EXHIBIT 10.36
PURCHASE AND SALE CONTRACT
BETWEEN
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS,
A CALIFORNIA LIMITED PARTNERSHIP,
AS SELLER
AND
EVEREST STORAGE HOLDINGS, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY,
AS PURCHASER
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS 2
ARTICLE 2 PURCHASE AND SALE OF PROPERTY 5
ARTICLE 3 PURCHASE PRICE & DEPOSIT 6
ARTICLE 4 FINANCING 5
ARTICLE 5 FEASIBILITY PERIOD 8
ARTICLE 6 TITLE 12
ARTICLE 7 CLOSING 15
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
20
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING 27
ARTICLE 10 BROKERAGE 29
ARTICLE 11 POSSESSION 29
ARTICLE 12 DEFAULTS AND REMEDIES 30
ARTICLE 13 RISK OF LOSS OR CASUALTY 31
ARTICLE 14 RATIFICATION 32
ARTICLE 15 EMINENT DOMAIN 32
ARTICLE 16 MISCELLANEOUS 33
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("PURCHASE CONTRACT") is entered into as of
the 2nd day of July, 1999, by and among Johnstown/Consolidated Income Partners,
a California limited partnership, having a principal address at c/o AIMCO, 1873
South Bellaire Street, Suite 1700, Denver, Colorado 80222 ("SELLER"), and
Everest Storage Holdings, LLC a California limited liability company, having a
principal address at 199 South Los Robles Avenue, Suite 440, Pasadena,
California 91101 ("PURCHASER").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller owns certain real estate, improvements and related property located
in Davie, Florida.
R-2. Purchaser desires to purchase and pay to Seller the Purchase Price and
Seller has agreed to sell the Property (as defined below) to Purchaser, on the
terms and conditions set forth herein.
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.
1.1.1 "BUSINESS DAY" means any day other than a Saturday or Sunday or
federal holiday or legal holiday in the State of Florida.
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 set forth in Section 7.1.1 on which 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
rental agreements, 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, including but not limited to those items set forth on
the rent roll attached hereto as Exhibit 1.1.4, including any new rental
agreements, leases, subleases and other occupancy agreements entered into
in the ordinary course of business between the Effective Date and the
Closing Date.
1.1.5 "EFFECTIVE DATE" means the date on which Seller signs this Purchase
Contract, thereby accepting the Purchase Contract, and provides Notice to
Purchaser.
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 Effective Date and used or usable in
connection with any present or future occupation or operation of all or any
part of the Property as set forth in Exhibit 1.1.6. 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 principally for
the business, operation or management of the Property.
1.1.7 "IMPROVEMENTS" means all buildings and improvements, located on the
Land taken "as is" containing approximately 62,240 square feet of self-
storage space.
1.1.8 "LAND" means all of that certain tract of land located in Davie,
Florida commonly known as Davie Self Storage, located at 5370 South
University Drive, Davie, Florida 33328, more particularly described in
Exhibit A attached hereto and made a part hereof, and all rights,
privileges and appurtenances pertaining thereto.
1.1.9 "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, (ii) Property
Contracts, (iii) Commercial Leases, (iv) Permits, (v) cash or other funds,
whether in petty cash or house "banks," or on deposit in bank accounts or
in transit for deposit, (vi) refunds, rebates or other claims, or any
interest thereon, for periods or events occurring prior to the Closing
Date, (vii) utility and similar deposits, or (viii) insurance or other
prepaid items.
1.1.10 "NOTICE" shall have the meaning ascribed thereto in Section 16.6.
1.1.11 "PERMITS" means all licenses and permits other than Excluded Permits
granted by governmental authorities having jurisdiction over the Property
in respect of the matter to which the applicable license or permit applies
and owned by Seller and used in or relating to the ownership, occupancy or
operation of the Property or any part thereof ("EXCLUDED PERMITS" means
those Permits which, under applicable law, are nontransferable or
transferable only with consent and such consent shall not have been
obtained after reasonable efforts by Seller.).
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 6.2.
1.1.13 "PROPERTY" means the Land, Improvements and all rights of Seller
relating to the Land and the Improvements, including without limitation,
all right, 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,
(iv) all Fixtures and Tangible Personal Property, (v) the right, if any and
only to the extent transferable, of Seller in any Property Contracts and
Commercial Leases, Permits (other than Excluded Permits) and the
Miscellaneous Property Assets owned by Seller which are located on the
Property and used in its operation, and (vi) any water rights or mineral
rights, appurtenant to the Land.
1.1.14 "PROPERTY CONTRACTS" means all purchase orders, maintenance, service,
or utility contracts and similar contracts (except Commercial Leases, which
shall be assumed by Purchaser at Closing) set forth on Exhibit 1.1.14, and
any contracts entered into after the Effective Date in accordance with
Section 8.1.5.2, which relate to the ownership, maintenance, construction
or repair and/or operation of the Property.
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 6.4.
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 6.1.
1.1.20 "TITLE INSURER" shall have the meaning set forth in Section 6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Purchase and Sale of Property. Seller agrees to sell and convey the
Property to Purchaser and Purchaser agrees to purchase the Property from
Seller, in accordance with the terms and conditions set forth in this
Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 Purchase Price and Deposit. The total purchase price ("PURCHASE PRICE")
for the Property shall be Four Million Eight Hundred Ninety-Four Thousand
and No/100 Dollars ($4,894.000.00), which shall be paid by Purchaser, as
follows:
3.1.1 Within five (5) days following the Effective Date, Purchaser shall
deliver to Fidelity National Title Insurance Company, Bank of America
Center, 700 Louisiana, Suite 2600, Houston, Texas 77002 ("ESCROW AGENT" or
the "TITLE COMPANY") a deposit in the sum of Twenty-Five Thousand and
No/100 Dollars ($25,000.00) in cash; and provided this Purchase Contract
has not been earlier terminated as provided herein, Purchaser shall on or
prior to the date of expiration of the Feasibility Period (as defined in
Section 5.1), deliver an additional deposit of Seventy-Five Thousand and
No/100 Dollars ($75,000.00) in cash to the Escrow Agent (such sums being
hereinafter referred to collectively and individually as the "DEPOSIT"), to
be held and disbursed by Escrow Agent pursuant to the terms of an escrow
agreement (the "ESCROW AGREEMENT") in the form attached hereto as
Exhibit B. Purchaser and Seller each approve and shall execute the Escrow
Agreement concurrently with the execution of this Purchase Contract.
3.1.2 The Escrow Agent shall hold the Deposit and make delivery of the
Deposit to the party entitled thereto under the terms of the Escrow
Agreement. 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 toward the Purchase Price (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
except as expressly stated herein, and subject to and except for
Purchaser's liability under Sections 5.3 and 5.4.
3.1.4 If the sale of the Property fails to close on the Closing Date (or any
such extension date) due to a failure of performance by Seller, Purchaser
shall be entitled to the remedies set forth in Article 12 hereof. If the
sale of the Property fails to close on the Closing Date (or any such
extension date) due to a 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 Purchase Price. On the Closing Date, Purchaser shall pay Seller the amount
of Four Million Eight Hundred Ninety-Four Thousand and No/100 Dollars
($4,894,000.00), 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
FINANCING
4.1 Financing of Purchaser. Purchaser assumes full responsibility to
expeditiously and diligently initiate and pursue all steps necessary to
obtain appropriate financing for purchase of the Property. In no event
shall Purchaser's ability to obtain financing to purchase the Property for
the Purchase Price upon the terms and conditions contained herein be a
condition precedent to Closing.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Due Diligence and Feasibility Period. Subject to the rights of the Tenants
and the terms of Sections 5.3 and 5.4 below, for forty-five (45) calendar
days following the date Purchaser receives the documents described in
Sections 5.1.5 and 8.1.5.4 (the "FEASIBILITY PERIOD"), Purchaser, and its
agents, contractors, engineers, surveyors, attorneys, and employees
(collectively, "CONSULTANTS") shall have the right from time to time upon
reasonable advance notice to Seller to enter onto the Property:
5.1.1 To conduct and make any and all customary studies, tests, examinations
and inspections, or investigations of or concerning the Property and its
ownership and operation (including without limitation, engineering and
feasibility studies, evaluation of drainage and flood plain, soil tests for
bearing capacity and percolation and surveys, including topographical
surveys). Notwithstanding the foregoing, in no event shall Purchaser
conduct any invasive environmental assessment test of the Property without
the prior written consent of Seller, which consent may be withheld, in
Seller's sole discretion.
5.1.2 To confirm any and all matters which Purchaser may reasonably desire
to confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the Property for
Purchaser's intended use of the Property.
