EXHIBIT 10.25
PURCHASE AND SALE CONTRACT
BETWEEN
CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P.
AS SELLER
AND
SOUTHFIELD OFFICE PROPERTIES, LLC
AS PURCHASER
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS 1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY 5
ARTICLE 3 PURCHASE PRICE & DEPOSIT 5
ARTICLE 4 FEASIBILITY PERIOD 6
ARTICLE 5 TITLE 10
ARTICLE 6 SELLER'S COVENANTS 14
ARTICLE 7 CLOSING 16
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER 24
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING 31
ARTICLE 10 BROKERAGE 34
ARTICLE 11 POSSESSION 34
ARTICLE 12 DEFAULTS AND REMEDIES 35
ARTICLE 13 RISK OF LOSS OR CASUALTY 36
ARTICLE 14 RATIFICATION 36
ARTICLE 15 EMINENT DOMAIN 37
ARTICLE 16 MISCELLANEOUS 37
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of
the ___ day of May, 1999 (such date being hereinafter referred to as the
"Effective Date") by and among CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P., a
California limited partnership, having a principal address at c/o AIMCO, 1873
South Bellaire Street, Suite 1700, Denver, Colorado 80222 ("Seller") and
SOUTHFIELD OFFICE PROPERTIES, LLC, a Michigan limited liability company, having
a principal address at 74 E. Long Lake Road, Bloomfield Hills, Michigan 48304
("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. Seller holds legal title to multiple parcels of real estate having the
addresses set forth in Section 1.1.8 hereof and more particularly described in
Exhibit A attached hereto and made a part hereof located in County of Oakland,
Michigan on each of which improvements have been constructed.
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
by special warranty or equivalent 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.
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 Michigan.
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 "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 and which are in force as of the Effective Date
for the applicable Property.
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 1.1.5, if any, attached hereto.
1.1.6 "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 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 Exhibit 1.1.6.
1.1.7 "IMPROVEMENTS" means all buildings and improvements, located on the
Land taken "as is" containing approximately 462,566 leasable square feet of
low-rise office buildings.
1.1.8 "LAND" means all of that certain tract of land located in County of
Oakland, Michigan commonly known as Southfield Office Portfolio, consisting
of: (1) Central Park Plaza, 26211 Central Park Boulevard, Southfield,
Michigan; (2) Central Park Place (A, B & C Buildings), 26011 Evergreen,
20100 Civic Center Drive, and 2611 Evergreen Road, Southfield, Michigan;
(3) Crescent Centre, 24445 Northwestern Highway, Southfield, Michigan; (4)
One Lahser Center, 26400 Lahser Road, Southfield, Michigan; and (5) Two
Lahser Center, 26200 Lahser Road, Southfield, Michigan, more particularly
described on Exhibit A attached hereto and made a part hereof and all
rights, privileges and appurtenances pertaining thereto and land divisions
for each parcel of Land permitted under the Michigan Land Division Act.
1.1.9 "MAJOR TENANTS" means Homestead USA, Inc., AIAG (with respect only to
the Two Lasher Center building), CU Processing, Miles and Ann Brasch and
1/2 Off Card Shop.
1.1.10 "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, guarantees or
warranties, (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, unless otherwise
payable to Purchaser pursuant to this Purchase Contract, (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.
1.1.11 "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.
1.1.12 "PERMITTED EXCEPTIONS" means those exceptions or conditions permitted
to encumber the title to the Property in accordance with the provisions of
Section 5.2.
1.1.13 "PROPERTY" means the Land and Improvements comprising all of the
parcels referenced in Section 1.1.8 and described in Exhibit A 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 in the
Property Contracts, Permits (other than Excluded Permits), the
Miscellaneous Property Assets owned by Seller which are located on the
Property and used in its operation, and the Commercial Leases.
1.1.14 "PROPERTY CONTRACTS" means all purchase orders, equipment leases,
maintenance, service, or utility contracts and similar contracts, which
relate to the ownership, maintenance, construction or repair and/or
operation of the Property, except Commercial Leases.
1.1.15 "PURCHASE CONTRACT" means this Purchase and Sale Contract by and
between Seller and Purchaser.
1.1.16 "PURCHASE PRICE" means the total consideration to be paid by Purchaser
to Seller for the purchase of the Property.
1.1.17 "SURVEY" shall have the meaning ascribed thereto in Section 5.11.
1.1.18 "TENANT" means any person or entity entitled to occupy any portion of
the Property under a Commercial Lease.
1.1.19 "TITLE COMMITMENT" or "Title Commitments" shall have the meaning
ascribed thereto in Section 5.1.
1.1.20 "TITLE INSURER" shall have the meaning set forth in Section 5.1.
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. Except for those
liabilities and obligations that Purchaser accepts as provided in this
Purchase Contract or assumes pursuant to any of the closing documents
referenced herein, Purchaser is not assuming any of the debts, liabilities
or other obligations of, or claims against, Seller of any kind or nature
whether direct or contingent and whether known or unknown.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be
Twenty Seven Million Two Hundred Fifty Thousand and 00/100 Dollars
($27,250,000.00), which shall be paid by Purchaser, as follows:
3.1.1 On or before two (2) Business Days subsequent to the Effective Date,
Purchaser shall deliver to Fidelity National Title Insurance Company
("Escrow Agent" or the "Title Company") a deposit in the sum of Five
Hundred Thousand and 00/100 Dollars ($500,000.00) in cash (the "Deposit").
Purchaser and Seller each approve the form of Escrow Agreement attached as
Exhibit 3.1.1.
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 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.
3.1.3 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 4.4.
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 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.
3.2 On the Closing Date Purchaser shall pay Seller the amount of Twenty Seven
Million Two Hundred Fifty Thousand Dollars ($27,250,000.00), subject to
credit and adjustment as provided herein, in cash or by wire-transfer of
current funds pursuant to wire instructions provided by Seller.
ARTICLE 4
FEASIBILITY PERIOD
4.1 For 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:
4.1.1 To conduct and make any and all customary studies, tests, examinations
and inspections, or investigations of or concerning the Property
(including, without limitation, Phase I environmental studies, engineering
and feasibility studies, drainage and flood plain soil tests for bearing
capacity and percolation, surveys, including topographical surveys, and
interviews with each of the Tenants provided that Purchaser has provided
prior written notice to Seller of such proposed interviews and a
representative of Seller is present for such interviews).
4.1.2 To confirm any and all matters which Purchaser may reasonably desire
to confirm with respect to the Property.
4.1.3 To ascertain and confirm the suitability of the Property for
Purchaser's intended use of the Property.
4.2 No later than two (2) Business Days after the Effective Date, Seller shall
deliver to the Purchaser copies of existing Property Contracts and
Commercial Leases and monthly operating statements and audited or unaudited
annual operating statements for the Property from the period from January
1, 1996 through the Effective Date. In addition, following the Effective
Date, Seller shall make available to Purchaser at the Property (in each
case, to the extent in Seller's possession or control) the following with
respect to the Property: (1) architectural and engineering plans; (2)
reports and studies relating to the condition of the Property; (3) a list
of Fixtures and Tangible Personal Property; (4) tenant correspondence files
with respect to the Commercial Leases; (5) service and repair requests and
work orders relating to the Property; (6) a list of accounts receivable;
(7) copies of Commercial Lease termination notices relating to the
Commercial Leases received by Seller which would be effective after the
Closing Date; (8) copies of governmental permits, alarm registrations and
other permits and licenses necessary for the operation of the Property
(excluding, however, certificates of occupancy); and (9) all other
documents under Seller's possession or control pertaining to the ownership
or operation of the Property.
4.3 Should the results of any of the matters referred to in sub-paragraphs
4.1.1, 4.1.2 and 4.1.3 above or any other aspect of the Property discovered
by Purchaser appear unsatisfactory to Purchaser for any reason, for any
other reason, or for no reason whatsoever, in Purchaser's sole and absolute
discretion, then Purchaser shall have the right to terminate this Purchase
Contract by giving written Notice to that effect to Seller and Escrow Agent
on or before 5:00 p.m. EST 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 4.4, 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 4 and in ARTICLE 9.
