the same for the purposes and consideration therein expressed, in the capacity
therein stated and as the act and deed of said limited partnership.
___________________________________
Notary Public, State of _______________
My Commission Expires:
______________________ ___________________________________
Printed Name of Notary Public
GRANTEE'S ADDRESS:
______________________
______________________
______________________
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description from the Contract]
EXHIBIT B
PERMITTED EXCEPTIONS
[Attach list of Permitted Exceptions created
in accordance with the terms of the Contract]
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF LEASES
STATE OF ________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _______
That, _________________________, a ___________ limited partnership
("Assignor"), for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, to Assignor in hand paid, the receipt
and legal sufficiency of which are hereby acknowledged, hereby transfers,
assigns and sets over unto ______________ ________________, a ________________
("Assignee"), all of the right, title and interest of Assignor in and to all
leases of, and security deposits and prepaid rents relating to space in
(together, the "Leases") the real property described on Exhibit A, attached
hereto and made a part hereof for all purposes.
TO HAVE AND TO HOLD the Leases, together with any and all of the rights
and appurtenances thereto in anywise belonging to Assignor (excluding the right
to receive rents paid under the Leases and which accrued before the date of this
Assignment), unto Assignee and Assignee's successors and assigns forever, and
Assignor does hereby bind Assignor and Assignor's legal representatives and
successors, to WARRANT AND FOREVER DEFEND all and singular the Leases unto
Assignee and Assignee's successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof, by, through or under
Assignor, but not otherwise.
In consideration of the foregoing assignment, Assignee hereby assumes, and
agrees to perform all of the obligations of Assignor under the Leases,
including, but not limited to, the obligation to refund any security deposits
delivered by Assignor to Assignee. Assignee takes the Leases subject to any
existing defaults thereunder.
Assignor will indemnify, defend and hold harmless Assignee and its Related
Parties from and against any and all claims, demands, suits, actions,
proceedings, damages, liabilities, penalties, costs, expenses and fees
(including reasonable attorneys' fees) arising from the misapplication prior to
the Closing Date of any security deposits received by Assignor. Assignee will
indemnify, defend and hold harmless Assignor and its Related Parties from and
against any and all claims, demands, suits, actions, proceedings, damages,
liabilities, penalties, costs, expenses and fees (including reasonable
attorneys' fees) arising from the misapplication on or after the Closing Date of
any security deposits received by Assignee from Assignor.
"Related Parties" shall mean any person or entity affiliated with or
owning or controlling, in whole or in part, directly or indirectly, the
indemnified party, the joint venturers, partners, trustees, officers, directors,
shareholders, employees, agents and attorneys at any time and from time to time
of any of the foregoing, and the heirs, legal representatives, successors and
assigns of each of the foregoing.
EXECUTED effective as of this _____ day of _________, 199___ (the "Closing
Date").
ASSIGNOR:
Harbour AP XI, L.P.
a South Carolina limited partnership
By: Angeles Partners XI GP Limited
Partnership, a South Carolina limited
partnership, in its capacity as
general partner and to confirm its
primary, joint and several liability
By: Angeles Realty Corporation II, a
California corporation, in its
capacity as general partner and to
confirm its primary, joint and several
liability
By:________________________________
Title:______________________________
Dated:_________________________________
ASSIGNEE:
By:_____________________________
Name:________________________
Title:_______________________
STATE OF __________
COUNTY OF ___________
This instrument was acknowledged before me on this _____ day of
_____________, 199___, by _____________________________,
______________________________ of ________________________, a __________
corporation acting in its capacity as general partner of
_________________________, a ___________ limited partnership, known to me to be
the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said limited partnership.
______________________________
Notary Public in and for
the State of __________
My Commission Expires:
_____________________
STATE OF _________
COUNTY OF ________
This instrument was acknowledged before me on this _____ day of
_________________, 199___, by _______________________________________________,
_________________________________ of _____________________, a ________________ ,
known to me to be the person whose name is subscribed to the foregoing
instrument, and acknowledged to me that he executed the same for the purposes
and consideration therein expressed, in the capacity therein stated and as the
act and deed of said __________________.
______________________________
Notary Public in and for
the State of __________
My Commission Expires:
_____________________
EXHIBIT D
BLANKET CONVEYANCE, BILL OF SALE AND ASSIGNMENT
STATE OF _________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF _________
By a Special Warranty Deed (the "Deed") of even date with the date hereof,
________________________________, a ______________ limited partnership
("Seller"), conveyed to ________________________, a _______________
("Purchaser"), the real property (the "Real Property") described on Exhibit "A"
attached hereto and made a part hereof for all purposes, together with all
improvements located thereon.