5.1.4 To review and copy and to independently analyze and verify, (i) to the
extent in Seller's possession or control, all books and records pertaining
to operation of the Property (or duplicate copies thereof), including but
not limited to current operating statements for the calendar years 1997,
1998 and the first quarter of 1999, (ii) to the extent in Seller's
possession or control, plans, specifications, and engineering and/or
architectural drawings of the Improvements and systems of the Property or
any part of the Property (or duplicate copies thereof), (iii) to the extent
in Seller's possession or control, any boundary and "as-built" surveys of
the Land and Improvements, any title insurance policies or appraisals,
(iv) to the extent in Seller's possession or control, any environmental
reports relating to the Property, (v) copies of Commercial Leases in effect
as of Closing and all amendments thereto, (vi) copies of Property Contracts
in effect as of Closing and assumed by Purchaser, and (vii) to the extent
in Seller's possession or control, any Permits and Excluded Permits.
5.1.5 Seller will provide Purchaser after the Effective Date the following
documents ("SELLER'S DOCUMENTS"): (a) the documents described in clauses
(ii), (iii), (iv), (vi) and (vii) of Section 5.1.4, (b) a current rent roll
and accounts receivable list, (c) the current standard form of Commercial
Lease, (d) to the extent in Seller's possession and control, copies of
current real property tax assessments and utility statements, and (e)
current operating statements for the calendar years 1997 and 1998 and the
first quarter of 1999 (the "Operating Statements").
5.2 Termination and Cure Rights. Should the results of any of the matters
referred to in Section 5.1 above appear unsatisfactory to Purchaser for any
reason, including any defects in title related to the Permitted Exceptions
(as defined in Section 6.2), 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. Pacific Time on the date of
expiration of the Feasibility Period. If Purchaser exercises such right to
terminate as provided in this Section 5.2, this Purchase Contract shall
terminate and be of no further force and effect, except as otherwise
expressly stated herein, and subject to and except for Purchaser's
liability under Sections 5.3 and 5.4, and Escrow Agent shall promptly
return the Deposit to Purchaser. Purchaser shall, within ten (10) days of
such termination, deliver to Seller copies of all feasibility studies,
surveys, engineering reports and all other information obtained by
Purchaser with respect to the Property, which requirement shall survive the
termination of this Purchase Contract. In the event Seller does not
receive such Notice of Purchaser's disapproval on or before the 5:00 p.m.
Pacific Time on the date of expiration of the Feasibility Period, the
Property shall be deemed satisfactory to Purchaser, and Purchaser shall be
deemed conclusively to have waived its termination rights under this
Section 5.2 and this Purchase Contract shall remain in full force and
effect and Purchaser's obligation to purchase the Property shall be
noncontingent and unconditional except only for satisfaction of the
conditions expressly stated in this Article 5 and in Article 9.
5.3 Confidentiality. Any and all information provided by Seller to Purchaser
or obtained by Purchaser relating to the Property in the course of its
inspections or review under or in connection with the rights under
Section 5.1, including, without limitation, any environmental assessment or
audit, shall be treated as confidential information by Purchaser and
Purchaser shall instruct all of its Consultants to the confidentiality of
all such information. Purchaser will not, except with the express prior
written consent of Seller, directly or indirectly, (i) disclose or permit
the disclosure of any information to any person or entity, except persons
who are bound to observe the terms hereof, or (ii) use or permit the use of
all information pertaining to the Property (1) in any way detrimental to
the Seller or (2) for any purpose other than evaluating the contemplated
purchase of the Property. Purchaser agrees, that if the Closing does not
occur, Purchaser will promptly return to the Seller or its authorized agent
all written or tangible information pertaining to the Property, including
all copies or extracts thereof, and all notes based upon the information.
Purchaser shall be strictly liable for all costs and expenses, and/or
damage or injury to any person or property resulting from any such review
or inspection, and whether Seller or its authorized agents shall have been
present at the same or shall have consented to the same, or any failure to
keep all such information confidential, whether occasioned by the acts of
Purchaser or any of its Consultants, and Purchaser agrees to indemnify and
hold harmless Seller from any liability, claims or expenses (including,
without limitation, mechanic's or construction liens and/or reasonable
attorneys' fees) resulting therefrom, except any claims, damages, costs or
liability which arise from preexisting conditions of the Property or from
the negligence of Seller. Except as specifically provided in this Purchase
Contract, neither the Seller, nor any of its officers, directors,
employees, agents or representatives, shall be deemed to make or to have
made any representation or warranty as to the accuracy or completeness of
any information pertaining to the Property or whether or not the
information provided constitutes all of the information available to the
Seller; and neither the Seller nor any of its officers, directors,
employees, representatives or agents shall have any liability resulting
from Purchaser's use of any information pertaining to the Property.
Notwithstanding anything to the contrary set forth in this Agreement, the
obligations of Purchaser set forth in this Section 5.3 shall survive the
Closing or the termination of this Agreement, as applicable.
5.4 Indemnification of Seller. Purchaser shall indemnify and hold Seller
harmless for any actions taken by Purchaser and its Consultants on the
Property. Purchaser shall indemnify, defend (with attorneys selected by
Seller) and hold Seller harmless from any and all claims, damages, costs
and liability which may arise due to such entries, surveys, tests,
investigations and the like, except any claims, damages, costs, or
liability which arise from preexisting conditions of the Property or from
the negligence of Seller. Seller shall have the right, without limitation,
to disapprove any and all entries, surveys, tests, investigations and the
like that in its reasonable judgment could result in any injury to the
Property or breach of any agreement, or expose Seller to any liability,
costs, liens or violations of applicable law, or otherwise adversely affect
the Property or Seller's interest therein. 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. The provisions of this Section
5.4 shall survive Closing or the earlier termination of this Purchase
Contract.
5.5 Insurance of Purchaser. Purchaser shall maintain casualty insurance and
comprehensive public liability insurance with broad form contractual and
personal injury liability endorsements with respect to the Property and
Purchaser's activities carried on therein. 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.
5.6 Condition of Property. Purchaser hereby agrees to restore the Property to
the same condition existing immediately prior to Purchaser's exercise of
its rights pursuant to this Article 5 at Purchaser's sole cost and expense.
Purchaser shall not permit any mechanic's or materialmen's liens or any
other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser.
5.7 Exercise of Due Care. Purchaser 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 reasonable protections necessary to ensure that all
actions taken in connection with the investigations and inspections of the
Property, and all equipment, materials and substances generated, used or
brought onto the Property 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 6
TITLE
6.1 Title. Seller shall within ten (10) days of the Effective Date secure a
commitment for title insurance for the Property in an amount equal to the
Purchase Price ("TITLE COMMITMENT") issued by Fidelity National Title
Insurance Company ("TITLE INSURER") for an owner's title insurance policy
on the most recent standard American Land Title Association ("ALTA") Policy
form ("POLICY"), together with legible copies of all instruments identified
as exceptions therein. Purchaser agrees that it shall be solely
responsible for payment of all costs relating to the procurement of the
Title Commitment, review of title and the issuance of policies of title
insurance, including but not limited to, the owner's title policy, the
lender's title policy, and any endorsements thereto.
6.2 Permitted Exceptions. Purchaser agrees to accept title to the Land and
Improvements, so long as the same is insurable at ordinary rates. Provided
Purchaser has not previously terminated this Purchase Contract pursuant to
Section 5.2, Purchaser agrees to accept title to the Land and Improvements
by special warranty deed subject to the Permitted Exceptions ("SPECIAL
WARRANTY DEED"). The term "PERMITTED EXCEPTIONS" shall mean the following,
all of which shall be deemed Permitted Exceptions:
6.2.1 The title exceptions listed on Exhibit B of the form of Special
Warranty Deed attached hereto as Exhibit 7.2.1.1;
6.2.2 Such exceptions and matters as the Title Insurer shall be willing to
omit as exceptions to coverage;
6.2.3 All Commercial Leases;
6.2.4 All Property Contracts; and
6.2.5 Defects and exceptions which do not materially and adversely affect
the conditions of title to the Property as of Closing.
6.3 Approved Exceptions.
6.3.1 The existence of other mortgages, liens, or encumbrances shall not be
objections to title, 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 at Closing), together in either case with recording and/or filing
fees.
6.3.2 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 to Seller for
the Property hereunder and paid by the Escrow Agent at Closing, subject to
the provisions for apportionment of taxes and charges contained herein.
6.3.3 Exceptions for utility easements that do not involve an encroachment
or violation shall not be objections to title.