4.4 Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property in connection with the
performance of Purchaser's due diligence hereunder; provided, however, that
Purchaser shall not be liable for any damages incurred by Seller resulting
from the mere discovery by Purchaser of an adverse condition at or with
regard to the Property. Purchaser hereby acknowledging, however, that
Seller shall have no obligation to Purchaser in connection with such
adverse condition or otherwise to remedy such adverse condition. Purchaser
shall indemnify, defend (with attorneys selected by Seller and approved by
Purchaser, which approval shall not be unreasonably withheld, conditional
or delayed) 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 4, at Purchaser's sole cost and expense, to the extent the damage
to the Property or the change in condition thereof is attributable to the
performance of due diligence hereunder by Purchaser or its agents or
employees. Purchaser shall maintain 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 "additional insureds", including a waiver of defenses of the
insurer based on the actions or inaction of Seller. 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.
4.5 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.
ARTICLE 5
TITLE
5.1 Seller shall promptly secure a commitment for title insurance for the
Property in an amount equal to the Purchase Price ("Title Commitment,")
issued by the Title Company (the "Title Insurer") for an owner's title
insurance policy (1970 ALTA Form B if available, and if not available, a
1992 ALTA Form B) including extended coverage, such endorsements and
reinsurance and/or co-insurance as Purchaser may require, together with
legible copies of all instruments identified as exceptions therein. Seller
agrees that it shall be solely responsible for payment of all costs
relating to procurement of the Title Commitment and extended coverage under
any Owner's or Lender's title policies (so long as the cost of such
extended coverage does not exceed the cost for standard coverage) with
Purchaser to pay the cost of any other coverages desired by Purchaser.
5.2 Subject to Purchaser's right to designate Title Defects pursuant to Section
5.7 and the other terms of Section 5.7, Purchaser agrees to accept title to
the Land and Improvements, so long as the title is good and marketable and
is insurable at ordinary rates and any conveyance by special 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:
5.2.1 All exceptions shown on Schedule B-2 of the Title Commitment on the
date of the expiration of the Feasibility Period (other than mechanics'
liens and taxes due and payable in respect of the period preceding Closing)
and all exceptions noted in Exhibit 5.2.1 attached hereto; and
5.2.2 Such exceptions and matters as the Title Company shall be willing to
omit as exceptions to coverage; and
5.2.3 The rights of tenants, as tenants only, under the Commercial Leases;
and
5.2.4 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, which are
designated as title matters in the Title Commitment; and
5.2.5 Real estate and property taxes to the extent not due and payable.
5.3 The existence of other mortgages, liens, or encumbrances (the "Removable
Liens") shall not be objections to title or deemed a "Title Defect" (as
defined in Section 5.7), provided that properly executed instruments in
recordable form necessary to satisfy and remove the same of record are
delivered to the Purchaser at Closing or, in the alternative, with respect
to any mortgage or deed of trust liens, that payoff letters from the holder
of the mortgage or deed of trust liens shall have been delivered to and
accepted by the Title Insurer (sufficient to remove the same from the
policy issued at Closing), together in either case, with recording and/or
filing fees.
5.4 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.
5.5 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.
5.6 If on the Closing Date there shall be conditional bills of sale or Uniform
Commercial Code financing statements that were filed on a day more than
five (5) years prior to such Closing, and such financing statements have
not been extended by the filing of UCC-3 continuation statements within the
past Five (5) years prior to such Closing, such financing statements shall
not be deemed to be an objection to title.
5.7 If the Title Commitment or Survey (as defined in Section 5.11 below)
discloses exceptions which are not acceptable to Purchaser, in its sole
discretion, Purchaser shall give Notice to Seller of its objections to such
exceptions (the "Title Defects") within twenty (20) days after the latter
of the Effective Date or the receipt of the Title Commitment, copies of all
instruments of record and Surveys for the Property. If Purchaser does not
designate any Title Defects prior to the expiration of the aforesaid twenty
(20) day period, then the contingency for title and survey matters set
forth in this Article 5 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) days following receipt of such Notice may elect
to cure such objection for up to thirty (30) days. If Seller fails to cure
the Title Defects or is unable to have the Title Defect insured over in a
fashion reasonably acceptable to Purchaser prior to the expiration of such
thirty (30) day period or if Seller fails to remove the Removable Liens at
or prior to Closing Date, Purchaser may: (a) terminate this Agreement by
delivery of Notice to Seller, whereupon the Deposit shall be returned
immediately to Purchaser, and neither Seller nor Purchaser shall have any
further duties or obligations under this Purchase Contract except as
provided in Section 4.4 or (b) elect to take title as it then is, and
credit against the Purchase Price the actual cost incurred or to be
incurred by Purchaser to remove the Removable Liens. Should Seller be able
to cure such Title Defect, or should Seller be able to cause title
insurance over the same by the Closing Date or any postponed Closing Date,
or should Purchaser waive such Title Defect within such period for cure,
then the Closing shall take place on or before fifteen (15) days after such
cure or waiver.
5.8 If during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate any such Title Defect 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 Title Commitment on or before
seven (7) calendar days following the date Seller gives such Notice, then
this Purchase Contract shall automatically terminate, in which event the
Deposit shall be returned to Purchaser and the parties hereto shall have no
further obligations to each other.
5.9 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 pursuant to the terms hereof) to attach to the
Property between the Effective Date and the Closing Date or voluntarily and
knowingly take or permit any action adversely affecting the title to the
Property as it exists on the Effective 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 including, without
limitation, with respect to Removable Liens, 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.
5.10 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.
5.11 Seller, at Seller's sole cost and expense, promptly shall cause to be
prepared a survey for each Property ("Survey") to be delivered to Purchaser
and Seller 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; (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; and (ix) shall contain a form of certification
reasonably acceptable to Purchaser. 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 special warranty deed delivered
to Purchaser at Closing, and the Survey legal shall be used in a quitclaim
deed to the Property which also shall be delivered to Purchaser at Closing.
ARTICLE 6
SELLER'S COVENANTS
6.1 AFFIRMATIVE COVENANTS. Between the Effective Date and the Closing Date,
Seller agrees to:
6.1.1 at its expense, manage, maintain and operate the Property in its
current "as is" order and condition, reasonable wear and tear, condemnation
and damage by fire or other casualty excepted, and deliver the Property on
the Closing Date in substantially the condition it is in on the Effective
Date, reasonable wear and tear, condemnation and damage by fire or other
casualty excepted.
6.1.2 deliver to Purchaser, promptly after receipt by the Seller, copies of
all notices of violation issued by any board, bureau, commission,
department or body of any municipal, county, state or federal government
unit, or any subdivision thereof, with respect to the Property received by
Seller after the Effective Date.
6.1.3 maintain in force, fire and extended coverage insurance upon the
Property in the current coverage amounts;
6.1.4 keep and perform all of the obligations to be performed by the
landlord under the Commercial Leases pursuant and subject to the terms
thereof and the rights of landlord thereunder.
6.2 NEGATIVE COVENANTS.
6.2.1 Following the expiration of the Feasibility Period and continuing
until the Closing Date, Seller agrees that, without Purchaser's prior
written consent, it will not enter into any new Commercial Leases or
Property Contracts, cancel, modify, extend, or amend any of the Commercial
Leases or Property Contracts, or accept a surrender thereof (and, in the
case of any new lease or lease modification or extension, without
disclosing the cost of all tenant improvements, tenant allowances, leasing
commissions and other leasing costs). Seller may, on or after the
Effective Date but prior to the expiration of the Feasibility Period,
without Purchaser's prior written consent, enter into new leases for the
Property provided that such lease is in a form substantially equivalent to
Seller's standard lease form and contains terms customary for leases of
property of a similar nature to the subject premises. Seller shall provide
a copy to Purchaser of any new lease immediately following full execution
thereof. All Commercial Leases, Property Contracts and contracts or
amendments thereto executed with Purchaser's written approval, if required,
pursuant to this subsection shall also be deemed "Commercial Leases" and
"Property Contracts", respectively, for purposes of all provisions of this
Purchase Contract.
6.2.2 Between the Effective Date and the Closing Date, the Seller will not
remove any material Fixtures and Tangible Personal Property from the
Property except in the ordinary course of business and provided such
Fixtures and Tangible Personal Property is replaced with items of similar
quality.
6.3 TENANT IMPROVEMENTS. Seller shall use reasonable efforts to complete,
prior to the Closing Date, at its sole cost and expense, all tenant
improvements set forth in the Commercial Leases that have been executed
prior to the Effective Date (the "Tenant Improvements"). Such work shall
be completed in a good and workmanlike fashion, substantially in accordance
with Plans and Specifications (defined below) and in accordance with all
applicable laws, rules and regulations of governmental authorities. "Plans
and Specifications" shall mean (i) in the case of plans and specifications
for Tenant Improvements in progress in or on the Property prior to the
Effective Date, those plans and specifications or work orders made
available to Purchaser prior to the date of this Purchase Contract, or (ii)
in the case of plans and specifications for work on Tenant Improvements in
or on the Property that commences on or after the Effective Date, those
plans and specifications or work orders approved in writing by Purchaser,
such approval not to be unreasonably withheld. If such work is not
completed prior to the Closing Date, the provisions of Section 7.1.5
relative to "Leasing Costs" shall govern any adjustment to the Purchase
Price with respect to such work.
