Form 8-K - CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) May 4, 2000
ANGELES INCOME PROPERTIES, LTD. 6
(Exact name of registrant as specified in its charter)
California 0-16210 95-4106139
(State or other jurisdiction (Commission (I.R.S. Employer
incorporation) File Number) Identification Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(Registrant's telephone number)
(864) 239-1000
N/A
(Former name or former address, if changed since last report)
Item 2. Acquisition or Disposition of Assets.
The Registrant sold one of its investment properties, Wakonda Shopping Center,
located in Des Monies, Iowa on May 4, 2000. Wakonda Shopping Center was sold to
The Cadle Company, an unrelated party, for $2,900,000.
The Registrant sold one of its investment properties, Casa Granada Apartments,
located in Harlinge, Cameron County, Texas on September 21, 2000. Casa Granada
was sold to The Cadle Company, an unrelated party, for $1,994,000.
The General Partner is currently evaluating the cash requirements of the
Partnership to determine what portion of the net proceeds, if any, would be
available to distribute to the partners in the near future.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's quarterly report on Form 10-QSB for the quarter ended June 30,
2000.
(c) Exhibits
10.28 Purchase and Sale Contract for Wakonda Shopping Center between
Registrant and The Cadle Company.
10.29 Addendum to Purchase and Sale Contract for Wakonda Shopping
Center.
10.30 Purchase and Sale Contract for Casa Granada Apartments between
Registrant and The Cadle Company.
10.31 First Amendment to Purchase and Sale Contract for Casa Granada
Apartments.
10.32 Second Amendment to Purchase and Sale Contract for Casa Granada
Apartments.
10.33 Third Amendment to Purchase and Sale Contract for Casa Granada
Apartments.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ANGELES INCOME PROPERTIES, LTD. 6
By: Angeles Realty Corporation II
Its General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: November 13, 2000
Exhibit 10.28
PURCHASE AND SALE CONTRACT
BETWEEN
Angeles Income Properties, Ltd. 6
AS SELLER
AND
The Cadle Company
AS PURCHASER
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS......................................................1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY......................................4
ARTICLE 3 PURCHASE PRICE & DEPOSIT...........................................4
ARTICLE 4 FINANCING..........................................................6
ARTICLE 5 FEASIBILITY PERIOD.................................................6
ARTICLE 6 TITLE..............................................................8
ARTICLE 7 CLOSING...........................................................11
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER.16
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING..................................20
ARTICLE 10 BROKERAGE........................................................21
ARTICLE 11 POSSESSION.......................................................22
ARTICLE 12 DEFAULTS AND REMEDIES............................................22
ARTICLE 13 RISK OF LOSS OR CASUALTY.........................................23
ARTICLE 14 RATIFICATION.....................................................23
ARTICLE 15 EMINENT DOMAIN...................................................23
ARTICLE 16 MISCELLANEOUS....................................................23
EXHIBITS
EXHIBIT A - LEGAL DESCRIPTION...............................................30
EXHIBIT B - ESCROW AGREEMENT................................................32
EXHIBIT 1.1.4 - SCHEDULE OF COMMERCIAL LEASES...............................38
EXHIBIT 1.1.7 - EXCLUDED PERMITS............................................39
EXHIBIT 1.1.9 - FIXTURES AND TANGIBLE PERSONAL PROPERTY.....................40
EXHIBIT 1.1.16 - SCHEDULE OF PROPERTY CONTRACTS.............................41
EXHIBIT 6.2.1 - EXCEPTIONS..................................................42
EXHIBIT 7.2.1.1 - FORM OF GENERAL WARRANTY DEED.............................43
EXHIBIT 7.2.1.2 - FORM OF BILL OF SALE......................................48
EXHIBIT 7.2.1.3 - FORM OF GENERAL ASSIGNMENT................................55
EXHIBIT 7.2.1.6 - SELLER'S CERTIFICATE OF NON-FOREIGN STATUS................64
EXHIBIT 8.1.1.3 - PARTIES IN POSSESSION OF PROPERTY.........................65
EXHIBIT 9.1.4 - FORM OF ESTOPPEL CERTIFICATE................................66
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of the
_______ day of ________, 2000 (the "Effective Date") by and between ANGELES
INCOME PROPERTIES, LTD. 6, a California limited partnership, having a principal
address at c/o AIMCO, 1873 South Bellaire Street, Suite 1700, Denver, Colorado
80222 ("Seller") and THE CADLE COMPANY, an Ohio corporation, having a principal
address at 100 North Center Street, Newton Falls, Ohio 44444 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1...Iowa Seller holds legal title to the following real estate located in Polk
County, Iowa, as more particularly described in Exhibit A-1 (the "Wakonda on
Fleur Shopping Center"), and Linn County, Iowa, as more particularly described
in Exhibit A-2 as Parcel 1 (the "Town and County Shopping Center"). Seller will
control the legal title to the real estate described in Exhibit A-2 as Parcel 2
by Closing Date by exercising an option to purchase said property, and having it
conveyed to Purchaser by General Warranty Deed or equivalent Deed. Said exhibits
are attached hereto and made a part hereof. Improvements have been constructed
on the parcels described in this Recital.
R-2...Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date as defined in this Purchase Contract the Property will be conveyed
to Purchaser or its designee by general warranty or equivalent R-3. Purchaser
has agreed to pay to Seller the Purchase Price for the Property, and Seller has
agreed to sell the Property to Purchaser on the terms and conditions set forth
below.
R-4...Purchaser has made such investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser has deemed
necessary and desirable, has approved the same in all respects, subject only to
the representations, warranties and covenants set forth in this Purchase
Contract and does hereby agree to consummate the transactions contemplated by
this Purchase Contract as set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have
the meanings set forth in this Article 1 below.
1.1.1 "Business Day" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the State of Iowa.
1.1.2 "Closing" means the consummation of the purchase and sale and
related transactions contemplated by this Purchase Contract in
accordance with the terms and conditions of this Purchase Contract.
1.1.3 "Closing Date" means the date on which date the Closing of the
conveyance of the Property is required to be held under the terms
and conditions of this Purchase Contract and on which date full
payment of the Purchase Price for the Property shall have been paid
to and received by Seller in immediately available U.S. funds, which
Closing Date shall be on or before thirty (30) days after the
expiration of the Purchaser's Feasibility Period, as defined in
ARTICLE 5 or such other date or extension date provided for by
ARTICLE 7 or by the written mutual consent of the parties hereto,
given or withheld in their respective sole discretion.
1.1.4 "Commercial Lease(s)" means the interest of Seller in and to all
leases, subleases and other occupancy agreements, whether or not of
record, which provide for the use or occupancy of space or
facilities on or relating to the Property scheduled on EXHIBITS
1.1.4-1 and 11.4-2 attached hereto.
1.1.5 This subsection is intentionally left blank.
1.1.6 This subsection is intentionally left blank.
1.1.7 "Excluded Permits" means those Permits which, under applicable law,
are nontransferable and such other Permits as may be designated as
Excluded Permits on EXHIBIT 1.1.7, if any, attached hereto.
1.1.8 "Financing Commitments" means the commitment(s) to finance the
purchase and operation of the Property from TRANSAMERICA BUSINESS
CREDIT COMPANY.
1.1.9 "Fixtures and Tangible Personal Property" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of personal property now located on
the Land or in the Improvements as of the date of this Purchase
Contract and as of the date of the end of the Feasibility Period
described below and used or usable in connection with any present or
future occupation or operation of all or any part of the Property.
The term "Fixtures and Tangible Personal Property" does not include
(i) equipment leased by Seller and the interest of Seller in any
equipment provided to the Property for use, but not owned or leased
by Seller, or (ii) property owned or leased by Tenants and guests,
employees or other persons furnishing goods or services to the
Property or (iii) property and equipment owned by Seller, which in
the ordinary course of business of the Property is not used
exclusively for the business, operation or management of the
Property or (iv) the property and equipment, if any, expressly
identified in EXHIBITS 1.1.9-1 and 1.1.9-2.
1.1.10"Improvements" means all buildings and improvements, located on the
Land taken "as is." 1.1.11 "Land" means all of those certain tracts
of land located in the State of Iowa, commonly known as Wakonda on
Fleur Shopping Center, Fleur Drive at Stanton Avenue, Des Moines,
Iowa 50309 (described on Exhibit "A-1" attached hereto); and Town
and Country Shopping Center, 3600-3800 First Avenue, N.E., Cedar
Rapids, Iowa 52402 (described on Exhibit "A-2", as Parcel 1 and
Parcel 2, attached hereto), and all rights, privileges and
appurtenances pertaining thereto.
1.1.12 "Miscellaneous Property Assets" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of
intangible personal property relating to the ownership or operation
of the Property and owned by Seller, excluding, however, (i)
receivables which includes past due rent, (ii) Property Contracts,
(iii) Commercial Leases, (iv) Permits, (v) cash or other funds,
whether in petty cash or house "banks," or on deposit in bank
accounts or in transit for deposit, (vi) refunds, rebates or other
claims, or any interest thereon, for periods or events occurring
prior to the Closing Date, (vii) utility and similar deposits,
(viii) insurance or other prepaid Items, or (ix) books and records,
except to the extent that Seller receives a credit on the closing
statement for any such item.
1.1.13"Permits" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned
by Seller or used in or relating to the ownership, occupancy or
operation of the Property or any part thereof not subject to a
Commercial Lease.
1.1.14"Permitted Exceptions" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with
the provisions of Section 6.2.
1.1.15"Property" means the Land and Improvements described in the
Recitals and all rights of Seller relating to the Land and the
Improvements, including without limitation, any rights, title and
interest of Seller, if any, in and to (i) any strips and gores
adjacent to the Land and any land lying in the bed of any street,
road, or avenue opened or proposed, in front of or adjoining the
Land, to the center line thereof; (ii) any unpaid award for any
taking by condemnation or any damage to the Property by reason of a
change of grade of any street or highway; (iii) all of the
easements, rights, privileges, and appurtenances belonging or in any
way appertaining to the Property; together with all Fixtures and
Tangible Personal Property, the right, if any and only to the extent
transferable, of Seller issued to Property Contracts (other than
those contracts, if any, which are identified for termination by
Purchaser during the Feasibility Period) and Commercial Leases,
Permits other than Excluded Permits and the Miscellaneous Property
Assets owned by Seller which are located on the Property and used in
its operation.
1.1.16"Property Contracts" means all purchase orders, maintenance,
service or utility contracts and similar contracts, which relate to
the ownership, maintenance, construction or repair and/or operation
of the Property and which are not cancelable on ninety (90) days' or
shorter Notice, except Commercial Leases, identified on EXHIBITS
1.1.16-1 and 1.1.16-2.
1.1.17 "Purchase Contract" means this Purchase and Sale Contract by and
between Seller and Purchaser.
1.1.18 "Purchase Price" means the total consideration to be paid by
Purchaser to Seller for the purchase of the Property.
1.1.19 "Survey" shall have the meaning ascribed thereto in Section 6.11.
1.1.20 "Tenant" means any person or entity entitled to occupy any
portion of the Property under a Commercial Lease.
1.1.21 "Title Commitment" or "Title Commitments" shall have the meaning
ascribed thereto in Section 6.1.
1.1.22 "Title Insurer" shall have the meaning set forth in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms
and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be Five
Million Eight Hundred Thousand Dollars ($5,800,000.00), subject to payment
in accordance with Section 3.1.2 hereinbelow. The Purchase Price shall be
paid by Purchaser, subject to credit and adjustment hereinafter provided
subject to all the terms and conditions herein contained.
3.1.1 Deposit
3.1.1.1 On the date hereof, Purchaser shall deliver to Fidelity
National Title Insurance Company ("Escrow Agent" or the "Title
Company") a deposit in the sum of One Hundred Thousand Dollars
($100,000.00) in cash (such sum being hereinafter referred to
as the "Deposit"). Purchaser and Seller each approve the form
of Escrow Agreement attached as EXHIBIT B.
3.1.1.2 The Escrow Agent shall hold the Deposit and make delivery of
the Deposit to the party entitled thereto under the terms
hereof. Escrow Agent shall invest the Deposit in such
short-term, high-grade securities, interest-bearing bank
accounts, money market funds or accounts, bank certificates of
deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable, (provided that Escrow Agent shall
invest the Deposit as jointly directed by Seller and Purchaser
should Seller and Purchaser each in their respective sole
discretion determine to issue such joint investment
instructions to the Escrow Agent), and all interest and income
thereon shall become part of the Deposit and shall be remitted
to the party entitled to the Deposit, as set forth below.
3.1.1.3 If the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by the mutual
written consent of the parties hereto, given or withheld in
their respective sole discretion), monies held as the Deposit
shall be applied (and paid over to the Seller) on the Date of
Closing. If the sale of the Property is not closed by the date
fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's
obligations, the Deposit shall be returned and refunded to
Purchaser, and neither party shall have any further liability
hereunder, subject to and except for Purchaser's liability
under Section 5.3.
3.1.1.3 If the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of
performance by Seller, Purchaser shall be entitled to the
remedies set forth in ARTICLE 12 hereof. If the sale of the
Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of performance by Purchaser,
the Deposit shall be forfeited by Purchaser and the sum
thereof shall go to Seller forthwith as liquidated damages for
the lost opportunity costs and transaction expenses incurred
by Seller, as more fully set forth in ARTICLE 12 below.
3.1.2 Purchaser shall, on the Date of Closing, pay Seller the purchase
price subject to credit and adjustment as provided herein, jointly
in cash or by wire transfer of current funds.
ARTICLE 4
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement. Purchaser will use its best efforts to obtain the necessary
financing.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Subject to the terms of Section 5.3 below, following the Effective Date,
Purchaser, and its agents, contractors, engineers, surveyors, attorneys,
and employees ("Consultants") shall have, until March 15, 2000, the right
from time to time to enter onto the Property (the "Feasibility Period"):
5.1.1 To conduct and make any and all customary studies, tests,
examinations and inspections, or investigations of or concerning the
Property (including without limitation, engineering and feasibility
studies, evaluation of drainage and flood plain, soil tests for
bearing capacity and percolation and surveys, including
topographical surveys). Notwithstanding the foregoing, in no event
shall Purchaser conduct any invasive environmental assessment, test
or other inspection of the Property without the prior written
consent of Seller, which consent may be withheld in Seller's sole
discretion.
5.1.2 To confirm any and all matters which Purchaser may reasonably desire
to confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the property for
Purchaser's intended use of the Property.
5.2 Should the results of any of the matters referred to in Section 5.1 above
appear unsatisfactory to Purchaser for any reason Purchaser shall provide
Seller with written Notice during the Feasibility Period of each basis for
such determination by Purchaser (including, without limitation, title and
survey objections other than the permitted exceptions) or such objections
shall be deemed waived by Purchaser in which case Purchaser and Seller
shall proceed to consummate the Closing on the Closing Date. If Purchaser
gives Seller such Notice, Seller at its sole discretion and option within
(10) business days following receipt of such Notice may elect to cure such
objection or satisfy such condition. Should Seller so elect to cure such
objection or satisfy such condition, or should Purchaser subsequently
waive such objection or condition, then the Closing shall take place
conditioned on such cure or based on such waiver on terms agreed upon by
the Parties. Should Seller not elect to cure such objection or satisfy
such condition, this agreement shall automatically terminate, in which
event the Title Company shall return the Deposit to Purchaser and
Purchaser shall release and quitclaim all of Purchaser's rights and
interest in the property to Seller, and the parties hereto shall have no
further obligation to each other, subject to and except for Purchaser's
liability under Section 5.3.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions taken
by Purchaser and its Consultants on the Property. Purchaser shall
indemnify, defend (with attorneys selected by Seller) and hold Seller
harmless from any and all claims, damages, costs and liability which may
arise due to such entries, surveys, tests, investigations and the like.
Seller shall have the right, without limitation, to disapprove any and all
entries, surveys, tests, investigations and the like that in their
reasonable judgment could result in any injury to the Property or breach
of any agreement, or expose Seller to any liability, costs, liens or
violations of applicable law, or otherwise adversely affect the Property
or Seller's interest therein. No consent by the Seller to any such
activity shall be deemed to constitute a waiver by Seller or assumption of
liability or risk by Seller. Purchaser hereby agrees to restore the
Property to the same condition existing immediately prior to Purchaser's
exercise of its rights pursuant to this ARTICLE 5 at Purchaser's sole cost
and expense. Purchaser shall maintain casualty insurance and comprehensive
public liability insurance with broad form contractual and personal injury
liability endorsements with respect to the Property and Purchaser's
activities carried on therein, in amounts (including deductible amounts)
and with such insurance carriers as shall be approved by Seller and naming
Seller and its affiliates as Loss Payees or Additional Insureds (at the
option of Seller), with endorsements acceptable to Seller, including a
waiver of defenses of the insurer based on the actions or inaction of
Purchaser. Such liability insurance shall provide coverages of not less
than $1,000,000.00 for injury or death to any one person and $3,000,000.00
for injury or death to more than one person and $500,000.00 with respect
to property damage, by water or otherwise). The provisions of this Section
shall survive the Closing or termination of this Purchase Contract.
5.4 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 by or for Purchaser.
Purchaser shall give notice to Seller a reasonable time 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. Purchaser shall take all reasonable actions and implement all
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 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.
All information made available by Seller to Purchaser in accordance with
this Purchase Contract or obtained by Purchaser in the course of its
investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall
use its best efforts to prevent its agents and employees from divulging
such information to any unrelated 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 Purchase Contract,
including Purchaser's attorneys and representatives, prospective lenders
and engineers.
ARTICLE 6
TITLE
6.1 Seller shall provide to Purchaser a Preliminary Title Report for the
Property within ten (10) days after the Effective Date. Purchaser shall
promptly secure a commitment for title insurance for the Property in an
amount equal to the Purchase Price ("Title Commitment,") issued by
Fidelity National Title Insurance Company ("Title Insurer") for an owner's
title insurance policy on the most recent standard American Land Title
Association ("ALTA") Policy form, together with legible copies of all
instruments identified as exceptions therein. Purchaser agrees that it
shall be solely responsible for payment of all costs relating to
procurement of the Title Commitment and any Owner's or Lender's title
policies.
6.2 Purchaser agrees to accept title to the Land and Improvements, so long as
the same is insurable at ordinary rates. Any conveyance by general
warranty or equivalent deed pursuant to this Purchase Contract shall be
subject to the following, all of which shall be deemed "Permitted
Exceptions" and Purchaser agrees to accept the deed and title subject
thereto:
6.2.1 All exceptions shown in the Preliminary Title Report (other than
mechanics' liens and taxes due and payable in respect of the period
preceding Closing) and all exceptions noted in EXHIBITS 6.2.1-1 and
6.2.1-2 attached hereto; and
6.2.2 Such exceptions and matters as the Title Company shall be willing to
omit as exceptions to coverage; and
6.2.3 All Commercial Leases and any other occupancy, residency, lease,
tenancy and similar agreements entered into in the ordinary course
of business; and
6.2.4 All Property Contracts and any other existing contracts created in
the ordinary course of business by Seller, which are not identified
for termination by Purchaser during the Feasibility Period; and
6.2.5Non-delinquent real estate and property taxes to the extent not due
and payable; and
6.2.6Defects and exceptions which do not materially and adversely affect
the condition of title to the Property and its use as of the Effective
Date; and
6.2.7 This subsection is intentionally left blank.
6.2.8 This subsection is intentionally left blank.
6.3 Unpaid liens for taxes, charges, and assessments shall not be objections
to title, but the amount thereof plus interest and penalties thereon shall
be deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser, subject to the provisions for
apportionment of taxes and charges contained herein. Provided said amounts
do not exceed the total cash amount being paid into escrow.
6.4 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the Property or
otherwise against Purchaser or its affiliates, and provided further that
the Title Insurer agrees to omit such taxes as exceptions to coverage with
respect to any lender's mortgagee insurance policy.
6.5 If on the Closing Date there shall be conditional bills of sale or Uniform
Commercial Code financing statements filed with respect to any tenant's
property, such financing statements shall not be deemed to be an objection
to title.
6.6 If on the Closing Date, the state of title is other than in accordance
with the requirements set forth in this Purchase Contract or if any
condition to be fulfilled by Seller shall not be satisfied, Purchaser
shall provide Seller with written Notice thereof at such time, or such
title objection or unfulfilled condition shall be deemed waived by
Purchaser in which case Purchaser and Seller shall proceed to consummate
the Closing on the Closing Date. If Purchaser timely gives Seller such
Notice, Seller at its sole option and within Seven (7) calendar days
following receipt of such Notice may elect in writing to cure such
objection or unfulfilled condition for up to Ninety (90) calendar days
after date of Seller's notice. Should Seller be able to cure such title
objection or condition, or should Seller be able to cause title insurance
company to insure over same by the Closing Date or any postponed Closing
Date, or should Purchaser waive such objection or condition within such
period for cure, then the Closing shall take place on or before thirty
(30) calendar days after Notice of such cure or waiver.
6.7 If during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such title objection or cause a title
insurance company to insure over such matter or satisfy such unfulfilled
condition, Seller shall give Purchaser written Notice thereof, and if
Purchaser does not waive such objection by written Notice delivered to
Seller and the title company issuing the Preliminary Title Report on or
before Seven (7) calendar days following the date Seller gives such
Notice, then this Purchase Contract shall automatically terminate, in
which event Purchaser shall release and quitclaim all of Purchaser's right
and interest in such Property to Seller, and the parties hereto shall have
no further obligations to each other.
6.8 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance (other than Commercial Leases and Property Contracts in the
ordinary course of business) to attach to the Property between the date of
this Purchase Contract and the Closing Date; any such monetary lien or
encumbrance so attaching by voluntary act of Seller shall be discharged by
the Seller at or prior to Closing on the Closing Date or any postponed
Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance,
security interest, exception, objection or other matter, to make any
expenditure of money or institute litigation or any other judicial or
administrative proceeding and Seller may elect not to discharge the same.
Seller may enter into new Commercial Leases and new Property Contracts in
the ordinary course of business during the Feasibility Period. Seller may
terminate or agree to terminate Commercial Leases and Property Contracts
in the ordinary course of business during the Feasibility Period. Unless
this Purchase And Sale Contract is terminated as provided herein, then
upon the expiration of the Feasibility Period, Seller shall not, without
the consent of Purchaser, (which consent will not be unreasonably
withheld) enter into any new Commercial Leases or Property Contracts
affecting the Property, or terminate or agree to terminate any Commercial
Leases. For purposes of this Section 6.8 Purchaser's failure to respond in
writing to Seller's written request for consent within five (5) business
days shall be deemed consent on the part of the Purchaser. All new leases
or contracts entered into in accordance with the provisions of this
Section 6.8 shall be deemed "Commercial Leases" and "Property Contracts"
respectively as defined herein.
6.9 Anything to the contrary notwithstanding, Purchaser shall not have any
right to terminate this Purchase Contract or object to any lien,
encumbrance, exception or other matter that is a Permitted Exception, that
has been waived or deemed to have been waived by Purchaser.
6.10 After the Feasibility Period, Purchaser shall not have any right to
terminate this Purchase Contract or object to any lien, encumbrance,
exception or other matter that is a Permitted Exception or that has been
waived or deemed to have been waived by Purchaser.
6.11 Seller will obtain a survey of the Property ("Survey"), Seller shall
obtain such Survey at Seller's sole cost and expense, and shall cause such
Survey to be promptly delivered to Purchaser within the Feasibility
Period. The Survey (i) shall be prepared in accordance with and shall
comply with the minimum requirements of the ALTA; (ii) shall be in a form,
and shall be certified as of a date satisfactory to Title Insurer to
enable Title Insurer to delete standard survey exceptions from the title
insurance policy to be issued pursuant to the Title Commitments, except
for any Permitted Exceptions; (iii) shall specifically show all
improvements, recorded easements to the extent locatable, set back lines,
and such other matters shown as exceptions by the Title Commitments; (iv)
shall specifically show the right of way for all adjacent public streets;
(v) shall specifically disclose whether (and, if so, what part of) any of
the Property is in an area designated as requiring flood insurance under
applicable federal laws regulating lenders; (vi) shall contain a perimeter
legal description of the Property which may be used in the special
warranty deed; (vii) shall be certified to Purchaser, Purchaser's lender,
Seller and Title Insurer as being true and correct; and (viii) shall
certify that the legal description set forth therein describes the same,
and comprises all of, the real estate comprising the Property to be
purchased by Purchaser pursuant to the terms of this Purchase Contract. In
the event the perimeter legal description of the Property contained in the
Survey differs from that contained in the deed or deeds by which Seller
took title to the Property, the description to be used in the General
Warranty Deed delivered by Seller to Purchaser must be agreed upon by the
parties and insured by the title insurance company.
6.11.1Should such Survey disclose conditions that give rise to a title
exception other than a Permitted Exception, Purchaser shall have the
right to object thereto within the Feasibility Period in accordance
with the procedures set forth in ARTICLE 5 above.
6.11.2Seller agrees to make payment in full of all costs of obtaining the
Survey required by this Purchase Contract on or before Closing or
termination of this Purchase Contract.
ARTICLE 7
CLOSING
7.1 Dates, Places Of Closing, Prorations, and Delinquent Rent.
7.1.1 The Closing shall take place on or before March 31, 2000 in the
offices of the Title Company, in the jurisdiction of the Land at
Fidelity National Title Insurance Co., NationsBank Center, 700
Louisiana, Suite 2600, Houston, Texas, 77002, or at such other place
as the parties shall mutually agree upon at a time mutually agreed
upon on the Closing Date. If requested by Seller, Purchaser shall
agree to conduct closing through a pre-closing, an escrow or other
arrangement reasonably requested by Seller, whereby the Seller and
its attorneys need not be physically present at the Closing and may
deliver documents by overnight air courier or other means.
7.1.2 The Closing Date may be extended without penalty at the option of
Seller to a date not later than Ninety (90) Days following the
Closing Date specified above to satisfy a condition to be satisfied
by Seller, or such later date as is mutually acceptable to Seller
and Buyer. The Closing Date may be further extended without penalty
at the option of the Seller, to allow Seller the time necessary to
be in position to insure that the Title to the Property described in
Exhibit A-2, as Parcel 2, is simultaneously transferred from the
current owners of said Property to Purchaser on Closing Date.