6.4 Survey. Purchaser at Purchaser's sole cost and expense, may elect to cause
to be prepared a survey for the Property ("SURVEY") to be delivered to
Purchaser and Seller within thirty (30) days of the Effective Date. The
Survey shall be prepared to Purchaser's specifications. 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 description shall
be used in a quitclaim deed to the Property which also shall be delivered
to Purchaser at Closing. Upon Purchaser's receipt, Purchaser shall
promptly provide Seller a copy of the Survey and the Title Commitment.
6.5 Title and Survey Review and Objections. Prior to the expiration of the
Feasibility Period, Purchaser shall examine the Survey, if any, the Title
Commitment and copies of the documents and instruments referred to in the
Title Commitment. Purchaser shall have until 5:00 p.m. Pacific Time on the
date of expiration of the Feasibility Period to provide written Notice to
Seller of any defects affecting the marketability of the title to the
Property or any objections to any exceptions (other than Permitted
Exceptions), the Survey, or the Title Commitment. At Seller's sole option,
Seller may elect to cure such objections or defects at Seller's expense at
any time prior to Closing. If Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such objections or defects or to cause
the Title Insurer to insure over or satisfy such objections or defects,
Seller shall give Purchaser written Notice thereof, and if Purchaser does
not waive such objections or defects by written Notice delivered to Seller
and the Title Insurer on or before seven (7) calendar days following the
date Seller gives such Notice, then this Purchase Contract shall
automatically terminate, in which event Purchaser shall release all of
Purchaser's right and interest in such Property to Seller, the Deposit
shall be returned to Purchaser, and except as expressly provided herein,
and except for Purchaser's liability under Sections 5.3 and 5.4, the
parties hereto shall have no further obligations to each other. In the
event Purchaser fails to object to any exceptions, the Survey, or the Title
Commitment or to any objections or defects affecting the marketability of
title to the Property within the Feasibility Period, Purchaser shall be
deemed to have waived any objections and defects and to accept title to the
Property subject to the Title Commitment and the Permitted Exceptions. In
the event Purchaser elects not to obtain a Survey, Purchaser shall be
deemed to have waived any objections that would be disclosed by an "as
built" survey, including all exceptions to the Policy for matters which
would be disclosed by a survey. 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.
ARTICLE 7
CLOSING
7.1 Closing and Prorations.
7.1.1 The Closing shall take place on or before fifteen (15) calendar days
following the expiration or earlier termination of the Feasibility Period
at such place as the parties shall mutually agree upon at a time mutually
agreed upon on the Closing Date. Purchaser and Seller may agree to conduct
Closing through a preclosing, an escrow or other arrangement, whereby
Seller and Purchaser and their attorneys need not be physically present at
the Closing and may deliver documents by overnight air courier or other
means. Exercisable upon written Notice to Seller on or before fifteen (15)
calendar days following the expiration or earlier termination of the
Feasibility Period, Purchaser has one (1) option to extend the date of
Closing an additional fifteen (15) calendar days; provided that Purchaser
shall upon the exercise of such option, deliver to Escrow Agent the
additional sum of Ten Thousand and No/100 Dollars ($10,000.00) in cash
(such sum shall be and is deemed to be part of the "DEPOSIT" as that term
is defined herein for all purposes). The Closing Date may be extended
without penalty if mutually acceptable to Seller and Buyer.
7.1.2 All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, escalations,
taxes and insurance charges, common area maintenance charges, 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 (with interest thereon, if required
by law or under the terms of the Commercial Leases) under Commercial
Leases, if any, shall be transferred by Seller to Purchaser at the Closing.
Purchaser shall assume at Closing the obligation to pay any payments due
parties to Property Contracts and other agreements affecting the Property
terminable on less than thirty (30) days' notice which survive Closing.
Any real estate ad valorem or similar taxes for the Property, or any
installment of assessments payable in installments, which installment is
payable in the year of Closing, shall be prorated to the date of Closing,
based upon actual number of 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 Section
7.1.3. For purposes of this Section 7.1.2 and Sections 7.1.3 and 7.1.4,
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 7.1.2 shall apply during the Proration
Period (as defined below).
7.1.3 If any of the items subject to proration hereunder cannot be prorated
at the Closing because the information necessary to compute such proration
is unavailable, or if any errors or omissions in computing prorations at
the Closing are discovered subsequent to the Closing, then such item shall
be reapportioned and such errors and omissions corrected as soon as
practicable after the Closing Date and the proper party reimbursed, which
obligation shall survive the Closing for a period from the Closing Date
until one (1) year after the Closing Date (the "PRORATION PERIOD").
Neither party hereto shall have the right to require a recomputation of a
Closing proration or a correction of an error or omission in a Closing
proration unless within the Proration Period one of the parties hereto
(i) has obtained the previously unavailable information or has discovered
the error or omission, and (ii) has given Notice thereof to the other party
together with a copy of its good faith recomputation of the proration and
copies of all substantiating information used in such recomputation. The
failure of a party to obtain any previously unavailable information or
discover an error or omission with respect to an item subject to proration
hereunder and to give Notice thereof as provided above within the Proration
Period shall be deemed a waiver of its right to cause a recomputation or a
correction of an error or omission with respect to such item after the
Closing Date. Any Rents that have accrued, but have not yet been paid,
shall be prorated in accordance with estimates based upon the prior years'
information (or reasonable estimates of Seller if no such prior years'
information is available), and shall be subsequently readjusted and
reapportioned upon receipt. Purchaser shall pay Seller for Rents that have
accrued, but are not yet due and payable, at Closing.
7.1.4 If on the Closing Date any Tenant is in arrears in any Rent payment
under any Commercial Lease (the "DELINQUENT RENT"), any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing shall
be applied to amounts due and payable by such Tenant during the following
periods in the following order of priority: (i) first, to the period of
time before the Closing Date, and (ii) second, to the period of time after
the Closing Date. If Delinquent Rent or any portion thereof received by
Seller or Purchaser after the Closing are due and payable to the other
party by reason of this allocation, the appropriate sum, less attorneys'
fees and costs and expenses expended in connection with the collection
thereof, shall be promptly paid to the other party. Prior to Closing,
Seller shall have the right, but not the obligation, to enforce its rights
against any and all Property, occupants, guests, or Tenants. 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 have no right to foreclose on or
conduct sales or auctions of Tenant property and Seller shall not commence
any legal actions or proceedings against any Tenant which continues as a
Tenant at the Property after Closing without the prior consent of
Purchaser, which will not be unreasonably withheld or delayed), and the
delivery of the Assignment as defined in Section 7.2.1.3 shall not
constitute a waiver by Seller of such right. Purchaser agrees to cooperate
with Seller at no cost or liability to Purchaser in connection with all
efforts by Seller to collect such Delinquent Rent and to take all steps,
whether before or after the Closing Date, as may be necessary to carry out
the intention of the foregoing, including, without limitation, the delivery
to Seller, upon demand, of any relevant books and records (including,
without limitation, rent statements, receipted bills and copies of Tenant
checks used in payment of such Rent), the execution of any and all consents
or other documents, and the undertaking of any act reasonably necessary for
the collection of such Delinquent Rent by Seller; provided, however, that
Purchaser's obligation to cooperate with Seller shall not obligate
Purchaser to terminate any Commercial Lease with an existing Tenant or
evict any existing Tenant from the Property. The provisions of this
Section 7.1.4 shall apply during the Proration Period.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser each of the
following items, as applicable:
7.2.1.1 Special Warranty Deed. A Special Warranty Deed in the form attached
as Exhibit 7.2.1.1 to Purchaser. The acceptance of the Special Warranty
Deed at Closing shall be deemed to be full performance of, and discharge
of, every agreement and obligation on Seller's part to be performed under
this Purchase Contract, except as expressly stated herein.
7.2.1.2 Bill of Sale. A Bill of Sale without recourse or warranty in the form
attached as Exhibit 7.2.1.2 covering all Fixtures and Tangible Personal
Property required to be transferred to Purchaser with respect to the
Property. Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, of Seller's
obligations thereunder.
7.2.1.3 General Assignment. A general assignment (to the extent assignable
and in force and effect) without recourse or warranty in the form attached
as Exhibit 7.2.1.3 of all of Seller's right, title and interest in and to
the Miscellaneous Property Assets, Permits, Property Contracts and
Commercial Leases, subject to any required consents (the "ASSIGNMENT").
Purchaser shall countersign the same so as to effect an assumption by
Purchaser, including, without limitation, of Seller's obligations
thereunder.