ARTICLE 7
CLOSING
7.1 DATES, PLACES OF CLOSING, PRORATIONS, AND DELINQUENT RENT.
7.1.1 The Closing shall take place on the fifteenth (15th) calendar day
following the termination of the Feasibility Period, provided that
Purchaser has not terminated this Purchase Contract pursuant to Section 5.2
hereof, or on any earlier date the parties may agree to, in the offices of
the Title Company, or 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 [Reserved]
7.1.3. All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal property
taxes, 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. If any security deposit
is in the form of a letter of credit, then Seller shall use its best
efforts to cause a replacement letter of credit to be issued and delivered
to Purchaser on the Closing Date upon the same terms and conditions as the
original letter of credit. Purchaser shall assume at Closing the
obligation to pay any payments due parties to other agreements affecting
the Property which survive Closing to the extent such payments are
currently being paid by Seller and are reflected as operating expenses on
the operating statements for the Property. 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, 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 within ten (10)
calendar days after the date of such availability or discovery 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 more than thirty (30) days past
due and delinquent 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. Purchaser
agrees to cause the amount of any rental arrearage to be included in the
first bills submitted by Purchaser 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 until the expiration of the Proration Period, 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 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 and Purchaser shall
continue to bill the tenants as a "balance forward" line item as part of
any regular billing process (but in any event no less frequently than
monthly); 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, but if Purchaser shall institute any legal proceedings or
assert any claim against any Tenant, Purchaser shall include and prosecute
a demand for any Delinquent Rent. To the extent such Delinquent Rent shall
not be collected and paid over to Seller prior to the end of the Proration
Period, then at the request of Seller Purchaser shall assign to Seller,
without recourse to Purchaser, all rights with respect to such Delinquent
Rent and the receivable attributable to the same. The provisions of this
Section 7.1.5. shall apply during the Proration Period. Seller shall pay
the cost of all tenant improvement work, tenant allowances, unpaid leasing
commission (including all other commissions) and other leasing costs
(collectively, the "Leasing Costs") required to be paid by Seller in
connection with the Commercial Leases fully-executed before the Effective
Date (other than an obligation set forth in a Commercial Lease that is
applicable only in the event that the tenant exercises any option to extend
or renew the Commercial Lease or expand its demised premises), Purchaser
hereby agreeing to assume the cost of all Leasing Costs attributable to or
arising under any Commercial Lease that is fully-executed after the
Effective Date and approved by Purchaser in its sole and absolute
discretion. If any of the Leasing Costs required to be paid by Seller
hereunder have not been paid prior to the Closing Date, then Purchaser and
Seller shall mutually agree to an adjustment, if any, to the Purchase Price
in accordance with the procedures hereinafter set forth in this Section
7.1.5. If, after the Closing Date, the actual cost of the Leasing Costs
(a) exceeds the adjustment, if any, to the Purchase Price agreed to by
Purchaser and Seller, then such excess shall be the sole responsibility of
Purchaser and Seller shall have no liability or obligation with respect to
such excess or (b) is less than the adjustment, if any, to the Purchase
Price agreed to by Purchaser and Seller, then Purchaser may retain such
difference. The adjustments to the Purchase Price required by this Section
7.1.5. and all other costs required to be paid by Purchaser pursuant to
this Purchase Contract on the Closing Date shall be mutually determined and
approved by Seller and Purchaser at least 48 hours prior to settlement and
Purchaser shall not have an obligation to fund the Purchase Price as
modified by such adjustments and such additional costs sooner than two (2)
Business Days after such amounts have been determined. Fuel, water and
sewer service charges, and charges for gas, electricity, telephone and all
other public utilities shall be adjusted as of midnight of the day
immediately preceding the Closing Date. If there are meters on the
Property measuring the consumption of water, gas or electric current,
Seller shall, not more than one (1) Business Day prior to the Closing Date,
cause such meters (for utilities for which Seller, and not tenants, is
responsible) to be read and shall pay promptly all utility bills for which
Seller is liable upon receipt of statements therefor. Purchaser shall be
liable for and shall pay all utility bills for services rendered after such
meter readings.
7.2 ITEMS TO BE DELIVERED PRIOR TO OR AT CLOSING.
7.2.1 SELLER. At Closing (unless specifically required to be delivered
prior to Closing as set forth below and further subject to Section 7.2.1.13
below), Seller shall deliver to Purchaser, each of the following items, as
applicable:
7.2.1.1Special warranty or equivalent deed in the form attached as Exhibit
7.2.1.1 to Purchaser, together with a Real Estate Transfer Tax Valuation
Affidavit in the customary form utilized by the Title Insurer. The
acceptance of the deed and the other closing documents referenced herein
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
provide(s) shall survive Closing and except for those agreements and
obligations contained in such deed and other closing documents.
7.2.1.2A Bill of Sale without recourse or warranty (except as to title) in the
form attached as Exhibit 7.2.1.2 covering the 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.
7.2.1.3An Assignment in the form attached as Exhibit 7.2.1.3 of all of Seller's
right, title and interest in and to the Property Contracts, Commercial
Leases, Permits (other than Excluded Permits) and, to the extent
assignable and in full force and effect, 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.
7.2.1.4A closing statement executed by Seller.
7.2.1.5A 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 Commitments;
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
7.2.1.6A certification of Seller's non-foreign status pursuant to Section 1445
of the Internal Revenue Code of 1986, as amended.
7.2.1.7A letter (in a form that meets with Purchaser's reasonable
satisfaction), duly executed by Seller, advising the tenants under the
Commercial Leases of the change in ownership of the Property.
7.2.1.8All keys to the Property which are in Seller's possession.
7.2.1.9The most current rent roll and a schedule updating the Lease Schedule
(as hereinafter defined), Purchaser hereby agreeing that any
representations or warranties contained within such rent roll or updated
Lease Schedule shall not survive the Closing but shall be merged into
the tenant estoppels delivered by the Tenants in accordance with the
provisions set forth in Section 8.1.1.8 to the extent each matter or
fact is addressed by such tenant estoppel certificates.
7.2.1.10 The original executed copy of any tenant estoppel certificates
obtained by Seller pursuant to the provisions of Section 9.1.5, and any
subordination, nondisturbance and attornment agreements (the "Lease
Subordination Agreements") received from Tenants under the Commercial
Leases), Seller hereby agreeing only to submit to each Tenant a form of
Lease Subordination Agreement and tenant estoppel prepared by Purchaser
(the "Purchaser Form of Tenant Estoppel"), Purchaser acknowledging,
moreover, that Seller shall have no obligation to provide any executed
Lease Subordination Agreements or Purchaser Form of Tenant Estoppels to
Purchaser at Closing and, furthermore, that receipt of a Lease
Subordination Agreement or an Purchaser Form of Tenant Estoppel from any
of the Tenants shall not be a condition to Purchaser's obligations
hereunder.
7.2.1.11 Notices of termination (effective as of the Closing Date) to service
providers whose Property Contracts will not be assumed by Purchaser at
the Closing, the identification of such providers being provided by
Purchaser to Seller prior to Closing.
7.2.1.12 Certified resolutions of the Seller authorizing the consummation of
the transactions contemplated hereunder.
7.2.1.13 Originals of the Commercial Leases and Property Contracts, to the
extent in the possession of Seller, Purchaser and Seller hereby agreeing
that delivery of any other documents or materials relating to the
Property which are required to be delivered or made available to
Purchaser hereunder shall be deemed delivered 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:
7.2.2.1The 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 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 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. Purchaser, if request is made within a reasonable time
prior to Closing, agrees to provide at Closing separate certified or
cashier's checks as requested, aggregating not more than the amount of
the balance of the portion of Purchase Price, to facilitate the
satisfaction of any such liens or encumbrances. The existence of any
such liens or encumbrances shall not be deemed objections to title if
Seller shall comply with the foregoing requirements.
7.2.2.2A closing statement executed by Purchaser.