As consideration for (a) the conveyance of the Real Property, (b) the
conveyance of the personal property described herein, and (c) the assignments
contained herein, Purchaser has paid the sum of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration to the Seller.
NOW, THEREFORE, for the consideration above specified, the receipt and
sufficiency of which are expressly acknowledged:
1. The Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER and
DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER, SET-
OVER and DELIVER unto the Purchaser, all of Seller's right, title and interest
in and to all items of tangible personal property located on or attached to the
Real Property including, without limitation, all items of personal property
described on Exhibit A hereto (all of the property described in this paragraph 1
is hereinafter referred to as the "Personal Property") (the Real Property and
Personal Property sometimes collectively referred to herein as the "Property").
2. The Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED and ASSIGNED and
by these presents does GRANT, CONVEY, SELL, TRANSFER and ASSIGN unto the
Purchaser all of the Seller's right, title and interest in and to the trade name
"______________________________".
3. The Seller has ASSIGNED, TRANSFERRED and SET-OVER, and by these
presents does ASSIGN, TRANSFER and SET-OVER unto the Purchaser (to the extent
they are assignable) all of its right, title and interest in and to all service
contracts, bonds, warranties and guaranties which relate to the Real Property or
Personal Property and are listed on Schedule 6.2(g) hereto.
Purchaser accepts the property described in this document (the
"property"), and acknowledges that the conveyance of the property to purchaser
is made by Seller, on an "as is, where is, and with all faults" basis.
Purchaser expressly acknowledges that, except for the warranty of title
contained in the special warranty deed delivered to purchaser contemporaneously
herewith, Seller makes no warranty or representation of any kind, oral or
written, express or implied, or arising by operation of law with respect to the
property referred to herein, including, but not limited to, any warranties or
representations as to habitability, merchantability, fitness for a particular
purpose, title (other than Seller's warranty of title set forth in the special
warranty deed delivered to purchaser), zoning, tax consequences, physical or
environmental condition, utilities, operating history or projections, valuation,
governmental approvals, the compliance of the property with governmental laws,
the truth, accuracy or completeness of any information provided by or on behalf
of Seller to purchaser, or any other matter or thing regarding the property.
Purchaser hereby assumes and agrees to perform from the effective date
hereof forward all of the covenants and obligations contained in the contracts
assigned hereunder which are to be performed by Seller and hereby indemnifies
and agrees to defend Seller, its general partner and their respective affiliates
and their and their affiliates' officers, directors, employees, agents and
representatives, and agrees to hold Seller, its general partner and their
respective affiliates and their and their affiliates' officers, directors,
employees, agents and representatives, harmless from and against any and all
liability, cost, claim, cause of action, fine, fee, lien, loss, damage or
expense, including reasonable attorneys' fees and expenses, suffered or incurred
by any of them as a result of any alleged failure of Purchaser to perform such
covenants or obligations.
This Blanket Conveyance, Bill of Sale and Assignment is binding and shall
inure to the benefit of the parties hereto, and their respective successors and
assigns.
TO HAVE AND TO HOLD the Property unto Purchaser, its successors and
assigns forever, and Seller does hereby bind itself, its successors and assigns,
to forever WARRANT AND DEFEND the title to the Property unto Purchaser, its
successors and assigns, against any person whomsoever lawfully claiming, or to
claim the same or any part thereof, by, through or under Seller, but not
otherwise.
EXECUTED effective as of the ______ day of __________, 1995.
SELLER:
Harbour AP XI, L.P.
a South Carolina limited partnership
By: Angeles Partners XI GP Limited
Partnership, a South Carolina limited
partnership, in its capacity as
general partner and to confirm its
primary, joint and several liability
By: Angeles Realty Corporation II, a
California corporation, in its
capacity as general partner and to
confirm its primary, joint and several
liability
By:_________________________________
Title:_______________________________
Dated:_________________________________
PURCHASER:
New Plan Realty Trust
a __________________
By:________________________________
Name:___________________________
Title:__________________________
EXHIBIT "A"
TO
BLANKET CONVEYANCE, BILL OF SALE AND ASSIGNMENT
Property Description
[To Be Inserted]
EXHIBIT E
NON-FOREIGN AFFIDAVIT
STATE OF ________
KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF ________
On this date, _____________________________, a _______________ limited
partnership ("Seller"), has sold and conveyed certain real property situated in
__________ County, _________, to _______________________, a ______________
("Purchaser"). Section 1445 of the Internal Revenue Code of 1986 provides that
a transferee of a U.S. Real Property Interest must withhold tax if the
transferor is a foreign person. To inform Purchaser that withholding of tax is
not required upon the disposition of a U.S. Real Property Interest by Seller,
the undersigned hereby certifies the following on behalf of Seller:
1. Seller 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. Seller's U.S. Employer Identification Number is _________
______________; and
3. Seller's office address is
_____________________________________________
_______________________________________________________________.
Seller understands that this certification may be disclosed to the
Internal Revenue Service by Purchaser 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 Seller.