7.2.1.4 Closing Statement. A closing statement executed by Seller.
7.2.1.5 Vendor's Affidavit. A vendor's affidavit or at Seller's option an
indemnity, as applicable, in the customary form and substance reasonably
acceptable to Seller to enable Title Insurer to delete those exceptions
for mechanic's liens with respect to work or materials and rights of
parties in possession other than under Commercial Leases, to be issued
pursuant to the Title Commitment.
7.2.1.6 FIRPTA. A certification of Seller's nonforeign status pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended, in the form
attached hereto as Exhibit 7.2.1.6.
7.2.1.7 Other. Such other instruments, documents or certificates as are
required to be delivered by Seller to Purchaser in accordance with any of
the other provisions of this Purchase Contract. Except for the items
expressly listed above to be delivered at Closing, delivery of any other
required items shall be deemed made by Seller to Purchaser, if Seller
leaves such documents at the Property in their customary place of storage
or in the custody of Purchaser's representatives.
7.2.2 Purchaser. At Closing, Purchaser shall deliver to Seller the
following items with respect to each Property being conveyed or transferred
by merger at such Closing:
7.2.2.1 Purchase Price. The full Purchase Price as required by Article 3
hereof plus or minus the adjustments or prorations required by this
Purchase Contract. If at Closing there are any liens or encumbrances on
the Property that Seller is obligated to pay and discharge, Seller shall
use any portion of the Purchase Price for the Property to satisfy the
same. The existence of any such liens or encumbrances shall not be deemed
objections to title if Seller shall comply with the foregoing
requirements.
7.2.2.2 Closing Statement. A closing statement executed by Purchaser.
7.2.2.3 Bill of Sale. A countersigned counterpart of the Bill of Sale in the
form attached as Exhibit 7.2.1.2.
7.2.2.4 General Assignment. A countersigned counterpart of the Assignment in
the form attached as Exhibit 7.2.1.3.
7.2.2.5 Other. Such other instruments, documents or certificates as are
required to be delivered by Purchaser to Seller in accordance with any of
the other provisions of this Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER AND PURCHASER
8.1 Representations And Warranties And Covenants Of Seller.
8.1.1 Representations and Warranties of Seller. For the purpose of inducing
Purchaser to enter into this Purchase Contract and to consummate the sale
and purchase of the Property in accordance herewith, Seller represents and
warrants to Purchaser the following as of the Effective Date and as of the
Closing Date:
8.1.1.1 Seller (i) is lawfully and duly organized, and in good standing under
the laws of the State of California, (ii) has or at Closing shall have all
necessary power and authority to sell and convey the Property and to
execute the documents to be executed by Seller, and (iii) prior to Closing
will have taken all partnership or equivalent entity actions required for
the execution and delivery of this Purchase Contract, and the consummation
of the transactions contemplated by this Purchase Contract. To the best
of Seller's knowledge, the compliance with or fulfillment of the terms and
conditions hereof will not (i) conflict with, or result in a breach of,
the terms, conditions or provisions of, or constitute a default under, any
material agreement to which Seller is a party or by which Seller or the
Property is otherwise bound, or (ii) violate any of the provisions of its
respective certificate or articles of limited partnership. 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;
8.1.1.2 Seller 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;
8.1.1.3 There are no adverse or other parties in possession of the Property,
except for occupants, guests and Tenants under the Commercial Leases.
Seller has not granted any license, lease or other right relating to the
use or possession of the Property or any part thereof except the Tenants
pursuant to the Commercial Leases;
8.1.1.4 The joinder of no person or entity other than Seller is necessary to
convey the Property fully and completely to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and
authority to convey and assign to Purchaser all contract rights and
warranties required to be conveyed and assigned to Purchaser hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes for Seller pursuant
to the Foreign Investors Real Property Tax Act of 1980, as amended;
8.1.1.6 No pending or, to the knowledge of Seller, threatened litigation
exists which if determined adversely, would materially affect the
consummation of the transactions contemplated by this Purchase Contract.
Seller has received no written notice of any actions, proceedings,
litigation or governmental investigations or condemnation actions either
pending or threatened against the Property, as applicable; and
8.1.1.7 Seller has received no written notice of any claims for labor
performed, materials furnished or services rendered in connection with
constructing, improving or repairing any of the Property, as applicable,
caused by Seller and which remain unpaid beyond the date for which payment
was due and in respect of which liens may or could be filed against any of
the Property, as applicable;
8.1.1.8 To Seller's knowledge, Seller has received no written notice of any
pending or threatened action or proceeding arising out of any alleged
violation of any federal, state or local environmental statute, ordinance
or regulation (collectively "ENVIRONMENTAL LAWS") or the presence of or a
discharge of any Hazardous Materials at or from the Property. As used in
this Agreement, the term "HAZARDOUS MATERIAL" shall include but not be
limited to (i) asbestos, (ii) petroleum, (iii) any explosives, radioactive
materials, wastes or substances, or (iv) any substances defined as
"hazardous substances," "hazardous wastes," "extremely hazardous waste,"
"hazardous materials," "extremely hazardous waste," "hazardous materials,"
or "toxic substances" in the Comprehensive Environmental Response
Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sec. 9601,
et seq. or in any other Environmental Law.
8.1.1.9 To Seller's knowledge, there are no stolen, unreasonably dangerous or
contraband goods stored on the Property.
8.1.1.10 The Operating Statements are or will be in accordance with the books
and records of Seller, and will fully, accurately and fairly set forth, or
will set forth, the results of operation of the Property for the periods
indicated in such statements.
8.1.1.11 The copies of the Commercial Leases provided to Purchaser under
Section 8.1.5.4 hereunder are or will be true and complete copies of all
the Commercial Leases currently affecting the Property.
8.1.2 Disclaimer. Except for the representations and warranties expressly
set forth above in Section 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 Special Warranty Deed conveying the Property and the representations
set forth above). Purchaser represents and warrants that as of the Closing
Date, it has and shall have reviewed and conducted such independent
analyses, studies, reports, investigations and inspections as it deems
appropriate in connection with the Property. If Seller provides or has
provided any documents, opinions or work product of consultants, surveyors,
architects, engineers, title companies, governmental authorities or any
other person or entity with respect to the Property, Purchaser and Seller
agree that Seller has done so or shall do so only for the convenience of
both parties, and absent any intentional misrepresentation or omission by
Seller or its representatives or agents, the reliance by Purchaser upon any
such documents, opinions or work product shall not create or give rise to
any liability of or against Seller, 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 the
Policy 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 agrees that, except as provided in Section 9.1, the departure or
removal, prior to Closing, of any of such guests, occupants or Tenants
shall not be the basis for, nor shall it give rise to, any claim on the
part of Purchaser, nor shall it affect the obligations of Purchaser under
this Purchase Contract in any manner whatsoever; and Purchaser shall close
title and accept delivery of the Special Warranty Deed with or without such
Tenants in possession and without any allowance or reduction in the
Purchase Price under this Purchase Contract. Purchaser hereby releases
Seller from any and all claims and liabilities relating to the foregoing
matters, except as provided in Section 8.1.3 below.
8.1.3 Survival of Representations and Warranties. Seller and Purchaser
agree that those representations contained in Section 8.1.1 shall survive
Closing for a period of One (1) year (that is, any notice of any claim
based on the breach of a representation contained in Section 8.1.1 that
survives Closing must be commenced within One (1) year subsequent to the
Closing Date), except for the representations contained in Sections
8.1.1.2, 8.1.1.3 and 8.1.1.7, which shall not survive the Closing but shall
be merged into the deed, the assignment and the vendor's affidavit or
indemnity delivered at Closing pursuant to Sections 7.2.1.1, 7.2.1.3 and
7.2.1.5. In the event that Seller breaches any representation contained in
this Section 8.1 and Purchaser had actual knowledge of such breach prior to
Closing, Purchaser shall be deemed to have waived any right of recovery for
such breach, and Seller shall not have any liability in connection
therewith.
8.1.4 No Duty of Inquiry. Representations and warranties above made "to
Seller's knowledge", except for Sections 8.1.1.1 and 8.1.1.6, are made to
the actual knowledge of Seller's on-site management employee, Shane Smith
("MANAGER"), and shall not be deemed to imply any duty of inquiry or
imputation of knowledge. Mr. Smith is Seller's employee who is the most
knowledgeable concerning the Property.