7.2.2.3A countersigned counterpart of the Bill of Sale in the form attached as
Exhibit 7.2.1.2.
7.2.2.4A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
7.2.2.5Such 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.
7.3 CLOSING COSTS. Except as otherwise provided in this Purchase Contract each
party shall pay its own costs to close the purchase and sale of the
Property and one-half the expenses of the Escrow Agent. Each party shall
pay the fees and costs of its own attorneys and agents. Purchaser shall
pay all recording costs and Seller shall pay the State excise and transfer
taxes payable by sellers of real property in the State of Michigan.
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:
8.1.1.1Seller is lawfully and duly organized, validly existing and in good
standing under the laws of the state of its formation set forth in the
initial paragraph of this Purchase Contract; is qualified to do business
in, and is in good standing under the laws of, the State of Michigan;
and has the power and authority to execute this Purchase Contract, 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 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, all or any part of any of the Property
applicable to the foregoing representation;
8.1.1.2Seller owns insurable, fee title to the Property, including all real
property contained therein required to be sold to Purchaser, subject
only to the Permitted Exceptions, Purchaser hereby agreeing that the
foregoing representation and warranty shall not survive the Closing but
shall merge into the Special Warranty Deed;
8.1.1.3There 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 Exhibit 8.1.1.3, Purchaser hereby agreeing
that the foregoing representation and warranty shall not survive the
Closing but shall merge into the Special Warranty Deed and the "Seller's
Affidavit" executed by the Seller and delivered to the Title Company;
8.1.1.4The 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;
8.1.1.5Purchaser has no duty to collect withholding taxes for Seller pursuant
to the Foreign Investors Real Property Tax Act of 1980, as amended;
8.1.1.6To Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations pending or contemplated or condemnation
actions either pending or threatened against the Property, as
applicable, other than the matter described on Exhibit 8.1.1.6 attached
hereto (the "Pending Litigation"), and Seller has not received any
notice that any such investigation, action, suit, proceeding or claim is
threatened. Seller hereby agrees to indemnify, defend and hold harmless
Purchaser from and against any and all cost, loss, harm, damage or
expense, including, without limitation attorney's fees and expenses,
which may arise with respect to the Pending Litigation. Seller is not
operating under or subject to, and Seller is not in default with respect
to, any order, writ, injunction or decree related to the Property or any
part thereof;
8.1.1.7Seller 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, Purchaser hereby agreeing that the foregoing
representation and warranty shall not survive the Closing but shall
merge into the Special Warranty Deed and the "Seller's Affidavit"
executed by the Seller and delivered to the Title Company;
8.1.1.8The rent roll (the "Rent Roll") attached hereto as Exhibit 8.1.1.8 is
true, correct and complete in all material respects as of the date of
this Purchase Contract. The Rent Roll contains a complete and accurate
schedule (the "Lease Schedule") of all Commercial Leases now in effect
relating to any portion of the Property, including the name of each
tenant, the term of each tenant's Commercial Lease, the amount of any
security deposit, whether in the form of cash or a letter of credit,
paid or deposited by the tenant under each Commercial Lease, the amount
of any past due but uncollected rent owed by each tenant, the amount of
any unpaid leasing commissions and any uncompleted tenant improvements
with respect to each Commercial Lease. Except as may be otherwise
disclosed on the Rent Roll or the Lease Schedule:
8.1.1.8.1 None of the tenants is in default in the payment of rent for more than
thirty (30) days under its Commercial Lease;
8.1.1.8.2 Except as set forth on Exhibit 8.1.1.8.2, to the knowledge of Seller,
Seller has not received from any tenant under a Commercial Lease a
notice of default by Seller in performing any of its obligations as
landlord under such Commercial Lease and there are no pending claims
for offsets against rent;
8.1.1.8.3 Seller has the sole right to collect rent under each Commercial Lease
and such right has not been assigned, pledged, hypothecated or
otherwise encumbered, except for an assignment as security for the
payment of any indebtedness to any existing mortgage holder of the
Property that Seller shall discharge and release at or prior to
settlement hereunder;
All of the representations and warranties of Seller set forth in this Section
8.1 pertaining to the Commercial Leases shall continue until the Closing Date
whereupon any of the representations and warranties pertaining to Commercial
Leases which are the subject of the tenant estoppel, if any, provided by Seller
pursuant to Section 9.1.6 shall automatically merge into such Seller's tenant
estoppel and Purchaser hereby agrees that the representations and warranties set
forth in this Section 8.1 pertaining to Commercial Leases for which tenant
estoppels are received from tenants pursuant to Section 9.1.6 shall not survive
the Closing and Purchaser shall rely solely upon such tenant estoppels from the
Tenants, all to the extent such tenant estoppel certificates, whether delivered
by a tenant or the Seller, address the matter or items included in this Section
8.1.1.8.
8.1.1.9Attached hereto as Exhibit 8.1.1.9 is a complete and accurate schedule
(the "Contract Schedule") of all Property Contracts now in effect,
relating to the Property, except for management and leasing agreements
which Seller shall terminate on the Closing Date without penalty or
liability to Purchaser ("Terminating Management and Leasing Contracts").
8.1.1.10 Except for the matter set forth on Exhibit 8.1.1.10 attached hereto,
to the knowledge of Seller, Seller has not received any written notice
of any violations of law, statutes, rules, governmental ordinances,
orders or requirements noted or issued by any governmental authority
having jurisdiction over or affecting the Property, nor does Seller have
any knowledge of any such violation.
8.1.1.11 To the knowledge of Seller, Seller has not received from any
governmental body having authority any written order, citation or notice
with regard to air emissions, water discharges, noise emissions or
Hazardous Substances (as hereinafter defined). For purposes of this
Section 8.1.1.11, "Hazardous Substances" shall mean "toxic substances,"
"toxic materials," "hazardous waste," "hazardous substances,"
"pollutants," or "contaminants" [as those terms are defined in the
Resource, Conservation and Recovery Act of 1976, as amended (42 U.S.C. S
6901 et. seq.), the Comprehensive Environmental Response Compensation
and Liability Act of 1980, as amended (42 U.S.C. S 9601 et. seq.), the
Hazardous Materials Transportation Act, as amended (49 U.S.C. S 1801 et.
seq.), the Toxic Substances Control Act of 1976, as amended (15 U.S.C. S
2601 et. seq.), the Clean Air Act, as amended (42 U.S.C. S 1251 et.
seq.) and any other federal, state or local law, statute, ordinance,
rule, regulation or code relating to health, safety or the environment];
asbestos or asbestos-containing materials; lead or lead-containing
materials; oils; petroleum-derived compounds; pesticides; or
polychlorinated biphenyls.
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 or other conveyance instruments conveying the Property and the
warranties or representations set forth in this Purchase Contract).
Purchaser represents and warrants that as of the Closing Date, it 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 and any 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.
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 Unless otherwise set forth in Section 8.1, Seller and Purchaser agree
that those representations contained in Section 8.1 shall survive Closing
for a period of One (1) year after the Closing Date (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 Closing Date). In the event that Seller breaches any representation
contained in Section 8.1 and Purchaser had knowledge of such breach prior
to Closing, 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 in 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
Mary C. McLean, a representative of the management company managing the
Property as of the date of this Purchase Contract, in a certification
addressed to Seller and dated as of the Effective Date, a copy of which has
been furnished to Purchaser on or prior to 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 the Seller or any affiliate
of the 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:
8.2.2.1Purchaser is a limited liability company duly organized, validly
existing and in good standing under the laws of State of Michigan.
8.2.2.2Purchaser, 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.
8.2.2.3No 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.
8.2.2.4Purchaser 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.
8.2.3 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.
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 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. Prior to the
Closing, Purchaser shall have the right to enter and inspect the Property
and take such other action reasonably necessary to confirm that (a) the
Property is in the condition required pursuant to Section 6.1.1, (b) Seller
has complied with, fulfulled and performed all of its covenants,
undertakings and agreements contained in this Purchase Contract, and (c)
all conditions precedent to Closing contained in this Article 9 have been
satisfied.
9.1.4 On the Closing Date, the Title Insurance Company shall be
unconditionally obligated and prepared, subject to the payment of the
applicable title insurance premium and other related charges, to issue to
Purchaser a full coverage owner's title insurance policy (1970 ALTA Form B
or 1992 ALTA Form B), with all standard exceptions deleted, for the
Property in compliance with the Title Commitment (in the form as required
by Purchaser prior to the expiration of the Feasibility Period, such
required form being confirmed in writing by Purchaser to Seller, with a
copy of the required Title Commitment and endorsements attached), including
endorsements as Purchaser has required prior to the expiration of the
Feasibility Period as aforesaid, together with such reinsurance and direct
access agreements as may be reasonably required by Purchaser.