Executed this ______ day of ______________, 199___.
SELLER:
Harbour AP XI, L.P.
a South Carolina limited partnership
By: Angeles Partners XI GP Limited
Partnership, a South Carolina limited
partnership, in its capacity as
general partner and to confirm its
primary, joint and several liability
By: Angeles Realty Corporation II, a
California corporation, in its
capacity as general partner and to
confirm its primary, joint and several
liability
By:_________________________________
Title:_______________________________
Dated:_________________________________
STATE OF _______
COUNTY OF _______
This instrument was acknowledged before me on this _____ day of
_____________, 199___, by _______________________________,
___________________________________ of ________________________________, a
_______________ corporation acting in its capacity as general partner of
_______________________, a ___________ limited partnership, known to me to be
the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said limited partnership.
______________________________
Notary Public in and for
the State of ________
My Commission Expires:
_____________________
EXHIBIT F
RESIDENT NOTICE LETTER
_________________, 199___
__________________________
__________________________
__________________________
Re: Your lease ("Lease") of space in __________________ located in the
City of _______________, ____________ County, _________
("Apartments")
Dear Resident:
You are hereby notified that ______________________________, a
_____________ limited partnership ("Owner"), as owner of the Apartments and the
current owner of the landlord's interest under the Lease, has sold the
Apartments to ___________________ ("Purchaser") as of the date of this Resident
Notice Letter set forth above, and in connection with such sale the Owner has
assigned and transferred its interest in the Lease and any and all unapplied
security deposits thereunder or relating thereto in its possession to Purchaser,
and Purchaser has assumed and agreed to perform all of the landlord's
obligations under the Lease (including, but not limited to, any obligations set
forth in the Lease to repay or account for any security deposits thereunder)
from and after such date.
the date of this Resident Notice Letter (including your obligation to pay rent)
shall be performable to and for the benefit of Purchaser and Purchaser's
successors and assigns, and (b) all of the obligations of the landlord under the
Lease (including, but not limited to, any obligations to repay or account for
any unapplied security deposits thereunder) from and after the date of this
Resident Notice Letter shall be the binding obligations of Purchaser and
Purchaser's successors and assigns. The current amount of the security deposit
being held by Purchaser with respect to the Lease is $_______________.
The address of Purchaser for all purposes under the Lease (including the
payments of rentals, the recoupment of any security deposits and the giving of
any notices provided for in the Lease) is
______________________________________________________.
Very truly yours,
Accordingly, (a) all of your obligations under the Lease from and after
OWNER:
Harbour AP XI, L.P.
a South Carolina limited partnership
By: Angeles Partners XI GP Limited
Partnership, a South Carolina limited
partnership, in its capacity as
general partner and to confirm its
primary, joint and several liability
By: Angeles Realty Corporation II, a
California corporation, in its
capacity as general partner and to
confirm its primary, joint and several
liability
By:_________________________________
Title:_______________________________
Dated:_________________________________
PURCHASER:
_______________________________________,
a _____________________________________
By:____________________________________
Name:_______________________________
Title:________________________________
CONTRACT TO PURCHASE AND SELL PROPERTY
by and between
Harbour AP XI, L.P.