8.1.5 Covenants of Seller.
8.1.5.1 Seller covenants that it will not voluntarily create or cause any lien
or encumbrance (other than Commercial Leases in the ordinary course of
business and Property Contracts entered into pursuant to Section 8.1.5.2)
to attach to the Property between the Effective Date and the Closing
Date; any such monetary lien or encumbrance so attaching by voluntary act
of Seller shall be discharged by the Seller at or prior to Closing, on
the Closing Date or any postponed Closing Date. Except as expressly
provided above, Seller shall not be required to undertake efforts to
remove any other lien, encumbrance, security interest, exception,
objection or other matter, to make any expenditure of money or institute
litigation or any other judicial or administrative proceeding and Seller
may elect not to discharge the same.
8.1.5.2 After the Effective Date, Seller will not without Purchaser's prior
written approval enter into any leases (except Commercial Leases entered
into in the ordinary course of business) or other contracts relating to
the Property which will bind Purchaser after the Closing. Seller may
enter into new Property Contracts cancelable without fee or penalty on no
more than thirty (30) days' Notice in the ordinary course of business
during the Feasibility Period. Unless this Purchase Contract is
terminated as provided herein, upon the expiration of the Feasibility
Period, and Purchaser's acceptance of the Property, Seller shall not
enter into any new Commercial Leases or contracts affecting the Property
without the reasonable consent of Purchaser.
8.1.5.3 Subject to casualties or other events beyond Seller's reasonable
control, Seller will, until Closing, continue to operate the Property in
the ordinary course of business.
8.1.5.4 Seller shall provide Purchaser copies of all Commercial Leases within
five (5) days of the Effective Date certified by the Manager (as defined
in Section 8.1.4) that the Commercial Leases delivered comprise true and
complete copies of all Commercial Leases affecting the Property.
8.2 Representations And Warranties And Covenants Of Purchaser.
8.2.1 Representations and Warranties of Purchaser. 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:
8.2.1.1 Purchaser is a limited liability company duly organized, validly
existing and in good standing under the laws of California.
8.2.1.2 Purchaser, acting through any of its duly empowered and authorized
manager, has all necessary power and authority to own and use its
properties and to transact the business in which it is engaged, and has
full power and authority to enter into this Purchase Contract, to execute
and deliver the documents and instruments required of Purchaser herein,
and to perform its obligations hereunder; and prior to Closing any consent
of any of Purchaser's members required to so empower or authorize
Purchaser shall have been obtained.
8.2.1.3 No pending or, to the knowledge of Purchaser, threatened litigation
exists which if determined adversely would restrain the consummation of
the transactions contemplated by this Purchase Contract or would declare
illegal, invalid or nonbinding any of Purchaser's obligations or covenants
to Seller.
8.2.1.4 Purchaser is duly authorized to execute and deliver, and acting
through its duly empowered and authorized manager to 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 certificate or articles of organization or operating agreement,
(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.
8.2.1.5 The joinder of no person or entity other than Purchaser is necessary
to consummate the transactions to be performed by Purchaser and Purchaser
has all necessary right and authority to perform such acts as are required
and contemplated by this Purchase Contract.
8.2.2 Covenant of Purchaser.
8.2.2.1 Purchaser has not dealt with any broker, finder or any other person in
connection with the purchase of or the negotiation of the purchase of the
Property that might give rise to any claim for commission against Seller
or lien or claim against the Property except for Everest Financial, Inc.
("EVEREST"). Purchaser shall and does hereby indemnify and hold harmless
Seller from and against any claim whether or not meritorious, for any
real state sales commissions, finder's fees, or like compensation in
connection with the sale contemplated hereby and arising out of any act
or agreement of Purchaser.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Conditions Precedent to Purchaser's Obligation to Close. Without limiting
any of the rights of Purchaser elsewhere provided for in this Purchase
Contract, Purchaser's obligation to close under this Purchase Contract
shall be subject to and conditioned upon the fulfillment of each and all of
the following conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser
at Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser.
9.1.2 Each of the representations and warranties of Seller set forth in this
Purchase Contract shall have been true and correct in all material respects
when made, and shall be true and correct in all material respects on the
Closing Date and as of the Effective Date as though such representations
and warranties were made at and as of such date and time.
9.1.3 Seller shall have complied with, fulfilled and performed each of the
covenants, terms and conditions to be complied with, fulfilled or performed
by Seller hereunder.
9.1.4 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above.
9.1.5 Title Insurer shall be in a position to issue the Policy in the name
of Purchaser or its assignee in accordance with Article 6 hereof.
9.1.6 Scheduled Rent (as defined herein) shall not have decreased by more
than ten percent (10%) at any time after the date of expiration of the
Feasibility Period. "Scheduled Rent" shall mean the total monthly rent for
the Property under the Commercial Leases.
9.2 Conditions Precedent to Seller's Obligation to Close. Without limiting any
of the rights of Seller elsewhere provided for in this Purchase Contract,
Seller's obligation to close with respect to the Property under this
Purchase Contract shall be subject to and conditioned upon the fulfillment
of each and all of the following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this Purchase
Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing
Date and as of the Effective Date as though such representations and
warranties were made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be performed
or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either Purchaser or
Seller, any litigation or threatened litigation which, if determined
adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or
nonbinding any of the covenants or obligations of the Purchaser.
ARTICLE 10
BROKERAGE
10.1 Indemnification. Seller represents and warrants to Purchaser that it has
dealt only with Everest and the Aztec Group, Inc. ("AZTEC") (Aztec and
Everest referred to collectively herein as the "BROKER") in connection with
this Purchase Contract. Seller and Purchaser each represent and warrant to
the other that other than the Broker, it has not dealt with or utilized the
services of any other real estate broker, sales person or finder in
connection with this Purchase Contract, and each party agrees to indemnify
the other party from and against all claims for brokerage commissions and
finder's fees arising from or attributable to the acts or omissions of the
indemnifying party. Pursuant to separate agreements, from the Purchase
Price at Closing, Seller shall pay Aztec a commission or finder's fee of
Ninety-Seven Thousand Eight Hundred Eighty Thousand and No/100 Dollars
($97,880.00), and Seller shall pay Everest One Hundred Forty-Four Thousand
and No/100 Dollars ($144,000.00). The Broker shall not be deemed a party
or third-party beneficiary of this Purchase Contract.
10.2 No Warranties or Representations by Broker. The 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 Transfer of Possession. Possession of the Property subject to the
Permitted Exceptions shall be delivered to Purchaser at the Closing.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 Purchaser's Default. In the event Purchaser terminates this Purchase
Contract following the Feasibility Period for any reason other than
Seller's default, including any failure of satisfaction of a condition
precedent to Purchaser's obligation to close, and Seller's inability to
convey title as required by this Purchase Contract, or defaults hereunder
prior to the Closing Date and consummation of the Closing does not occur by
reason of such termination or default by Purchaser, including any failure
of satisfaction of a condition precedent to Seller's obligation to close,
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 as expressly set forth
herein and except for the Purchaser's liability under Sections 5.3 and 5.4,
provided that Seller has not terminated this Purchase Contract and is not
otherwise in default hereunder, 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 as expressly set
forth herein, and subject to and except for Purchaser's liability under
Sections 5.3 and 5.4, 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 as
expressly set forth herein, and subject to and except for Purchaser's
liability under Sections 5.3 and 5.4 above, and the right of Seller to
collect such liquidated damages to the extent not theretofore paid by
Purchaser.
12.2 Seller's Default. 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 Risk of Loss or Casualty. The risk of loss or damage to the Property by
fire or other casualty until the date of Closing 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. If any of the
Improvements shall be destroyed or damaged prior to the Closing, and the
estimated cost of repair or replacement exceeds One Hundred Thousand and
No/100 Dollars ($100,000.00), Purchaser may, by written notice given to
Seller within fifteen (15) days after receipt of written notice from Seller
of such damage or destruction, elect to terminate this Purchase Contract,
in which event the Deposit shall immediately be returned by Escrow Agent to
Purchaser and except as expressly provided herein, subject to and except
for Purchaser's liability under Sections 5.3 and 5.4, the rights, duties,
obligations, and liabilities of all parties hereunder shall immediately
terminate and be of no further force or effect. If Purchaser does not
elect to terminate this Purchase Contract pursuant to this Section 13.1, or
has no right to terminate this Purchase Contract (because the damage or
destruction does not exceed $100,000.00), and the sale of the Property is
consummated, Purchaser shall be entitled to receive all insurance proceeds
paid or payable to Seller by reason of such destruction or damage under the
insurance policies carried by Seller (less amounts of insurance theretofore
received and applied by Seller to restoration). If the amount of said
casualty or rent loss insurance proceeds is not settled by the date of
Closing, Seller shall execute at Closing all proofs of loss, assignments of
claim, and other similar instruments to ensure that Purchaser shall receive
all of Seller's right, title, and interest in and under said insurance
proceeds. 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 Ratification. This Purchase Contract shall be null and void unless fully
ratified by Purchaser and Seller on or before July 2, 1999. Ratification
shall be demonstrated by execution of this Purchase Contract by Seller and
Purchaser.