7.1.3.All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, real
property taxes, personal property taxes and other operating expenses
and fees shall be prorated as of the Closing Date, Seller being
charged and credited for all of same attributable to the period up
to the Closing Date (and credited for any amounts paid by Seller
attributable to the period on or after the Closing Date) 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. All unapplied deposits under Tenant leases, if
any, shall be transferred by Seller to Purchaser at the Closing.
Purchaser shall assume at Closing the obligation to pay any accrued
but unpaid tenant improvement allowances and leasing commissions,
together with any payments due parties to other agreements affecting
the Property which survive Closing. 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. The proration of real property taxes or installments
of assessments 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. The proration shall be final and unadjustable except as
provided in the following paragraph. For purposes of this Section
7.1.3. and Section 7.1.4. and 7.1.5. the terms "Rent" and "Rents"
shall include, without limitation, base rents, additional rents,
tenants' proportionate share of operating expenses, percentage rents
and common area maintenance charges. The provisions of this Section
7.1.3. shall apply during the Proration Period (as defined below).
7.1.4.If any of the items subject to proration hereunder cannot be
prorated at the Closing because the information necessary to compute
such proration is unavailable, 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 (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. 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 Proration 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 the Proration
Period 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. Any Rents that have accrued,
but have not yet been paid shall be prorated in accordance with
estimates based upon the prior years' information (or reasonable
estimates of Seller if no such prior years' information is
available), and shall be subsequently readjusted and reapportioned
upon receipt. Purchaser shall pay Seller for Rents that have
accrued, but are not yet due and payable, at Closing.
7.1.5.If on the Closing Date any Tenant is in arrears in any Rent payment
under any Tenant lease (the "Delinquent Rent"), 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: (i) first,
to the period of time before the Closing Date, and (ii) second, to
the period of time after the Closing Date. If Delinquent Rent or any
portion thereof received by Seller or Purchaser after the Closing
are due and payable to the other party by reason of this allocation,
the appropriate sum, less a proportionate share of any reasonable
attorneys' fees and costs and expenses expended in connection with
the collection thereof, shall be promptly paid to the other party.
After the Closing, Seller shall continue to have the right, but not
the obligation, in its own name, to demand payment of and to collect
Delinquent Rent owed to Seller by any Tenant, which right shall
include, without limitation, the right to continue or commence legal
actions or proceedings against any Tenant (provided, that Seller
shall not commence any legal actions or proceedings against any
Tenant which continues as a Tenant at the Property after Closing
without the prior consent of Purchaser, which will not be
unreasonably withheld or delayed), and the delivery of the
Assignment as defined in Section 7.2.1.3 shall not constitute a
waiver by Seller of such right. Purchaser agrees to cooperate with
Seller at no cost or liability to Purchaser in connection with all
efforts by Seller to collect such Delinquent Rent and to take all
steps, whether before or after the Closing Date, as may be necessary
to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, upon demand, of any relevant
books and records (including, without limitation, rent statements,
receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and
the undertaking of any act reasonably necessary for the collection
of such Delinquent Rent by Seller; provided, however, that
Purchaser's obligation to cooperate with Seller pursuant to this
sentence shall not obligate Purchaser to terminate any Tenant lease
with an existing Tenant or evict any existing Tenant from the
Property. The provisions of this Section 7.1.5. shall apply during
the Proration Period.
7.1.6.Seller and Purchaser shall each pay one-half of the Escrow Agent's
fee. Purchaser shall pay all costs associated with recording the
general warranty deed at Closing, including, but not limited to,
recording fees, but with the exception that Seller shall pay the
documentary transfer tax, if any. With respect to the payment of
other closing expenses not otherwise addressed by this Purchase
Contract, Purchaser and Seller shall each pay their own respective
closing expenses.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1 General warranty or equivalent deed in the form attached as
EXHIBITS 7.2.1.1-1 and 7.2.1.1-2 to Purchaser, and a
General Warranty Deed or equivalant Deed with respect to
the Property which is described as Exhibit A-2, as Parcel
2, said Deed shall convey the Property from the current
owners to Purchaser and will be in a form which is
substantially similar to Exhibits 7.2.1.1-1 and 7.2.1.1-2.
The acceptance of the deed at Closing, shall be deemed to
be full performance of, and discharge of, every agreement
and obligation on Seller's part to be performed under this
Purchase Contract, except for those that this Purchase
Contract specifically provides shall survive Closing.
Seller's obligation to deliver a General Warranty Deed with
regard to the property described in Exhibit A-2, Parcel 2,
is expressly contingent upon Seller obtaining a proper
Assignment of the leasehold interest thereof, and
subsequently obtaining Title to the property described in
Exhibit A-2, Parcel 2.
7.2.1.2 A Bill of Sale without recourse or warranty except as
provided in this Purchase And Sale Contract in the form
attached as EXHIBITS 7.2.1.2-1 and 7.2.1.2-2 covering all
Property Contracts, Commercial Leases, Permits (other than
Excluded Permits) and Fixtures and Tangible Personal
Property required to be transferred to Purchaser with
respect to such Property. Purchaser shall countersign the
same so as to effect an assumption by Purchaser, including,
without limitation, of Seller's obligations thereunder.
7.2.1.3 An Assignment (to the extent assignable and in force and
effect) without recourse or warranty except as provided in
this Purchase And Sale Contract in the form attached as
EXHIBITS 7.2.1.3-1 and 7.2.1.3-2 of all of Seller's right,
title and interest in and to the Miscellaneous Property
Assets, subject to any required consents. Purchaser shall
countersign the same so as to effect an assumption by
Purchaser, including, without limitation, of Seller's
obligations thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A vendor's affidavit or at Seller's option an indemnity, as
applicable, in the customary form reasonably acceptable to
Seller to enable Title Insurer to delete the standard
exceptions (other than matters constituting any Permitted
Exceptions to the title insurance policy set forth in this
Purchase Contract and matters which are to be completed or
performed post-Closing) to be issued pursuant to the Title
Commitment; provided that such affidavit does not subject
Seller to any greater liability, or impose any additional
obligations, other than as set forth in this Purchase
Contract; and
7.2.1.6 A certification of Seller's non-foreign status pursuant to
Section 1445 of the Internal Revenue Code of 1986, as
amended, in the form attached as EXHIBITS 7.2.1.6-1 and
7.2.1.6-2.
7.2.1.7 This subsection is intentionally left blank.
7.2.1.8 Any documentation required of Seller by Escrow Agent or
Title Company in order to complete the sale of the property
pursuant to the terms of the within Purchase And Sale
Contract.
7.2.1.9 This subsection intentionally left blank.
7.2.1.10 Except for the items expressly listed above to be delivered
at Closing, delivery of any other required items shall be
deemed made by Seller to Purchaser, if Seller leaves such
documents at the Property in their customary place of
storage or in the custody of Purchaser's representatives.
7.2.2 Purchaser. At Closing, Purchaser shall deliver to Seller the
following items with respect to each Property being conveyed or
transferred by merger at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3 hereof
plus or minus the adjustments or prorations required by
this Purchase Contract. If at Closing there are any liens
or encumbrances on the Property , Seller shall use the
Purchase Price for the Property to satisfy the same, and
Seller shall deliver to Purchaser, or to Purchaser's
designee, on such Closing instruments in recordable form
sufficient to satisfy such liens and encumbrances of record
(or, as to any mortgages or deeds of trust, appropriate
payoff letters, acceptable to the Title Insurer), together
with the cost of recording or filing such instruments. The
existence of any such liens or encumbrances shall not be
deemed objections to title if Seller shall comply with the
foregoing requirements.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale in the form
attached as EXHIBITS 7.2.1.2-1 and 7.2.1.2-2.
7.2.2.4 A countersigned counterpart of the Assignment in the form
attached as EXHIBITS 7.2.1.3-1 and 7.2.1.3-2.
7.2.2.5 This subsection is intentionally left blank.
7.2.2.6 Any documentation required of Purchaser by Escrow Agent or
Title Company in order to complete the sale of the Property
pursuant to the terms of the within Purchase And Sale
Contract.
7.2.2.7 Executed Environmental Indemnity Agreement and such other
documents required by Indemnitee to be provided by Seller
in sub-paragraph 7.2.1.9 above.
7.2.2.8 Such other instruments, documents or certificates as are
required to be delivered by Purchaser to Seller in
accordance with any of the other provisions of this
Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 Representations And Warranties Of Seller.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the
following as of the Effective Date and as of the Closing Date:
8.1.1.1 Seller identified in the Recitals is lawfully and duly
organized, and in good standing under the laws of the state
of its formation set forth in the initial paragraph of this
Purchase Contract and in the state where the property is
located if required by local law; and has or at Closing
shall have the power and authority to sell and convey the
Property and to execute the documents to be executed by
Seller and prior to Closing will have taken as applicable,
all corporate, partnership, limited liability company or
equivalent entity actions required for the execution and
delivery of this Purchase Contract, and the consummation of
the transactions contemplated by this Purchase Contract.
The compliance with or fulfillment of the terms and
conditions hereof will not conflict with, or result in a
breach of, the terms, conditions or provisions of, or
constitute a default under, any Purchase Contract to which
Seller is a party or by which Seller or any Subsidiary
Owner is otherwise bound. Seller has not made any other
Purchase Contract for the sale of, or given any other
person the right to purchase or acquire, all or any part of
any of the Property applicable to the foregoing
representation;
8.1.1.2 Seller owns insurable, fee title to the Property described
in Exhibit A-1 and Exhibit A-2 Parcel 1, including all real
property contained therein, and that the Deed from the
current owners of the Property described in Exhibit A-2, as
Parcel 2, which shall transfer the property to Purchaser,
will be in escrow and that the Title being transferred is
an insurable, fee title to the Property, required to be
sold to Purchaser, subject only to the Permitted
Exceptions;
8.1.1.3 There are no adverse or other parties in possession of the
Property, except for occupants, guests and tenants under
the Commercial Leases or otherwise as set forth in EXHIBITS
8.1.1.3-1 and 8.1.1.3-2;
8.1.1.4 The joinder of no person or entity other than Seller is
necessary to convey the Property, fully and completely to
Purchaser at Closing, or to fulfill Seller's obligations
and Seller has all necessary right and authority to convey
and assign to Purchaser all contract rights and warranties
required to be conveyed and assigned to Purchaser
hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes for
Seller pursuant to the Foreign Investors Real Property Tax
Act of 1980, as amended;
8.1.1.6 To Seller's knowledge, there are no actions, proceedings,
litigation or governmental investigations or condemnation
actions either pending or threatened against the Property,
as applicable, or against Seller, so as to prevent Seller
from conveying Title to the Property to Purchaser;
8.1.1.7 No claims for labor performed, materials furnished or
services rendered in connection with constructing,
improving or repairing any of the Property remain unpaid
beyond the date for which payment was due and in respect of
which liens may or could be filed against any of the
Property.
8.1.2 Except for the representations and warranties expressly set forth
above in Subsection 8.1.1, the Property is expressly purchased and
sold "AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price
and the terms and conditions set forth herein are the result of
arm's-length bargaining between entities familiar with transactions
of this kind, and said price, terms and conditions reflect the fact
that Purchaser shall have the benefit of, and is relying upon, no
information provided by Seller and no statements, representations or
warranties, express or implied, made by or enforceable directly
against Seller, including, without limitation, any relating to the
value of the Property, the physical or environmental condition of
the Property, the state, federal, county or local law, ordinance,
order, permit or suitability, compliance or lack of compliance of
the Property with any regulation, or any other attribute or matter
of or relating to the Property (other than any covenants of title
contained in the deeds conveying the Property and the
representations set forth above). Purchaser represents and warrants
that as of the date hereof and as of the Closing Date, it has and
shall have reviewed and conducted such independent analyses,
studies, reports, investigations and inspections as it deems
appropriate in connection with the Property. If Seller provides or
has provided any documents, opinions or work product of consultants,
surveyors, architects, engineers, title companies, governmental
authorities or any other person or entity with respect to the
Property, Purchaser and Seller agree that Seller has done so or
shall do so only for the convenience of both parties, Purchaser
shall not rely thereon and the reliance by Purchaser upon any such
documents, opinions or work product shall not create or give rise to
any liability of or against Seller, any Subsidiary Owner, Seller's
partners or affiliates or any of their respective partners,
officers, directors, participants, employees, contractors,
attorneys, consultants, representatives, agents, successors, assigns
or predecessors-in-interest. Purchaser shall rely only upon any
title insurance obtained by Purchaser with respect to title to the
Property. Purchaser acknowledges and agrees that no representation
has been made and no responsibility is assumed by Seller with
respect to current and future applicable zoning or building code
requirements or the compliance of the Property with any other laws,
rules, ordinances or regulations, the financial earning capacity or
expense history of the Property, the continuation of contracts,
continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Commercial Leases or,
without limiting any of the foregoing, occupancy at Closing. Prior
to Closing, Seller shall have the right, but not the obligation, to
enforce its rights against any and all Property occupants, guests or
tenants. Purchaser agrees that the departure or removal, prior to
Closing, of any of such guests, occupants or tenants shall not be
the basis for, nor shall it give rise to, any claim on the part of
Purchaser, nor shall it affect the obligations of Purchaser under
this Purchase Contract in any manner whatsoever; and Purchaser shall
close title and accept delivery of the deed with or without such
tenants in possession and without any allowance or reduction in the
Purchase Price under this Purchase Contract. Purchaser hereby
releases Seller from any and all claims and liabilities relating to
the foregoing matters, except as provided in Section 8.1.3 below.
8.1.3 Seller and Purchaser agree that those representations contained in
Section 8.1 shall survive Closing for a period of One (1) year (that
is, any proceeding based on the breach of a representation contained
in Section 8.1 that survives Closing must be commenced within One
(1) year subsequent to the date of such representation). In the
event that Seller breaches any representation contained in Section
8.1 and Purchaser had knowledge of such breach, Purchaser shall be
deemed to have waived any right of recovery and Seller shall not
have any liability in connection therewith.
8.1.4 Any statement contained in the representations and warranties of
this Section 8.1 and made to the "knowledge" of Seller shall mean
ONLY the actual knowledge of Seller based upon the information
communicated to Seller by Joanne Mauck, a representative of the
management company managing the Property as of the Effective Date,
in a certification addressed to Seller and dated as of the Effective
Date; and otherwise any reference to the "knowledge" of Seller shall
not be deemed to imply any duty of investigation or inquiry by
Seller and shall not be construed to include the knowledge of any
member, partner, officer, director, agent, employee or
representative of Seller or any affiliate of Seller, imputed to
Seller or constructively attributed to Seller.
8.2 Representations And Warranties Of Purchaser
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Purchaser represents and warrants to Seller the
following as of the Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1 Purchaser is a corporation duly organized, validly existing
and in good standing under the laws of Ohio.
8.2.2.2 Purchaser, acting through any of its or their duly
empowered and authorized officers or members, has all
necessary power and authority to own and use its properties
and to transact the business in which it is engaged, and
has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and
instruments required of Purchaser herein, and to perform
its obligations hereunder; and no consent of any of
Purchaser's officers or members is required to so empower
or authorize Purchaser.
8.2.2.3 No pending or, to the knowledge of Purchaser, threatened
litigation exists which if determined adversely would
restrain the consummation of the transactions contemplated
by this Purchase Contract or would declare illegal, invalid
or non-binding any of Purchaser's obligations or covenants
to Seller.
8.2.2.4 Purchaser is duly authorized to execute and deliver, acting
through its duly empowered and authorized officers and
members, respectively, and perform this Purchase Contract
and all documents and instruments and transactions
contemplated hereby or incidental hereto, and such
execution, delivery and performance by Purchaser does not
(i) violate any of the provisions of their respective
certificates of incorporation or bylaws, (ii) violate any
provision of any law, governmental rule or regulation
currently in effect, (iii) violate any judgment, decree,
writ, injunction, award, determination or order currently
in effect that names or is specifically directed at
Purchaser or its property, and (iv) require the consent,
approval, order or authorization of, or any filing with or
notice to, any court or other governmental authority.
8.2.2.5 The joinder of no person or entity other than Purchaser is
necessary to consummate the transactions to be performed by
Purchaser and Purchaser has all necessary right and
authority to perform such acts as are required and
contemplated by this Purchase Contract.
8.2.3 Purchaser has not dealt with any broker, finder or any other person,
in connection with the purchase of or the negotiation of the
purchase of the Property that might give rise to any claim for
commission against Seller or lien or claim against the Property..
Purchaser will indemnify Seller against any such person making any
claim for commission with respect to this transaction claiming said
commissions by or through acts of Purchaser.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser
at Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably
satisfactory to Purchaser;
9.1.2Each of the representations and warranties of Seller contained herein
shall be true in all material respects as of the Closing Date;
9.1.3 Seller shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be
complied with, fulfilled or performed by Seller hereunder;
9.1.4 Seller shall have delivered to Purchaser estoppel certificates
required below. On or before five (5) days prior to Closing, Seller
shall deliver to Purchaser estoppel certificates, dated within
thirty-five (35) days of Closing on a form attached hereto as
Exhibits 9.1.4-1 and 9.1.4-2 (the "Tenant Estoppels"), from at least
70% of the tenants on each Property. To the extent that less than
100% of the tenants have delivered estoppels, Seller shall provide a
Seller estoppel of equivalent form to its best knowledge. In
addition, if requested by Purchaser, Seller shall, upon the Closing,
deliver to each of the tenants on the Property, a notification in
form reasonably acceptable to Purchaser, that the Property has been
sold to Purchaser.
9.1.5 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly
set forth in this Purchase Contract.
9.2 Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation to close with respect to
conveyance of a particular Property under this Purchase Contract shall be
subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material
respects when made, and shall be true and correct in all material
respects on the Closing Date and as of the Effective Date as though
such representations and warranties were made at and as of such date
and time.
9.2.2 Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase
Contract to be performed or complied with by it at or prior to
Closing including, without limitation, payment in full of the
Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either Purchaser
or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the
transactions contemplated by this Purchase Contract or declare
illegal, invalid or nonbinding any of the covenants or obligations
of the Purchaser.
9.2.4 Seller shall be able to obtain a proper Assignment of the leasehold
interest to the Property described in Exhibit A-2, Parcel 2, and be
able to obtain a General Warranty Deed or equivalent Deed from the
current owners of said Property, to be placed in escrow, which
conveys an insurable, fee title to Purchaser.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to the Purchaser that other than Pinnacle
Realty ("Broker"), it has not dealt with or utilized the services of any
other real estate broker, sales person or finder in connection with this
Purchase Contract, and Seller agrees to indemnify the Purchaser from and
against all claims for brokerage commissions and finder's fees arising
from or attributable to the acts or omissions of the indemnifying party.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller
or Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of
entry for inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 In the Event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey
title as required by this Purchase Contract, or defaults hereunder prior
to the Closing Date and consummation of the Closing does not occur by
reason of such termination or default by Purchaser, Seller and Purchaser
agree that it would be impractical and extremely difficult to estimate the
damages which Seller may suffer. Therefore, Seller and Purchaser hereby
agree that, except for the Purchaser's obligations to Seller under Section
5.3, the reasonable estimate of the total net detriment that Seller would
suffer in the event that Purchaser terminates this Purchase Contract or
defaults hereunder prior to the Closing Date is and shall be, as Seller's
sole remedy (whether at law or in equity), the right to receive from the
Escrow Agent and retain the full amount of the Deposit. The payment and
performance of the above as liquidated damages are not intended as a
forfeiture or penalty within the meaning of applicable law and are
intended to settle all issues and questions about the amount of damages
suffered by Seller in the applicable event, except only for damages under
Section 5.3 above, irrespective of the time when the inquiry about such
damages may take place. Upon any such failure by Purchaser hereunder, this
Purchase Contract shall be terminated, and neither party shall have any
further rights or obligations hereunder, each to the other, except for the
Purchaser's obligations to Seller under Section 5.3 above, and the right
of Seller to collect such liquidated damages to the extent not theretofore
paid by Purchaser.
12.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a
result of Seller's default hereunder, Purchaser's sole remedy shall be to
elect to terminate this Purchase Contract and receive reimbursement of the
Deposit (or so much thereof as has been received by Escrow Agent) or to
seek specific performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 The risk of loss or damage to the Property by fire or other casualty until
the deed of conveyance is recorded is assumed by the Seller, provided that
the Seller's responsibility shall be only to the extent of any recovery
from insurance now carried on the Property. Upon assignment to Purchaser
of any insurance proceeds in respect of fire or other casualty occurring
between the date of ratification of this contract and the time of
settlement, Purchaser shall have no right to terminate this Purchase
Contract on account thereof, but Seller shall assign to Purchaser its
interest in and to any insurance policies and proceeds thereof payable as
a result of such damage or destruction. Seller shall not, in any event, be
obligated to effect any repair, replacement, and/or restoration, but may
do so at its option in which case Seller may apply the insurance proceeds
to the costs of restoration.
ARTICLE 14
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before [OFFER DEADLINE DATE].
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the Property
is (or has previously been) acquired, or is about to be acquired, by
authority of any governmental agency in purchase in lieu thereof (or in
the event that at such time there is any notice of any such acquisition by
any such governmental agency), Purchaser shall have the right, at
Purchaser's option, to terminate this Purchase Contract by giving written
Notice within Fifteen (15) days of the occurrence of such event and
recover the Deposit hereunder, or to settle in accordance with the terms
of this Purchase Contract for the full Purchase Price and receive the full
benefit or any condemnation award. It is expressly agreed between the
parties hereto that this paragraph shall in no way apply to customary
dedications for public purposes which may be necessary for the development
of the Property.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules
All Exhibits and Schedules annexed hereto are a part of this
Purchase Contract for all purposes.
16.2 Assignability
This Purchase Contract is assignable with the prior written approval
of the non-assigning party. Any assignment by Purchaser shall only
be to an affiliate or subsidiary under the control or management of
Purchaser, but Purchaser will remain liable for its obligations and
its performance of the terms and conditions of this Purchase
Contract.
16.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the
benefit of Seller and Purchaser, and their respective successors,
heirs and permitted assigns.
16.4 Captions
The captions, headings and arrangements used in this Purchase
Contract are for convenience only and do not in any way affect,
limit, amplify or modify the terms and provisions hereof.
16.5 Number And Gender Of Words
Whenever herein the singular number is used, the same shall include
the plural where appropriate, and words of any gender shall include
each other gender where appropriate.
16.6 Notices
All Notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice")
shall be in writing and shall be deemed to have been properly given
or served for all purposes (i) if sent by Federal Express or the
nationally recognized overnight carrier for next business day
delivery, on the first business day following deposit of such Notice
with such carrier, or (ii) if personally delivered, on the actual
date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid and received by the Fifth (5th) business
day following the date of mailing addressed as follows:
If to Seller: If to Purchaser:
Angeles Income Properties,
Ltd. 6 The Cadle Company
c/o AIMCO 100 North Center Street
1873 South Bellaire Street Newton Falls, Ohio 44444
Suite 1700 Attn: Daniel C. Cadle,
Denver, CO 80222 President
Attn: Tim Works Phone: 330-872-0918, Ext. 3101
Harry Alcock, Fax: 330-872-5367
Martha Carlin
Phone: 303-691-4357
and
with a copy to:
David Marquette
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Phone: 305-371-9299
FAX: 305-371-6898
Alan H. Weinberg, Esq.
WELTMAN, WEINBERG & REIS
CO., L.P.A.
323 W.Lakeside Avenue/Suite 200
Cleveland, OH 44113-1099
Phone: 215-363-4001, Ext. 201
Fax: 216-363-6913
Any of the parties may designate a change of address by Notice in
writing to the other parties. Whenever in this Purchase Contract the
giving of Notice by mail or otherwise is required, the giving of
such Notice may be waived in writing by the person or persons
entitled to receive such Notice.
16.7 Governing Law And Venue
The laws of the State of Iowa shall govern the validity,
construction, enforcement, and interpretation of this Purchase
Contract, unless otherwise specified herein except for the conflict
of laws provisions thereof. All claims, disputes and other matters
in question arising out of or relating to this Purchase Contract, or
the breach thereof, shall be decided by proceedings instituted and
litigated in the United States District Court for the District in
which the property is located and the parties hereto expressly
consent to the venue and jurisdiction of such court.
16.8 Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between
the parties and supersedes all prior Purchase Contracts and
understandings, if any, relating to the Property, and may be amended
or supplemented only by an instrument in writing executed by the
party against whom enforcement is sought.
16.9 Severability
If any of the provisions of this Purchase Contract is held to be
illegal, invalid, or unenforceable under present or future laws,
such provision shall be fully severable. The Purchase Contract shall
be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Purchase
Contract; and the remaining provisions of this Purchase Contract
shall remain in full force and effect and shall not be affected by
the illegal, invalid, or unenforceable provision or by its severance
from this Purchase Contract. In lieu of such illegal, invalid, or
unenforceable provision, there shall be added automatically as a
part of this Purchase Contract a provision as similar in terms to
such illegal, invalid, or unenforceable provision as may be possible
to make such provision legal, valid, and enforceable.
16.10 Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts shall be
deemed an original for all purposes and all such counterparts shall,
collectively, constitute one Purchase Contract. In making proof of
this Purchase Contract, it shall not be necessary to produce or
account for more than one of such counterparts.
16.11 Further Acts
In addition to the acts and deeds recited herein and contemplated
and performed, executed and/or delivered by Seller and Purchaser,
Seller and Purchaser agree to perform, execute and/or deliver or
cause to be performed, executed and/or delivered any and all such
further acts, deeds and assurances as may be necessary to consummate
the transactions contemplated hereby.
16.12 Construction
No provision of this Purchase Contract shall be construed in favor
of, or against, any particular party by reason of any presumption
with respect to the drafting of this Purchase Contract; both
parties, being represented by counsel, have fully participated in
the negotiation of this instrument.
