CONTRACT TO PURCHASE AND SELL PROPERTY
THIS CONTRACT TO PURCHASE AND SELL PROPERTY ( Contract ) is made and
entered into as of November 14 , 1995 by and between RACE STREET ASSOC. LTD., an
Ohio limited partnership ( Seller ), and WEST FOURTH ASSOCIATES LIMITED
PARTNERSHIP, an Ohio Limited Partnership ( Purchaser ).
Background
The Purchaser desires to purchase and the Seller desires to sell certain
real property pursuant to the terms of this Contract.
Statement of Agreement
For and in consideration of the mutual covenants and agreements herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
Sale of the Property
Section 1.1 Property. For the consideration and upon and subject to
the terms, provisions and conditions of this Contract, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, Seller's respective
rights, titles and interests in and to all of the following described property
(collectively, the Property ):
(a) All of Seller's rights, title and interests in and to that
certain tract or parcel of land ( Land ) located in Hamilton County,
Ohio, more particularly described on Exhibit A attached hereto and
made a part hereof for all purposes, together with all improvements,
structures and fixtures, if any, located on the land
( Improvements ), and all rights, titles and interests of Seller
appurtenant to the Land and Improvements, including, without
limitation, appurtenant easements, adjacent roads, highways and
rights-of-way;
(b) All tangible personal property of any kind ( Personalty )
owned by Seller and used by Seller in the operation of the Property,
or attached to or located on the Land or Improvements;
(c) All of Seller's rights, titles and interests under any leases
or other agreements demising space in or providing for the use or
occupancy of the Improvements or Land ( Tenant Leases ), and all
unapplied deposits, whether security or otherwise ( Deposits ), paid
by tenants ( Tenants ) under the Tenant Leases;
(d) All of Seller's rights, titles and interests in and to all
service contracts, warranties, guaranties and bonds in effect at
Closing relating to the Land, the Improvements or the Personalty, to
the extent the same are assignable ( Contracts ).
(e) All rights which Seller may have to use the name 4th and Race
Tower ; and
(f) All other rights, privileges and appurtenances owned by Seller
and in any way relating to the above-described properties.
ARTICLE II
Purchase Price
Section 2.1 Purchase Price. The total Purchase Price ( Purchase Price )
to be paid by Purchaser to Seller for the Property shall be One Million Fifty
Thousand Dollars ($1,050,000.00). The Purchase Price shall be payable at
Closing (as defined below) in cash or Current Funds (as defined below).
ARTICLE III
Earnest Money Deposit
Section 3.1 Amount and Timing.
(a) Initial Deposit. Within five (5) business days after the
Effective Date (as defined below), Purchaser shall deliver to
Lawyers Title Insurance Corporation of Cincinnati, located at 125
East 9th Street, Cincinnati, Ohio 45202-2119 ( Title Company ),
Fifty Thousand Dollars ($50,000.00) ( Earnest Money Deposit which
term shall include the Second Deposit hereinafter defined) in cash
or Current Funds, to be held by the Title Company in escrow to be
applied or disposed of by the Title Company as is provided in this
Contract. In the event Purchaser fails to deposit the Earnest Money
Deposit with the Title Company as herein provided, this Contract
shall automatically terminate, and neither Seller nor Purchaser
shall have any further obligations hereunder except that the
provisions of Sections 4.2, 5.1 and 11.1 of this Contract shall
survive the termination of this Contract. As used in this Contract,
the term Current Funds shall mean wire transfers, certified funds
or a cashier s check in a form acceptable to the Title Company which
would permit the Title Company to immediately disburse such funds.
(b) Second Deposit. At the same time the Purchaser delivers the
satisfaction notice delivered to Purchaser pursuant to Section 5.1
hereof, Purchaser shall deliver to the Title Company cash or Current
Funds in the amount of Fifty Thousand Dollars ($50,000.00) ( Second
Deposit ), to be held by the Title Company as part of the Earnest
Money Deposit.
Section 3.2 Application and Interest. If the purchase and sale
contemplated hereunder is consummated, then the Earnest Money Deposit shall be
applied to the Purchase Price at Closing. In all other events, the Earnest
Money Deposit shall be disposed of by the Title Company as provided in this
Contract. The Earnest Money Deposit shall be invested in an interest-bearing
account with a financial institution and in a manner reasonably acceptable to
Seller. All interest earned on the Earnest Money Deposit is part of the Earnest
Money Deposit, to be applied or disposed of in the same manner as the Earnest
Money Deposit under this Contract.
ARTICLE IV
Title and Survey
Section 4.1 Title Commitment. Not later than twenty (20) days after the
Effective Date, Seller shall cause to be furnished to Purchaser, a current ALTA
Commitment for Title Insurance ( Title Commitment ) issued by the Title Company.
The Title Commitment shall set forth the state of title to the Property,
including a list of conditions or exceptions to title affecting the Property
that would appear in an Owner s Policy of Title Insurance, if one were issued.