9.1.5 The Purchaser shall have received, at least three (3) days prior to
Closing, a fully executed estoppel certificate containing, at a minimum,
the information set forth in the form estoppel certificate attached hereto
as Exhibit 9.1.5, from (a) each of the Major Tenants and (b) tenants
(including the Major Tenants) occupying at least seventy five percent (75%)
of the leased area of the Property. In the event Seller is unable to
obtain estoppel certificates from the tenants required as aforesaid,
Purchaser shall accept an estoppel certificate from Seller as landlord
under the Commercial Leases as to the items contained in Exhibit 9.1.5
which are not addressed by estoppels from the required tenants.
9.1.6 There shall be no material change in the zoning classification or the
zoning ordinances or regulations affecting the Property from that existing
as of the expiration of the Feasibility Period.
9.1.7 On the Closing Date, no action or proceeding shall have been
instituted or been threatened before any court or governmental authority
which would have a material adverse effect on the Property or the use or
occupancy thereof.
9.1.8 A certificate duly executed by Seller certifying that all of the
representations and warranties set forth in Section 8.1.1 are true and
correct in all material respects on the Closing Date as if made at and as
of Closing Date or the extent to which any of such representations or
warranties are no longer true and correct.
9.1.9 As of the Closing Date, neither Seller nor any of the Major Tenants
shall have commenced (within the meaning of any Bankruptcy Law) a voluntary
case, nor shall there have been commenced against Seller or any of the
Major Tenants an involuntary case, nor shall Seller or any of the Major
Tenants have consented to the appointment of a Custodian of it or for all
or any substantial part of its property, nor shall a court of competent
jurisdiction have entered an order or decree under any Bankruptcy Law that
is for relief against Seller or any of the Major Tenants in an involuntary
case or appoints a Custodian of Seller or any of the Major Tenants for all
or any substantial part of its property. The term "Bankruptcy Law" means
Title 11, U.S. Code, or any similar state law for the relief of debtors.
The term "Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law
9.1.10 The City of Southfield shall have granted final acceptance of the fire
alarm system described more fully in Exhibit 8.1.1.8.
9.1.11 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above.
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 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 Each of the representations and warranties of Purchaser contained
herein shall be true in all material respects as of the Closing Date;
9.2.2 Purchaser 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 Purchaser hereunder, 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.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only with
Insignia/ESG, Inc. ("Broker") in connection with this Purchase Contract.
Seller and Purchaser each represents and warrants to the other that other
than Insignia/ESG, Inc., 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 of omissions of the indemnifying
party, except that Purchaser shall not indemnify Seller for any liability
arising pursuant to the commission due to Broker.
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.
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 failure to satisfy
its obligations under 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
4.4, 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 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 4.4
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 4.4 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. In the event of the damage or
destruction of all or any part of the Property, the aggregate cost to
repair, replace and/or restore of which shall be $100,000 or more (as
estimated by Seller's insurance carrier), prior to Closing, Purchaser may,
at its option, exercisable by written notice to Seller, either (i)
terminate this Agreement, or (ii) continue under this Agreement, whereupon
Seller will assign to Purchaser its interest in and to any insurance
policies and proceeds thereof payable as a result of such damage or
destruction. In the event of the damage or destruction of any part of the
Property prior to Closing, the aggregate cost to repair, replace and/or
restore of which shall be less than $100,000 (as estimated by Seller's
insurance carrier), Purchaser shall have no right to terminate this
Agreement on account thereof, but Seller shall assign to Purchaser all of
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 May 26, 1999.
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 access to any
Property would be denied or limited because of the condemnation of property
adjacent to such Property (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.
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 not assignable without first obtaining the prior
written approval of the non-assigning party; provided, however, that
Purchaser shall have the right to assign this Purchase Contract prior to
Closing to a partnership or limited liability company of which Purchaser
and its principals and other entities affiliated with its principals shall
be the members or partners. As of the date of such assignment, the
assignor shall assume all of the obligations of Purchaser under this
Purchase Contract and the original Purchaser shall be released from all of
its obligations and shall have no further liability under 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, on the fifth (5th) business day
following the date of mailing, or (iv) if sent by facsimile, on the date
such facsimile is received provided that a copy is sent by nationally
recognized overnight courier on the day following the date of receipt,
addressed as follows:
If to Seller: If to Purchaser:
Consolidated Capital Equity Southfield Office Properties,
Partners/Two L.P. LLC
c/o AIMCO c/o Pomeroy Investment
1873 South Bellaire Street Corporation
Suite 1700 74 E. Long Lake Road
Denver, Colorado 80222 Bloomfield Hills, Michigan
48304
Attn: Gerald Reinhart
with a copy to: with a copy to:
Argent Real Estate Richard A. Zussman
Attention: David Marquette Jaffe, Raitt, Heuer & Weiss,
1401 Brickell Avenue, Suite 520 P.C.
Miami, Florida 33131 One Woodward Avenue
FAX (305) 371-6898 Suite 2400
Detroit, Michigan 98226
FAX (313) 961-8358
and with copies to:
Richard A. Cohn, Esq.
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
FAX (202) 508-6200
Troy W. Gordon, Esq.
Bryan Cave LLP
211 North Broadway
Suite 3600
St. Louis, Missouri 63102
FAX (314) 259-2020
Greg Miner
Insignia/ESG, Inc.
311 South Wacker Drive
Chicago, Illinois 60606
FAX (312) 935-1880
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 Michigan 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 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 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 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 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, 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 or any of the information delivered or made available by
Seller to Purchaser in accordance with this Purchase Contract or obtained
by Purchaser in the course of its investigations, shall keep the same
confidential, provided that Purchaser may disclose the terms and conditions
of this Purchase Contract or such information delivered, made available or
obtained as aforesaid (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, accountants, engineers,
consultants, partners, members or affiliates. 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, unless expressly set forth herein, and all other
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.
16.19 SURVIVAL
In addition to the terms and agreements set forth herein which this Purchase
Contract specifically provides shall survive Closing, Purchaser and Seller
hereby agree that Article 1, the second grammatical sentence of Section 2.1, the
indemnity contained in Section 8.1.6 relating to the Pending Litigation (which
indemnity shall not be subject to the survival period set forth in Section
8.1.3), Article 10 and Sections 16.6, 16.7, 16.11, 16.15, 16.16 and this 16.19
shall survive the Closing.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as of the
date first set forth above.
Seller: CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P.
By: CONCAP HOLDINGS, INC.
By:_____________________ ________ [SEAL]
Name:_________________________
Title:__________________________
Effective Date: Purchaser: SOUTHFIELD OFFICE PROPERTIES, LLC
May _____, 1999 By: POMEROY INVESTMENT CORPORATION
By:_____________________________ [SEAL]
Name:_________________________
Title:__________________________
EXHIBIT A
LEGAL DESCRIPTION
Central Park Plaza; 26211 Central Park Boulevard
Land in the City of Southfield, Oakland County, Michigan, described as follows:
Part of the Northeast / of Section 22, Town 1 North, Range 10 East, City of
Southfield, Oakland County, Michigan, described as follows: at a point located
distant South 87 degrees 00 minutes 00 seconds West 816.95 feet and North 03
degrees 00 minutes 00 seconds West 675.48 feet and South 87 degrees 00 minutes
00 seconds West 50.00 feet from the East / corner of Section 22 and proceeding
thence South 87 degrees 00 minutes 00 seconds West 550.37 feet; thence North 00
degrees 50 minutes 26 seconds East 212.73 feet; thence North 01 degrees 16
minutes 52 seconds East 172.22 feet; thence North 87 degrees 00 minutes 00
seconds East 523.27 feet; thence South 03 degrees 00 minutes 00 seconds East
384.00 feet to the point of beginning. Together with the right of use in common
with others the easements for storm sewers, sanitary sewer, water main and
roadway as set forth in easement recorded in Liber 5139, page 722, Oakland
County Records.