16.13 Confidentiality
Purchaser shall not disclose the terms and conditions contained in
this Purchase Contract, and shall keep the same confidential,
provided that Purchaser may disclose the terms and conditions of
this Purchase Contract (i) as required by law, (ii) to consummate
the terms of this Purchase Contract, or any financing relating
thereto, or (iii) to Purchaser's or Seller's lenders, attorneys and
accountants. Any information provided by Seller to Purchaser under
the terms of this Purchase Contract is for informational purposes
only. In providing such information to Purchaser, Seller makes no
representation or warranty, express, written, oral, statutory or
implied, and all such representations and warranties are hereby
expressly excluded. Purchaser shall not in any way be entitled to
rely upon the accuracy of such information. Such information is also
confidential and Purchaser shall be prohibited from making such
information public to any other person or entity other than its
agents and legal representatives, without Seller's prior written
authorization, which may be granted or denied in Seller's sole
discretion.
16.14 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the
essence with respect to this Purchase Contract.
16.15 Cumulative Remedies And Waiver
Except as otherwise provided herein, no remedy herein conferred or
reserved is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Purchase
Contract or now or hereafter existing at law or in equity. No delay
or omission to exercise any right or power accruing upon any
default, omission or failure of performance hereunder shall impair
any right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as
often as may be deemed expedient. No waiver, amendment, release or
modification of this Purchase Contract shall be established by
conduct, custom or course of dealing.
16.16 Litigation Expenses
In the event either party hereto commences litigation against the
other to enforce its rights hereunder, the prevailing party in such
litigation shall be entitled to recover from the other party its
reasonable attorneys' fees and expenses incidental to such
litigation.
16.17 Time Periods
Should the last day of a time period fall on a weekend or legal
holiday, the next Business Day thereafter shall be considered the
end of the time period.
16.18 Exchange
At Seller's sole cost and expense, Seller may structure the sale of
the Property to Purchaser as a Like Kind Exchange under Internal
Revenue Code Section 1031 whereby Seller will acquire certain
property (the "Like Kind Exchange Property") in conjunction with the
sale of the Property (the "Like Kind Exchange"). Purchaser shall
cooperate fully and promptly with Seller's conduct of the Like Kind
Exchange, provided that all costs and expenses generated in
connection with the Like Kind Exchange shall be borne solely by
Seller, and Purchaser shall not be required to take title to or
contract for the purchase of any other property. If Seller uses a
qualified intermediary to effectuate the exchange, any assignment of
the rights or obligations of Seller hereunder shall not relieve,
release or absolve Seller of its obligations to Purchaser. In no
event shall the Closing Date be delayed by the Like Kind Exchange.
Seller shall indemnify and hold harmless Purchaser from and against
any and all liability arising from and out of the Like Kind
Exchange.
NOW THEREFORE, the parties hereto have executed this Purchase Contract as of the
date first set forth above.
Seller: ANGELES INCOME PROPERTIES, LTD. 6, A
California limited partnership
By: Angeles Realty Corporation II, a
California Corporation
Its: General Partner
By:________________________
Name:_____________________
Its:________________________
Purchaser: The Cadle Company, an Ohio corporation
By:________________________
Name:_____________________
Its:________________________
STATE OF OHIO )
)
COUNTY OF TRUMBULL )
Before me DANIEL C. CADLE on this day personally appeared
_________________________________ known to me to be the person whose name is
subscribed to the foregoing instrument, and known to me to be the
__________________ of ANGELES REALTY CORPORATION II, a California corporation as
General Partner of ANGELES INCOME PROPERTIES, LTD. 6, a California Limited
Partnership , and acknowledged to me that he executed said instrument for the
purposes and consideration therein expressed, and as the act of said
corporation.
Given under my hand and seal of office this ____ day of
_______________, 2000.
-----------------------------------
Notary Public
My Commission expires:_______________
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally
appeared _________________________________ known to me to be the person whose
name is subscribed to the foregoing instrument, and known to me to be the
__________________ of THE CADLE COMPANY, an Ohio corporation, and acknowledged
to me that he executed said instrument for the purposes and consideration
therein expressed, and as the act of said corporation.
Given under my hand and seal of office this ____ day of
_______________, 2000.
-----------------------------------
Notary Public
My Commission expires: ________________
EXHIBIT A-1
LEGAL DESCRIPTION FOR WAKONDA ON FLEUR SHOPPING CENTER
Part of the NW 1/4 of the SE 1/4 of Section 20, Township 78 North, Range
24 West of the 5th P.M., all in and forming a part of the City of Des
Moines, Polk County, Iowa, that is more particularly described as follows:
Beginning at a point that is 50.00 feet East and 343.00 feet South of the
Center of said Section 20; thence N 89 degrees 50 minutes 21 seconds E
(the West line of the NW 1/4 SE 1/4 is assumed to bear N 00 degrees 00
minutes 00 seconds E for the purpose of this description only), 490.00
feet; thence S 00 degrees 00 minutes 00 seconds W, 590.00 feet to a point
that is 540.00 feet east of the West line of said NW 1/4 of the SE 1/4 and
933.00 feet South of the North line of said NW 1/4 of the SE 1/4; thence N
89 degrees 57 minutes 12 seconds E, 136.90 feet, to a point that is 640.00
feet West of the East line of said NW 1/4 SE 1/4; thence S 00 degrees 02
minutes 06 seconds E 388.77 feet to a point on the South line of said NW
1/4 of the SE 1/4, said point being 640.00 feet West of the SE corner of
said NW 1/4 of the SE 1/4; thence S 89 degrees 26 minutes 21 seconds W
along the South line of said NW 1/4 of the SE 1/4, 628.00 feet to a point
on the present East Right of Way line of Fleur Drive; thence N 00 degrees
00 minutes 00 seconds E along said East Right of Way line, 983.00 feet to
the point of beginning.
EXHIBIT A-2
LEGAL DESCRIPTION FOR TOWN AND COUNTRY SHOPPING CENTER
PARCEL 1:
A part of Lot 14 Irregular Survey in the Northwest Quarter, Section 11, Township
83 North, Range 7 West of the 5th P.M., Cedar Rapids, Iowa, Linn County, Iowa,
described as follows:
Commencing as a point of reference at the Southeast corner of said Lot 14;
thence North 1(degree)03'43" West 11.40 feet along the East line of said Lot 14
to a point (for purposes of this legal description, the South line of said Lot
14 is assumed to bear North 90(degree)00'00" West); thence North
90(degree)00'00" West 418.89 feet along a line parallel with the South line of
said Lot 14 to a point of intersection with a line of a party wall (party wall
agreement recorded in Volume 964, Page 411 at the Linn County, Iowa Recorder's
Office) extended Southerly; thence North 0(degree)48'19" East 78.60 feet along
the line of said party wall to the point of beginning; thence North
90(degree)00'00" West 140.00 feet along a line parallel with the South line of
said Lot 14 to a point on the Westerly line of said Lot 14, said point being
90.00 feet Northerly from the Southwest corner of said Lot 14; thence
Northeasterly 210.00 feet along the arc of a 1,849.85 foot radius curve concave
Southeasterly (chord bearing North 5(degree)20'57" East 209.88 feet) to a point
300.00 feet from the South line of said Lot 14; thence North 90(degree)00'00"
East 140.00 feet parallel with the South line of said Lot 14 to a point;
thence Southwesterly 210.00 feet along a line parallel with the Westerly line of
said Lot 14 to the point of beginning.
PARCEL 2:
A Part of Lot 14 Irregular Survey in the Northwest Quarter, Section 11, township
83 North, Range 7 West of the 5th P.M., Cedar Rapids, Iowa, Linn County, Iowa,
described as follows:
Commencing as a point of reference at the Southeast corner of said Lot 14;
thence North 1(degree)03'43" West 11.40 feet along the East line of said Lot 14
to the point of beginning (for purposes of this legal description the South line
of said Lot 14 is assumed to bear North 90(degree)00'00" West); thence North
90(degree)00'00" West 418.89 feet along a line parallel with the South Line of
said Lot 14 to a point of intersection with a line of a party wall (party wall
agreement recorded in volume 964, Page 411 at the Linn County, Iowa Recorder's
Office) extended Southerly; thence North 0(degree)48'19" East 78.60 feet along
the line of said party wall to a point; thence Northeasterly 210.00 feet along
the are of a curve parallel with the Westerly line of said Lot 14 (chord bearing
North 5(degree)20'57" East 209.88 feet) to a point; thence North
90(degree)00'00" West 140.00 feet along a line parallel with the South line of
said Lot 14 to s point on the Westerly line of said Lot 14, said point being
300.00 feet Northerly from the southwest corner of said Lot 14; thence
Northeasterly 378.50 feet along the arc of a 1,849.85 foot radius curve concave
Southeasterly (chord bearing North 14(degree)27'47" East 377.86 feet) to a point
74.50 feet from the Southerly right-of-way line of 38th Street Drive S.E., said
Southerly right-of-way line being 60 feet Southerly from the Northerly line of
said Lot 14; thence South 89(degree)59'43" East 100.00 feet to a point, 70.00
feet South of said Southerly right-of-way line of 38th Street Drive S.E.; thence
North 0(degree)19'02" East 70.00 feet to a point on said Southerly right-of-way
line of 38th Street Drive S.E., said point being 73.00 feet East of the Westerly
line of said Lot 14; thence North 89(degree)41'19" East 14.79 feet along said
Southerly right-of-way line parallel with the Northerly line of said Lot 14 to a
point; thence South 89(degree)03'26" East 247.51 feet along said Southerly
right-of-way line parallel with the Northerly line of said Lot 14, to a point on
the Easterly line of said Lot 14; thence Southwesterly 432.86 feet along the arc
of a 1,482.39 foot radius curve concave Southeasterly (chord bearing South
7(degree)13'17" West 431.33 feet) and along the Easterly line of said Lot 14 to
a point of tangency; thence South 1(degree)03'43" East 292.30 feet along the
Easterly line of said Lot 14 to the point of beginning.
EXHIBIT B
FORM OF ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this ____ day of ________, 2000,
by and among ANGELES INCOME PROPERTIES, LTD. 6, a California limited
partnership, ("Seller");THE CADLE COMPANY, an Ohio corporation ("Purchaser");
and FIDELITY NATIONAL TITLE INSURANCE CO. ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the ______ day of
_________, 2000; and
Whereas, the Purchase Contract requires that Purchaser provide a Deposit
in the amount of One Hundred Thousand Dollars ($100,000.00) in cash to be held
pursuant to an escrow agreement approved by Purchaser and Seller.
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Thousand Dollars ($100,000.00) in cash (the "Escrow Fund"), to be
deposited, held, invested, and disbursed for the benefit of Seller and Purchaser
and their respective successors and assigns, as provided herein and as provided
in the Purchase Contract.
2. Investment of Escrow Fund. All funds received by Escrow Agent shall be held
in insured accounts and invested in such short-term, high-grade securities,
money market funds or accounts, interest bearing bank accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable (provided that Escrow Agent shall invest the Escrow
Fund as jointly directed by Seller and Purchaser should Seller and Purchaser
each in their respective sole discretion determine to issue such joint
investment instructions to the Escrow Agent) and all interest and income thereon
shall become part of the Escrow Fund and shall be remitted to the party entitled
to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above. If the sale and assignment of the Property is closed by the
closing date as defined in the Purchase Contract fixed therefore (or any
extension date provided for by mutual written consent of the parties hereto,
given or withheld in their respective sole discretion), Escrow Agent shall
deliver the Escrow Fund to Seller in immediately available funds by wire
transfer in accordance with the instructions of Seller on the Closing Date as
set forth in the Purchase Contract. If the sale of the Property is not closed by
the date fixed therefor (or any such extension date) owing to failure of
satisfaction of a condition precedent to Purchaser's obligations, the Escrow
Agent shall return and refund the Escrow Fund to Purchaser. If the sale of the
Property is not closed by the date fixed therefor (or any such extension date)
owing to failure of performance by Seller, Purchaser shall give Notice to the
Escrow Agent and Seller and in such Notice shall state whether it elects as its
remedy return of the Escrow Fund or specific performance of the Purchase
Contract, if Purchaser elects return of the Escrow Fund, Escrow Agent shall
return and refund the Escrow Fund to Purchaser. If the sale of the Property is
not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Purchaser, Escrow Agent shall forthwith deliver to
Seller the Escrow Fund in immediately available funds by wire transfer in
accordance with the instructions of Seller. If Purchaser shall have canceled the
Purchase Contract on or before the expiration of the Feasibility Period (as
defined in the Purchase Contract), the Escrow Agent shall return and refund the
Escrow Fund to Purchaser.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within Ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within Two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4. Liability. Escrow Agent will be obligated to perform only the duties that are
expressly set forth herein. In case of conflicting demands upon Escrow Agent, it
may (i) refuse to comply therewith as long as such disagreement continues and
make no delivery or other disposition of any funds or property then held (and
Escrow Agent shall not be or become liable in any way for such failure or
refusal to comply with such conflicting or adverse claims or demands, except for
its failure to exercise due care, willful breach and willful misconduct); and
(ii) continue to so refrain and so refuse to act until all differences have been
adjusted by agreement and Escrow Agent has been notified thereof in writing
signed jointly by Seller and Purchaser or (iii) interplead the portion of Escrow
Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund in accordance with the joint written instructions
signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, and addressed as set forth below:
(a) If to Seller:
Angeles Income Properties, Ltd. 6
c/o AIMCO
1873 South Bellaire Street
Suite 1700
Denver, CO 80222
Attention: Tim Works, Harry Alcock, Martha Carlin
Phone: 303-691-4357
With a copy to:
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, FL 33131
Attention: David Marquette
Fax: 305-371-6898
And with a copy to:
Alan H. Weinberg, Esq.
WELTMAN, WEINBERG & REIS CO., L.P.A.
323 W.Lakeside Avenue/Suite 200
Cleveland, OH 44113-1099
Phone: 216-363-4001, Ext. 201
Fax: 216-363-6913
(b) If to Purchaser:
The Cadle Company
100 North Center Street
Newton Falls, Ohio 44444
Attention: Daniel C. Cadle, President
Phone: 330-872-0918, Ext. 3101
Fax: 330-872-5367
(c) If to Escrow Agent:
Fidelity National Title Insurance Co.
Bank of America Center
700 Louisiana, Suite 2600
Houston, TX 77002
Attention: Lolly Avant
Phone: 713-228-3009
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of Three Hundred Dollars ($300.00) for
its services hereunder, and be paid or reimbursed for all expenses,
disbursements and advances, including reasonable attorney's fees, incurred or
paid in connection with carrying out its duties hereunder, all amounts to be
payable in accordance with Section 7.1.5. Non-payment of such fee shall not
entitle Escrow Agent to refuse or fail to act as required by this Escrow
Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to any Seller for any mistakes in judgment
in the performance of any function hereunder, except for failure to exercise due
care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Iowa.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may be altered or modified only with the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed on its behalf by duly authorized persons, all as of the
day and year first above written.
THE CADLE COMPANY, an Ohio corporation
By:
Name:
Title:
ANGELES INCOME PROPERTIES, LTD. 6., a
California limited partnership
By: Angeles Realty Corporation II, a
California Corporation
Its: General Partner
By:________________________
Name:_____________________
Its:________________________
FIDELITY NATIONAL TITLE INSURANCE CO.
By:
Name:
Its:
EXHIBIT 1.1.4-1
SCHEDULE OF COMMERCIAL LEASES
SEE COMMERCIAL RENT ROLL ATTACHED HERETO
EXHIBIT 1.1.4-2
SCHEDULE OF COMMERCIAL LEASES
SEE COMMERCIAL RENT ROLL ATTACHED HERETO
EXHIBIT 1.1.7-1
EXCLUDED PERMITS
THERE ARE NONE
EXHIBIT 1.1.7-2
EXCLUDED PERMITS
THERE ARE NONE
EXHIBIT 1.1.9-1
FIXTURES AND TANGIBLE PERSONAL PROPERTY
THERE ARE NO FIXTURES OR TANGIBLE PERSONAL PROPERTY EXCLUDED UNDER SECTION 1.1.9
EXHIBIT 1.1.9-2
FIXTURES AND TANGIBLE PERSONAL PROPERTY
THERE ARE NO FIXTURES OR TANGIBLE PERSONAL PROPERTY EXCLUDED UNDER SECTION 1.1.9
EXHIBIT 1.1.16-1
SCHEDULE OF PROPERTY CONTRACTS
VENDOR NAME / ADDRESS SERVICE EXPIRATION DATE
SEE SCHEDULE OF SERVICE CONTRACTS ATTACHED HERETO
EXHIBIT 1.1.16-2
SCHEDULE OF PROPERTY CONTRACTS
VENDOR NAME / ADDRESS SERVICE EXPIRATION DATE
SEE SCHEDULE OF SERVICE CONTRACTS ATTACHED HERETO
EXHIBIT 6.2.1-1
EXCEPTIONS
TO BE COMPLETED AFTER RECEIPT OF PRELIMINARY TITLE REPORT AND TITLE COMMITMENT
EXHIBIT 6.2.1-2
EXCEPTIONS
TO BE COMPLETED AFTER RECEIPT OF PRELIMINARY TITLE REPORT AND TITLE COMMITMENT
EXHIBIT 7.2.1.1-1
GENERAL WARRANTY DEED
In Consideration of __________________________________ Dollars,
___________________, a corporation of ___________ County, Iowa, does hereby SELL
AND CONVEY unto _________________________________________ of the County of
_____________ and State of Iowa, the following described property in the County
of _________________ and State of Iowa, to-wit:
to have and to hold the said premises unto the said
____________________________, heirs and assigns, forever, with all said singular
the appurtenances therein belonging, and the said grantor for itself, its
successors and assigns, does hereby covenant with the aforesaid grantee
________________________________, its successors and assigns forever; that the
same are free from encumbrance and that it will make such other and further
assurance of said premises as may be lawfully and reasonably advised, devised or
required, and that it will forever WARRANT AND DEFEND the same against the
lawful claims and demands of all persons.
IN WITNESS WHEREOF, the said grantor has caused to be set its Corporate Seal and
caused these presents to be signed by its President and by its Secretary on this
__________ day of ___________, 2000.
--------------------------------------
By __________________________________
President
By __________________________________
Secretary
STATE OF IOWA ss.
_______________ County ss.
On this ___ day of ____________, A.D., 2000, before me
_____________________________, a Notary Public in and for the County of
___________, State of Iowa, personally appeared __________________________ and
_________________________ each of whom to me are personally known, and each of
whom by me severally sworn and each for himself did say, that the said
_____________________ is President, and the said ______________ is Secretary, of
the said _________________________, a ______________ of
_________________________ County, Iowa, and that the Seal affixed to the above
said instrument is the Corporate Seal of the said Corporation, and that the
foregoing instrument was Signed and Sealed in behalf of the said Corporation by
authority of its Board of Directors and the said __________________________ as
President, and ______________________________ as Secretary, did severally
acknowledge the execution of said instrument as the voluntary act and deed of
the said Corporation by its voluntary execution of
_____________________________.
In Witness Whereof, I have hereunto signed my name and affixed my Notarial Seal
the day and year last above written.
-----------------------------------------
Notary Public in and for ___________ County, State of
Iowa
AFTER RECORDING RETURN TO:
The Cadle Company
100 North Center Street
Newton Falls, Ohio 44444
PREPARED IN THE LAW OFFICE OF:
Alan H. Weinberg, Esq.
WELTMAN, WEINBERG & REIS CO., L.P.A.
323 W.Lakeside Avenue/Suite 200
Cleveland, OH 44113-1099
EXHIBIT A TO GENERAL WARRANTY DEED
EXHIBIT A
LEGAL DESCRIPTION FOR WAKONDA ON FLEUR SHOPPING CENTER
Part of the NW 1/4 of the SE 1/4 of Section 20, Township 78 North, Range
24 West of the 5th P.M., all in and forming a part of the City of Des
Moines, Polk County, Iowa, that is more particularly described as follows:
Beginning at a point that is 50.00 feet East and 343.00 feet South of the
Center of said Section 20; thence N 89 degrees 50 minutes 21 seconds E
(the West line of the NW 1/4 SE 1/4 is assumed to bear N 00 degrees 00
minutes 00 seconds E for the purpose of this description only), 490.00
feet; thence S 00 degrees 00 minutes 00 seconds W, 590.00 feet to a point
that is 540.00 feet east of the West line of said NW 1/4 of the SE 1/4 and
933.00 feet South of the North line of said NW 1/4 of the SE 1/4; thence N
89 degrees 57 minutes 12 seconds E, 136.90 feet, to a point that is 640.00
feet West of the East line of said NW 1/4 SE 1/4; thence S 00 degrees 02
minutes 06 seconds E 388.77 feet to a point on the South line of said NW
1/4 of the SE 1/4, said point being 640.00 feet West of the SE corner of
said NW 1/4 of the SE 1/4; thence S 89 degrees 26 minutes 21 seconds W
along the South line of said NW 1/4 of the SE 1/4, 628.00 feet to a point
on the present East Right of Way line of Fleur Drive; thence N 00 degrees
00 minutes 00 seconds E along said East Right of Way line, 983.00 feet to
the point of beginning.
EXHIBIT B TO GENERAL WARRANTY DEED
Exceptions
1. General and personal property taxes for the year 2000 and all subsequent
years.
2. Special taxes or assessments becoming a lien or payable after the date of
this Deed.
3. Unrecorded easements, discrepancies or conflicts in boundary lines, shortage
in area and encroachments which an accurate and complete survey would
disclose.
4. Rights of eminent domain, governmental rights of police power and other
governmental or quasi-governmental rights.
5. Rights of tenants in possession of the Property pursuant to unrecorded
leases, as tenants only.
6. Visible and apparent easements and all underground easements, if any, the
existence of which may arise by unrecorded grant or by use.
7. Present and future laws, ordinances, restrictions, resolutions, orders and
regulations and all present and future ordinances, laws, regulations and
orders of all federal, state, county, municipal or other governments,
agencies, boards, bureaus, commissions, authorities and bodies now or
hereafter having or acquiring jurisdiction of the Property and the use and
improvement thereof, including any restricting or regulating or prohibiting
the occupancy, use or enjoyment of the Property, or regulating the character,
dimensions or location of any improvement now or hereafter erected on the
Property, or prohibiting a separation in ownership or a reduction in the
dimensions or area of the Property, and the effect of any violation of such
law, ordinance or governmental regulation.
8. Any easements not disclosed by those public records which impart constructive
notice as to matters affecting title to real property and which are not
visible and apparent from an inspection of the surface of the Property.
9. Water rights, claims or title to water, whether or not disclosed by the
public records.
10.Other covenants, conditions, limitations, restrictions, rights,
rights-of-way, liens, encumbrances, encroachments, defects, reservations,
easements, agreements and other matters of record, if any.
[INSERT ANY OTHER EXCEPTIONS TO TITLE]
EXHIBIT 7.2.1.1-2
GENERAL WARRANTY DEED
In Consideration of __________________________________ Dollars,
___________________, a corporation of ___________ County, Iowa, does hereby SELL
AND CONVEY unto _________________________________________ of the County of
_____________ and State of Iowa, the following described property in the County
of _________________ and State of Iowa, to-wit:
to have and to hold the said premises unto the said
____________________________, heirs and assigns, forever, with all said singular
the appurtenances therein belonging, and the said grantor for itself, its
successors and assigns, does hereby covenant with the aforesaid grantee
________________________________, its successors and assigns forever; that the
same are free from encumbrance and that it will make such other and further
assurance of said premises as may be lawfully and reasonably advised, devised or
required, and that it will forever WARRANT AND DEFEND the same against the
lawful claims and demands of all persons.
IN WITNESS WHEREOF, the said grantor has caused to be set its Corporate Seal and
caused these presents to be signed by its President and by its Secretary on this
__________ day of ___________, 2000.
--------------------------------------
By __________________________________
President
By __________________________________
Secretary
STATE OF IOWA ss.
_______________ County ss.
On this ___ day of ____________, A.D., 2000, before me
_____________________________, a Notary Public in and for the County of
___________, State of Iowa, personally appeared __________________________ and
_________________________ each of whom to me are personally known, and each of
whom by me severally sworn and each for himself did say, that the said
_____________________ is President, and the said ______________ is Secretary, of
the said _________________________, a ______________ of
_________________________ County, Iowa, and that the Seal affixed to the above
said instrument is the Corporate Seal of the said Corporation, and that the
foregoing instrument was Signed and Sealed in behalf of the said Corporation by
authority of its Board of Directors and the said __________________________ as
President, and ______________________________ as Secretary, did severally
acknowledge the execution of said instrument as the voluntary act and deed of
the said Corporation by its voluntary execution of
_____________________________.
In Witness Whereof, I have hereunto signed my name and affixed my Notarial Seal
the day and year last above written.
-----------------------------------------
Notary Public in and for ___________ County, State of
Iowa
EXHIBIT A TO GENERAL WARRANTY DEED
LEGAL DESCRIPTION FOR TOWN AND COUNTRY SHOPPING CENTER
PARCEL 1:
A part of Lot 14 Irregular Survey in the Northwest Quarter, Section 11, Township
83 North, Range 7 West of the 5th P.M., Cedar Rapids, Iowa, Linn County, Iowa,
described as follows:
Commencing as a point of reference at the Southeast corner of said Lot 14;
thence North 1(degree)03'43" West 11.40 feet along the East line of said Lot 14
to a point (for purposes of this legal description, the South line of said Lot
14 is assumed to bear North 90(degree)00'00" West); thence North
90(degree)00'00" West 418.89 feet along a line parallel with the South line of
said Lot 14 to a point of intersection with a line of a party wall (party wall
agreement recorded in Volume 964, Page 411 at the Linn County, Iowa Recorder's
Office) extended Southerly; thence North 0(degree)48'19" East 78.60 feet along
the line of said party wall to the point of beginning; thence North
90(degree)00'00" West 140.00 feet along a line parallel with the South line of
said Lot 14 to a point on the Westerly line of said Lot 14, said point being
90.00 feet Northerly from the Southwest corner of said Lot 14; thence
Northeasterly 210.00 feet along the arc of a 1,849.85 foot radius curve concave
Southeasterly (chord bearing North 5(degree)20'57" East 209.88 feet) to a point
300.00 feet from the South line of said Lot 14; thence North 90(degree)00'00"
East 140.00 feet parallel with the South line of said Lot 14 to a point;
thence Southwesterly 210.00 feet along a line parallel with the Westerly line of
said Lot 14 to the point of beginning.