The Title Commitment shall contain the expressed commitment of the Title Company
to issue the Title Policy (as defined below) to Purchaser in the amount of the
Purchase Price, insuring the title to the Property specified in the Title
Commitment. At such time as the Title Commitment is furnished to Purchaser, the
Title Company also shall furnish to Purchaser copies of instruments or documents
( Exception Documents ) that create or evidence conditions or exceptions to
title affecting the Property, as described in the Title Commitment.
Section 4.2 Survey. Not later than twenty (20) days after the Effective
Date, Seller shall provide to Purchaser a copy of the most complete survey of
the Land and Improvements ( Survey ) in Seller s possession. Seller shall pay
the reasonable cost to re-certify that Survey to Purchaser in the event such
recertification is deemed necessary by the Title Company.
Section 4.3 Review of Title and Survey. Purchaser shall have until the
conclusion of the Inspection Period (as defined below) in which to notify Seller
in writing of any objections Purchaser has to any matters shown or referred to
in the Title Commitment, the Exception Documents, or on the Survey. Any title
encumbrances, exceptions or other matters which are set forth in the Title
Commitment, the Exception Documents, or on the Survey, and to which Purchaser
does not object in writing within the Inspection Period, shall be deemed to be
permitted exceptions to the status of Seller s title (such encumbrances,
exceptions or other matters, together with such other matters included pursuant
to other provisions of this Agreement, shall be referred to as the Permitted
Exceptions ).
Section 4.4 Objections to Status of Title and Survey. If Purchaser
objects to any item shown or referred to in the Title Commitment, Exception
Documents or Survey within the time set forth in Section 4.3, Seller shall be
given a ten (10) day period to notify Purchaser whether or not Seller will cure,
prior to Closing and at Seller s option and sole discretion but without any
obligation to do so, any objection to the condition of title raised by
Purchaser. If Seller notifies Purchaser that it elects not to cure any such
objections, then Purchaser may, at its option exercisable in writing within
three (3) days following the date of receipt by Purchaser of written notice from
Seller stating that Seller is unable or unwilling to cure such objections,
either (a) accept such title as Seller can deliver, in which case all exceptions
to title set forth in the Title Commitment, Exception Documents and Survey which
are not removed shall be deemed to be Permitted Exceptions, or (b) terminate
this Contract by notice in writing to Seller in which event the Title Company
shall return the Earnest Money Deposit to Purchaser and neither party shall have
any further rights, duties or obligations hereunder, except as otherwise
provided in Sections 4.2, 5.1 and 11.1 hereof. In the event Purchaser fails to
notify Seller, within such three (3) day period that Purchaser has elected to
proceed under either subpart (a) or (b) of the immediately preceding sentence,
Purchaser shall be deemed to have elected to proceed under subpart (b), and this
Contract shall be terminated and the Title Company shall return the Earnest
Money Deposit to Purchaser and neither party shall have any further rights,
duties or obligations hereunder, except as otherwise provided in Sections 4.2,
5.1 and 11.1 hereof. If Seller notifies Purchaser that it elects to cure any
such objections but is unable to cure such objections by Closing or if Seller
fails to notify Purchaser of its intentions with respect to such objections and
fails to cure such objections by Closing, then Purchaser may, at its option,
either (x) accept such title as Seller can deliver in which case the parties
shall proceed with Closing and all exceptions to title set forth in the Title
Commitment, Exception Documents and Survey which are not removed shall be deemed
to be Permitted Exceptions, or (y) terminate this Contract by notice in writing
to Seller at Closing, in which event the Title Company shall return the Earnest
Money Deposit to Purchaser and neither party shall have any further rights,
duties or obligations hereunder, except as otherwise provided in Sections 4.2,
5.1 and 11.1 hereof.
Section 4.5 Other Permitted Exceptions. The Permitted Exceptions shall
include those matters shown in the Title Commitment and the Survey which become
Permitted Exceptions pursuant to Sections 4.3 and 4.4 above and, in addition,
the following: (a) the Tenant Leases; (b) taxes and assessments for the year in
which the Closing occurs and subsequent years; (c) liens and encumbrances
arising after the date hereof to which Purchaser consents in writing; and (d)
any liens or encumbrances of a definite or ascertainable amount, provided that
Seller causes such liens or encumbrances to be insured around to Purchaser s
satisfaction so that such liens or encumbrances do not appear as an exception in
the Owner s Policy of Title Insurance issued to Purchaser pursuant to the Title
Commitment.