ARTICLE 15
EMINENT DOMAIN
15.1 Eminent Domain and Condemnation. In the event that at the time of Closing
all or any part of the Property is (or has previously been) acquired, or is
about to be acquired, by authority of any governmental agency in purchase
in lieu thereof (or in the event that at such time there is any notice of
any such acquisition by any such governmental agency), Purchaser shall have
the right, at Purchaser's option, to terminate this Purchase Contract by
giving written Notice within fifteen (15) days after receipt of written
Notice from Seller of the occurrence of such event and recover the Deposit
hereunder, or to settle in accordance with the terms of this Purchase
Contract for the full Purchase Price and receive the full benefit or any
condemnation award.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules. All Exhibits 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 nonassigning party, however,
Purchaser may assign this Purchase Contract to an affiliated entity
organized for the purpose of acquiring the Property and other similar
properties; provided that, Purchaser and assignee are jointly and severally
liable for all obligations and liabilities under this Purchase Agreement.
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 sent by
facsimile transmission, on the date of a successful transmission shown by a
printed confirmation by the Sender's facsimile machine, or (iii) if sent by
certified mail, return receipt requested postage prepaid, on the fifth
(5th) business day following the date of mailing addressed as follows:
If to Seller: If to Purchaser:
Johnstown/Consolidated Income Partners Everest Storage Holdings, LLC
c/o AIMCO 199 South Robles Avenue, Suite 440
1873 South Bellaire Street Pasadena, California 91101
Suite 1700 Attention: Carl D. Beckmann,Tony Arnest
Denver, Colorado 80222
Attention: Tim Works, Harry Alcock Facsimile No: (626) 585-5929
Martha Carlin
Facsimile No:
and:
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Attention: David Marquette
Facsimile No: (305) 371-6898
with a courtesy copy to:
Richard A. Cohn, Esquire
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
Facsimile No: (202) 508-6200
and
Margaret E. Koppen, Esquire
Bryan Cave LLP
Two North Central Avenue, 22nd Floor
Phoenix, AZ 85004
Facsimile No: (602) 364-7070
Failure to provide courtesy copies shall not be considered a failure to
provide adequate Notice. 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 Florida 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, may 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, shall keep the same
confidential, provided that Purchaser may disclose the terms and conditions
of this Purchase Contract (i) as required by law, (ii) to consummate the
terms of this Purchase Contract, or any financing relating thereto, or
(iii) to Purchaser's or Seller's lenders, attorneys and accountants.
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 reasonably 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 claims and
liability arising from and out of the Like Kind Exchange.
[Remainder of Page Intentionally Left Blank.]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
as of the date first set forth above.
SELLER: JOHNSTOWN/CONSOLIDATED INCOME PARTNERS, a California limited
partnership
By: ConCap Equities, Inc., a Delaware corporation, its managing
general partner
By:
Patrick J. Foye, Vice President
July 2, 1999 ("EFFECTIVE DATE")
PURCHASER: EVEREST STORAGE HOLDINGS, LLC, a California limited liability
company
By:
Name::
Title:
EXHIBIT A
LEGAL DESCRIPTION
Parcel "A" of the WETZLER PLAT, according to the Plat thereof, recorded in Plat
Book 132, at page 42, of the Public Records of BROWARD County, Florida.
Land Description: Access Easement a Portion of Parcel "A", WETZLER PLAT,
according to the Plat thereof, as recorded in Plat Book 132, Page 42 of the
Public Records of BROWARD County, Florida, more particularly described as
follows:
Beginning at the Southwest corner of said Parcel "A"; thence North 01 degrees
54'02" West, along the West line of said Parcel "A", 60.00 feet; thence, North
87 degrees 28'57" East, 76.00 feet; thence, South 01 degrees 54'02" East, 60.00
feet; thence, South 87 degrees 28'57" West, along the South line of said Parcel
"A", 76.00 feet to the Point of Beginning.
There shall be no adjustment to the Purchase Price and no other claim under the
Purchase Contract as a result of any discrepancy between the square footage and
the approximate square footage of the Improvements set forth in Section 1.1.7 of
the Purchase Contract.
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("ESCROW AGREEMENT") made this 2nd day of July, 1999
by and among, Johnstown/Consolidated Income Partners, a California limited
partnership ("SELLER"); Everest Storage, LLC, a California 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 2nd day of July,
1999, wherein Seller agrees to sell and Purchaser agrees to purchase certain
real estate located in Davie, Florida, including improvements located thereon
and related property, all as more particularly described and set forth in the
Purchase Contract (collectively, the "PROPERTY");
WHEREAS, the Purchase Contract requires that Purchaser provide a deposit in
the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) in cash to
be held pursuant to this Escrow Agreement (the "ESCROW FUND").
NOW, THEREFORE, the parties agree to the following:
1. Establishment of Escrow. Within five (5) days of the Effective Date (as
defined in the Purchase Contract), Purchaser shall deliver to Escrow Agent the
sum of Twenty-Five Thousand and No/100 Dollars ($25,000.00) in cash; and
provided the Purchase Contract has not been earlier terminated as provided
therein, Purchaser shall on or prior to the date of expiration of the
Feasibility Period (as defined in the Purchase Contract) deliver to Escrow Agent
the additional sum of Seventy-Five Thousand and No/100 Dollars ($75,000.00) in
cash (collectively or individually, such sums shall be referred to herein as 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 Purchaser deems
suitable, and all interest and income thereon shall become part of the Escrow
Fund and shall be remitted to the party entitled to the Escrow Fund, as set
forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor in the Purchase Contract (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 on the Closing Date (as defined in
the Purchase Contract), (b) if the sale of the Property is not closed by the
date fixed therefor in the Purchase Contract (or any such extension date) due to
failure of a condition precedent to Purchaser's obligations, the Escrow Agent
shall return and refund the Escrow Fund to Purchaser in immediately available
funds by wire transfer to Purchaser in accordance with the instructions of
Purchaser, (c) if the sale of the Property is not closed by the date fixed
therefor in the Purchase Contract (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 in immediately available funds by wire transfer to Purchaser in
accordance with the instructions of Purchaser, (d) if the sale of the Property
is not closed by the date fixed therefor in the Purchase Contract (or any such
extension date) owing to failure of performance by Purchaser, Escrow Agent shall
forthwith deliver the Escrow Fund in immediately available funds by wire
transfer to Seller in accordance with the instructions of Seller, and (e) if
Purchaser shall have canceled the Purchase Contract on or before the expiration
of the Feasibility Period (as defined in the Purchase Contract), the Escrow
Agent shall return and refund the Escrow Fund to Purchaser in immediately
available funds by wire transfer to Purchaser in accordance with the
instructions of Purchaser.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within two (2) business days thereafter, pay the claim as demanded.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate automatically.
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 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 (ii) 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 sent by Federal
Express or other recognized national overnight courier service maintaining
records of delivery, or sent by facsimile transmission confirmed as successful
by Sender's facsimile machine or sent by registered or certified mail, postage
pre-paid, and addressed as set forth below:
(a) If to Seller:
Johnstown/Consolidated Income Partners
c/o AIMCO
1873 South Bellaire Street
Suite 1700
Denver, CO 80222
Attention: Tim Works, Harry Alcock, Martha Carlin
Phone: 303-691-4357
Facsimile No:
and:
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Attention: David Marquette
Phone: 305-371-9299
Facsimile No: 305-371-6898
with a courtesy copy to:
Richard A. Cohn, Esq.
Bryan Cave LLP
700 Thirteenth Avenue, N.W.
Washington, D.C. 20005-3961
Phone: 202-508-6228
Facsimile No: 202-508-6200
and
Margaret E. Koppen, Esquire
Bryan Cave LLP
Two North Central Avenue, 22nd Floor
Phoenix, AZ 85004
Phone: 602-364-7492
Facsimile No: 602-364-7070
(b) If to Purchaser:
Everest Storage, LLC
199 South Robles Avenue, Suite 440
Pasadena, California 91101
Attention: Carl D. Beckmann, Tony Arnest
Facsimile No: 626-585-5929
(c) If to Escrow Agent:
Fidelity National Title Insurance Co.