PARCEL 2:
A Part of Lot 14 Irregular Survey in the Northwest Quarter, Section 11, township
83 North, Range 7 West of the 5th P.M., Cedar Rapids, Iowa, Linn County, Iowa,
described as follows:
Commencing as a point of reference at the Southeast corner of said Lot 14;
thence North 1(degree)03'43" West 11.40 feet along the East line of said Lot 14
to the point of beginning (for purposes of this legal description the South line
of said Lot 14 is assumed to bear North 90(degree)00'00" West); thence North
90(degree)00'00" West 418.89 feet along a line parallel with the South Line of
said Lot 14 to a point of intersection with a line of a party wall (party wall
agreement recorded in volume 964, Page 411 at the Linn County, Iowa Recorder's
Office) extended Southerly; thence North 0(degree)48'19" East 78.60 feet along
the line of said party wall to a point; thence Northeasterly 210.00 feet along
the are of a curve parallel with the Westerly line of said Lot 14 (chord bearing
North 5(degree)20'57" East 209.88 feet) to a point; thence North
90(degree)00'00" West 140.00 feet along a line parallel with the South line of
said Lot 14 to s point on the Westerly line of said Lot 14, said point being
300.00 feet Northerly from the southwest corner of said Lot 14; thence
Northeasterly 378.50 feet along the arc of a 1,849.85 foot radius curve concave
Southeasterly (chord bearing North 14(degree)27'47" East 377.86 feet) to a point
74.50 feet from the Southerly right-of-way line of 38th Street Drive S.E., said
Southerly right-of-way line being 60 feet Southerly from the Northerly line of
said Lot 14; thence South 89(degree)59'43" East 100.00 feet to a point, 70.00
feet South of said Southerly right-of-way line of 38th Street Drive S.E.; thence
North 0(degree)19'02" East 70.00 feet to a point on said Southerly right-of-way
line of 38th Street Drive S.E., said point being 73.00 feet East of the Westerly
line of said Lot 14; thence North 89(degree)41'19" East 14.79 feet along said
Southerly right-of-way line parallel with the Northerly line of said Lot 14 to a
point; thence South 89(degree)03'26" East 247.51 feet along said Southerly
right-of-way line parallel with the Northerly line of said Lot 14, to a point on
the Easterly line of said Lot 14; thence Southwesterly 432.86 feet along the arc
of a 1,482.39 foot radius curve concave Southeasterly (chord bearing South
7(degree)13'17" West 431.33 feet) and along the Easterly line of said Lot 14 to
a point of tangency; thence South 1(degree)03'43" East 292.30 feet along the
Easterly line of said Lot 14 to the point of beginning.
EXHIBIT B TO GENERAL WARRANTY DEED
Exceptions
1.General and personal property taxes for the year 2000 and all subsequent
years.
2.Special taxes or assessments becoming a lien or payable after the date of this
Deed.
3.Unrecorded easements, discrepancies or conflicts in boundary lines, shortage
in area and encroachments which an accurate and complete survey would disclose
4.Rights of eminent domain, governmental rights of police power and other
governmental or quasi-governmental rights.
5.Rights of tenants in possession of the Property pursuant to unrecorded leases,
as tenants only.
6.Visible and apparent easements and all underground easements, if any, the
existence of which may arise by unrecorded grant or by use.
7. Present and future laws, ordinances, restrictions, resolutions, orders and
regulations and all present and future ordinances, laws, regulations and orders
of all federal, state, county, municipal or other governments, agencies, boards,
bureaus, commissions, authorities and bodies now or hereafter having or
acquiring jurisdiction of the Property and the use and improvement thereof,
including any restricting or regulating or prohibiting the occupancy, use or
enjoyment of the Property, or regulating the character, dimensions or location
of any improvement now or hereafter erected on the Property, or prohibiting a
separation in ownership or a reduction in the dimensions or area of the
Property, and the effect of any violation of such law, ordinance or governmental
regulation.
8.Any easements not disclosed by those public records which impart constructive
notice as to matters affecting title to real property and which are not visible
and apparent from an inspection of the surface of the Property.
9.Water rights, claims or title to water, whether or not disclosed by the public
records.
10.Other covenants, conditions, limitations, restrictions, rights,
rights-of-way, liens, encumbrances, encroachments, defects, reservations,
easements, agreements and other matters of record, if any.
[INSERT ANY OTHER EXCEPTIONS TO TITLE]
EXHIBIT 7.2.1.2-1
FORM OF BILL OF SALE
Dated: _______, , 2000.
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, ANGELES INCOME PROPERTIES, LTD. 6("Seller"), in connection
with the sale of certain real property ("Property") located in the County of
Polk, State of Iowa, and particularly described on EXHIBIT "A" attached hereto
and by this reference incorporated herein, hereby quitclaims to THE CADLE
COMPANY, an Ohio corporation ("Purchaser") or its designee, without recourse or
warranty to Seller except as provided in the Purchase And Sale Contract to which
this Bill of Sale is related, all of Seller's right, title and interest in and
to the personal property more particularly described on EXHIBIT "B" attached
hereto and ("Personal Property") used in, held for use in connection with, or
necessary for the operation of the Property as of the date hereof.
WITH RESPECT TO ALL PROPERTY TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE OF IOWA.
Purchaser hereby accepts the Personal Property on and subject to the
conditions and disclaimers above, and assumes all responsibility and liability
for the Personal Property as of the date hereof.
SELLER:
ANGELES INCOME PROPERTIES, LTD. 6,
a California limited partnership
By: Angeles Realty Corporation II, a
California Corporation
Its: General Partner
By:________________________
Name:_____________________
Its:________________________
PURCHASER:
THE CADLE COMPANY, an Ohio corporation
By: [SEAL]
Name:
Title:
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally appeared
_________________________________ known to me to be the person whose name is
subscribed to the foregoing instrument, and known to me to be the
__________________ of ANGELES REALTY CORPORATION II, a California Corporation as
General Partner of ANGELES INCOME PROPERTIES, LTD. 6, a California Limited
Partnership, and acknowledged to me that he executed said instrument for the
purposes and consideration therein expressed, and as the act of said
corporation.
Given under my hand and seal of office this ____ day of _______________, 2000.
-----------------------------------
Notary Public
My Commission expires: ________________
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally
appeared _________________________________ known to me to be the person whose
name is subscribed to the foregoing instrument, and known to me to be the
__________________ of THE CADLE COMPANY, an Ohio corporation, and acknowledged
to me that he executed said instrument for the purposes and consideration
therein expressed, and as the act of said corporation.
Given under my hand and seal of office this ____ day of
_______________, 2000.
-----------------------------------
Notary Public
My Commission expires: ________________
EXHIBIT A TO BILL OF SALE
EXHIBIT A-1
LEGAL DESCRIPTION FOR WAKONDA ON FLEUR SHOPPING CENTER
Part of the NW 1/4 of the SE 1/4 of Section 20, Township 78 North, Range
24 West of the 5th P.M., all in and forming a part of the City of Des
Moines, Polk County, Iowa, that is more particularly described as follows:
Beginning at a point that is 50.00 feet East and 343.00 feet South of the
Center of said Section 20; thence N 89 degrees 50 minutes 21 seconds E
(the West line of the NW 1/4 SE 1/4 is assumed to bear N 00 degrees 00
minutes 00 seconds E for the purpose of this description only), 490.00
feet; thence S 00 degrees 00 minutes 00 seconds W, 590.00 feet to a point
that is 540.00 feet east of the West line of said NW 1/4 of the SE 1/4 and
933.00 feet South of the North line of said NW 1/4 of the SE 1/4; thence N
89 degrees 57 minutes 12 seconds E, 136.90 feet, to a point that is 640.00
feet West of the East line of said NW 1/4 SE 1/4; thence S 00 degrees 02
minutes 06 seconds E 388.77 feet to a point on the South line of said NW
1/4 of the SE 1/4, said point being 640.00 feet West of the SE corner of
said NW 1/4 of the SE 1/4; thence S 89 degrees 26 minutes 21 seconds W
along the South line of said NW 1/4 of the SE 1/4, 628.00 feet to a point
on the present East Right of Way line of Fleur Drive; thence N 00 degrees
00 minutes 00 seconds E along said East Right of Way line, 983.00 feet to
the point of beginning.
EXHIBIT B TO BILL OF SALE
Description of Personal Property
THERE IS NO PERSONAL PROPERTY
EXHIBIT 7.2.1.2-2
FORM OF BILL OF SALE
Dated: _______, , 2000.
For good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, ANGELES INCOME PROPERTIES, LTD. 6("Seller"), in connection
with the sale of certain real property ("Property") located in the County of
Linn, State of Iowa, and particularly described on EXHIBIT "A" attached hereto
and by this reference incorporated herein, hereby quitclaims to THE CADLE
COMPANY, an Ohio corporation ("Purchaser") or its designee, without recourse or
warranty to Seller except as provided in the Purchase And Sale Contract to which
this Bill of Sale is related, all of Seller's right, title and interest in and
to the personal property more particularly described on EXHIBIT "B" attached
hereto and ("Personal Property") used in, held for use in connection with, or
necessary for the operation of the Property as of the date hereof.
WITH RESPECT TO ALL PROPERTY TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE OF IOWA.
Purchaser hereby accepts the Personal Property on and subject to the
conditions and disclaimers above, and assumes all responsibility and liability
for the Personal Property as of the date hereof.
SELLER:
ANGELES INCOME PROPERTIES, LTD. 6,
a California limited partnership
By: Angeles Realty Corporation II, a
California Corporation
Its: General Partner
By:________________________
Name:_____________________
Its:________________________
PURCHASER:
THE CADLE COMPANY, an Ohio corporation
By: [SEAL]
Name:
Title:
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally appeared
_________________________________ known to me to be the person whose name is
subscribed to the foregoing instrument, and known to me to be the
__________________ of ANGELES REALTY CORPORATION II, a California Corporation as
General Partner of ANGELES INCOME PROPERTIES, LTD. 6, a California Limited
Partnership, and acknowledged to me that he executed said instrument for the
purposes and consideration therein expressed, and as the act of said
corporation.
Given under my hand and seal of office this ____ day of _______________, 2000.
-----------------------------------
Notary Public
My Commission expires: ________________
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally
appeared _________________________________ known to me to be the person whose
name is subscribed to the foregoing instrument, and known to me to be the
__________________ of THE CADLE COMPANY, an Ohio corporation, and acknowledged
to me that he executed said instrument for the purposes and consideration
therein expressed, and as the act of said corporation.
Given under my hand and seal of office this ____ day of
_______________, 2000.
-----------------------------------
Notary Public
My Commission expires: ________________
EXHIBIT A TO BILL OF SALE
EXHIBIT A-2
LEGAL DESCRIPTION FOR TOWN AND COUNTRY SHOPPING CENTER
PARCEL 1:
A part of Lot 14 Irregular Survey in the Northwest Quarter, Section 11, Township
83 North, Range 7 West of the 5th P.M., Cedar Rapids, Iowa, Linn County, Iowa,
described as follows:
Commencing as a point of reference at the Southeast corner of said Lot 14;
thence North 1 03 43 West 11.40 feet along the East line of said Lot 14 to a
point (for purposes of this legal description, the South line of said Lot 14 is
assumed to bear North 90 00 00 West); thence North 90 00 00 West 418.89 feet
along a line parallel with the South line of said Lot 14 to a point of
intersection with a line of a party wall (party wall agreement recorded in
Volume 964, Page 411 at the Linn County, Iowa Recorder's Office) extended
Southerly; thence North 0 48 19 East 78.60 feet along the line of said party
wall to the point of beginning; thence North 90 00 00 West 140.00 feet along a
line parallel with the South line of said Lot 14 to a point on the Westerly line
of said Lot 14, said point being 90.00 feet Northerly from the Southwest corner
of said Lot 14; thence Northeasterly 210.00 feet along the arc of a 1,849.85
foot radius curve concave Southeasterly (chord bearing North 5 20 57 East 209.88
feet) to a point 300.00 feet from the South line of said Lot 14; thence North 90
00 00 East 140.00 feet parallel with the South line of said Lot 14 to a point;
thence Southwesterly 210.00 feet along a line parallel with the Westerly line of
said Lot 14 to the point of beginning.
PARCEL 2:
A Part of Lot Irregular Survey in the Northwest Quarter, Section 11, township 83
North, Range 7 West of the 5th P.M., Cedar Rapids, Iowa, Linn County, Iowa,
described as follows:
Commencing as a point of reference at the Southeast corner of said Lot 14;thence
North 1 03 43 West 11.40 feet along the East line of said Lot 14 to the point of
beginning (for purposes of this legal description of South Line of said Lot 14
is assumed to bear North 90 00 00 West); thence North 90 00 00 West 418.89 feet
along a line parallel with the South Line of said Lot 14 to a pont of
intersection with a line of a party wall (party wall agreement recorded in
volume 964, Page 411 at the Linn County, Iowa Recorder's Office) extended
Southerly; thence North 0 48 19 East 78.60 feet along the line of said party
wall to a point; thence Northeasterly 210.00 feet along the are of a curve
parallel with the Westerly line of said Lot 14 (chord bearing North 5 20 57 east
209.88 feet) to a point; thence North 90 00 00 West 140.00 feet along a line
parallel with the South line of said Lot 14 to s point on the Westerly line of
said Lot 14, said point being 300.00 feet Northerly from the southwest corner of
said Lot 14; thence Northeasterly 378.50 feet along the arc of a 1,849.85 foot
radius curve concave Southeasterly (chord bearing North 14 27 47 East 377.86
feet) to a point 74.50 feet from the Southerly right-of-way line of 38th Street
Drive S.E., said Southerly right-of-way line being 60 feet Southerly from the
Northerly line of said Lot 14; thence South 89 59 43 East 100.00 feet to a
point, 70.00 feet South of said Southerly right-of-way line of 38th Street Drive
S.E.; thence North 0 19 02 East 70.00 feet to a point on said Southerly
right-of-way line of 38th Street Drive S.E., said point being 73.00 feet East of
the Westerly line of said Lot 14; thence North 89 41 19 East 14.79 feet long
said Southerly right-of-way line parallel with the Northerly line of said Lot 14
to a point; thence South 89 03 26 East 247.51 feet along said Southerly
right-of-way line parallel with the Northerly line of said Lot 14, to a point on
the Easterly line of said Lot 14; thence Southwesterly 432.86 feet along the arc
of a 1,482.39 foot radius curve concave Southeasterly (chord bearing South 7 13
17 West 431.33 feet) and along the Easterly line of said Lot 14 to a point of
tangency; thence South 1 03 43 East 292.30 feet along the Easterly line of said
Lot 14 to the point of beginning.
EXHIBIT B TO BILL OF SALE
Description of Personal Property
THERE IS NO PERSONAL PROPERTY
EXHIBIT 7.2.1.3-1
FORM OF GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by ANGELES INCOME PROPERTIES,
LTD. 6, a California limited partnership ("Seller"), in favor of THE CADLE
COMPANY, an Ohio corporation ("Purchaser") or its designee.
Seller and Purchaser have entered into that certain Purchase and Sale
Contract dated as of the ___ day of _______, 2000 ("Purchase Contract"), in
which Seller has agreed to sell and Purchaser has agreed to purchase the real
property described in EXHIBIT A attached thereto and the improvements located
thereon (collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Property" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a. Books and Records. All of Seller's rights, IF ANY, in and to files,
records, and books of account of the Project.
b. Licenses and Permits. All of Seller's rights and interests, IF ANY, in and
to plans, specifications, reports, rights, privileges, licenses, permits,
surveys, entitlements, maps, agreements, and authorizations utilized with
respect to the Project, excluding any "Excluded Permits" identified as such
in the Purchase Contract.
c. Property Contracts. All of Seller's rights and interests in and to
maintenance, service or utility contracts which relate to the maintenance,
repair or operation of the Project scheduled on EXHIBIT B attached hereto.
d. Commercial Leases. All of Seller's rights and interests in and to leases,
subleases, and other occupancy agreements, whether or not of record, which
provide for use or occupancy of space or facilities on or relating to the
Project scheduled on EXHIBIT C attached hereto.
e. Warranties and Claims. All of Seller's rights and interests in warranties
of and claims against contractors, subcontractors and/or suppliers
providing any work or improvement on the Project.
The term "Property" shall not include any of the foregoing: (i) to
the extent the same are reserved to Seller pursuant to the Purchase Contract to
which Seller and Purchaser are parties; and (ii) to the extent that the sale or
transfer thereof requires consent or approval of any third party, which consent
or approval is not obtained by Seller. Nothing herein shall create a transfer or
assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property Contracts and the Commercial Leases, subject to any
rights of consent as provided therein. Seller agrees to indemnify, defend and
hold Purchaser harmless from and against any and all cost, loss or harm which
may arise with respect to the Property Contracts and the Commercial Leases and
which accrued prior to the date hereof.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property and
agrees to perform all of the covenants and obligations of Seller thereunder
including without limitation, all liabilities and obligations of landlord under
the Commercial Leases and all liabilities and obligations of the contracting
parties under the Property Contracts, including responsibility for refunding
security deposits. Purchaser further agrees to indemnify, defend and hold Seller
harmless from and against any and all cost, loss, harm or damage which may
arise, from and after the Closing Date, in connection with the Property,
including the Commercial Leases and Property Contracts, which accrue on or after
the date hereof.
4. Counterparts. This Assignment may be executed in counterparts, each of which
shall be deemed an original, and both of which together shall constitute one and
the same instrument.
5. Disclaimer. This Assignment and Purchaser's acceptance of the Property shall
be without warranty by Seller or recourse to Seller, except only as expressly
stated herein to the contrary.
6. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of Iowa.
8. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may be altered or modified only with the written consent of
all parties.
WITH RESPECT TO ALL PROPERTY TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE OF IOWA.
Dated: __________, ___, 2000
ANGELES INCOME PROPERTIES, LTD. 6, a California
limited partnership
By: Angeles Realty Corporation II, a
California Corporation
Its: General Partner
By:________________________
Name:_____________________
Its:________________________
Accepted and Agreed:
PURCHASER:
THE CADLE COMPANY, an Ohio corporation
By:
Name:
Title:
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally appeared
_________________________________ known to me to be the person whose name is
subscribed to the foregoing instrument, and known to me to be the
__________________ of ANGELES REALTY CORPORATION II, a California Corporation as
General Partner of ANGELES INCOME PROPERTIES, LTD. 6, a California Limited
Partnership, and acknowledged to me that he executed said instrument for the
purposes and consideration therein expressed, and as the act of said
corporation.
Given under my hand and seal of office this ____ day of
_______________, 2000.
-----------------------------------
Notary Public
My Commission expires: ________________
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally
appeared _________________________________ known to me to be the person whose
name is subscribed to the foregoing instrument, and known to me to be the
__________________ of THE CADLE COMPANY, an Ohio corporation, and acknowledged
to me that he executed said instrument for the purposes and consideration
therein expressed, and as the act of said corporation.
Given under my hand and seal of office this ____ day of
_______________, 2000.
-----------------------------------
Notary Public
EXHIBIT A TO GENERAL ASSIGNMENT
Legal Description
EXHIBIT A-1
LEGAL DESCRIPTION FOR WAKONDA ON FLEUR SHOPPING CENTER
Part of the NW 1/4 of the SE 1/4 of Section 20, Township 78 North, Range
24 West of the 5th P.M., all in and forming a part of the City of Des
Moines, Polk County, Iowa, that is more particularly described as follows:
Beginning at a point that is 50.00 feet East and 343.00 feet South of the
Center of said Section 20; thence N 89 degrees 50 minutes 21 seconds E
(the West line of the NW 1/4 SE 1/4 is assumed to bear N 00 degrees 00
minutes 00 seconds E for the purpose of this description only), 490.00
feet; thence S 00 degrees 00 minutes 00 seconds W, 590.00 feet to a point
that is 540.00 feet east of the West line of said NW 1/4 of the SE 1/4 and
933.00 feet South of the North line of said NW 1/4 of the SE 1/4; thence N
89 degrees 57 minutes 12 seconds E, 136.90 feet, to a point that is 640.00
feet West of the East line of said NW 1/4 SE 1/4; thence S 00 degrees 02
minutes 06 seconds E 388.77 feet to a point on the South line of said NW
1/4 of the SE 1/4, said point being 640.00 feet West of the SE corner of
said NW 1/4 of the SE 1/4; thence S 89 degrees 26 minutes 21 seconds W
along the South line of said NW 1/4 of the SE 1/4, 628.00 feet to a point
on the present East Right of Way line of Fleur Drive; thence N 00 degrees
00 minutes 00 seconds E along said East Right of Way line, 983.00 feet to
the point of beginning.
EXHIBIT B TO GENERAL ASSIGNMENT
Property Contracts (Assigned to Purchaser)
[LIST PROPERTY CONTRACTS FROM EXHIBIT 1.1.16, EXCEPT THOSE EXCLUDED PURSUANT TO
SECTION 6.2.4]
SEE LIST ATTACHED HERETO
EXHIBIT C TO GENERAL ASSIGNMENT
Commercial Leases
SEE LIST ATTACHED HERETO
EXHIBIT 7.2.1.3-2
FORM OF GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by ANGELES INCOME PROPERTIES,
LTD. 6, a California limited partnership ("Seller"), in favor of THE CADLE
COMPANY, an Ohio corporation ("Purchaser") or its designee.
Seller and Purchaser have entered into that certain Purchase and Sale
Contract dated as of the ___ day of _______, 2000 ("Purchase Contract"), in
which Seller has agreed to sell and Purchaser has agreed to purchase the real
property described in EXHIBIT A attached thereto and the improvements located
thereon (collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Property" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
f. Books and Records. All of Seller's rights, IF ANY, in and to files,
records, and books of account of the Project.
g. Licenses and Permits. All of Seller's rights and interests, IF ANY, in and
to plans, specifications, reports, rights, privileges, licenses, permits,
surveys, entitlements, maps, agreements, and authorizations utilized with
respect to the Project, excluding any "Excluded Permits" identified as such
in the Purchase Contract.
h. Property Contracts. All of Seller's rights and interests in and to
maintenance, service or utility contracts which relate to the maintenance,
repair or operation of the Project scheduled on EXHIBIT B attached hereto.
i. Commercial Leases. All of Seller's rights and interests in and to leases,
subleases, and other occupancy agreements, whether or not of record, which
provide for use or occupancy of space or facilities on or relating to the
Project scheduled on EXHIBIT C attached hereto.
j. Warranties and Claims. All of Seller's rights and interests in warranties
of and claims against contractors, subcontractors and/or suppliers
providing any work or improvement on the Project. The term "Property" shall
not include any of the foregoing: (i) to the extent the same are reserved
to Seller pursuant to the Purchase Contract to which Seller and Purchaser
are parties; and (ii) to the extent that the sale or transfer thereof
requires consent or approval of any third party, which consent or approval
is not obtained by Seller. Nothing herein shall create a transfer or
assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property Contracts and the Commercial Leases, subject to any
rights of consent as provided therein. Seller agrees to indemnify, defend and
hold Purchaser harmless from and against any and all cost, loss or harm which
may arise with respect to the Property Contracts and the Commercial Leases and
which accrued prior to the date hereof.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property and
agrees to perform all of the covenants and obligations of Seller thereunder
including without limitation, all liabilities and obligations of landlord under
the Commercial Leases and all liabilities and obligations of the contracting
parties under the Property Contracts, including responsibility for refunding
security deposits. Purchaser further agrees to indemnify, defend and hold Seller
harmless from and against any and all cost, loss, harm or damage which may
arise, from and after the Closing Date, in connection with the Property,
including the Commercial Leases and Property Contracts, which accrue on or after
the date hereof.
4. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
5. Disclaimer. This Assignment and Purchaser's acceptance of the Property
shall be without warranty by Seller or recourse to Seller, except only as
expressly stated herein to the contrary.
6. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of Iowa.
8. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may be altered or modified only with the written consent of
all parties.
WITH RESPECT TO ALL PROPERTY TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE OF IOWA.
Dated: __________, ___, 2000
ANGELES INCOME PROPERTIES, LTD. 6, a California
limited partnership
By: Angeles Realty Corporation II, a
California Corporation
Its: General Partner
By:________________________
Name:_____________________
Its:________________________
Accepted and Agreed:
PURCHASER:
THE CADLE COMPANY, an Ohio corporation
By:
Name:
Title:
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally appeared
_________________________________ known to me to be the person whose name is
subscribed to the foregoing instrument, and known to me to be the
__________________ of ANGELES REALTY CORPORATION II, a California Corporation as
General Partner of ANGELES INCOME PROPERTIES, LTD. 6, a California Limited
Partnership, and acknowledged to me that he executed said instrument for the
purposes and consideration therein expressed, and as the act of said
corporation.
Given under my hand and seal of office this ____ day of
_______________, 2000.
-----------------------------------
Notary Public
My Commission expires: ________________
STATE OF ____________________ )
)
COUNTY OF __________________ )
Before me ______________________________ on this day personally
appeared _________________________________ known to me to be the person whose
name is subscribed to the foregoing instrument, and known to me to be the
__________________ of THE CADLE COMPANY, an Ohio corporation, and acknowledged
to me that he executed said instrument for the purposes and consideration
therein expressed, and as the act of said corporation.