Central Park Place; 26011 Evergreen, 20100 Civic Center Drive and 2611 Evergreen
Road
Land in the City of Southfield, Oakland County, Michigan, described as follows:
PARCEL 1:
Land in the City of Southfield, Oakland County, Michigan, described as follows:
A parcel of land in the Northeast / of Section 22, Town 1 North, Range 10 East,
beginning at the East / corner of Section 22; proceeding thence South 87 degrees
0 minutes 0 seconds West 269.21 feet; thence North 03 degrees 0 minutes 0
seconds West 168.39 feet; thence South 87 degrees 0 minutes 0 seconds West
112.01 feet; thence North 03 degrees 0 minutes 0 seconds West 380.00 feet;
thence South 63 degrees 39 minutes 34 seconds East 420.00 feet; thence East
33.00 feet; thence South 341.33 feet to the point of beginning. TOGETHER with
the right to use the easements for storm sewers, sanitary sewers and water mains
as set forth in that certain easement agreement dated December 18, 1967, and
recorded January 2, 1968, in Liber 5139, page 722, Oakland County Records.
PARCEL 2
Land in the City of Southfield, Oakland County, Michigan, described as: A
parcel of land in the Northeast / of Section 22, Town 1 North, Range 10 East,
beginning at a point located distant South 87 degrees 00 minutes 00 seconds West
269.21 feet along the East and West / line from the East / corner of Section 22
and proceeding thence along said East and West / line South 87 degrees 00
minutes 00 seconds West 497.74 feet; thence North 03 degrees 00 minutes 00
seconds West 218.00 feet; thence North 87 degrees 00 minutes 00 seconds East
130.00 feet; thence North 03 degrees 00 minutes 00 seconds West 10.00 feet;
thence North 87 degrees 00 minutes 00 seconds East 255.73 feet; thence South 03
degrees 00 minutes 00 seconds East 59.61 feet; thence North 87 degrees 00
minutes 00 seconds East 112.01 feet; thence South 03 degrees 00 minutes 00
seconds East 168.39 feet to the point of beginning.
PARCEL 3:
A parcel of land in the Northeast / Section 22, Town 1 North, Range 10 East,
described as beginning at a point located distant South 87 degrees 00 minutes 00
seconds West 381.22 feet and North 03 degrees 00 minutes 00 seconds West 228.00
feet from the East / corner of Section 22, and proceeding thence South 87
degrees 00 minutes 00 seconds West 255.73 feet; thence South 03 degrees 00
minutes 00 seconds East 10.00 feet; thence South 87 degrees 00 minutes 00
seconds West 130.00 feet; thence north 03 degrees 00 minutes 00 seconds West
397.74 feet; thence North 87 degrees 00 minutes 00 seconds East 385.73 feet;
thence South 03 degrees 00 minutes 00 seconds East 387.74 feet to the point of
beginning. TOGETHER with the right to use easements for storm sewer, sanitary
sewers and water mains as set forth in that certain easement agreement dated
December 18, 1967, and recorded January 2, 1968, in Liber 5139, page 722,
Oakland County Records.
Crescent Centre, 24445 Northeastern Highway
Land in the City of Southfield, Oakland County, Michigan, described as follows:
Lot(s) 178, 179, 180 and 181 of WASHINGTON VILLAGE NO. 4, according to the plat
thereof recorded in Liber 56 of Plats page(s) 15 of Oakland County Records.
One Lasher Center; 26400 Lasher Road
Land in the City of Southfield, Oakland County, Michigan, described as follows:
Part of the Northwest / of Section 22, Town 1 North, Range 10 East, City of
Southfield, Oakland County, Michigan, described as follows: Beginning at a
point, said point being South 87 degrees 01 minutes 30 seconds West 2,148.20
feet as measured along the East-West 1/4 line from the center of Section 22,
Town 1 North, Range 10 East, and North 0 degrees 12 minutes 30 seconds East
602.87 feet; thence from the point of beginning, North 89 degrees 40 minutes 15
seconds West 394.14 feet to the West line of Section 22, as occupied by an iron
pipe at the West 1/4 corner, which measures 2,543.00 feet from the center of the
section, and an iron in a hand hole at the Northwest corner of Section 22;
thence along the West line of Section 22, as described, North 0 degrees 12
minutes 45 seconds East 636.10 feet; thence South 89 degrees 40 minutes 15
seconds East 365.21 feet to the Southerly line of Northwestern Highway, thence
along the South line of Northwestern Highway, South 62 degrees 37 minutes 30
seconds East 32.47 feet; thence South 0 degrees 12 minutes 30 seconds West
621.34 feet to the point of beginning.
Two Lasher Center; 26200 Lasher Road
Land in the City of Southfield, Oakland County, Michigan, described as follows:
Part of the Northwest / of Section 22, Town 1 North, Range 10 East, City of
Southfield, Oakland County, Michigan, described as follows: Beginning at a
point on the East and West / line of Section 22, distant South 87 degrees 01
minutes 30 seconds West 2,148.20 feet from the center of Section 22, Town 1
North, Range 10 East; thence from the point of beginning, South 87 degrees 01
minutes 30 seconds West along said / line 394.80 feet to an iron pipe; thence
North 0 degrees 12 minutes 45 seconds East along the West line of Section 22, as
occupied by the aforementioned iron and the Northwest corner of the Section
625.63 feet; thence South 89 degrees 40 minutes 15 seconds East 394.14 feet;
thence South 0 degrees 12 minutes 30 seconds West 602.87 feet to the point of
beginning, except a parcel of land beginning at an iron on the East and West /
line of Section 22, (10 1/2 Mile Road), distant North 87 degrees 01 minutes 30
seconds East 244.80 feet from the West / corner of Section 22; thence North 0
degrees 12 minutes 30 seconds East 200.00 feet to an iron; thence North 87
degrees 01 minutes 30 seconds East 150.00 feet to an iron; thence South 00
degrees 12 minutes 30 seconds West 200.00 feet to an iron in the East and West /
line of Section 22, (10 1/2 Mile Road); thence South 87 degrees 01 minutes 30
seconds West 150.00 feet to the point of beginning.
EXCEPTING therefrom a part of said land deeded to City of Southfield, by Quit
Claim Deed recorded in Liber 6463, page 272, Oakland County Records, described
as follows: Beginning at a point, said point being North 87 degrees 01 minutes
30 seconds East 85.10 feet and due North 43.07 feet from the West / corner of
Section 22; thence North 87 degrees 01 minutes 30 seconds East 159.70 feet;
thence due North 2.0 feet; thence South 87 degrees 01 minutes 30 seconds West
161.80 feet; thence South 46 degrees 22 minutes 52 seconds East 2.90 feet to the
point of beginning.
EXHIBIT 1.1.5
EXCLUDED PERMITS
NONE
EXHIBIT 1.1.6
FIXTURES AND TANGIBLE PERSONAL PROPERTY
EXHIBIT 3.1.1
FORM OF ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this day of _______,
1999 by and among, CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P., a California
limited partnership ("Seller"); SOUTHFIELD OFFICE PROPERTIES, LLC, a Michigan
limited liability company ("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 May,
1999; and
Whereas, the Purchase Contract requires that Purchaser provide a Deposit in
the amount of Five Hundred Thousand Dollars ($500,000.00) 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 Five
Hundred Thousand Dollars ($500,000.00) in good funds (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 and (a) if the sale of the Property is closed by the date 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, (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 to
Seller 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) or in accordance with any other
provision of 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 in
the preceding paragraph, 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 five (5) 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) to 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: If to Purchaser:
Consolidated Capital Equity Southfield Office Properties,
Partners/Two L.P. LLC
c/o AIMCO c/o Pomeroy Investment
1873 South Bellaire Street Corporation
Suite 1700 74 E. Long Lake Road
Denver, Colorado 80222 Bloomfield Hills, Michigan
48304
Attn: Gerald Reinhart
with a copy to: with a copy to:
Argent Real Estate Richard A. Zussman
Attention: David Marquette Jaffe, Raitt, Heuer & Weiss,
1401 Brickell Avenue, Suite 520 P.C.
Miami, Florida 33131 One Woodward Avenue
FAX (305) 371-6898 Suite 2400
Detroit, Michigan 98226
FAX (313) 961-8358
and with copies to:
Richard A. Cohn, Esq.
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
FAX (202) 508-6200
Troy W. Gordon, Esq.
Bryan Cave LLP
211 North Broadway
Suite 3600
St. Louis, Missouri 63102
FAX (314) 259-2020
Greg Miner
Insignia/ESG, Inc.
311 South Wacker Drive
Chicago, Illinois 60606
FAX (312) 935-1880
(b) 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, Purchaser and Seller
hereby agreeing to each pay one-half of the Escrow Agent's fee. 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 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 Michigan.
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.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed on its behalf duly authorized persons, all as of the
day and year first above written.