Bank of America Center
700 Louisiana, Suite 2600
Houston, TX 77002
Attention: Lolly Avant
Phone: 713-228-3009
Facsimile No: 713-225-2726
Failure to provide courtesy copies shall not be considered a failure to
provide adequate Notice. 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
facsimile transmission, or (ii) as of the day of receipt or attempted delivery
date in the case of delivery by overnight 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 attorneys' fees, incurred or
paid in connection with carrying out its duties hereunder, all amounts to be
payable by Purchaser and not out of the Escrow Fund. Non-payment of such fee by
Purchaser 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 Florida.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
[Remainder of page intentionally left blank.]
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed on its behalf duly authorized persons, all as of the
day and year first above written.
EVEREST STORAGE HOLDINGS, LLC,
a California limited liability company
By:
Name:
Its:
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS,
a California limited partnership
By: ConCap Equities, Inc., a Delaware
corporation,
its managing general partner
By:
Patrick J. Foye, vice president
FIDELITY NATIONAL TITLE INSURANCE CO.
By:
Name:
Its:
EXHIBIT 1.1.4
RENT ROLL
EXHIBIT 1.1.6
FIXTURES AND PERSONAL PROPERTY
1. 2 golf carts
2. Copy machine
3. Fax machine
4. Computer-monitor; printer and key board
5. 4 phones
6. Calculators
7. 1 file cabinet
8. Walkee-talkee for office
9. Video surveillance system
10. Trailer
EXHIBIT 1.1.14
LIST OF PROPERTY CONTRACTS
[TO COME]
EXHIBIT 7.2.1.1
FORM OF SPECIAL WARRANTY DEED
This Special Warranty Deed, made this ____ day of June, 1999 is made
by
Johnstown/Consolidated Income Partners, a California limited partnership, with
its principal office at 1873 South Bellaire, Suite 1700, Denver, Colorado 80222
("GRANTOR") to Everest Storage Holdings, LLC, a California limited liability
company ("GRANTEE").
WITNESSETH: THAT SAID Grantor, in consideration of the sum of Ten
Dollars ($10.00) and other good and valuable consideration, the receipt of which
is hereby acknowledged, does by these presents, Bargain and Sell, Convey and
Warrant unto the said Grantee and its successors and assigns its interest in
that certain real estate, situated in the County of Broward and State of
Florida, more particularly described on Exhibit A attached hereto, subject to
all rights of way, easements, restrictions, liens and encumbrances described on
Exhibit B attached hereto (the "PROPERTY").
TO HAVE AND TO HOLD THE SAME, together with all and singular the
tenements, hereditaments and appurtenances thereunto belonging or in any wise
appertaining, forever. And said Grantor, for itself, its successors and
assigns, does hereby covenant, promise and agree to and with said Grantee, that
the Grantor will warrant and forever defend the same unto the said Grantee, its
successors and assigns, against said Grantor, its successors and all and every
person or persons whomsoever, lawfully claiming or to claim the same by, through
or under the Grantor, excepting the matters described on Exhibit B attached
hereto.
IN WITNESS WHEREOF, the said Grantor has hereunto executed this
Special Warranty Deed the day and year first above written.
GRANTOR:
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS,
a California limited partnership
By: ConCap Equities, Inc.,
a Delaware corporation
its managing general partner
By:
Patrick J. Foye, vice president
STATE OF _______________)
) ss.
COUNTY OF ___ __________)
On the ___ day of June, 1999, personally appeared before me Patrick J. Foye, who
being by me duly sworn did say that he is the vice president of ConCap Equities,
Inc., a California corporation, the managing general partner of
Johnstown/Consolidated Income Partners, a California limited partnership, and
that the foregoing instrument was signed in behalf of said limited partnership
by authority of a resolution of its managing general partner and said managing
general partner duly acknowledged to me that said limited partnership executed
the same.
[SEAL]
Notary Public
My commission expires:
My residence is:
EXHIBIT A TO SPECIAL WARRANTY DEED
Legal Description
Parcel "A" of the WETZLER PLAT, according to the Plat thereof, recorded in Plat
Book 132, at page 42, of the Public Records of BROWARD County, Florida.
Land Description: Access Easement a Portion of Parcel "A", WETZLER PLAT,
according to the Plat thereof, as recorded in Plat Book 132, Page 42 of the
Public Records of BROWARD County, Florida, more particularly described as
follows:
Beginning at the Southwest corner of said Parcel "A"; thence North 01 degrees
54'02" West, along the West line of said Parcel "A", 60.00 feet; thence, North
87 degrees 28'57" East, 76.00 feet; thence, South 01 degrees 54'02" East, 60.00
feet; thence, South 87 degrees 28'57" West, along the South line of said Parcel
"A", 76.00 feet to the Point of Beginning.
EXHIBIT B TO SPECIAL WARRANTY DEED
Permitted Encumbrances
1. General and personal property taxes for the year 1999 and all subsequent
years.
2. Special taxes or assessments becoming a lien or payable after the date of
this Deed.
3. Rights of eminent domain, governmental rights of police power and other
governmental or quasi-governmental rights.
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. Present and future zoning laws, ordinances, restrictions, resolutions,
orders and regulations and all present and future ordinances, laws,
regulations and orders of all federal, state, county, municipal or other
governments, agencies, boards, bureaus, commissions, authorities and bodies
now or hereafter having or acquiring jurisdiction of the Property and the
use and improvement thereof.
7. Any law, ordinances or governmental regulation (including but not limited
to building and zoning ordinances) restricting or regulating or prohibiting
the occupancy, use or enjoyment of the Property, or regulating the
character, dimensions or location of any improvement now or hereafter
erected on the Property, or prohibiting a separation in ownership or a
reduction in the dimensions or area of the Property, and the effect of any
violation of such law, ordinance or governmental regulation.
8. Other covenants, conditions, limitations, restrictions, rights, rights-of-
way, liens, encumbrances, encroachments, defects, reservations, easements,
agreements and other matters of record.
9. Any encroachments, easements, measurements, variations in area or content,
party walls or other facts which a correct survey of the premises would
show.
10. Roads, ways, streams, or easements, if any, not shown by the public
records, riparian rights and the title to any filled-in lands.
11. Restrictions and easements (deleting therefrom any restrictions indicating
any preference, limitation or discrimination based on race, color,
religion, sex, handicap, familial status or national origin), contained in
Plat Book 132, at page 42, of the Public Records of Broward County,
Florida.
12. Reservations in favor of the Trustees of the Internal Improvement Fund of
the State of Florida under Deed No. 16-160 dated June 4, 1908 filed
June 30, 1908 in Deed Book 49, page 213, released in part by Quit-Claim
Deed dated January 26, 1960 filed February 4, 1960 in Official Records Book
1821, page 465, released in part by Quit-Claim Deed dated November 26, 1968
recorded January 14, 1969 in Official Records Book 3835, page 515. Said
reservations were assigned by instrument dated January 29, 1964 recorded by
instrument dated February 5, 1964 in Official Records Book 2748, page 624
and assigned by instrument dated February 6, 1964, recorded February 13,
1964 in Official Records Book 2753, page 971, all of the Public Records of
Broward County, Florida.
13. Reservations in favor of the State of Florida as contained in Deed from the
Trustees of the Internal Improvement Fund of the State of Florida contained
in Tax Deed No. 47 dated June 28, 1920, and filed in September 4, 1920 in
Deed Book 11, at page 477, released in part by Release of Reservations
dated November 20, 1968, recorded January 14, 1969 in Official Records Book
3835, at page 513, all of the Public Records of Broward County, Florida.
14. Central Broward Drainage District Resolution as contained in instrument
filed June 8, 1967, in Official Records Book 3438, at page 60, of the
Public Records of Broward County, Florida.
15. Easements and reservations as contained in Warranty Deed filed January 14,
1969, Under Clerk's File No. 69-5410, and Official Records Book 3835, at
page 516, both of the Public Records of Broward County, Florida.
16. Agreement for maintenance, filed December 29, 1987, in Official Records
Book 15070, at page 160, as affected by Affidavit filed December 29, 1987,
in Official Records Book 15070, at page 164, both of the Public Records of
Broward County, Florida.
17. Easement granted to in favor of the Town of Davie contained in Special
Warranty Deed filed July 28, 1988, in Official Records Book 15644, at page
486, of the Public Records of Broward County, Florida.
18. Easement granted for mutual driveway by instrument filed January 7, 1988,
in Official Records Book 15098, at page 871, of the Public Records of
Broward County, Florida.
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale dated effective as of the _______ day of ___________,
1999, is made by Johnstown/Consolidated Income Partners, a California limited
partnership ("SELLER") to Everest Storage Holdings, LLC, a California limited
liability company ("PURCHASER").