Given under my hand and seal of office this ____ day of
_______________, 2000.
-----------------------------------
Notary Public
EXHIBIT A-2
LEGAL DESCRIPTION FOR TOWN AND COUNTRY SHOPPING CENTER
PARCEL 1:
A part of Lot 14 Irregular Survey in the Northwest Quarter, Section 11, Township
83 North, Range 7 West of the 5th P.M., Cedar Rapids, Iowa, Linn County, Iowa,
described as follows:
Commencing as a point of reference at the Southeast corner of said Lot 14;
thence North 1(degree)03'43" West 11.40 feet along the East line of said Lot 14
to a point (for purposes of this legal description, the South line of said Lot
14 is assumed to bear North 90(degree)00'00" West); thence North
90(degree)00'00" West 418.89 feet along a line parallel with the South line of
said Lot 14 to a point of intersection with a line of a party wall (party wall
agreement recorded in Volume 964, Page 411 at the Linn County, Iowa Recorder's
Office) extended Southerly; thence North 0(degree)48'19" East 78.60 feet along
the line of said party wall to the point of beginning; thence North
90(degree)00'00" West 140.00 feet along a line parallel with the South line of
said Lot 14 to a point on the Westerly line of said Lot 14, said point being
90.00 feet Northerly from the Southwest corner of said Lot 14; thence
Northeasterly 210.00 feet along the arc of a 1,849.85 foot radius curve concave
Southeasterly (chord bearing North 5(degree)20'57" East 209.88 feet) to a point
300.00 feet from the South line of said Lot 14; thence North 90(degree)00'00"
East 140.00 feet parallel with the South line of said Lot 14 to a point;
thence Southwesterly 210.00 feet along a line parallel with the Westerly line of
said Lot 14 to the point of beginning.
PARCEL 2:
A Part of Lot 14 Irregular Survey in the Northwest Quarter, Section 11, township
83 North, Range 7 West of the 5th P.M., Cedar Rapids, Iowa, Linn County, Iowa,
described as follows:
Commencing as a point of reference at the Southeast corner of said Lot 14;
thence North 1(degree)03'43" West 11.40 feet along the East line of said Lot 14
to the point of beginning (for purposes of this legal description the South line
of said Lot 14 is assumed to bear North 90(degree)00'00" West); thence North
90(degree)00'00" West 418.89 feet along a line parallel with the South Line of
said Lot 14 to a point of intersection with a line of a party wall (party wall
agreement recorded in volume 964, Page 411 at the Linn County, Iowa Recorder's
Office) extended Southerly; thence North 0(degree)48'19" East 78.60 feet along
the line of said party wall to a point; thence Northeasterly 210.00 feet along
the are of a curve parallel with the Westerly line of said Lot 14 (chord bearing
North 5(degree)20'57" East 209.88 feet) to a point; thence North
90(degree)00'00" West 140.00 feet along a line parallel with the South line of
said Lot 14 to s point on the Westerly line of said Lot 14, said point being
300.00 feet Northerly from the southwest corner of said Lot 14; thence
Northeasterly 378.50 feet along the arc of a 1,849.85 foot radius curve concave
Southeasterly (chord bearing North 14(degree)27'47" East 377.86 feet) to a point
74.50 feet from the Southerly right-of-way line of 38th Street Drive S.E., said
Southerly right-of-way line being 60 feet Southerly from the Northerly line of
said Lot 14; thence South 89(degree)59'43" East 100.00 feet to a point, 70.00
feet South of said Southerly right-of-way line of 38th Street Drive S.E.; thence
North 0(degree)19'02" East 70.00 feet to a point on said Southerly right-of-way
line of 38th Street Drive S.E., said point being 73.00 feet East of the Westerly
line of said Lot 14; thence North 89(degree)41'19" East 14.79 feet along said
Southerly right-of-way line parallel with the Northerly line of said Lot 14 to a
point; thence South 89(degree)03'26" East 247.51 feet along said Southerly
right-of-way line parallel with the Northerly line of said Lot 14, to a point on
the Easterly line of said Lot 14; thence Southwesterly 432.86 feet along the arc
of a 1,482.39 foot radius curve concave Southeasterly (chord bearing South
7(degree)13'17" West 431.33 feet) and along the Easterly line of said Lot 14 to
a point of tangency; thence South 1(degree)03'43" East 292.30 feet along the
Easterly line of said Lot 14 to the point of beginning.
EXHIBIT B TO GENERAL ASSIGNMENT
Property Contracts (Assigned to Purchaser)
[LIST PROPERTY CONTRACTS FROM EXHIBIT 1.1.16, EXCEPT THOSE EXCLUDED PURSUANT TO
SECTION 6.2.4]
SEE LIST ATTACHED HERETO
EXHIBIT C TO GENERAL ASSIGNMENT
Commercial Leases
SEE LIST ATTACHED HERETO
EXHIBIT 7.2.1.6-1
SELLER'S CERTIFICATION OF NON-FOREIGN STATUS
A. Federal FIRST Certificate
To inform THE CADLE COMPANY, an Ohio corporation ("Transferee"), that
withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as
amended (the "Code"), will not be required upon the transfer of certain rights
relating to real property, located in the County of Polk, State of Iowa, to
Transferee, by ANGELES INCOME PROPERTIES, LTD. 6, a California limited
partnership ("Transferor"), Transferor hereby certifies to Transferee:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Code and the Income
Tax Regulations promulgated thereunder);
2. Transferor's U.S. tax identification number is [ ]; and
3. Transferor's office address is Angeles Income Properties, Ltd. 6, c/o
AIMCO, 1873 South Bellaire Street, Suite 1700, Denver, CO 80222.
Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Transferor understands that Transferee is relying on this Certification in
determining whether withholding is required upon said transfer.
Under penalty of perjury the undersigned declare that they have examined
this Certification and to the best of their knowledge and belief it is true,
correct and complete, and they further declare that they have authority to sign
this Certification on behalf of Transferor.
ANGELES INCOME PROPERTIES, LTD. 6, a California limited
partnership
By: Angeles Realty Corporation II, a
California Corporation
Its: General Partner
By:________________________
Name:_____________________
Its:________________________
EXHIBIT 7.2.1.6-2
SELLER'S CERTIFICATION OF NON-FOREIGN STATUS
A. Federal FIRST Certificate
To inform THE CADLE COMPANY, an Ohio corporation ("Transferee"), that
withholding of tax under Section 1445 of the Internal Revenue Code of 1986, as
amended (the "Code"), will not be required upon the transfer of certain rights
relating to real property, located in the County of Linn, State of Iowa, to
Transferee, by ANGELES INCOME PROPERTIES, LTD. 6, a California limited
partnership ("Transferor"), Transferor hereby certifies to Transferee:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Code and the Income
Tax Regulations promulgated thereunder);
2. Transferor's U.S. tax identification number is [ ]; and
3. Transferor's office address is Angeles Income Properties, Ltd. 6, c/o
AIMCO, 1873 South Bellaire Street, Suite 1700, Denver, CO 80222.
Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Transferor understands that Transferee is relying on this Certification in
determining whether withholding is required upon said transfer.
Under penalty of perjury the undersigned declare that they have examined
this Certification and to the best of their knowledge and belief it is true,
correct and complete, and they further declare that they have authority to sign
this Certification on behalf of Transferor.
ANGELES INCOME PROPERTIES, LTD. 6, a California limited
partnership
By: Angeles Realty Corporation II, a
California Corporation
Its: General Partner
By:________________________
Name:_____________________
Its:________________________
EXHIBIT 8.1.1.3-1
PARTIES IN POSSESSION OF PROPERTY
NONE OTHER THAN PARTIES PREVIOUSLY IDENTIFIED AS TENANTS UNDER COMMERCIAL LEASES
EXHIBIT 8.1.1.3-2
PARTIES IN POSSESSION OF PROPERTY
NONE OTHER THAN PARTIES PREVIOUSLY IDENTIFIED AS TENANTS UNDER COMMERCIAL LEASES
EXHIBIT 9.1.4-1
FORM OF ESTOPPEL CERTIFICATE
TO: The Cadle Company
Attention:
Re: Lease Agreement (the "Lease") dated ______________, by and
between ____________________________ ("Landlord") and
_____________________("Tenant")
The undersigned is the tenant under the Lease, whereby Tenant leases
from Landlord certain space in the building located at Wakonda at Fleur , Fleur
Drive at Stanton Avenue, Des Moines, Iowa, 50309, Polk County, Iowa,on the real
property described in EXHIBIT A attached hereto (the "Property"). Tenant
understands that The Cadle Company ("Prospective Purchaser") may be purchasing
the Property from Landlord and Tenant certifies to Landlord and Prospective
Purchaser as follows:
1. The Lease is in full force and effect on the date hereof.
2. The term of the Lease began on _____________________. The termination date
of the present term of the Lease, excluding unexercised renewals, is
-------------------.
3. Tenant has paid rent for the Property for the period up to and including
----------------.
4. As of the date hereof, Tenant is occupying the Property and is open for
business.
5. To Tenant's knowledge, Landlord is not in default under the Lease beyond
applicable cure periods in the performance of any covenant, agreement, term,
provision or condition contained in the Lease.
6. The undersigned is authorized to execute this Estoppel Certificate on behalf
of Tenant.
7. Tenant confirms that it has posted a security deposit in the amount of
$----------.
Dated this _____ day of _____________, 2000.
TENANT:
-----------------------------------,
a ______________ ___________________
By:________________________________
Name:______________________________
Title:_______________________________
EXHIBIT A TO TENANT ESTOPPEL CERTIFICATE
LEGAL DESCRIPTION FOR WAKONDA ON FLEUR SHOPPING CENTER
Part of the NW 1/4 of the SE 1/4 of Section 20, Township 78 North, Range
24 West of the 5th P.M., all in and forming a part of the City of Des
Moines, Polk County, Iowa, that is more particularly described as follows:
Beginning at a point that is 50.00 feet East and 343.00 feet South of the
Center of said Section 20; thence N 89 degrees 50 minutes 21 seconds E
(the West line of the NW 1/4 SE 1/4 is assumed to bear N 00 degrees 00
minutes 00 seconds E for the purpose of this description only), 490.00
feet; thence S 00 degrees 00 minutes 00 seconds W, 590.00 feet to a point
that is 540.00 feet east of the West line of said NW 1/4 of the SE 1/4 and
933.00 feet South of the North line of said NW 1/4 of the SE 1/4; thence N
89 degrees 57 minutes 12 seconds E, 136.90 feet, to a point that is 640.00
feet West of the East line of said NW 1/4 SE 1/4; thence S 00 degrees 02
minutes 06 seconds E 388.77 feet to a point on the South line of said NW
1/4 of the SE 1/4, said point being 640.00 feet West of the SE corner of
said NW 1/4 of the SE 1/4; thence S 89 degrees 26 minutes 21 seconds W
along the South line of said NW 1/4 of the SE 1/4, 628.00 feet to a point
on the present East Right of Way line of Fleur Drive; thence N 00 degrees
00 minutes 00 seconds E along said East Right of Way line, 983.00 feet to
the point of beginning.
EXHIBIT 9.1.4-2
FORM OF ESTOPPEL CERTIFICATE
TO: The Cadle Company
Attention:
Re: Lease Agreement (the "Lease") dated ______________, by and
between ____________________________ ("Landlord") and
_____________________("Tenant")
The undersigned is the tenant under the Lease, whereby Tenant leases
from Landlord certain space in the building located at Town and Country Shopping
Center, 3600-3800 First Avenue, N.E., Cedar Rapids, Iowa, 52402, Linn County,
Iowa,on the real property described in EXHIBIT A attached hereto (the
"Property"). Tenant understands that The Cadle Company ("Prospective Purchaser")
may be purchasing the Property from Landlord and Tenant certifies to Landlord
and Prospective Purchaser as follows:
1. The Lease is in full force and effect on the date hereof.
2. The term of the Lease began on _____________________. The termination date
of the present term of the Lease, excluding unexercised renewals, is
- -------------------.
3. Tenant has paid rent for the Property for the period up to and including
- ----------------.
4. As of the date hereof, Tenant is occupying the Property and is open for
business.
5. To Tenant's knowledge, Landlord is not in default under the Lease beyond
applicable cure periods in the performance of any covenant, agreement, term,
provision or condition contained in the Lease.
6. The undersigned is authorized to execute this Estoppel Certificate on behalf
of Tenant.
7. Tenant confirms that it has posted a security deposit in the amount of
$----------.
Dated this _____ day of _____________, 2000.
TENANT:
-----------------------------------,
a ______________ ___________________
By:________________________________
Name:______________________________
Title:_______________________________
EXHIBIT A TO TENANT ESTOPPEL CERTIFICATE
LEGAL DESCRIPTION FOR TOWN AND COUNTRY SHOPPING CENTER
PARCEL 1:
A part of Lot 14 Irregular Survey in the Northwest Quarter, Section 11, Township
83 North, Range 7 West of the 5th P.M., Cedar Rapids, Iowa, Linn County, Iowa,
described as follows:
Commencing as a point of reference at the Southeast corner of said Lot 14;
thence North 1(degree)03'43" West 11.40 feet along the East line of said Lot 14
to a point (for purposes of this legal description, the South line of said Lot
14 is assumed to bear North 90(degree)00'00" West); thence North
90(degree)00'00" West 418.89 feet along a line parallel with the South line of
said Lot 14 to a point of intersection with a line of a party wall (party wall
agreement recorded in Volume 964, Page 411 at the Linn County, Iowa Recorder's
Office) extended Southerly; thence North 0(degree)48'19" East 78.60 feet along
the line of said party wall to the point of beginning; thence North
90(degree)00'00" West 140.00 feet along a line parallel with the South line of
said Lot 14 to a point on the Westerly line of said Lot 14, said point being
90.00 feet Northerly from the Southwest corner of said Lot 14; thence
Northeasterly 210.00 feet along the arc of a 1,849.85 foot radius curve concave
Southeasterly (chord bearing North 5(degree)20'57" East 209.88 feet) to a point
300.00 feet from the South line of said Lot 14; thence North 90(degree)00'00"
East 140.00 feet parallel with the South line of said Lot 14 to a point;
thence Southwesterly 210.00 feet along a line parallel with the Westerly line of
said Lot 14 to the point of beginning.
PARCEL 2:
A leasehold interest in the following:
A Part of Lot 14 Irregular Survey in the Northwest Quarter, Section 11, township
83 North, Range 7 West of the 5th P.M., Cedar Rapids, Iowa, Linn County, Iowa,
described as follows:
Commencing as a point of reference at the Southeast corner of said Lot 14;
thence North 1 03 43 West 11.40 feet along the East line of said Lot 14 to the
point of beginning (for purposes of this legal description the South line of
said Lot 14 is assumed to bear North 90 00 00 West); thence North 90 00 00 West
418.89 feet along a line parallel with the South Line of said Lot 14 to a point
of intersection with a line of a party wall (party wall agreement recorded in
volume 964, Page 411 at the Linn County, Iowa Recorder's Office) extended
Southerly; thence North 0 48 19 East 78.60 feet along the line of said party
wall to a point; thence Northeasterly 210.00 feet along the are of a curve with
the Westerly line of said Lot 14 (chord bearing North 5 20 57 East 209.88 feet)
to a point; thence North 90 00 00 West 140.00 feet along a line parallel with
the South line of said Lot 14 to s point on the Westerly line of said Lot 14,
said point being 300.00 feet Northerly from the southwest corner of said Lot 14;
thence Northeasterly 378.50 feet along the arc of a 1,849.85 foot radius curve
concave Southeasterly right-of-way line of 38th Street Drive S.E., said
Southerly right-of-way line being 60 feet Southerly from the Northerly line of
said Lot 14; thence South 89 59 43 East 100.00 feet to a point, 70.00 feet South
of said Southerly right-of-way line of 38th Street Drive S.E.; thence North 0 19
02 East 70.00 feet to a point on said Southerly right-of-way line of 38th Street
Drive S.E., said point being 73.00 feet East of the Westerly line of said Lot
14; thence North 89 41 19 East 14.79 feet along said Southerly right-of-way line
parallel with the Northerly line of said Lot 14 to a point; thence South 89 03
26 East 247.51 feet along said Southerly right-of-way line parallel with the
Northerly line of said Lot 14, to a point on the Easterly line of said Lot 14;
thence Southwesterly 432.86 feet along the arc of a 1,482.39 foot radius curve
concave Southeasterly (chord bearing South 7 13 17 West 431.33 feet) and along
the Easterly line of said Lot 14 to a point of tangency; thence South 1 03 43
East 292.30 feet along the Easterly line of said Lot 14 to the point of
beginning.
Exhibit 10.29
ADDENDUM TO PURCHASE AND SALE CONTRACT
This Addendum To Purchase And Sale Contract (hereinafter referred to as
"Addendum") is entered into this _____ day of April, 2000, by and between
ANGELES INCOME PROPERTIES LTD. 6, a California Limited Partnership, and THE
CADLE COMPANY, an Ohio Corporation. This Addendum shall supplement and modify
the terms and conditions of a certain Purchase And Sale Contract dated March 6,
2000, which was made and entered into by and between ANGELES INCOME PROPERTIES
LTD. 6 and THE CADLE COMPANY.
For and in consideration of mutual covenants and agreements herein set
forth, ANGELES INCOME PROPERTIES LTD. 6 and THE CADLE COMPANY agree as follows:
Purchaser and Seller have agreed to bifurcate the sales of the properties
more fully described in Exhibit A-1 and Exhibit A-2 attached to and incorporated
as part of the Purchase And Sale Contract.
The purchase price for the property more fully described in Exhibit A-1 as
set forth in Section 3.1 of the Purchase And Sale Contract is amended to Two
Million Nine Hundred Thousand Dollars and 00/100 Cents ($2,900,000.00).
The purchase price for the property more fully described in Exhibit A-2 as
set forth in Section 3.1 of the Purchase And Sale Contract is amended to Two
Million Nine Hundred Thousand Dollars and 100/00 Cents ($2,900,000.00).
The closing date set forth in Section 7.1 of the Purchase And Sale
Contract shall be revised as follows:
The closing for the transfer of the property more fully described in
Exhibit A-1 attached to and incorporated as part of the Purchase And Sale
Contract shall take place on April _____, 2000.
The closing date for the transfer of the property more fully described in
Exhibit A-2 attached to and incorporated as part of the Purchase And Sale
Contract shall continue to be extended pursuant to Section 7.1 of the
Purchase And Sale Contract.
All other items set forth in Section 7.1 of the Purchase And Sale Contract
shall remain as is.
This Addendum shall not affect Seller's obligation to sell or Purchaser's
obligation to purchase the property more fully described in Exhibit A-2 of the
Purchase And Sale Contract. Therefore, Purchaser represents and warrants that it
shall purchase the property more fully described in Exhibit A-2 of the Purchase
And Sale Contract.
Purchaser has completed its due diligence as provided in Article 5 and
hereby waives its right to raise any objection based on the provisions of
Sections 5.1 and 5.2 of the Purchase And Sale Contract or based on all other
conditions with respect to the property or the Seller's obligations under the
Purchase And Sale Contract except for those enumerated in Subsections 9.1.1.
through 9.1.4.
The dates set forth in the within Addendum shall supercede the dates as
set forth in the Purchase And Sale Contract.
The terms set forth in this Addendum shall control over the terms of the
Purchase And Sale Contract and any previous Addendum.
Seller: ANGELES INCOME PROPERTIES LTD. 6,
A California Limited Partnership
By: Angeles Realty Corporation II,
A California Corporation
Its: General Partner
By:____________________________
Name:__________________________
Its:_____________________________
Purchaser: THE CADLE COMPANY, An Ohio Corporation
By:_____________________________
Name:___________________________
Its:______________________________
STATE OF _______________ )
)
COUNTY OF _____________ )
Before me _______________________________ on this day personally appeared
______________________________ known to me to be the person whose name is
subscribed to the foregoing instrument, and known to me to be the
______________________________ of ANGELES REALTY CORPORATION II, a California
Corporation, as General Partner of ANGELES INCOME PROPERTIES LTD. 6, a
California Limited Partnership, and acknowledged to me that he executed said
instrument for the purposes and consideration therein expressed, and as the act
of said corporation.
Given under my hand and seal this _____ day of ____________________, 2000.
-----------------------------
Notary Public
My Commission Expires:__________
STATE OF _______________ )
)
COUNTY OF _____________ )
Before me _______________________________ on this day personally appeared
______________________________ known to me to be the person whose name is
subscribed to the foregoing instrument, and known to me to be the
______________________________ of THE CADLE COMPANY, an Ohio Corporation, and
acknowledged to me that he executed said instrument for the purposes and
consideration therein expressed, and as the act of said corporation.
Given under my hand and seal this _____ day of ____________________, 2000.
-----------------------------
Notary Public
My Commission Expires:__________
EXHIBIT 10.30
PURCHASE AND SALE CONTRACT
BETWEEN
GRANADA AILP 6, A TEXAS LIMITED PARTNERSHIP,
a Texas limited partnership
AS SELLER
AND
CASA ASSOCIATES, L.P.,
a Texas limited partnership
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract" or the "Agreement")
is entered into as of the ________ day of May, 2000 (the "Effective Date") by
and between GRANADA AIPL 6, A TEXAS LIMITED PARTNERSHIP, a Texas limited
partnership, having a principal address at 2000 South Colorado Blvd., Tower Two,
Suite 2-1000, Denver, Colorado 80222 ("Seller") and CASA ASSOCIATES, L.P., a
Texas limited partnership, having a principal address at 1325 South 77 Sunshine
Strip, Suite 208, Harlingen, Texas 78550 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds fee title to the parcel or parcels of real estate located in
Cameron County, Texas, as more particularly described in Exhibit "A" attached
hereto and made a part hereof. Improvements have been constructed on the land
described in this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
"Closing Date" (as hereinafter defined) the Property will be conveyed by special
warranty deed to Purchaser.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the
Property, and Seller has agreed to sell the Property to Purchaser, on the
terms and conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of the Property, as Purchaser deems necessary and
desirable.
ARTICLE 1
DEFINED TERMS
1.1 Unless otherwise defined elsewhere herein, terms with initial capital
letters in this Purchase Contract shall have the meanings set forth in this
ARTICLE 1 below.
1.1.1 "Business Day" means any day other than a Saturday or Sunday
or Federal holiday or legal holiday in the State in which the Land is located.
1.1.2 "Closing" means the consummation of the purchase and sale and
related transactions contemplated by this Purchase Contract in accordance with
the terms and conditions of this Purchase Contract.
1.1.3 "Closing Date" means the date on which date the Closing of the
conveyance of the Property is required to be held under the terms and conditions
of this Purchase Contract and on which date full payment of the Purchase Price
for the Property shall have been paid to and received by Seller in immediately
available U.S. funds.
1.1.4 "Deed" has the meaning given such term in Section
7.2.1.1.
1.1.5 "Excluded Permits" means those Permits which, under applicable
law, are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit "B", if any, attached hereto.
1.1.6 "Fixtures and Tangible Personal Property" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, computers (to the extent
located on the Property and owned by Seller), fax machines (to the extent
located on the Property and owned by Seller), copiers (to the extent located on
the Property and owned by Seller), apparatus, appliances and other articles of
tangible personal property now located on the Land or in the Improvements as of
the date of this Purchase Contract and used or usable in connection with any
present or future occupation or operation of all or any part of the Property,
but only to the extent transferable. The term "Fixtures and Tangible Personal
Property" does not include (i) equipment leased by Seller and the interest of
Seller in any equipment provided to the Property for use, but not owned or
leased, by Seller, or (ii) property owned or leased by Tenants and guests,
employees or other persons furnishing goods or services to the Property, or
(iii) property and equipment owned by Seller, which in the ordinary course of
business of the Property is not used exclusively for the business, operation or
management of the Property or (iv) the property and equipment, if any, expressly
identified in Exhibit "C".
1.1.7 Intentionally Deleted.
1.1.8 "Improvements" means all buildings and improvements,
located on the Land, taken "as is".
1.1.9 "Land" means all of those certain tracts of land described on
Exhibit "A" attached hereto, and all rights, privileges and appurtenances
pertaining thereto.
1.1.10 "Lease(s)" means the interest of Seller in and to all leases,
subleases and other occupancy agreements, whether or not of record, which
provide for the use or occupancy of space or facilities on or relating to the
Property and which are in force as of the Effective Date for the Property or
thereafter as permitted in Section 6.5.
1.1.11 "Management Contract" means the agreement(s)
between Seller and Manager pertaining to the Land and Improvements.
1.1.12 "Manager" means Insignia Management Group, L.P., or one
of its affiliates.
1.1.13 "Miscellaneous Property Assets" means all contract rights,
leases, concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property and
owned by Seller, but only to the extent transferable, excluding, however, (i)
receivables, (ii) Property Contracts, (iii) Leases, (iv) Permits, (v) Fixtures
and Tangible Personal Property, (vi) Security Deposits, (vii) cash or other
funds, whether in petty cash or house "banks," or on deposit in bank accounts or
in transit for deposit, (viii) refunds, rebates or other claims, or any interest
therein, for periods or events occurring prior to the Closing Date, (ix) utility
and similar deposits, (x) insurance or other prepaid items, (xi) Seller's
proprietary books and records, and (xii) the Management Contract, except to the
extent that Seller receives a credit on the closing statement for any such item.
The term "Miscellaneous Property Assets" shall also include the following, but
only to the extent owned by Seller and in Seller's possession: site plans,
surveys, soil and substrata studies, architectural renderings, plans and
specifications, engineering plans and studies, floor plans, tenant data sheets,
landscape plans and other plans or studies of any kind, if any, which relate to
the Land and or the Improvements or the Fixtures and Tangible Personal Property,
and all escrow accounts and reserves maintained by Seller or the holder of the
Seller's Note Obligation. The term "Miscellaneous Property Assets" shall also
include all of Seller's rights, if any, in and to the name "CASA GRANADA
APARTMENTS".
1.1.14 "Mortgage" shall have the meaning given such term in Section
6.4.
1.1.15 "Mortgagee" means the current holder of record of the
Mortgage.
1.1.16 "Permits" means all licenses and permits granted by
governmental authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned by Seller and
used in or relating to the ownership, occupancy or operation of the Property or
any part thereof not subject to a Lease.
1.1.17 "Permitted Exceptions" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with the
provisions of Section 6.2.