SELLER:
CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P.
By: CONCAP HOLDINGS, INC.
By:____________________________ [SEAL]
Name:_______________________
Title:________________________
PURCHASER:
SOUTHFIELD OFFICE PROPERTIES, LLC
By: POMEROY INVESTMENT CORPORATION
By:____________________________ [SEAL]
Name:_______________________
Title:________________________
ESCROW AGENT:
FIDELITY NATIONAL TITLE INSURANCE CO.
By:
Name:
Its:
EXHIBIT 5.2.1
TITLE EXCEPTIONS
1. General real property taxes for the year 1999 and all subsequent years.
2. Special taxes or assessments becoming a lien after the date of the 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 tenants in possession of the Property pursuant to unrecorded
leases, as tenants only.
5. Visible and apparent easements and all underground easements, if any, the
existence of which may arise by unrecorded grant or by use.
6. Covenants, conditions, limitations, restrictions, rights, rights-of-way,
liens, encumbrances, encroachments, defects, reservations, easements,
agreements of record and other matters of record, including, without
limitation, the following:
Central Park Plaza; 26211 Central Park Boulevard
1. Any rights, title interest or claim thereof to that portion of the land
taken, used or granted for Central Park Boulevard.
2. Right of Way in favor of Rummell Relief Drain Drainage District and the
Covenants, Conditions and Restrictions contained in instrument recorded in
Liber 5369, page 110.
3. Right of Way in favor of The Detroit Edison Company and the Covenants,
Conditions and Restrictions contained in instrument recorded in Liber 5724,
page 610.
Central Park Plaza; 26011 Evergreen, 20100 Civic Center Drive and 2611 Evergreen
Road
1. Terms and Conditions contained in Storm Sewer, Water Main, Sanitary Sewer
and Roadway Easement, as disclosed by instrument recorded in Liber 5139,
page 722, as amended and modified by Easement Modification Agreement
recorded in Liber 8163, page 280.
2. Right of Way in favor of City of Southfield and the Covenants, Conditions
and Restrictions contained in instrument recorded in Liber 5504, page 321.
3. Storm Drain Easement in favor of City of Southfield and the Covenants,
Conditions and Restrictions contained in instrument recorded in Liber 7541,
page 501 and Liber 7541, page 504.
4. Pole Line Permit in favor of The Detroit Edison Company and Michigan Bell
Telephone Company and the Covenants, Conditions and Restrictions contained
in instrument recorded in Liber 3529, page 484.
5. Sanitary Sewer Easement in favor of Oakland County Department of Public
Works and the Covenants, Conditions and Restrictions contained in
instrument recorded in Liber 3828, page 231, Liber 3828, page 235, and
Liber 3828, page 237.
6. Terms and Conditions contained in Agreement with Detroit Edison Company, as
disclosed by instrument recorded in Liber 4968, page 604.
7. Terms and Conditions contained in Easement Grant and Declaration of
Restrictions, as disclosed by instrument recorded in Liber 4979, page 548,
as re-recorded in Liber 5458, page 88.
8. Terms and Conditions contained in Agreement with Detroit Edison Company, as
disclosed by instrument recorded in Liber 5180, page 79.
9. Water Main Easement in favor of City of Southfield and the Covenants,
Conditions and Restrictions contained in instrument recorded in Liber 5596,
page 31.
10. Terms and Conditions contained in Agreement with Detroit Edison Company, as
disclosed by instrument recorded in Liber 5454, page 484.
11. Terms and Conditions contained in Easement Grant and Declaration of
Restrictions, as disclosed by instrument recorded in Liber 5446, page 238.
12. Terms and Conditions contained in Easement Grant and Declaration of
Restrictions, as disclosed by instrument recorded in Liber 5243, page 363,
as re-recorded in 5458, page 98.
13. Any rights, title interest or claim thereof to that portion of the land
taken, used or granted for Civic Center Drive, Evergreen Road and Central
Park Blvd.
Crescent Centre, 24445 Northeastern Highway
1. Any rights, title interest or claim thereof to that portion of the land
taken, used or granted for Northwestern Highway.
One Lasher Center; 26400 Lasher Road
1. Covenants, conditions, restrictions and other provisions but omitting
restrictions, if any, based on race, color, religion, sex, handicap,
familial status or national origin as contained in instrument recorded in
Liber 5327, page 487 and Liber 5680, page 333 and in Liber 5801, page 574.
2. Any rights, title interest or claim thereof to that portion of the land
taken, used or granted for Lasher Road and Civic Center Drive.
3. Right of Way in favor of The Consumers Power Company and the Covenants,
Conditions and Restrictions contained in instrument recorded in Liber 4251,
page 493.
4. Right of Way in favor of Wagner Drain Drainage District and the Covenants,
Conditions and Restrictions contained in instrument recorded in Liber 5459,
page 130, and in Liber 5459, page 134.
5. Joint Overhead and Underground Easement in favor of The Detroit Edison
Company and Michigan Bell Telephone Company and the Covenants, Conditions
and Restrictions contained in instrument recorded in Liber 5923, page 650.
6. Easement Grant and Declaration of Restrictions in favor of The Detroit
Edison Company and the Covenants, Conditions and Restrictions contained in
instrument recorded in Liber 5474, page 889 and re-recorded in Liber 7307,
page 215.
7. Terms and Conditions contained in Agreement, as disclosed by instrument
recorded in Liber 5481, page 270.
Two Lasher Center; 26200 Lasher Road
1. Covenants, conditions, restrictions and other provisions but omitting
restrictions, if any, based on race, color, religion, sex, handicap,
familial status or national origin as contained in instrument recorded in
Liber 5327, page 487 and Liber 5680, page 333 and Liber 5801, page 574.
2. Any right, title interest or claim thereof to that portion of the land
taken, used or granted for Lasher Road.
3. Right of Way in favor of The Consumers Power Company and the Covenants,
Conditions and Restrictions contained in instrument recorded in Liber 4251,
page 493.
4. Right of Way for sanitary sewer in favor of North Center Properties, Inc.
and the Covenants, Conditions and Restrictions contained in instrument
recorded in Liber 5648, page 736.
5. Right of Way in favor of Wagner Drain Drainage District and the Covenants,
Conditions and Restrictions contained in instrument recorded in Liber 5459,
page 130, and Liber 5459, page 134.
6. Joint Overhead and Underground Easement in favor of The Detroit Edison
Company and Michigan Bell Telephone Company and the Covenants, Conditions
and Restrictions contained in instrument recorded in Liber 5923, page 652.
7. Water Main Easement in favor of North Center Properties, Inc. and the
Covenants, Conditions and Restrictions contained in instrument recorded in
Liber 7110, page 90.
EXHIBIT 7.2.1.1
FORM OF SPECIAL WARRANTY DEED
COVENANT DEED
The Grantor, CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P., a
California limited partnership
whose address is c/o AIMCO, 1873 South Bellaire Street, Suite 1700,
Denver, Colorado 80222
Conveys and Sells to SOUTHFIELD OFFICE PROPERTIES, LLC, a Michigan
limited liability company
whose address is 74 E. Long Lake Road, Bloomfield Hills, Michigan
48304,
the premises situated in the City of Southfield, County of Oakland, State of
Michigan, described in Exhibit A attached hereto and incorporated herein by
reference, together with all and singular tenements, hereditaments,
appurtenances and easements benefiting the said premises,
for the full consideration of (See Real Estate Transfer Tax Valuation
Affidavit),
subject to those matters (the "Permitted Encumbrances") described in Exhibit B
attached hereto and incorporated herein by reference.
The Grantor covenants and agrees that as of the date hereof it has not done or
suffered to be done anything whereby the property herein conveyed is, or may be,
in any manner encumbered or charged, except for the Permitted Encumbrances,
Grantor binds itself, its successors and assigns, to warrant and forever defend
all or any part of the said property conveyed herein unto Grantee, its
successors and assigns, against the claims of all persons claiming by, through
or under Grantor.
Grantor grants the Grantee the right to make ___[INSERT MAXIMUM AVAILABLE
DIVISIONS] permitted divisions under Section 108 of the Land Divisions Act, Act
No. 288 of the Public Acts of 1967 (the "Act"). [IF A SINGLE DEED IS USED FOR
ALL PROPERTIES, A SEPARATE GRANT OF LAND DIVISIONS MUST BE MADE FOR EACH
PROPERTY.]
This property may be located within the vicinity of farmland or a farm
operation. Generally accepted agricultural and management practices which may
generate noise, dust, odors, and other associated conditions may be used and are
protected by the Michigan Right to Farm Act.