("Seller")
and
New Plan Realty Trust
("Purchaser")
INDEX TO DEFINITIONS
Section
Apartments Exh. F
Approval Date 7.3
Assignee Exh. C
Assignment of Leases 8.2(a)(ii)
Assignor Exh. C
Bankruptcy Action Pg. 1
Bankruptcy Court Pg. 1
Bill of Sale 8.2(a)(iii)
Broker 11.1
Business Days 13.14
Closing 8.1
Closing Date 8.1, Exh. C
Collecting Party 8.6(a)
Comfort Sum 13.16.7
Contract Pg. 1
Contract Claim 13.16.7
Contracts 1.1(d)
Corporation 13.16.8
Current Funds 3.1
Deed Exh. D
Delinquent Rents 8.6(a)
Deposits 1.1(c)
Earnest Money Deposit 3.1
Effective Date 13.13
Exception Documents 4.1
Exhibits 13.9
General Partner 13.16.8
Grantee Exh. B
Grantor Exh. B
Hazardous Materials 6.3
Improvements 1.1(a)
Inspection Period 5.1
Land 1.1(a)
Lease Exh. F
Leases Exh. C
Manager's Representatives 6.2(q)
Notice Letters 8.2(a)(v)
Owner Exh. F
Order Pg. 1
Permitted Exceptions 4.3, Exh. B
Personal Property Exh. D
Personalty 1.1(b)
Property 1.1, Exh. B, Exh. D
Purchase Price 2.1
Purchaser Pg. 1, Exh. D, Exh. E, Exh. F
Real Property Exh. D
Related Parties 13.16.2.A, 13.16.2.B, Exh. C
Seller Pg. 1, Exh. D, Exh. E
Significant Portion 9.1(b)
Submission Matters 5.3
Substantial Portion 9.2(b)
Survey 4.2
Tenant Leases 1.1(c)
Tenants 1.1(c)
Title Commitment 4.1
Title Company 3.1, Receipt
INDEX TO CONTRACT TO PURCHASE AND SELL PROPERTY
Page
ARTICLE I Sale of the Property 1
Section 1.1 Property 1
ARTICLE II Purchase Price 2
Section 2.1 Purchase Price 2
ARTICLE III Earnest Money Deposit 3
Section 3.1 Amount and Timing 3
Section 3.2 Application and Interest 3
ARTICLE IV Title and Survey 3
Section 4.1 Title Commitment 3
Section 4.2 Survey 4
Section 4.3 Review of Title and Survey 4
Section 4.4 Objections to Status of Title and Survey 4
Section 4.5 Other Permitted Exceptions 5
ARTICLE V Inspection By Purchaser 5
Section 5.1 Inspection Period 5
Section 5.2 Approval of Inspections 6
Section 5.3 Matters to be Delivered by Seller 6
ARTICLE VI Representations and Warranties; Disclaimers and Waivers 7
Section 6.1 Representations and Warranties of Purchaser 7
Section 6.2 Representations and Warranties of Seller 7
Section 6.3 No additional representations or warranties of Seller 11
Section 6.4 No Reliance on Documents 12
Section 6.5 Effect and Survival of Disclaimers 12
ARTICLE VII Conditions Precedent to Purchaser's and Seller's Performance 12
Section 7.1 Conditions to Purchaser's Obligations 12
Section 7.2 Conditions to Seller's Obligations 13
ARTICLE VIII Closing 13
Section 8.1 Time and Place 13
Section 8.2 Items to be Delivered at the Closing 13
(a) Seller 13
(b) Purchaser 15
Section 8.3 Costs of Closing 16
Section 8.4 Prorations 16
Section 8.5 Possession and Closing 18
Section 8.6 Delinquent Rent 18
(a) Application of Delinquent Rent 18
(b) Collection of Delinquent Rent 19
ARTICLE IX Condemnation or Casualty 19
Section 9.1 Condemnation 19
Section 9.2 Casualty 20
ARTICLE X Defaults and Remedies 20
Section 10.1 Default by Purchaser 20
Section 10.2 Default by Seller 21
Section 10.3 Attorneys' Fees 21
ARTICLE XI Brokerage Commissions 21
Section 11.1 Brokerage Commission 21
ARTICLE XII Operation of the Property Prior to the Closing 22
ARTICLE XIII Miscellaneous 23
Section 13.1 Notices 23
Section 13.2 Governing Law 24
Section 13.3 Entirety and Amendments 24
Section 13.4 Parties Bound 24
Section 13.5 Assignment 24
Section 13.6 Headings 24
Section 13.7 Survival 25
Section 13.8 Interpretation 25
Section 13.9 Exhibits 25
Section 13.10 Time of Essence 25
Section 13.11 Multiple Counterparts 25
Section 13.12 Risk of Loss 25
Section 13.13 Effective Date 25
Section 13.14 Business Days 25
Section 13.15 No Recordation of Contract 25
Section 13.16 General 26
EXHIBIT A PROPERTY DESCRIPTION
EXHIBIT B SPECIAL WARRANTY DEED
EXHIBIT A PROPERTY DESCRIPTION
EXHIBIT B PERMITTED EXCEPTIONS
EXHIBIT C ASSIGNMENT AND ASSUMPTION OF LEASES
EXHIBIT D BLANKET CONVEYANCE, BILL OF SALE AND ASSIGNMENT
EXHIBIT E NON-FOREIGN AFFIDAVIT
EXHIBIT F RESIDENT NOTICE LETTER
EXHIBIT G ORDER
EXHIBIT H COMFORT SUM ESCROW AGREEMENT
SCHEDULE 6.2(e) RENT ROLL
SCHEDULE 6.2(g) SERVICE CONTRACTS