1.1.18 "Property" means the Land and Improvements and all rights of
Seller relating to the Land and the Improvements, including without limitation,
any rights, title and interest of Seller, if any, in and to (i) any strips and
gores adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, Property Contracts, Leases, Security Deposits, Permits other than
Excluded Permits, and the Miscellaneous Property Assets.
1.1.19 "Property Contracts" means all purchase orders, maintenance,
service, or utility contracts and similar contracts, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property
and which are not cancelable on 90 days' or shorter Notice, except Leases.
1.1.20 "Purchase Contract" means this Purchase and Sale Contract by
and between Seller and Purchaser.
1.1.21 "Purchase Price" means the total consideration to be paid by
Purchaser to Seller for the purchase of the Property as set forth in Section
3.1.
1.1.22 "Security Deposits" means all (i) prepaid rent held as
security, (ii) security deposits, and (iii) pet deposits, if any, held by Seller
under any of the Leases.
1.1.23 "Seller's Note Obligation" shall mean the promissory note or
notes more particularly described on Schedule 1.1.23.
1.1.24 "Survey" shall have the meaning ascribed thereto in
Section 6.1.
1.1.25 "Tenant" means any person or entity entitled to occupy any
portion of the Property under a Lease.
1.1.26 "Title Commitment" or "Title Commitments" shall have the
meaning ascribed thereto in Section 6.1.
1.1.27 "Title Insurer" shall have the meaning set forth in
Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and
Purchaser agrees to purchase the Property from Seller, in accordance with the
terms and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be
One Million Nine Hundred Ninety Four Thousand and No/100 Dollars
($1,994,000.00), which shall be paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Stewart Title
Guaranty Company ("Escrow Agent" or "Title Insurer"), a deposit in the sum of
Fifty Thousand and No/100 Dollars ($50,000.00), in cash, (such sum being
hereinafter referred to and held as the "Deposit"). Purchaser and Seller each
approve the form of Escrow Agreement attached as Exhibit "D". Seller and
Purchaser agree that the amount of One Hundred and No/100 Dollars ($100.00)
shall be paid by Purchaser to Seller concurrently with the deposit into escrow
of the Deposit, as consideration for Seller's execution and delivery of this
Purchase Contract (the "Independent Contract Consideration"). The Independent
Contract Consideration is independent of any other consideration or payment
provided for in this Purchase Contract and, notwithstanding anything to the
contrary herein, is non-refundable in all events.
3.1.2 The Escrow Agent shall hold the Deposit and make delivery of
the Deposit to the party entitled thereto under the terms hereof. Escrow Agent
shall invest the Deposit in an interest-bearing bank account acceptable to
Seller and Purchaser at one or more federally insured national banking
association(s) or such other investment as jointly directed by Seller and
Purchaser should Seller and Purchaser each in their respective sole discretion
determine to issue such joint investment instructions to the Escrow Agent, and
all interest and income thereon shall become part of the Deposit and shall be
remitted to the party entitled to the Deposit, as set forth below.
3.1.3 If the sale of the Property is closed by the date fixed
therefor (or any extension date provided for herein or by the mutual written
consent of the parties hereto, given or withheld in their respective sole
discretion), monies held as the Deposit shall be applied to the Purchase Price
on the Closing Date and the balance of the Purchase Price, less adjustments
provided for herein and the outstanding balance of the Seller's Note Obligation
after deducting therefrom the sum of all escrows and reserves held by the holder
of the Seller's Note Obligation as of the Closing Date, shall be paid at Closing
to Seller in immediately available funds. If the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to the
termination of this Purchase Contract by Purchaser pursuant to ARTICLE 5,
ARTICLE 6 or Section 9.2.4 or Section 9.2.5, the Deposit shall be returned and
refunded to Purchaser. If the sale of the Property is not closed by the date
fixed therefor (or any such extension date) owing to the failure of performance
by Seller, Purchaser shall be entitled to the remedy elected by it under and as
set forth in ARTICLE 12 hereof.
3.1.4 If the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of performance by
Purchaser, the Deposit shall be forfeited by Purchaser and the sum thereof shall
go to Seller forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in ARTICLE 12
below.
ARTICLE 4
FINANCING
4.1 Seller has advised Purchaser that, as of the Effective Date, the
Property is encumbered by certain liens securing the Seller's Note Obligation.
Subject to any restrictions on assumption that may be set forth in the documents
evidencing or pertaining to the Seller's Note Obligation (the "Loan Documents"),
Purchaser shall at its sole cost and expense, use commercially reasonable
efforts to promptly negotiate the assumption of the Seller's Note Obligation on
the Closing Date, subject to the release of Seller and its affiliate guarantor
from all liability with respect to the Seller's Note Obligation effective as of
the Closing Date, and to obtain the approval of the holder of the Seller's Note
Obligation prior to the Closing Date necessary to effect such assumption of the
Seller's Note Obligation on the Closing Date. Seller agrees to cooperate with
such efforts. Any and all amounts or fees due and payable in connection with the
assumption of the Seller's Note Obligation (other than scheduled payments of
principal and interest due prior to the Closing Date) shall be paid by
Purchaser. Notwithstanding the foregoing, in the event that after using
commercially reasonable efforts, Purchaser is unable to (i) assume the Seller's
Note Obligation on terms reasonably acceptable to Purchaser or (ii) obtain the
release of Seller and its affiliate guarantor from all personal liability under
the Seller Note Obligation (and Seller has not elected to waive such condition
after notice to it from Purchaser that the holder of the Seller's Note
Obligation is unwilling to consent to such release), then, upon delivery of
written notice by Purchaser to Seller and Escrow Agent, this Purchase Contract
shall terminate, in which event the Deposit shall be returned to Purchaser by
the Escrow Agent and Seller and Purchaser shall evenly divide the cancellation
charges of the Escrow Agent and the Title Insurer, if any, and this Purchase
Contract shall automatically be of no further force and effect and neither party
shall have any further rights and obligations hereunder except as provided in
Section 5.3. In no event shall Seller be obligated to prepay the Seller's Note
Obligation.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Subject to the terms of Section 5.3 below, for thirty (30) calendar
days following Purchaser's receipt of the "Materials" (as hereinafter defined),
but in no event later than forty-five (45) calendar days following the Effective
Date (the "Feasibility Period"), Purchaser, and its agents, contractors,
engineers, surveyors, attorneys, and employees ("Consultants") shall have the
right from time to time to enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests,
examinations and inspections, or investigations of or concerning the Property
(including without limitation, engineering and feasibility studies, evaluation
of drainage and flood plain, soil tests for bearing capacity and percolation and
surveys, including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably
desire to confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the Property
for Purchaser's intended use.
5.1.4 To review all Materials and, at the offices of the Manager
located at the Property, to review and copy (at Purchaser's expense) Seller's
books and records relating to the Property (other than Seller's proprietary
information) and all Leases.
5.2 Purchaser shall have the right to terminate this Purchase Contract for
any reason, or no reason, by giving written Notice to Seller and Escrow Agent on
or before 5:00 p.m. Central Daylight Time, on the date of expiration of the
Feasibility Period. If Purchaser exercises such right to terminate, this
Purchase Contract shall terminate and be of no further force and effect, subject
to and except for Purchaser's liability under Section 5.3, and Escrow Agent
shall promptly return the Deposit to Purchaser. If Purchaser fails to provide
Seller with written Notice of cancellation prior to the end of the Feasibility
Period in strict accordance with the Notice provisions of this Purchase
Contract, this Purchase Contract shall remain in full force and effect and
Purchaser's obligation to purchase the Property shall be non-contingent and
unconditional except only for satisfaction of the conditions expressly stated in
this ARTICLE 5 and in ARTICLE 9.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions
taken by Purchaser and its Consultants on the Property. Purchaser shall
indemnify, defend (with attorneys selected by Seller) and hold Seller harmless
from any and all claims, damages, costs and liability which may arise due to
such entries, surveys, tests, investigations and the like. Seller shall have the
right, without limitation, to disapprove any and all entries, surveys, tests,
investigations and the like that in its reasonable judgment could result in any
injury to the Property or breach of any agreement, or expose Seller to any
liability, costs, liens or violations of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. Purchaser shall exercise
commercially reasonable efforts to minimize disruption to the Tenants in
connection with Purchaser's or its Consultants' activities pursuant to this
Section. No consent by the Seller to any such activity shall be deemed to
constitute a waiver by Seller or assumption of liability or risk by Seller.
Purchaser hereby agrees to restore the Property to the same condition existing
immediately prior to Purchaser's exercise of its rights pursuant to this ARTICLE
5 at Purchaser's sole cost and expense. Purchaser shall maintain commercial
general liability insurance with broad form contractual and personal injury
liability endorsements with respect to Purchaser's activities on the Property
pursuant to this Section 5.2, with coverages of not less than $1,000,000.00 for
injury or death to any one person and $3,000,000.00 for injury or death to more
than one person and $500,000.00 with respect to property damage, by water or
otherwise. The provisions of this Section shall survive the Closing or
termination of this Purchase Contract for a period of one (1) year from the
Effective Date.
5.4 Purchaser shall not permit any mechanic's or materialmen'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 by or for Purchaser. Purchaser
shall give notice to Seller a reasonable time prior to entry onto the Property,
shall deliver to Seller proof of insurance coverage required above to Seller and
shall permit Seller to have a representative present during all investigations
and inspections conducted with respect to the Property. Purchaser shall take all
reasonable actions and implement all 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 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. All information made available by Seller to Purchaser in
accordance with this Purchase Contract or obtained by Purchaser in the course of
its investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall use its
best efforts to prevent its Consultants, agents and employees from divulging
such information to any unrelated 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 Purchase Contract, including Purchaser's attorneys and
representatives, prospective lenders and engineers.
5.5 Seller shall deliver to Purchaser within ten (10) calendar days from
the Effective Date copies of (a) Seller's form residential lease agreement(s)
used at the Property, (b) all Property Contracts, (c) engineering studies in
Seller's possession or control relating to the Property and prepared for Seller
by third parties (other than proprietary information of Seller), (d) the Loan
Documents (to the extent in Seller's possession) and (e) those items set forth
in Schedule 5.5 (collectively, the "Materials"). If the sale of the Property is
not closed by the date fixed therefor, Purchaser shall, within five (5) calendar
days, return all such Materials to Seller.
ARTICLE 6
TITLE
6.1 Seller shall promptly cause to be delivered to Purchaser (a) a
preliminary title report or commitment (the "Title Commitment") prepared by
Stewart Title Guaranty Company (the "Title Insurer") to issue an Owner's Policy
of Title Insurance (the "Title Policy") insuring title to the Property to be
good and indefeasible in the amount of the Purchase Price, subject only to the
Permitted Exceptions (described below) and other liens and encumbrances not
constituting objections to title in accordance herewith, together with legible
copies of all instruments identified therein as exceptions, and (b) a survey of
the Land and Improvements, prepared in accordance with and complying with the
minimum requirements of ALTA, in a form, and certified as of a date satisfactory
to the Title Insurer to delete standard survey exceptions from the Title Policy,
except for any Permitted Exceptions (i) containing a perimeter legal description
of the Property; (ii) certified to Purchaser, Mortgagee, Seller and Title
Insurer as being true and correct; and (iii) certifying the legal description
set forth therein as describing the Property to be purchased by Purchaser
pursuant to the terms of this Purchase Contract (the "Survey"). On or before ten
(10) days following Purchaser's receipt of the Title Commitment, the documents
of record reflected therein, and the Survey, Purchaser shall give written notice
(the "Objection Notice") to the attorneys for Seller of any conditions of title
subject to which Purchaser is not obligated to take the Property pursuant to the
provisions of this Purchase Contract (the "Objections") separately specifying
and setting forth each such objection. Seller shall have no obligation to cure
any matter set forth in the Objection Notice, but shall extend the Closing Date
for up to an additional thirty (30) days to cure any such matter. If Seller
gives Purchaser notice (the "Response Notice") that Seller is unable or
unwilling to cure any Objection set forth in the Objection Notice, or if Seller
fails to or does not give Purchaser a Response Notice, Purchaser may, as its
exclusive remedy, elect by written notice to Seller, within five (5) business
days after the Objection Notice is given, either (a) to accept such title as
Seller is able to convey without any reduction or abatement of the Purchase
Price, or (b) to terminate this Purchase Contract in which event the Deposit
shall be returned to Purchaser. If Purchaser fails to give notice of its
election to terminate this Agreement within such five (5) business day period,
Purchaser shall be deemed to have waived such Objections and to have elected to
proceed to close the transactions contemplated by this Purchase Contract.
6.2 All matters disclosed on the Title Commitment which are not objected
to in the Objection Notice as timely delivered or which are waived or deemed
waived by Purchaser pursuant to the provisions of Section 6.1 above, and any
matter affecting title to the Property, even though not reflected in the Title
Commitment if the Title Insurer will insure Purchaser's title clear of the
matter or will insure against the enforcement of such matter, shall be deemed to
be Permitted Exceptions, other than (a) the Mortgage, and (b) unpaid liens for
real estate and personal property taxes for years prior to the fiscal year in
which the Closing Date occurs and any other matter which Seller is obligated to
pay and discharge at the Closing under this Purchase Contract, and the amount
thereof chargeable to Seller, plus interest and penalties thereon, if any, shall
be deducted from the Purchase Price on the Closing Date and paid to the Title
Insurer for the payment of such matters. Purchaser agrees to accept title to the
Land and Improvements, so long as the same is indefeasible, and the Deed shall
be subject to the Permitted Exceptions.
6.3 Seller agrees that it shall be solely responsible for payment of all
costs relating to the issuance of the Title Policy, and Purchaser agrees that it
shall be solely responsible for payment of all costs, fees and premiums related
to all endorsements or amendments thereof.
6.4 Notwithstanding the foregoing, any deeds of trust and/or mortgages
(including any and all mortgages which secure the Seller's Note Obligations)
against the Property (whether one or more, the "Mortgage") shall be deemed
Permitted Exceptions, whether Purchaser gives written notice of such or not, and
subject to the provisions of Section 9.1.8 and Section 9.2.5, shall be not paid
off, satisfied, discharged and/or cured by Seller at or before Closing.
6.5 Seller covenants that it will not voluntarily create or cause any lien
or encumbrance to attach to the Property between the Effective Date and the
Closing Date (other than Leases and Property Contracts in the ordinary course of
business); any such monetary lien or encumbrance so attaching by voluntary act
of Seller (hereinafter, a "Voluntary Intervening Lien") shall be discharged by
the Seller at or prior to Closing on the Closing Date or any extended Closing
Date. Except as expressly provided in this ARTICLE 6, Seller shall not be
required to undertake efforts to remove any Objection or other lien,
encumbrance, security interest, exception, objection or other matter, to make
any expenditure of money or institute litigation or any other judicial or
administrative proceeding, and Seller may elect not to discharge the same;
provided, however, if any lien or encumbrance (other than a Voluntary
Intervening Lien) attaches to the Property between the Effective Date and the
Closing Date, Seller shall be required to satisfy or discharge said lien or
encumbrance at or prior to the Closing, provided that Seller shall not be
required to expend more than $50,000 in connection with such satisfaction or
discharge. If the amount required to satisfy or discharge such lien or
encumbrance exceeds $50,000, Purchaser shall have the option of either (a)
paying the excess amount over $50,000 required to satisfy or discharge such
lien, and proceeding to the Closing, or (b) terminating this Purchase Contract,
in which case, the Deposit shall be returned and refunded to Purchaser and
neither party shall have any further liability hereunder, subject to and except
for Purchaser's liability under Section 5.3 of this Purchase Contract. Seller
shall have no option to terminate this Purchase Contract if Purchaser has
elected to pay the amount in excess of $50,000 to satisfy or discharge such lien
or encumbrance.
6.6 Seller shall be responsible for the costs of the Survey. In the event
the perimeter legal description of the Property contained in the Survey differs
from that contained in the deed or deeds by which Seller took title to the
Property, the latter description shall be used in the Deed. Purchaser, at
Purchaser's sole cost and expense, may also cause to be prepared an
environmental report for the Property.
ARTICLE 7
CLOSING
7.1 Date, Place Of Closing, Prorations, Delinquent Rent and Closing
Costs.
7.1.1 The Closing shall occur on the earlier to occur of (a) ninety
(90) days following the Effective Date or (b) fourteen (14) days following the
delivery by Seller to Purchaser of the written commitment from the holder of
Seller's Note Obligation allowing Purchaser to assume the Seller's Note
Obligation, but in no event earlier than June 26, 2000, through an escrow with
Escrow Agent, whereby the Seller, Purchaser and their attorneys need not be
physically present at the Closing and may deliver documents by overnight air
courier or other means. Purchaser agrees that it will provide to Seller written
notice of the holder's assumption approval not more than three (3) Business Days
following the date of its receipt of such approval.
7.1.2 The Closing Date may be extended without penalty at the option
of Seller to a date not later than thirty (30) days following the Closing Date
specified above to satisfy a condition to be satisfied by Seller or to obtain
such consents of Seller's partners (or as may be required by law) to the
consummation of the transactions contemplated hereby, or such later date as is
mutually acceptable to Seller and Purchaser.
7.1.3 All normal and customarily proratable items, including,
without limitation, rents and other income from the Property ("Rents"),
operating expenses, personal property taxes and amounts due and payable under
the Loan Documents, shall be prorated as of the Closing Date, Seller being
charged or credited, as appropriate, for all of same attributable to the period
up to the Closing Date (and credited for any amounts paid by Seller attributable
to the period on or after the Closing Date, if assumed by Purchaser) 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. All
unapplied Security Deposits, if any, and amounts held in escrow or reserve by or
on behalf of the holder of the Seller's Note Obligation pursuant to the terms of
the Loan Documents shall be transferred by Seller to Purchaser at the Closing or
Seller shall be given a credit therefor against the Purchase Price, as Seller
may elect. Purchaser shall assume at Closing the obligations under the Property
Contracts assumed by Purchaser, provided that any payments under the Property
Contracts have been prorated. 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 calendar year of Closing, shall be prorated to the
date of Closing, based upon actual days involved. The proration of real property
taxes or installments of assessments 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. The provisions of this Section 7.1.3 shall apply during
the Proration Period (as defined below). Rents and all related charges shall be
prorated based on actual collections as of the Closing Date.
7.1.4 If any of the items subject to proration hereunder cannot be
prorated at the Closing because the information necessary to compute such
proration is unavailable, 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 (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. 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 Proration 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 the
Proration Period 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.
7.1.5 If on the Closing Date any Tenant is in arrears in any Rent
payment under any Tenant lease (the "Delinquent Rent"), 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: (i) first, to the period of time after the
Closing Date, and (ii) second, to the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after Closing
shall be forwarded to Purchaser for disbursement in accordance with the order of
payment provided herein above. After the Closing, Seller shall continue to have
the right, but not the obligation, in its own name, to demand payment of and to
collect Delinquent Rent owed to Seller by any Tenant, which right shall include,
without limitation, the right to continue or commence legal actions or
proceedings against any Tenant (provided, that Seller shall not commence any
legal actions or proceedings against any Tenant which continues as a Tenant at
the Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or liability to
Purchaser in connection with all efforts by Seller to collect such Delinquent
Rent and to take all steps, whether before or after the Closing Date, as may be
necessary to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, within seven (7) days after a written
request, of any relevant books and records (including, without limitation, rent
statements, receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and the
undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Lease with an existing Tenant or evict any existing Tenant from
the Property. The provisions of this Section 7.1.5 shall apply during the
Proration Period.
7.1.6 Seller shall pay the cost of all transfer taxes (e.g., excise
stamp taxes) and Purchaser shall pay the cost of all recording costs with
respect to the Closing. Seller and Purchaser shall share equally in the costs of
the Escrow Agent for escrow fees but not any other fees and charges of the Title
Insurer.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Escrow Agent (for
delivery to Purchaser upon the consummation of the Closing), each of the
following items, as applicable:
7.2.1.1 Special Warranty Deed in the form attached as Exhibit
"E" (the "Deed"). The acceptance of such deed at Closing, shall be deemed to be
full performance of, and discharge of, every agreement and obligation on
Seller's part to be performed under this Purchase Contract, except for those
that this Purchase Contract specifically provides shall survive Closing.
7.2.1.2 A Bill of Sale without recourse or warranty in the
form attached as Exhibit "F", covering all Property Contracts, Leases, Security
Deposits, Permits (other than Excluded Permits) and Fixtures and Tangible
Personal Property required to be transferred to Purchaser with respect to such
Property. Purchaser shall countersign the same so as to effect an assumption by
Purchaser of, among other things, Seller's obligations thereunder.
7.2.1.3 An Assignment (to the extent assignable and in force
and effect) without recourse or warranty in the form attached as Exhibit "G" of
all of Seller's right, title and interest in and to the Miscellaneous Property
Assets, subject to any required consents. Purchaser shall countersign the same
so as to effect an assumption by Purchaser, including, without limitation, of
Seller's obligations thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A title affidavit or, at Seller's option, an
indemnity, as applicable, in the customary form reasonably acceptable to Seller
and Title Insurer to enable Title Insurer to delete the standard exceptions to
the title insurance policy to be issued pursuant to the Title Commitment (the
"Title Policy") (other than matters constituting any Permitted Exceptions and
matters which are to be completed or performed post-Closing); provided that such
affidavit does not subject Seller to any greater liability, or impose any
additional obligations, other than as set forth in this Purchase Contract; and
7.2.1.6 A certification of Seller's non-foreign status
pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended.
7.2.1.7 Except for the items expressly listed above to be
delivered at Closing, delivery of any other required items shall be deemed made
by Seller to Purchaser, if Seller leaves such documents at the Property in their
customary place of storage or in the custody of Purchaser's representatives.
7.2.1.8 Evidence that the Management Agreement has been
terminated.
7.2.1.9 A rent roll for the Property, updated to the Closing
Date and certified by Seller, listing the monthly base rent payable, lease
expiration date and unapplied Security Deposits for each lease.
7.2.1.10 Resolutions, certificates of good standing, and such
other organizational documents as Title Insurer shall reasonably require
evidencing Seller's authority to consummate this transaction.
7.2.1.11 To the extent in Seller's possession or control,
originals or copies of the Leases, Property Contracts, Permits (other than
Excluded Permits), lease files, warranties, guaranties, operating manuals, keys
to the Property and Seller's books and records (other than proprietary
information) regarding the Property.
7.2.2 Purchaser. At Closing, Purchaser shall deliver to the Escrow
Agent (for disbursement or delivery to Seller upon the Closing) the following
items with respect to the Property being conveyed at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3
hereof minus the then outstanding amount of the Seller's Note Obligation, plus
any fees or penalties necessary to assume the Seller's Note Obligation, and plus
or minus the adjustments or prorations required by this Purchase Contract. If at
Closing there are any liens or encumbrances on the Property that Seller is
obligated or elects to pay and discharge, Seller may use any portion of the
Purchase Price for the Property(s) to satisfy the same, provided that Seller
shall have delivered to Title Company, on such Closing instruments in recordable
form sufficient to satisfy such liens and encumbrances of record (or, as to any
mortgages or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such instruments. The
existence of any such liens or encumbrances shall not be deemed objections to
title if Seller shall comply with the foregoing requirements.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale in the
form attached as Exhibit "F".
7.2.2.4 A countersigned counterpart of the Assignment in
the form attached as Exhibit "G".
7.2.2.5 Such other instruments, documents or certificates as
are required to be delivered by Purchaser to Seller in accordance with any of
the other provisions of this Purchase Contract.
7.2.3 Notice to Tenants. At Closing, Seller and Purchaser
shall execute and deliver a letter, dated as of the date of Closing and
addressed to all Tenants, informing such Tenants of the transfer of the Property
and the assignment of the Leases to Purchaser, together with an instruction to
pay all amounts due or to become due under the Leases to Purchaser, including an
acknowledgment by Purchaser of receipt of all security deposits (specifying the
exact dollar amount of the security deposit) and that Purchaser is responsible
for the Tenant's security deposit, and in compliance with Section 92.105 of the
Texas Property Code. The letter shall be in the form of Exhibit "H" attached
hereto.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER
8.1 Representations, Warranties and Covenants Of Seller.
8.1.1 For the purpose of inducing Purchaser to enter into this
Purchase Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the following
as of the Effective Date and as of the Closing Date:
8.1.1.1 Seller is lawfully and duly organized, and, if
applicable, in good standing under the laws of the state of its formation set
forth in the initial paragraph of this Purchase Contract; and has or at the
Closing shall have the power and authority to sell and convey the Property and
to execute the documents to be executed by Seller and prior to the Closing will
have taken as applicable, all corporate, partnership, limited liability company
or equivalent entity actions required for the execution and delivery of this
Purchase Contract, and the consummation of the transactions contemplated by this
Purchase Contract. The compliance with or fulfillment of the terms and
conditions hereof will not conflict with, or result in a breach of, the terms,
conditions or provisions of, or constitute a default under, any purchase
contract to which Seller is a party or by which Seller is otherwise bound.