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Seller, in connection with the sale pursuant to a
certain Purchase and Sale Contract (the "PURCHASE CONTRACT") between Seller and
Purchaser dated ____________, 1999, of certain real property ("PROPERTY")
located in Broward County, State of Florida, which is more particularly
described on Exhibit A attached hereto and by this reference incorporated
herein, hereby quitclaims to Purchaser, without recourse or warranty to Seller,
all of Seller's right, title and interest in and to the all fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus, appliances and other
articles of personal property located on the Property as of the date hereof and
used or usable in connection with any present or future occupation or operation
of all or any part of the Property as set forth on Exhibit B hereto
(collectively, "PERSONAL PROPERTY"). Notwithstanding the foregoing, "PERSONAL
PROPERTY" shall 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 any tenants under any
leases affecting the Property, 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
principally for the business, operation or management of the Property, or (iv)
the property and equipment, expressly identified on Exhibit C hereto
(collectively, "EXCLUDED PERSONAL PROPERTY").
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 OF FLORIDA. PURCHASER TAKES THE PROPERTY
"AS IS" AND "WITH ALL FAULTS".
Purchaser hereby accepts the Personal Property on and subject to the
conditions and disclaimers above, and assumes all responsibility and liability
for the Personal Property as of the date hereof.
SELLER:
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS,
a California limited partnership
By: ConCap Equities, Inc.,
a Delaware corporation
its managing general partner
By:
Patrick J. Foye, vice president
PURCHASER:
EVEREST STORAGE HOLDINGS, LLC,
a California limited liability company
By:
Name:
Its:
EXHIBIT A TO BILL OF SALE
LEGAL DESCRIPTION OF REAL PROPERTY
Parcel "A" of the WETZLER PLAT, according to the Plat thereof, recorded in Plat
Book 132, at page 42, of the Public Records of BROWARD County, Florida.
Land Description: Access Easement a Portion of Parcel "A", WETZLER PLAT,
according to the Plat thereof, as recorded in Plat Book 132, Page 42 of the
Public Records of BROWARD County, Florida, more particularly described as
follows:
Beginning at the Southwest corner of said Parcel "A"; thence North 01 degrees
54'02" West, along the West line of said Parcel "A", 60.00 feet; thence, North
87 degrees 28'57" East, 76.00 feet; thence, South 01 degrees 54'02" East, 60.00
feet; thence, South 87 degrees 28'57" West, along the South line of said Parcel
"A", 76.00 feet to the Point of Beginning.
EXHIBIT B TO BILL OF SALE
DESCRIPTION OF PERSONAL PROPERTY
1. 2 golf carts
2. Copy machine
3. Fax machine
4. Computer-monitor; printer and key board
5. 4 phones
6. Calculators
7. 1 file cabinet
8. Walkee-talkee for office
9. Video surveillance system
10. Trailer
EXHIBIT C TO BILL OF SALE
DESCRIPTION OF EXCLUDED PERSONAL PROPERTY
None
EXHIBIT 7.2.1.3
FORM OF GENERAL ASSIGNMENT
This General Assignment ("ASSIGNMENT") is executed by
Johnstown/Consolidated Income Partners, a California limited partnership
("SELLER"), in favor of Everest Storage Holdings, LLC, a California limited
liability company ("PURCHASER").
Seller and Purchaser have entered into that certain Purchase and Sale
Contract dated as of the _____ day of June, 1999 ("PURCHASE CONTRACT"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit A attached thereto, the improvements located thereon, and
certain related property (collectively, the "PROJECT").
Pursuant to the terms of the Purchase Contract, Seller has agreed to
assign, without recourse or warranty, to Purchaser all of Seller's right, title
and interest, if any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "PROPERTY" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a. Books and Records. All of Seller's rights, IF ANY, in and to
files, records, and books of account of the Project.
b. Licenses and Permits. All of Seller's rights and interests,
IF ANY, in and to plans, specifications, reports, rights, privileges, licenses,
permits, surveys, entitlements, maps, agreements, and authorizations utilized
with respect to the Project, excluding any "EXCLUDED PERMITS" defined as such in
the Purchase Contract.
c. Property Contracts. All of Seller's rights and interests in
and to maintenance, service or utility contracts which relate to the
maintenance, repair or operation of the Project scheduled on Exhibit B attached
hereto.
d. Commercial Leases. All of Seller's rights and interests in
and to leases, subleases, and other occupancy agreements, whether or not of
record, which provide for use or occupancy of space or facilities on or relating
to the Project scheduled on Exhibit C attached hereto.
The term "PROPERTY" shall not include any of the foregoing: (i) to the
extent the same are reserved to Seller pursuant to the Purchase Contract to
which Seller and Purchaser are parties; and (ii) to the extent that the sale or
transfer thereof requires consent or approval of any third party, which consent
or approval is not obtained by Seller. Nothing herein shall create a transfer
or assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property, subject to any rights of consent as provided
therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the Property
Contracts and Commercial Leases and agrees to perform all of the covenants and
obligations of Seller thereunder, including without limitation, all liabilities
and obligations of landlord under the Commercial Leases and the contracting
parties under the Property Contracts, including responsibility for refunding
security deposits, to be performed by such parties after the Closing. Purchaser
further agrees to indemnify, defend and hold Seller harmless from and against
any and all cost, loss, harm or damage which may arise in connection with
Purchaser's ownership and operation of the Property after the Closing, including
Purchaser's performance after the Closing of the Commercial Leases and Property
Contracts. Seller agrees to indemnify, defend and hold Purchaser harmless from
and against any and all cost, loss, harm or damage which may arise in connection
with Seller's ownership and operation of the Property prior to the Closing,
including Seller's performance prior to the Closing of the Commercial Leases and
Property Contracts.
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 Florida.
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 OF FLORIDA.
Dated: , 1999
SELLER:
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS,
a California limited partnership
By: ConCap Equities, Inc.,
a Delaware corporation
its managing general partner
By:
Patrick J. Foye, vice president
Accepted and Agreed:
PURCHASER:
EVEREST STORAGE HOLDINGS, LLC,
a California limited liability company
By:
Name:
Its:
EXHIBIT A TO GENERAL ASSIGNMENT
LEGAL DESCRIPTION
Parcel "A" of the WETZLER PLAT, according to the Plat thereof, recorded in Plat
Book 132, at page 42, of the Public Records of BROWARD County, Florida.
Land Description: Access Easement a Portion of Parcel "A", WETZLER PLAT,
according to the Plat thereof, as recorded in Plat Book 132, Page 42 of the
Public Records of BROWARD County, Florida, more particularly described as
follows:
Beginning at the Southwest corner of said Parcel "A"; thence North 01 degrees
54'02" West, along the West line of said Parcel "A", 60.00 feet; thence, North
87 degrees 28'57" East, 76.00 feet; thence, South 01 degrees 54'02" East, 60.00
feet; thence, South 87 degrees 28'57" West, along the South line of said Parcel
"A", 76.00 feet to the Point of Beginning.
EXHIBIT B TO GENERAL ASSIGNMENT
PROPERTY CONTRACTS
None.
EXHIBIT C TO GENERAL ASSIGNMENT
COMMERCIAL LEASES
EXHIBIT 7.2.1.6
SELLER'S CERTIFICATION OF NON-FOREIGN STATUS
To inform Everest Storage Holdings, LLC, a California limited liability
company ("TRANSFEREE"), that withholding of tax under Section 1445 of the
Internal Revenue Code of 1986, as amended (the "CODE"), will not be required
upon the transfer of certain rights relating to real property, located in the
Broward County, State of Florida, to Transferee, by Johnstown/Consolidated
Income Partners, a California limited partnership ("TRANSFEROR"), Transferor
hereby certifies to Transferee:
1. Transferor is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Code and the Income
Tax Regulations promulgated thereunder);
2. Transferor's U.S. tax identification number is ; and
3. Transferor's office address is Johnstown/Consolidated Income Partners,
at c/o AIMCO, 1873 South Bellaire Street, Suite 1700, Denver, Colorado 80222.
Transferor understands that this Certification may be disclosed to the
Internal Revenue Service by Transferee and that any false statement contained
herein could be punished by fine, imprisonment, or both.
Transferor understands that Transferee is relying on this Certification in
determining whether withholding is required upon said transfer.
Under penalty of perjury the undersigned declares that he has examined this
Certification and to the best of his knowledge and belief it is true, correct
and complete, and he further declares that he has authority to sign this
Certification on behalf of Transferor.
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS,
a California limited partnership
By: ConCap Equities, Inc.,
a Delaware corporation
its managing general partner
By:
Patrick J. Foye, vice president