Dated as of , 1999.
IN THE PRESENCE OF: SELLER:
CONSOLIDATED CAPITAL EQUITY
PARTNERS/TWO L.P., a California
limited partnership
By: Concap Holdings, Inc.,
its General Partner
By:
Its:
STATE OF )
)SS
COUNTY OF )
The foregoing instrument was acknowledged before me this ___ day of
_________, 1999, by _______________, the ______________ of Concap Holdings,
Inc., the general partner if Consolidated Capital Equity Partners/Two L.P., a
California limited partnership, on behalf of said partnership.
Notary Public, County
My Commission Expires:
When recorded return Send subsequent Drafted by:
to: Tax Bills To:
Southfield Office Properties, Richard A. Zussman
Richard A. Zussman LLC Jaffe, Raitt, Heuer &
Jaffe, Raitt, Heuer & 74 E. Long Lake Road Weiss, P.C.
Weiss, P.C. Bloomfield Hills, Michigan One Woodward Ave.,
One Woodward Ave., 48304 Suite 2400
Suite 2400 Detroit, Michigan 48226
Detroit, Michigan (313) 961-8380
48226
EXHIBIT A TO SPECIAL WARRANTY DEED
Legal Description
EXHIBIT B TO SPECIAL WARRANTY DEED
Permitted Encumbrances
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
Dated: ____________, 1999.
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P., a
California limited liability company ("SELLER"), in connection with the sale of
certain real property ("PROPERTY") located in the County of Oakland, State of
Michigan, which is more particularly described on Exhibit "A" attached hereto
and by this reference incorporated herein, hereby sells and conveys to
SOUTHFIELD OFFICE PROPERTIES, LLC, a Michigan limited liability company
("PURCHASER"), all of Seller's right, title and interest in and to all fixtures,
furniture, furnishings, fittings, equipment, machinery, appliances and other
articles of personal property ("PERSONAL PROPERTY") used in, held for use in
connection with, usuable or necessary for the present or future occupation or
operation of the Property as of the date hereof including, without limitation,
the Personal Property described on Exhibit "B" attached hereto. Seller
covenants and warrants to Purchaser that Seller is the lawful owner of the
Personal Property identified in Exhibit "B" attached hereto and Seller agrees to
warrant and defend the sale of the Personal Property identified in Exhibit "B"
to Purchaser, its successors and assigns, against any and every person or
persons whatsoever.
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.
Purchaser hereby accepts the Personal Property on and subject to the
conditions and disclaimers above as of the date hereof.
SELLER:
CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P.
By: CONCAP HOLDINGS, INC.
By:____________________________ [SEAL]
Name:_______________________
Title:________________________
PURCHASER:
SOUTHFIELD OFFICE PROPERTIES, LLC
By: POMEROY INVESTMENT CORPORATION
By:____________________________ [SEAL]
Name:_______________________
Title:________________________
EXHIBIT "A" TO BILL OF SALE
Legal Description of Real Property
EXHIBIT B TO BILL OF SALE
Description of Personal Property
EXHIBIT 7.2.1.3
FORM OF ASSIGNMENT
This Assignment ("ASSIGNMENT") is executed by CONSOLIDATED CAPITAL EQUITY
PARTNERS/TWO L.P., a California limited partnership ("SELLER"), in favor of
SOUTHFIELD OFFICE PROPERTIES, LLC, a Michigan limited liability company
("PURCHASER").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract dated as of the ___ day of May, 1999 ("PURCHASE CONTRACT"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached hereto and the improvements located thereon
(collectively, the "PROJECT").
Pursuant to the Purchase Contract, Seller has agreed to assign 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:
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, building names,
and authorizations utilized with respect to or relating 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 all purchase orders, equipment leases, maintenance, service, or
utility contracts and similar contracts relating to the ownership,
maintenance, construction or repair and/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 (including any right and interest of Seller in and to
security deposits held thereunder) scheduled on Exhibit "C" attached hereto.
Purchaser hereby acknowledges that Seller has made no representation
or warranty regarding the necessity of any consent or approval of any third
party to the sale or transfer of the Property Contracts and Seller hereby
disclaims any responsibility or liability for failure to obtain such consent or
approval. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers to Purchaser
all of Seller's right, title and interest, if any, in and to the Property
Contracts, the Commercial Leases, Books and Records and Licenses and Permits,
subject as to the Property Contracts 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, harm or damage which may arise with respect
to the Property Contracts and the Commercial Leases which accrued prior to the
date hereof or in connection with the failure of Seller to deliver any security
deposits it is holding under the Commercial Leases to Purchaser.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
and agrees to perform all liabilities and obligations of landlord under the
Commercial Leases and all liabilities and obligations of the Seller under the
Property Contracts, including responsibility for refunding security deposits
delivered to Purchaser which accrues after the date hereof. 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
with respect to 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 or in the Purchase Contract 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 Michigan.
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.
Dated: ___________, 1999
SELLER:
CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P.
By: CONCAP HOLDINGS, INC.
By:____________________________ [SEAL]
Name:_______________________
Title:________________________
Accepted and Agreed:
PURCHASER:
SOUTHFIELD OFFICE PROPERTIES, LLC
By: POMEROY INVESTMENT CORPORATION
By:____________________________ [SEAL]
Name:_______________________
Title:________________________
EXHIBIT A TO ASSIGNMENT
Legal Description
EXHIBIT B TO ASSIGNMENT
Property Contracts (Assigned to Purchaser)
EXHIBIT C TO ASSIGNMENT
Commercial Leases
Tenant Unit No. Term of Lease
EXHIBIT 8.1.1.3
OTHER PARTIES IN POSSESSION
1. Kathleen Butcher, d/b/a L & R Vending, pursuant to that certain Agreement
For Vending dated February 1, 1996, a copy of which is attached hereto.
EXHIBIT 8.1.1.6
PENDING LITIGATION
Genise McLaughlin, plaintiff, vs. Central Park Place Associates, Greenline
Maintenance Limited and Insignia/ESG, Inc.; Case No. 98-005906-NO; Circuit Court
for the County of Oakland, Michigan.
EXHIBIT 8.1.1.8
SCHEDULE OF COMMERCIAL LEASES AND RENT ROLL
EXHIBIT 8.1.1.8.2
NOTICES OF DEFAULT FROM TENANTS
Letter dated May 13, 1999 regarding Hospice of Integrated Health Services
Lease, a copy of which is attached hereto.
EXHIBIT 8.1.1.9
PROPERTY CONTRACTS
Vendor Name / Address Nature of Service
ServiceMaster Housekeeping
Lakewood Landscaping Snow removal
Lakewood Landscaping Landscape maintenance
Water Services Boiler chemical treatments
Tru-Green Chemlawn Indoor plant maintenance
Dover Elevator Co. Elevator service
Dinverno Trash removal, compactor lease
Terminix Pest control
Vanguard Security System Alarm and access monitoring
IOS Capital Copier lease
Pitney-Bowes Postage meter lease
Eagle Communications Security cameras
Sprint North Leasing Phone system lease
PIC Maintenance Housekeeping
Chemco Products Boiler chemical treatments
Michigan Elevator Co. Elevator service
Eradico Pest Control Pest control
Muzak_ Detroit Music for lobbies
Vendor Name / Address Nature of Service
Insignia/ESG, Inc. Property management
Insignia, ESG, Inc. Leasing
EXHIBIT 8.1.1.10
GOVERNMENTAL ACTIONS
The City of Southfield, Michigan has not granted final acceptance to the fire
alarm system for Two Lasher Center as the horn/strobe devices on the second
floor which were installed in 1997 do not meet current code. The devices did
meet code when installed. The City is attempting to require the devices to be
upgraded to code.
EXHIBIT 9.1.5
FORM OF TENANT ESTOPPEL CERTIFICATE
TO: Southfield Office Properties, LLC
74 E. Long Lake Road
Bloomfield Hills, Michigan 48304
Attention: Gerald Reinhart
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 office space in the office building located at
______________, Southfield, Michigan on the real property commonly known as
_________________________________ (the "PROPERTY"). Tenant understands that
Southfield Office Properties, LLC ("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. 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.
5. The undersigned is authorized to execute this Estoppel Certificate on
behalf of Tenant.
Dated this _____ day of _____________, 1999.
TENANT:
___________________________________,
a ______________ ___________________
By:________________________________
Name:______________________________
Title:_______________________________