Seller has not made any other contract for the sale of, or given any other
person the right to purchase, all or any part of any of the Property;
8.1.1.2 Seller owns indefeasible fee title to the Property,
including all real property contained therein required to be sold to Purchaser,
subject only to the Permitted Exceptions (provided, however, that if this
representation is or becomes untrue, Purchaser's remedies shall be limited to
the right to terminate this Purchase Contract within five (5) days of receipt by
Purchaser from the Title Insurer of such information, and receive a return of
the Deposit, and Seller shall have no other liability as a result thereof,
either before or after Closing);
8.1.1.3 There are no adverse or other parties in possession of
the Property, except for occupants, guests and tenants under the Leases
(provided, however, that if this representation is or becomes untrue,
Purchaser's remedies shall be limited to the right to terminate this Purchase
Contract within five (5) days of receipt by Purchaser from the Title Insurer of
such information and receive a return of the Deposit, and Seller shall have no
other liability as a result thereof, either before or after Closing);
8.1.1.4 The joinder of no person or entity other than Seller
is necessary to convey the Property, fully and completely, to Purchaser at
Closing, or to fulfill Seller's obligations under this Purchase Contract, and
Seller has or at the Closing shall have all necessary right and authority to
convey and assign to Purchaser all contract rights and warranties required to be
conveyed and assigned to Purchaser hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes for
Seller pursuant to the Foreign Investors Real Property Tax Act of 1980, as
amended;
8.1.1.6 To Seller's knowledge, there are no actions,
proceedings, litigation or governmental investigations or condemnation actions
either pending or threatened against the Property, as applicable;
8.1.1.7 Seller has no knowledge of any claims for labor
performed, materials furnished or services rendered in connection with
constructing, improving or repairing any of the Property, as applicable, caused
by Seller and which remain unpaid beyond the date for which payment was due and
in respect of which liens may or could be filed against any of the Property, as
applicable;
8.1.1.8 To Seller's knowledge, Seller has not received any
written notice of any proposed taking, condemnation or special assessment with
respect to the Property;
8.1.1.9 To Seller's knowledge, Seller has not received any
written notice of any uncured violations of any federal, state, county or
municipal law, ordinance, order, regulation or requirement affecting the
Property;
8.1.1.10 To Seller's knowledge, Seller has not received any
written notice of any default by Seller under any of the Property Contracts that
will not be terminated on the Closing Date;
8.1.1.11 Until the Closing Date, Seller agrees to maintain its
existing insurance policies covering the Property in full force and effect
through the Closing Date, to continue to maintain the Property in substantially
the same manner as Seller has been operating the Property immediately prior to
the Effective Date, and to cause any of the units on the Property that are
vacant as of three days prior to the Closing Date to be in "make ready"
condition on the Closing Date; and
8.1.1.12 To Seller's knowledge, all documents relating to the
Property that are delivered by Seller to Purchaser in connection with this
Purchase Contract, are true, correct and complete in all material respects, and
none contain any untrue statement of a material fact or omit to state a material
fact.
8.1.2 Except for the representations and warranties expressly set
forth above in Subsection 8.1.1, the Property is expressly purchased and sold
"AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price and the terms and
conditions set forth herein are the result of arm's-length bargaining between
entities familiar with transactions of this kind, and said price, terms and
conditions reflect the fact that Purchaser shall have the benefit of, and is not
relying upon any information provided by Seller, "Broker" (as hereinafter
defined) or "Other Broker" (as hereinafter defined) or statements,
representations or warranties, express or implied, made by or enforceable
directly against Seller, Broker or Other Broker, including, without limitation,
any relating to the value of the Property, the physical or environmental
condition of the Property, any state, federal, county or local law, ordinance,
order or permit; or the suitability, compliance or lack of compliance of the
Property with any regulation, or any other attribute or matter of or relating to
the Property (other than any covenants of title contained in the Deed and the
representations set forth in this ARTICLE 8). If Seller provides or has provided
any documents, summaries, opinions or work product of consultants, surveyors,
architects, engineers, title companies, governmental authorities or any other
person or entity with respect to the Property, including, without limitation,
the offering prepared by Broker, Purchaser and Seller agree that Seller has done
so or shall do so only for the convenience of both parties, Purchaser shall not
rely thereon and the reliance by Purchaser upon any such documents, summaries,
opinions or work product shall not create or give rise to any liability of or
against Seller, Seller's partners or affiliates or any of their respective
partners, officers, directors, participants, employees, contractors, attorneys,
consultants, representatives, agents, successors, assigns or
predecessors-in-interest. Purchaser acknowledges and agrees that no
representation has been made and no responsibility is assumed by Seller with
respect to current and future applicable zoning or building code requirements or
the compliance of the Property with any other laws, rules, ordinances or
regulations, the financial earning capacity or expense history of the Property,
the continuation of contracts, continued occupancy levels of the Property, or
any part thereof, or the continued occupancy by tenants of any Leases or,
without limiting any of the foregoing, occupancy at Closing. Prior to Closing,
Seller shall have the right, but not the obligation, to enforce its rights
against any and all Property occupants, guests or tenants. Except as otherwise
set forth herein, Purchaser agrees that the departure or removal, prior to
Closing, of any of such guests, occupants or tenants shall not be the basis for,
nor shall it give rise to, any claim on the part of Purchaser, nor shall it
affect the obligations of Purchaser under this Purchase Contract in any manner
whatsoever; and Purchaser shall close title and accept delivery of the deed with
or without such tenants in possession and without any allowance or reduction in
the Purchase Price under this Purchase Contract. Purchaser hereby releases
Seller from any and all claims and liabilities relating to the foregoing
matters.
8.1.3 Seller agrees that Purchaser shall be entitled to rely on the
foregoing representations and warranties made by Seller herein and that
Purchaser has so relied. Seller and Purchaser agree that those representations
and warranties contained in Section 8.1 shall survive Closing for a period of
one (1) year (the "Survival Period"). Seller shall have no liability after the
Survival Period with respect to the representations and warranties contained
herein except to the extent that Purchaser has filed a lawsuit against Seller
during the Survival Period for breach of any representation or warranty. In the
event that Seller breaches any representation contained in Section 8.1 and
Purchaser had knowledge of such breach prior to the Closing Date, Purchaser
shall be deemed to have waived any right of recovery, and Seller shall not have
any liability in connection therewith.
8.1.4 Representations and warranties above made to the knowledge of
Seller shall not be deemed to imply any duty of inquiry. For purposes of this
Purchase Contract, the term Seller's "knowledge" shall mean and refer to only
actual knowledge of the Designated Representative (as hereinafter defined) of
the Seller and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Seller, or
any affiliate of the Seller, or to impose upon such Designated Representative
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to (a) Harry Alcock, or (b) Rebecca White, of
Manager.
8.2 Representations And Warranties Of Purchaser
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in accordance
herewith, Purchaser represents and warrants to Seller the following as of the
Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser
represents and warrants, in particular, that:
8.2.2.1 Purchaser is a limited partnership duly organized,
validly existing and in good standing under the laws of the State of Texas.
8.2.2.2 Purchaser, acting through any of its or their duly
empowered and authorized officers or members, has all necessary power and
authority to own and use its properties and to transact the business in which it
is engaged, and has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and instruments required of
Purchaser herein, and to perform its obligations hereunder; and no consent of
any of Purchaser's officers or members are required to so empower or authorize
Purchaser.
8.2.2.3 No pending or, to the knowledge of Purchaser,
threatened litigation exists which if determined adversely would restrain the
consummation of the transactions contemplated by this Purchase Contract or would
declare illegal, invalid or non-binding any of Purchaser's obligations or
covenants to Seller.
8.2.2.4 Purchaser is duly authorized to execute and deliver,
acting through its duly empowered and authorized officers, and perform this
Purchase Contract and all documents and instruments and transactions
contemplated hereby or incidental hereto, and such execution, delivery and
performance by Purchaser does not (i) violate any of the provisions of its
certificates of incorporation or bylaws, (ii) violate any provision of any law,
governmental rule or regulation currently in effect, (iii) violate any judgment,
decree, writ, injunction, award, determination or order currently in effect that
names or is specifically directed at Purchaser or its property, and (iv) require
the consent, approval, order or authorization of, or any filing with or notice
to, any court or other governmental authority.
8.2.2.5 The joinder of no person or entity other than
Purchaser is necessary to consummate the transactions to be performed by
Purchaser and Purchaser has all necessary right and authority to perform such
acts as are required and contemplated by this Purchase Contract.
8.2.3 Except for Other Broker, Purchaser has not dealt with any
broker, finder or any other person, in connection with the purchase of or the
negotiation of the purchase of the Property that might give rise to any claim
for commission against Seller or lien or claim against the Property.
8.2.4 Seller will cooperate with Purchaser in obtaining the consent
of the holder(s) of the Seller's Note Obligation to the assumption thereof (if
required).
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to
Purchaser at the Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
9.1.2 Each of the representations, warranties and covenants of
Seller contained herein shall be true in all material respects as of the Closing
Date (and Purchaser shall be permitted to perform an inspection of the Property
immediately prior to the Closing Date to verify same);
9.1.3 Seller shall have complied with, fulfilled and performed in
all material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Seller hereunder;
9.1.4 Neither Seller nor Seller's general partner shall be a debtor
in any bankruptcy proceeding or shall have been in the last 6 months a debtor in
any bankruptcy proceeding;
9.1.5 A taking of all or any part of the Property must not have
been commenced or threatened in writing;
9.1.6 The actual occupancy level of the Property shall not have
decreased by more than fifteen percent (15%) from the actual occupancy level on
the Effective Date;
9.1.7 Seller shall have terminated any Property Contracts which are
not being assumed by Purchaser as of the Closing Date (and which are capable of
being terminated by Seller without penalty or cost to Seller).
9.1.8 All consents required for the assumption of the Seller's Note
Obligation which may be required shall have been obtained in accordance with the
requirements of ARTICLE 4.
9.1.9 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above. If any of the above conditions is not satisfied, then notwithstanding
anything to the contrary contained in this Purchase Contract, Purchaser may, at
its option (a) extend the Closing Date to permit satisfaction of such condition,
(b) waive such condition and proceed to Closing and accept title to the Property
with an agreed-upon offset or deduction from the Purchase Price (assuming Seller
and Purchaser can agree upon such offset or deduction amount, and neither party
has any obligation to come to an agreement), (c) waive such condition and
proceed to Closing and accept title to the Property without any offset or
deduction from the Purchase Price, or (d) notify Seller of Purchaser's election
to terminate this Purchase Contract and receive a return of the Deposit from the
Escrow Agent.
9.2 Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation with respect to the conveyance of
the Property under this Purchase Contract shall be subject to and conditioned
upon the fulfillment of each and all of the following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
and as of the Effective Date as though such representations and warranties were
made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase Contract to be
performed or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either
Purchaser or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or nonbinding
any of the covenants or obligations of the Purchaser.
9.2.4 The conditions of Section 9.1.8 shall have been satisfied.
9.2.5 Notwithstanding anything to the contrary, there are no other
conditions on Seller's obligation to Close except as expressly set forth above.
If any of the above conditions is not satisfied, then notwithstanding anything
to the contrary contained in this Purchase Contract, Seller may, at its option
(a) extend the Closing Date to permit satisfaction of such condition, (b) waive
such condition and proceed to Closing, or (c) notify Purchaser of Seller's
election to terminate this Purchase Contract and receive the Deposit from the
Escrow Agent (which Seller shall retain as liquidated damages, as its sole and
exclusive remedy hereunder, in accordance with the provisions of ARTICLE 12
hereof.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only
with O'Boyle Properties, Inc. ("Broker") and Southwest Residential Partners,
Inc. ("Other Broker") in connection with this Purchase Contract. Seller and
Purchaser each represents and warrants to the other that other than Broker and
Other Broker, it has not dealt with or utilized the services of any other real
estate broker, sales person or finder in connection with this Purchase Contract,
and each party agrees to indemnify the other party from and against all claims
for brokerage commissions and finder's fees arising from or attributable to the
acts or omissions of the indemnifying party.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Neither Broker nor Other Broker shall be deemed a party or
third party beneficiary of this Purchase Contract.
10.3 Neither Broker nor Other Broker assumes any responsibility for the
condition of the Property or representation for the performance of this Purchase
Contract by the Seller or Purchaser.
10.4 The Texas Real Estate License Act requires written notice to
Purchaser from any licensed real estate broker or salesman who is to receive a
commission from Purchaser that Purchaser should have an attorney of its own
selection examine an abstract of title to the property being acquired or that
Purchaser should be furnished with or should obtain a title insurance policy.
Notice to that effect is, therefore, hereby given to Purchaser on behalf of
Broker and Other Broker.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall
be delivered to Purchaser at the Closing, subject to Purchaser's right of entry
for inspection as set forth in ARTICLE 5.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 In the event (a) Purchaser terminates this Purchase Contract for any
reason other than pursuant to (i) ARTICLE 5, (ii) ARTICLE 6, (iii) ARTICLE 13,
(iv) ARTICLE 15, or (v) Seller's inability to convey title, or (b) Purchaser
defaults hereunder on or prior to the Closing Date, and consummation of the
Closing does not occur by reason of such termination or default by Purchaser,
Seller and Purchaser agree that it would be impractical and extremely difficult
to estimate the damages which Seller may suffer. Therefore, Seller and Purchaser
hereby agree that, except for the Purchaser's obligations to Seller under
Section 5.3, the reasonable estimate of the total net detriment that Seller
would suffer in the event that Purchaser so terminates this Purchase Contract or
defaults hereunder on or prior to the Closing Date is and shall be, as Seller's
sole and exclusive remedy (whether at law or in equity), the right to receive
from the Escrow Agent and retain the full amount of the Deposit. The payment of
the Deposit as liquidated damages is not intended as a forfeiture or penalty
within the meaning of applicable law and is intended to settle all issues and
questions about the amount of damages suffered by Seller in the applicable
event, except only for damages under Section 5.3 above, irrespective of the time
when the inquiry about such damages may take place. Upon any such failure by
Purchaser hereunder, this Purchase Contract shall be terminated, and neither
party shall have any further rights or obligations hereunder, each to the other,
except for the Purchaser's obligations to Seller under Section 5.3 above, and
the right of Seller to collect the Deposit as liquidated damages.
12.2 Provided that Purchaser has not terminated this Purchase Contract and
is not otherwise in default hereunder, if the Closing does not occur as a result
of Seller's default hereunder (which shall not include Seller's inability to
convey title), Purchaser's sole remedy shall be to elect to either (a) terminate
this Purchase Contract and receive reimbursement of the Deposit or (b) enforce
specific performance of this Purchase Contract. In the event Purchaser is unable
to enforce the remedy of specific performance after using commercially
reasonable efforts to seek to enforce such remedy, then in lieu of obtaining
specific performance, Purchaser shall have the right to bring suit for damages
against Seller in an amount not to exceed $50,000.00 in addition to receiving
reimbursement of the Deposit.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 In the event that the Property is damaged or destroyed by fire or
other casualty after the Effective Date but prior to Closing, and the cost of
repair is more than $300,000, then Seller will have no obligation to repair such
damage or destruction and, at Purchaser's option, this Agreement shall terminate
and the Deposit shall be returned to Purchaser. In the event Purchaser elects
not to terminate this Agreement, this transaction shall be closed in accordance
with the terms of this Agreement, notwithstanding any such damage or
destruction, and Purchaser shall receive, at Closing all insurance proceeds
pertaining thereto (plus a credit against the Purchase Price in the amount of
any deductible payable by Seller in connection therewith), but only to the
extent the damage or destruction has not been repaired by Seller out of the
insurance proceeds.
13.2 In the event that the Property is damaged or destroyed by fire or
other casualty after the Effective Date but prior to the Closing, and the cost
of repair is less than $300,000, this transaction shall be closed in accordance
with the terms of this Agreement, notwithstanding the damage or destruction;
provided, however, Seller shall make such repairs if they can be reasonably
effected before the Closing. If Seller is unable to effect such repairs, then
Purchaser shall receive at Closing all insurance proceeds pertaining thereto
(plus a credit against the Purchase Price in the amount of any deductible
payable by Seller in connection therewith), but only to the extent the damage or
destruction has not been repaired by Seller out of the insurance proceeds.
ARTICLE 14
LEAD-BASED PAINT DISCLOSURE
14.1 Seller and Purchaser hereby acknowledge completion of the Lead-Based
Paint Disclosure form attached as Exhibit "I" hereto and the delivery of such
executed form prior to the Effective Date.
ARTICLE 15
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the
Property is (or has previously been) acquired, or is about to be acquired, by
authority of any governmental agency in purchase in lieu thereof (or in the
event that at such time there is any notice of any such acquisition or intent to
acquire by any such governmental agency), Purchaser shall have the right, at
Purchaser's option, to terminate this Purchase Contract by giving written Notice
within Fifteen (15) days of Purchaser's receipt from Seller of the occurrence of
such event and recover the Deposit hereunder, or to settle in accordance with
the terms of this Purchase Contract for the full Purchase Price and receive the
full benefit or any condemnation award.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules
All Exhibits and Schedules, whether or not annexed hereto, are a part of
this Purchase Contract for all purposes.
16.2 Assignability
Subject to Section 16.18, this Purchase Contract is not assignable without
first obtaining the prior written approval of the non-assigning party, except
that Purchaser may assign all or an undivided interest in this Purchaser
Contract to one or more entities so long as (i) Purchaser remains a part of the
purchasing entity(ies), (ii) Purchaser is not released from its liability
hereunder, or (iii) Seller consents thereto (which consent shall not be
unreasonably withheld or delayed).
16.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 Captions
The captions, headings, and arrangements used in this Purchase Contract
are for convenience only and do not in any way affect, limit, amplify, or modify
the terms and provisions hereof.
16.5 Number And Gender Of Words
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 Notices
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing and
shall be deemed to have been properly given or served for all purposes (i) if
sent by Federal Express or a nationally recognized overnight carrier for next
business day delivery, on the first business day following deposit of such
Notice with such carrier, or (ii) if personally delivered, on the actual date of
delivery or (iii) if sent by certified mail, return receipt requested postage
prepaid, on the Fifth (5th) business day following the date of mailing, or (iv)
if sent by telecopier, then on the actual date of delivery (as evidenced by a
telecopier confirmation) provided that a copy of the telecopy and confirmation
is also sent by U.S. mail, addressed as follows:
If to Seller: If to Purchaser:
Granada AIPL 6, A Texas Limited Casa Associates, L.P.
Partnership 1325 South 77 Sunshine Strip,
2000 South Colorado Boulevard Suite 208
Tower Two, Suite 2-1000 Harlingen, Texas 78550
Denver, Colorado 80222 Attn: Matthew Zebrowski
Attn: Mr. Harry Alcock Telephone No. (956) 423-2560
Telephone No. (303) 691-4344 Facsimile No. (956) 423-5287
Facsimile No. (303) 691-5662
And With a copy to
Granada AIPL 6, A Texas Limited McCullough & McCullough
Partnership 323 East Jackson
2000 South Colorado Boulevard Harlingen, Texas 78551
Tower Two, Suite 2-1000 Attn: Graham McCullough, Esq.
Denver, Colorado 80222 Telephone No. (956) 423-1234
Attn: Mr. Pat Stucker Facsimile No. (956) 423-4976
Telephone No. (303) 691-4321
Facsimile No. (303) 692-0786
With a copy to
Jackson Walker L.L.P.
112 E. Pecan
Suite 2100
San Antonio, Texas 78205
Attn: Eileen E. Scherlen, Esq.
Telephone No. (210) 978-7784
Facsimile No. (210) 978-7790
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of Notice by
mail or otherwise is required, the giving of such Notice may be waived in
writing by the person or persons entitled to receive such Notice.
16.7 Governing Law And Venue
The laws of the State in which the Land is located shall govern the
validity, construction, enforcement, and interpretation of this Purchase
Contract, unless otherwise specified herein except for the conflict of laws
provisions thereof. All claims, disputes and other matters in question arising
out of or relating to this Purchase Contract, or the breach thereof, shall be
decided by proceedings instituted and litigated in a court for the district in
which the Property is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
16.8 Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if any,
relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
16.9 Severability
If any provision of this Purchase Contract is held to be illegal, invalid,
or unenforceable under present or future laws, such provision shall be fully
severable. The Purchase Contract shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Purchase Contract; and the remaining provisions of this Purchase Contract shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
16.10 Multiple Counterparts
This Purchase 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 Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such counterpart.
16.11 Further Acts
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered any and all such further acts, deeds, and assurances
as may be necessary to consummate the transactions contemplated hereby.
16.12 Construction
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to the
drafting of this Purchase Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
16.13 Confidentiality
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that Purchaser may
disclose the terms and conditions of this Purchase Contract (i) as required by
law, (ii) to consummate the terms of this Purchase Contract, or any financing
relating thereto, or (iii) to Purchaser's or Seller's lenders, attorneys and
accountants. Any information provided by Seller to Purchaser under the terms of
this Purchase Contract is for informational purposes only. In providing such
information to Purchaser, Seller makes no representation or warranty, express,
written, oral, statutory, or implied, and all such representations and
warranties are hereby expressly excluded. Purchaser shall not in any way be
entitled to rely upon the accuracy of such information. Such information is also
confidential and Purchaser shall be prohibited from making such information
public to any other person or entity other than its agents and legal
representatives, without Seller's prior written authorization, which may be
granted or denied in Seller's sole discretion.
16.14 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.15 Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies herein conferred or referred except as
expressly stated otherwise, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Purchase
Contract. No delay or omission to exercise any right or power accruing upon any
default, omission, or failure of performance hereunder shall impair any right or
power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient. No
waiver, amendment, release, or modification of this Purchase Contract shall be
established by conduct, custom, or course of dealing.
16.16 Litigation Expenses
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall be
entitled to recover from the other party its reasonable attorneys' fees and
expenses incidental to such litigation.
16.17 Time Periods
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time period.
16.18 Exchange
At Seller's sole cost and expense, Seller may structure and consummate the
sale of the Property to Purchaser as part of a like-kind exchange (an
"Exchange") intended to qualify under ss. 1031 of the Internal Revenue Code of
1986, as amended, provided that: (a) the Closing shall not be delayed or
affected by reason of an Exchange; (b) Seller shall effect an Exchange through
an assignment of this Agreement, and its rights under this Agreement, to a
qualified intermediary; and (c) Purchaser shall not be required to take an
assignment of the agreement relating to the exchange property or be required to
acquire or hold title to any real property for purposes of consummating an
Exchange. Purchaser shall cooperate fully and promptly with Seller's conduct of
the Exchange, provided that all costs and expenses generated in connection with
the Exchange shall be borne solely by Seller. If Seller uses a qualified
intermediary to effectuate the Exchange, any assignment of the rights or
obligations of Seller hereunder shall not relieve, release or absolve Seller of
its obligations to Purchaser. Seller shall indemnify and hold harmless Purchaser
from and against any and all liability arising from and out of the Exchange.
16.19 No Personal Liability of Officers, Trustees or Directors of
Seller's Partners
Purchaser acknowledges that this Agreement is entered into by Seller which
is a Texas limited partnership, and Purchaser agrees that no individual officer,
trustee, director or representative of the partners of Seller shall have any
personal liability under this Agreement or any document executed in connection
with the transactions contemplated by this Agreement.
16.20 No Personal Liability of Officers, Trustees or Purchaser's
Partners
Seller acknowledges that this Agreement is entered into by Purchaser which
is a Texas limited partnership and Seller agrees that no individual officer,
trustee, director or representative of Purchaser shall have any personal
liability under this Agreement or any document executed in connection with this
Agreement.
16.21 No Exclusive Negotiations
Seller shall have the right, at all times, to solicit backup offers and
enter into discussions, negotiations, or any other communications concerning or
related to the sale of the Property with any third-party; provided, however,
that such communications are subject to the terms of this Agreement, and that
Seller shall not enter into any contract or binding agreement with a third-party
for the sale of the Property unless such agreement is contingent on the
termination of this Agreement without the Property having been conveyed to
Purchaser.
16.22 DTPA WAIVER.
IT IS THE INTENT OF SELLER AND PURCHASER THAT THE RIGHTS AND REMEDIES WITH
RESPECT TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT SHALL BE GOVERNED BY
LEGAL PRINCIPLES OTHER THAN THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER
PROTECTION ACT. ACCORDINGLY, TO THE MAXIMUM EXTENT APPLICABLE AND PERMITTED BY
LAW (AND WITHOUT ADMITTING SUCH APPLICABILITY), PURCHASER HEREBY WAIVES THE
PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT,
CHAPTER 17, SUBCHAPTER 3 (OTHER THAN SECTION 17.555, WHICH IS NOT WAIVED), TEXAS
BUSINESS AND COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND
PROTECTIONS. FOR PURPOSES OF THE WAIVERS SET FORTH IN THIS AGREEMENT, PURCHASER
HEREBY WARRANTS AND REPRESENTS UNTO SELLER THAT (A) PURCHASER HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE
MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, (B)
PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION WITH SELLER
REGARDING THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, (C) PURCHASER IS
REPRESENTED BY LEGAL COUNSEL THAT IS SEPARATE AND INDEPENDENT OF SELLER AND
SELLER'S LEGAL COUNSEL AND (D) PURCHASER HAS CONSULTED WITH PURCHASER'S LEGAL
COUNSEL REGARDING THIS AGREEMENT PRIOR TO PURCHASER'S EXECUTION OF THIS
AGREEMENT AND VOLUNTARILY CONSENTS TO THIS WAIVER.
[Remainder of Page Intentionally Left Blank]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
Seller:
GRANADA AIPL 6, A TEXAS LIMITED
PARTNERSHIP,
a Texas limited partnership
By: Granada AIPL 6, Inc.,
a Texas corporation,
its general partner
By:
_ Harry Alcock
_ Vice President
Purchaser:
CASA ASSOCIATES, L.P.,
a Texas limited partnership
By: KAMZ Development Corporation,
a Texas corporation,
its general partner
_By:
Matt Zebrowski
President
EXHIBIT A
LEGAL DESCRIPTION
(Casa Granada)
Tract I:
Lot Number One (1), Block Number One (1), 144 Southmore Corporation Subdivision
in the City of Harlingen, in Cameron County, Texas according to Map of said
Subdivision, recorded in Volume 20, Page 25 of the Map Records of Cameron
County, Texas:
Tract II:
Lot Number One (1), Block Number One (1), 144 Southmore Corporation Subdivision,
Unit No. Two, in the City of Harlingen in Cameron County, Texas, according to
Map of said Subdivision recorded in Volume 22, Page 19 of the Map Records of
Cameron County, Texas.
Tract III:
Lot Number One (1), in Block Number One (1), 144 Southmore Corporation, Unit No.
Three in the City of Harlingen in Cameron County, Texas, according to Map of
said Subdivision recorded in Volume 24, Page 6 of the Map records of Cameron
County, Texas.
EXHIBIT B
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
EXHIBIT C
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
1. Any "Buyer's Access" computers or related software.
EXHIBIT D
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____day of May, 2000
by and among GRANADA AIPL 6, A TEXAS LIMITED PARTNERSHIP, a Texas limited
partnership ("Seller"), CASA ASSOCIATES, L.P., a Texas limited partnership
("Purchaser"); and STEWART TITLE GUARANTY COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the ________ day of May,
2000; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of Fifty Thousand and No/100 Dollars ($50,000.00) in cash (the
"Deposit"), to be held pursuant to an escrow agreement approved by Purchaser and
Seller; and
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of Fifty
Thousand and No/100 Dollars ($50,000.00) in cash (constituting the Deposit), to
be deposited, held, invested, and disbursed for the benefit of Seller and
Purchaser and their respective successors and assigns, as provided herein and as
provided in the Purchase Contract.
2. Investment of Escrow Fund. All funds received by Escrow Agent, including the
Deposit (collectively, the "Escrow Fund"), shall be held in insured accounts and
invested in an interest-bearing bank account acceptable to Seller and Purchaser
at one or more federally insured national banking association(s) or such other
investment jointly directed by Seller and Purchaser should Seller and Purchaser
each in their respective sole discretion determine to issue such joint
investment instructions to the Escrow Agent) and all interest and income thereon
shall become part of the Escrow Fund and shall be remitted to the party entitled
to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall deliver the Escrow Fund to Seller in immediately available funds by
wire transfer in accordance with the instructions of Seller on the Closing Date
as set forth in the Purchase Contract, (b) if the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Escrow
Agent shall return and refund the Escrow Fund to Purchaser, (c) if the sale of
the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of performance by Seller, Purchaser shall give Notice to
the Escrow Agent and Seller and in such Notice shall state whether it elects as
its remedy return of the Escrow Fund or specific performance of the Purchase
Contract; if Purchaser elects return of the Escrow Fund, Escrow Agent shall
return and refund the Escrow Fund to Purchaser, (d) if the sale of the Property
is not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Purchaser, Escrow Agent shall forthwith deliver the
Escrow Fund in immediately available funds by wire transfer in accordance with
the instructions of Seller, and (e) if Purchaser shall have canceled the
Purchase Contract on or before the expiration of the Feasibility Period (as
defined in the Purchase Contract), the Escrow Agent shall return and refund the
Escrow Fund to Purchaser.
If on or prior to the termination of this Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to
herein, such party shall give Notice to the Escrow Agent and the other party of
the claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within ten (10) days after receipt of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4. Liability. Escrow Agent will be obligated to perform only the duties that are
expressly set forth herein. In case of conflicting demands upon Escrow Agent, it
may (i) refuse to comply therewith as long as such disagreement continues and
make no delivery or other disposition of any funds or property then held (and
Escrow Agent shall not be or become liable in any way for such failure or
refusal to comply with such conflicting or adverse claims or demands, except for
its failure to exercise due care, willful breach and willful misconduct); and
(ii) continue to so refrain and so refuse to act until all differences have been
adjusted by agreement and, Escrow Agent has been notified thereof in writing
signed jointly by Seller and Purchaser or (iii) to interplead the portion of the
Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund in accordance with the joint written instructions
signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, or sent by facsimile transmission (with a copy of the
facsimile confirmation and the facsimile transmission also sent by U.S. Mail)
and addressed as set forth below:
If to Seller: If to Purchaser:
Granada AIPL 6, A Texas Limited Casa Associates, L.P.
Partnership 1325 South 77 Sunshine Strip,
2000 South Colorado Boulevard Suite 208
Tower Two, Suite 2-1000 Harlingen, Texas 78550
Denver, Colorado 80222 Attn: Matthew Zebrowski
Attn: Mr. Harry Alcock Telephone No. (956) 423-2560
Telephone No. (303) 691-4344 Facsimile No. (956) 423-5287
Facsimile No. (303) 691-5662
And With a copy to
Granada AIPL 6, A Texas Limited McCullough & McCullough
Partnership 323 East Jackson
2000 South Colorado Boulevard Harlingen, Texas 78551
Tower Two, Suite 2-1000 Attn: Graham McCullough, Esq.
Denver, Colorado 80222 Telephone No. (956) 423-1234
Attn: Mr. Pat Stucker Facsimile No. (956) 423-4976
Telephone No. (303) 691-4321
Facsimile No. (303) 692-0786
With a copy to If to Escrow Agent:
Jackson Walker L.L.P. Stewart Title Guaranty Company
112 E. Pecan 1980 Post Oak Boulevard
Suite 2100 Suite 400
San Antonio, Texas 78205 Houston, Texas 77056
Attn: Eileen E. Scherlen, Esq. Attn: Wendy Howell
Telephone No. (210) 978-7784 Telephone No. (713) 625-8161
Facsimile No. (210) 978-7790 Facsimile No. (713) 552-1703
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of $300.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorneys' fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Purchaser or Seller shall not entitle Escrow Agent to
refuse or fail to act as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections
contained in this Escrow Agreement are inserted for convenience of reference
only, and neither form a part of this Escrow Agreement or are to be used in
its construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way
limit the liabilities, obligations and remedies of Seller and Purchaser as
set forth in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and
construed in accordance with the laws of the State of Texas.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all
prior agreements and constitutes the entire agreement with respect to the
subject matter hereof. It may not be altered or modified without the written
consent of all parties.
[Remainder of Page Intentionally Left Blank]
In witness whereof each of the parties hereto has caused this Escrow Agreement
to be executed under seal on its behalf by duly authorized persons, all as of
the day and year first above written.
Seller:
GRANADA AIPL 6, A TEXAS LIMITED
PARTNERSHIP,
a Texas limited partnership
By: Granada AIPL 6, Inc.,
a Texas corporation,
its general partner
By:
_ Harry Alcock
_ Vice President
Purchaser:
CASA ASSOCIATES, L.P.,
a Texas limited partnership
By: KAMZ Development Corporation,
a Texas corporation,
its general partner
_By:
Matt Zebrowski
President
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By:
Name:
Title:
EXHIBIT E
FORM OF SPECIAL WARRANTY DEED
(TEXAS)
THE STATE OF TEXAS ss.
ss.
COUNTY OF CAMERON ss.
GRANADA AIPL 6, A TEXAS LIMITED PARTNERSHIP, a Texas limited partnership
("Grantor"), for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged and confessed, has GRANTED and CONVEYED, and by these presents does
GRANT and CONVEY unto CASA ASSOCIATES, L.P., a Texas limited partnership
("Grantee"), its legal representatives, successors and assigns forever, all
those certain lots, tracts or parcels of land in Cameron County, Texas, more
particularly described on Exhibit A attached hereto and incorporated herein by
this reference for all purposes, together with all the improvements, structures
and fixtures situated thereon, and all appurtenances, rights and privileges
thereunto attached or in anywise belonging (the "Property");
EXCEPT THAT, this conveyance is expressly made subject to the Permitted
Exceptions described in Exhibit B hereto, to the extent the same are validly
existing and applicable to the Property (the "Permitted Encumbrances")
TO HAVE AND TO HOLD the above described premises unto the said GRANTEE,
its successors and assigns forever, and the GRANTOR does hereby bind itself, its
successors and assigns to forever warrant and defend said premises unto the said
GRANTEE, its successors and assigns against the lawful claims of any person now
claiming or to claim the same or any part thereof by through or under Grantor,
but not otherwise, subject only to the Permitted Encumbrances.
In addition, Grantor hereby conveys to Grantee, for the same consideration
set forth above and subject to the same consideration set forth above and
subject to the Permitted Encumbrances, all of Grantor's right, title and
interest, if any, in and to any minerals, oil, gas and other hydrocarbon
substances, development rights, air rights, water, water rights, wastewater or
other utility rights, water stock relating to the land, strips and gores,
streets, alleys, easements, rights-of-way, public ways, or other rights of
Grantor appurtenant, abutting or adjoining the Property.
EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE SET FORTH ABOVE, IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT THE GRANT AND CONVEYANCE OF THE PROPERTY IS
"AS-IS", "WHERE-IS" AND "WITH ALL FAULTS" OF ANY KIND INCLUDING BUT NOT LIMITED
TO ANY MATTER, FACT OR CONDITION PERTAINING TO OR AFFECTED BY ANY APPLICABLE
LAW, RULE OR REGULATION PERTAINING TO WATER, AIR, WASTE OR ENVIRONMENTAL
PROTECTION (WHETHER ABOVE, WITHIN, UNDER OR ADJACENT TO THE PROPERTY). GRANTOR
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, AND EXPRESSLY DISCLAIMS WARRANTIES, EXPRESS OR IMPLIED, AS TO THE
FITNESS, ENVIRONMENTAL COMPLIANCE, HANDICAPPED ACCESSIBILITY LAW COMPLIANCE,
ELECTROMAGNETIC FIELD EXPOSURE LEVELS, AREA, CONDITION, QUALITY, QUANTITY,
CHARACTER, SIZE, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, EXPENSES,
DESCRIPTION, MERCHANTABILITY OR HABITABILITY OF THE PROPERTY, FITNESS OF THE
PROPERTY FOR A PARTICULAR PURPOSE OR OTHERWISE. GRANTEE, BY ITS ACCEPTANCE
HEREOF, DOES HEREBY RELEASE AND FOREVER DISCHARGE GRANTOR, ITS OFFICERS,
DIRECTORS AND TRUSTEES AND THEIR RESPECTIVE AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNEES FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER BASED IN
TORT, UNDER CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY
SUCH REPRESENTATION (OTHER THAN THE SPECIAL WARRANTY OF TITLE SET FORTH HEREIN)
AND/OR ALLEGED REPRESENTATION.
Grantee, by its acceptance hereof, hereby assumes payment of all standby
charges, ad valorem real estate taxes and assessments with respect to the 2000
calendar year and subsequent calendar years not yet due and payable, each to the
extent attributable to all or any portion of the Property.
Grantee's address: 1325 South 77 Sunshine Strip, Suite 208
Harlingen, Texas 78550
Executed as of ____ day of ________________, 2000.
Seller:
GRANADA AIPL 6, A TEXAS LIMITED
PARTNERSHIP,
a Texas limited partnership
By: Granada AIPL 6, Inc.,
a Texas corporation,
its general partner
By:
_ Harry Alcock
_ Vice President
THE STATE OF COLORADO ss.
ss.
COUNTY OF DENVER ss.
This instrument was acknowledged before me on the ____ day of May, 2000,
by Harry Alcock, Vice-President of Granada AIPL 6, Inc., a Texas corporation,
the general partner of Granada AIPL 6, A Texas Limited Partnership, a Texas
limited partnership, on behalf of said partnership.
GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ____ day of _____________,
2000.
------ --------------------------------------
______ Notary Public in and for the State of
Colorado
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
PERMITTED ENCUMBRANCES
EXHIBIT F
FORM OF BILL OF SALE
This Bill of Sale ("Assignment") is executed by GRANADA AIPL 6, A TEXAS
LIMITED PARTNERSHIP, a Texas limited partnership ("Seller") and CASA ASSOCIATES,
L.P., a Texas limited partnership ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of ______________, 2000 ("Purchase Contract"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
(collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Property" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a. Property Contracts. All of Seller's rights and interests in
and to purchase orders, maintenance, service or utility
contracts and similar contracts which relate to the
ownership, maintenance, construction or repair and/or
operation of the Project, but only to the extent
transferable.
b. Leases. All of Seller's rights and interests in and to
leases, subleases, and other occupancy agreements, whether
or not of record, which provide for use or occupancy of
space or facilities on or relating to the Project.
c. Security Deposits. All of Seller's rights and interests in
and to any and all (i) prepaid rent held as security, (ii)
security deposits, and (iii) pet deposits, if any, held by
Seller under any of the leases assigned pursuant hereto.
d. Licenses and Permits. All of Seller's rights and interests in
and to all licenses and/or permits granted by governmental
authorities having jurisdiction over the Project and
utilized with respect to the Project.
e. Fixtures and Tangible Personal Property. All of Sellers rights
and interests in and to all fixtures, furniture, furnishings,
fittings, equipment, machinery, computers (to the extent
located on the Property and owned by Seller), fax machines (to
the extent located on the Property and owned by Seller),
copiers (to the extent located on the Property and owned by
Seller), apparatus, appliances and other articles of tangible
personal property now located on the Project or in the
improvements thereon and used in connection with any present
or future occupation or operation of all or any part of the
Project, but only to the extent transferable.
The term "Property" shall not include any of the foregoing: (i) to
the extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall create
a transfer or assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest,
if any, in and to the Property, subject to any rights of consent as provided
therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property and
agrees to perform all of the covenants and obligations of Seller thereunder.
Purchaser further agrees to indemnify, defend and hold Seller harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Property, pertaining to acts arising on and after the date hereof.
Seller further agrees to indemnify, defend and hold Purchaser harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Property, pertaining to acts arising prior to the date hereof
4. Counterparts. This Assignment may be executed in counterparts,
each of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and
interpreted in accordance with the laws of the State in which the Property is
located.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only,
and neither form a part of this Assignment or are to be used in its
construction or interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure
to the benefit of the parties hereto and their respective transferees,
successors, and assigns.
9. Entire Agreement; Modification. This Assignment supersedes all
prior agreements and constitutes the entire agreement with respect to the
subject matter hereof. It may not be altered or modified without the written
consent of all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 2000
Seller:
GRANADA AIPL 6, A TEXAS LIMITED
PARTNERSHIP,
a Texas limited partnership
By: Granada AIPL 6, Inc.,
a Texas corporation,
its general partner
By:
_ Harry Alcock
_ Vice President
Purchaser:
CASA ASSOCIATES, L.P.,
a Texas limited partnership
By: KAMZ Development Corporation,
a Texas corporation,
its general partner
_By:
Matt Zebrowski
President
EXHIBIT G
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by GRANADA AIPL 6, A
TEXAS LIMITED PARTNERSHIP, a Texas limited partnership ("Seller"), in favor of
CASA ASSOCIATES, L.P., a Texas limited partnership ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of _______________, 2000 ("Purchase Contract"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
collectively, the "Project"). Capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in the Purchase Contract.
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Miscellaneous Property Assets" shall mean all
contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property relating to the ownership or operation of
the Property and owned by Seller, but only to the extent transferable. The term
"Miscellaneous Property Assets" shall also include the following, but only to
the extent owned by Seller and in Seller's possession: site plans, surveys, soil
and substrata studies, architectural renderings, plans and specifications,
engineering plans and studies, floor plans, tenant data sheets, landscape plans
and other plans or studies of any kind, if any, which relate to the Land and or
the Improvements or the Fixtures and Tangible Personal Property. The term
"Miscellaneous Property Assets" shall also include all of Seller's rights, if
any, in and to the name "CASA GRANADA APARTMENTS".
2. The term "Miscellaneous Property Assets" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
3. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest,
if any, in and to the Miscellaneous Property Assets, subject to any rights of
consent as provided therein.
4. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Miscellaneous
Property Assets and agrees to perform all of the covenants and obligations of
Seller thereunder. Purchaser further agrees to indemnify, defend and hold Seller
harmless from and against any and all cost, loss, harm or damage which may arise
in connection with the Miscellaneous Property Assets, pertaining to acts arising
on and after the date hereof. Seller further agrees to indemnify, defend and
hold Purchaser harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Miscellaneous Property Assets arising
prior to the date hereof.
5. Counterparts. This Assignment may be executed in counterparts,
each of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
6. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and
interpreted in accordance with the laws of the State in which the Project is
located.
8. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only,
and neither form a part of this Assignment or are to be used in its
construction or interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure
to the benefit of the parties hereto and their respective transferees,
successors, and assigns.
10. Entire Agreement; Modification. This Assignment supersedes all
prior agreements and constitutes the entire agreement with respect to the
subject matter hereof. It may not be altered or modified without the written
consent of all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: ___________, 2000
Seller:
GRANADA AIPL 6, A TEXAS LIMITED
PARTNERSHIP,
a Texas limited partnership
By: Granada AIPL 6, Inc.,
a Texas corporation,
its general partner
By:
_ Harry Alcock
_ Vice President
Purchaser:
CASA ASSOCIATES, L.P.,
a Texas limited partnership
By: KAMZ Development Corporation,
a Texas corporation,
its general partner
_By:
Matt Zebrowski
President
EXHIBIT H
Tenants at Casa Grander Apartments
1814 E. Washington Dr.
Harlingen, Texas 78550
Re: Your lease at
Dear Tenant:
Effective as of [date], Granada AIPL 6, A Texas Limited Partnership, a
Texas limited partnership (the "Seller"), has sold the Casa Grande Apartments
located at 1814 E. Washington Dr., Harlingen, Texas 78550 (and has assigned your
lease) to ______________________, a _______________________ (the "Purchaser").
In connection with such sale and assignment, the Purchaser has assumed the
Seller's obligations as landlord under your lease and has also been transferred
any unapplied and refundable portion of your security deposit(s). The amount of
your security deposit is
$------------------------------.
All rent thereafter due should be made payable to the Purchaser and
forwarded to the following address:
========================
------------------------
All inquiries you may have should be addressed to the property manager at
the address set forth above.
Very truly yours,
[Purchaser]
EXHIBIT I
LEAD-BASED PAINT DISCLOSURE
Every purchaser of any interest in residential property on which a
residential dwelling was built prior to 1978 is notified that such property may
present exposure to lead from lead-based paint that may place young children at
risk of developing lead poisoning. Lead poisoning in young children may produce
permanent neurological damage, including learning disabilities, reduced
intelligence quotient, behavioral problems, and impaired memory. Lead poisoning
also poses a particular risk to pregnant women. The seller of any interest in
residential real property is required to provide the Purchaser with any
information on lead-based paint hazards from risk assessments or inspections in
the seller's possession and notify the Purchaser of any known lead-based paint
hazards. A risk assessment or inspection for possible lead-based paint hazards
is recommended prior to purchase.
1. Except as set forth in Exhibit A attached hereto, Seller has no knowledge of
the presence of lead-based paint and/or lead-based paint hazards in the housing
located on the Land. To the best of Seller's knowledge, except as set forth in
Exhibit B attached hereto, there are no records or reports available to Seller
pertaining to lead-based paint and/or lead-based paint hazards in the housing
located on the Land.
2. Purchaser affirms that it has received from Seller the pamphlet Protect your
Family from Lead in Your Home. 3. Purchaser affirms that it has received the
opportunity to conduct a risk assessment or inspection for the presence of
lead-based paint and/or lead-based paint hazards required by 24 CFR ss.
35.90(a).
Seller and Purchaser hereby certify that, to the best of their knowledge,
their respective statements made above are accurate.
Dated: .
Seller:
GRANADA AIPL 6, A TEXAS LIMITED
PARTNERSHIP,
a Texas limited partnership
By: Granada AIPL 6, Inc.,
a Texas corporation,
its general partner
By:
_ Harry Alcock
_ Vice President
Purchaser:
CASA ASSOCIATES, L.P.,
a Texas limited partnership
By: KAMZ Development Corporation,
a Texas corporation,
its general partner
_By:
Matt Zebrowski
President
SCHEDULE 1.1.23
SELLER'S NOTE OBLIGATION
1. Multifamily Note, dated as of September 27, 1999, in the original principal
amount of $1,413,000.00, executed by Seller and payable to the order of GMAC
Commercial Mortgage Corporation.
SCHEDULE 5.5
MATERIALS
(i) A current rent roll (the "Rent Roll"), the Rent Roll to reflect
all unleased space, and, with respect to each Lease: the
approximate leasable area; the name of the Tenant; the
commencement date; the scheduled expiration date; all renewal,
expansion, and similar rights; the rental payable thereunder; the
amount, if any, of past due rent or other amounts; the amount of
security and other deposits paid by the Tenant; and the amount of
prepaid rent, rental discounts, rebates, rental concessions,
commissions, and other items payable thereunder or in connection
therewith.
(ii) Profit and loss statements reflecting the operation of the Property
for calendar years 1998 and 1999, and year-to-date statements for
2000.
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS...................................................1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................4
ARTICLE 3 PURCHASE PRICE & DEPOSIT........................................4
ARTICLE 4 FINANCING.......................................................5
ARTICLE 5 FEASIBILITY PERIOD..............................................6
ARTICLE 6 TITLE...........................................................8
ARTICLE 7 CLOSING........................................................10
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER........................................14
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................18
ARTICLE 10 BROKERAGE......................................................20
ARTICLE 11 POSSESSION.....................................................20
ARTICLE 12 DEFAULTS AND REMEDIES..........................................21
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................21
ARTICLE 14 LEAD-BASED PAINT DISCLOSURE....................................22
ARTICLE 15 EMINENT DOMAIN.................................................22
ARTICLE 16 MISCELLANEOUS..................................................22
EXHIBIT 10.31
FIRST AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into as of the 29th day of August, 2000, by and between GRANADA AIPL 6,
a Texas limited partnership ("Seller") and CASA ASSOCIATES, L.P., a Texas
limited partnership ("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (the "Purchase Contract") dated as of May 31, 2000, covering certain
parcels of real property located in Nueces County, Texas, as more particularly
described in the Purchase Contract.
B. Purchaser and Seller desire to amend the Purchase Contract in
certain respects, as set forth below.
C. All capitalized terms used but not defined in this Amendment
shall have the meaning ascribed to them in the Purchase Contract.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. Section 7.1.1 of the Agreement is hereby modified and amended to extend
the date of the Closing from ninety (90) days following the Effective Date to
September 7, 2000.
2. Except as expressly modified by this Amendment, the Purchase
Contract is in full force and effect as originally written.
3. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original, and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
4. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first set forth above.
Seller:
GRANADA AIPL 6, A TEXAS LIMITED
PARTNERSHIP, a Texas limited partnership
By: Granada AIPL 6, Inc.,
a Texas corporation,
its general partner
By:
_ Harry Alcock
_ Vice President
Purchaser:
CASA ASSOCIATES, L.P.,
a Texas limited partnership
By: KAMZ Development Corporation,
a Texas corporation,
its general partner
By:
Matt Zebrowski
President
EXHIBIT 10.32
SECOND AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into as of the 5th day of September, 2000, by and between GRANADA AIPL
6, a Texas limited partnership ("Seller") and CASA ASSOCIATES, L.P., a Texas
limited partnership ("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (as amended, the "Purchase Contract") dated as of May 31, 2000,
covering certain parcels of real property located in Nueces County, Texas, as
more particularly described in the Purchase Contract.
B. The Purchase Contract was amended and modified by that certain First
Amendment to Purchase and Sale Contract, dated as of August 29, 2000, by and
between Purchaser and Seller.
C. Purchaser and Seller desire to again amend the Purchase Contract
in certain respects, as set forth below.
D. All capitalized terms used but not defined in this Amendment
shall have the meaning ascribed to them in the Purchase Contract.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. Section 7.1.1 of the Agreement is hereby modified and amended to extend
the date of the Closing from ninety (90) days following the Effective Date to
September 12, 2000.
2. Except as expressly modified by this Amendment, the Purchase
Contract is in full force and effect as originally written.
3. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original, and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
4. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first set forth above.
Seller:
GRANADA AIPL 6, A TEXAS LIMITED
PARTNERSHIP, a Texas limited partnership
By: Granada AIPL 6, Inc.,
a Texas corporation,
its general partner
By:
_ Harry Alcock
_ Vice President
Purchaser:
CASA ASSOCIATES, L.P.,
a Texas limited partnership
By: KAMZ Development Corporation,
a Texas corporation,
its general partner
By:
Matt Zebrowski
President
EXHIBIT 10.33
THIRD AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS THIRD AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into as of the 12th day of September, 2000, by and between GRANADA AIPL
6, a Texas limited partnership ("Seller"), and CASA ASSOCIATES, L.P., a Texas
limited partnership ("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (as amended, the "Purchase Contract") dated as of May 31, 2000,
covering certain parcels of real property located in Cameron County, Texas, as
more particularly described in the Purchase Contract.
B. The Purchase Contract was amended and modified by that certain First
Amendment to Purchase and Sale Contract, dated as of August 29, 2000, by and
between Purchaser and Seller.
C. The Purchase Contract was again amended and modified by that certain
Second Amendment to Purchase and Sale Contract, dated as of September 5, 2000,
by and between Purchaser and Seller.
D. Purchaser and Seller desire to again amend the Purchase Contract
in certain respects, as set forth below.
E. All capitalized terms used but not defined in this Amendment
shall have the meaning ascribed to them in the Purchase Contract.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. Section 7.1.1 of the Agreement is hereby modified and amended to extend
the date of the Closing from ninety (90) days following the Effective Date to
September 20, 2000.
2. Section 8.2.4 of the Agreement is hereby modified and amended to add
the following sentence thereto as the second and third sentences thereof:
In connection therewith, Seller specifically agrees that, upon the
assumption by Purchaser of the Seller's Note Obligation, Seller will
provide to the holder of the Seller's Note Obligation a cash deposit of
Forty Thousand and No/100 Dollars ($40,000.00) (the "Seller's Security")
to be held as collateral security for the repayment of the Seller's Note
Obligation, on such terms and conditions as shall be satisfactory to
Seller, provided that Purchaser shall, and does hereby, agree upon all
parties executing the Special Escrow Account Security Agreement to
indemnify Seller and hold Seller harmless from and against any loss, cost,
expense or liability incurred by Seller as a result of the exercise of any
remedies by the holder of the Seller's Note Obligation against the
Seller's Security, including but not limited to the amount of the Seller's
Security realized upon by such holder and any attorneys' fees and expenses
incurred by Seller in connection therewith. The Indemnity of Purchaser
contained in this Section 8.2.4 shall survive the Closing until the return
to Seller of the full amount of the Seller's Security and the payment to
Seller of all other sums due to Seller from Purchaser under this Section
8.2.4.
3. Except as expressly modified by this Amendment, the Purchase
Contract is in full force and effect as originally written.
4. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original, and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
5. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first set forth above.
Seller:
GRANADA AIPL 6, A TEXAS LIMITED
PARTNERSHIP, a Texas limited partnership
By: Granada AIPL 6, Inc.,
a Texas corporation,
its general partner
By:
_ Harry Alcock
_ Vice President
Purchaser:
CASA ASSOCIATES, L.P.,
a Texas limited partnership
By: KAMZ Development Corporation,
a Texas corporation,
its general partner
By:
Matt Zebrowski
President