ARTICLE V
Inspection by Purchaser
Section 5.1 Inspection Period. Purchaser shall have a period of time
commencing on the date the Submission Matters are received by the Purchaser and
expiring at 5:00 p.m. Greenville, South Carolina, time on the forty-fifth (45th)
day after (the Inspection Period ) within which to examine the Property and to
conduct its feasibility study thereof. Seller agrees that, during the
Inspection Period, Seller will allow Purchaser and Purchaser s agents access to
the Property during normal business hours to conduct soil and engineering,
hazardous waste, marketing, feasibility, zoning and other studies or tests,
request and obtain estoppel certificates from tenants of the improvements and to
otherwise determine the feasibility of the Property for Purchaser s intended
use. Purchaser covenants to commence its Inspection Period activities promptly
after the Effective Date. Notwithstanding the foregoing, (a) the costs and
expenses of Purchaser s investigation shall be borne solely by Purchaser, (b)
prior to the expiration of the Inspection Period, Purchaser shall restore the
Property to the condition which existed prior to Purchaser s entry thereon and
investigation thereof, (c) Purchaser shall not interfere with, interrupt or
disrupt the operation of Seller s business on the Property and, further, such
access by Purchaser and/or its agents shall be subject to the rights of Tenants
under Tenant Leases, (d) In the event the transaction contemplated by this
Contract does not close for any reason, Purchaser shall deliver to Seller copies
of any tests, reports and inspections conducted by Purchaser with respect to the
Property requested by Seller and Seller shall pay to Purchaser fifty percent
(50%) of Purchaser s cost of said tests or reports requested by Seller, (e)
Purchaser shall not permit any mechanic s or materialman s liens or any other
liens to attach to the Property by reason of the performance of any work or the
purchase of any materials by Purchaser or any other party in connection with any
studies or tests conducted pursuant to this Section 5.1, (e) Purchaser shall
give written notice to Seller twenty-four (24) hours prior to entry onto the
Property and shall permit Seller to have a representative present during all
investigations and inspections conducted with respect to the Property, and (f)
Purchaser shall take all reasonable actions and implement all protections
necessary to ensure that all actions taken in connection with the investigations
and inspections of the Property, and all equipment, materials and substances
generated, used or brought onto the Property pose no material threat to the
safety of persons or the environment and cause no damage to the Property or
other property of Seller or other persons. All information made available by
Seller to Purchaser in accordance with this Contract or obtained by Purchaser in
the course of its investigations shall be treated as confidential information by
Purchaser, and prior to the purchase of the Property by Purchaser, Purchaser
shall prevent its agents and employees from divulging such information to any
third parties, except as reasonably necessary to third parties engaged by
Purchaser for the limited purpose of analyzing and investigating such
information for the purpose of consummating the transaction contemplated by this
Contract, including Purchaser s attorneys and representatives, prospective
lenders and engineers. Purchaser shall indemnify, defend and hold harmless
Seller and its general partner and each of their affiliates and their respective
affiliates, officers, directors, employees, agents and representatives from and
against any claims, liabilities, causes of action, damages, liens, losses,
fines, fees and expenses (including, without limitation, attorneys fees and
expenses) incident to, resulting from any of Purchaser s and its agents and
representatives activities on the Property, including, without limitation, any
tests or inspections conducted by Purchaser or its agents on the Property. The
agreements contained in this Section 5.1 shall survive the Closing for a period
of two (2) years following the Closing, and shall not be merged therein and
shall also survive any termination of this Contract for a period of two (2)
years following termination.
Section 5.2 Approval of Inspections. If Purchaser determines at any time
prior to the expiration of the Inspection Period that the Property is
satisfactory to Purchaser, then Purchaser shall deliver written notice thereof
to Seller within such Inspection Period given in accordance with the provisions
of Section 13.1 hereof, and Purchaser and Seller shall proceed to Closing as
provided in this Contract. If Purchaser does not timely deliver to Seller
written notice of satisfaction within such Inspection Period, the conditions of
this Section 5.2 shall be deemed to have been not satisfied, in which event
Purchaser shall deliver to Seller copies of any studies and reports with respect
to the Property prepared by or for Purchaser in connection with its Inspection
Period activities requested by Seller and Seller shall pay to Purchaser fifty
percent (50%) of Purchaser s cost of said studies or reports requested by
Seller, and the Title Company shall return the Earnest Money Deposit to
Purchaser and neither party shall have any further rights or liabilities
hereunder, except as provided in Sections 4.2, 5.1 and 11.1 hereof.
Section 5.3 Matters to be Delivered to Seller. No later than ten (10)
days following the Effective Date, Seller shall deliver to Purchaser the
following items (collectively, the Submission Matters ):
(a) A current rent roll for the Property;
(b) A copy of the form used for Tenant Leases with respect to the
Property; all existing leases or other written agreements with
Tenants shall be made available at the building for review and
copying at Purchaser s expense;
(c) A current certified inventory of all Personalty owned by
Seller and located on, related to, or used in connection with the
Property;
(d) Copies of any and all service, maintenance, management or
other contracts in Seller s possession relating to the ownership and
operation of the Property;
(e) Complete copies of any and all warranties and guarantees in
Seller s possession relating to the Property, or any part thereof,
or to the Personalty owned by Seller and located on, attached to, or
used in connection with the Property;
(f) Copies of all plans and specifications in Seller s possession
with respect to the Property and copies of all licenses and permits
in Seller s possession with respect to the ownership and operation
of the Property, including building permits and certificates of
occupancy;
(g) A certificate of fire, hazard, extended coverage, liability
and other insurance policies held by Seller with respect to the
Property; and
(h) Copies of the most recent real estate and personal property
tax statements received by Seller with respect to the Property.
ARTICLE VI
Representations and Warranties; Disclaimers and Waivers
Section 6.1 Representations and Warranties of Purchaser. Purchaser
represents and warrants to Seller as of the date hereof and as of the Closing
Date as follows (which representations and warranties shall survive the
Closing): (a) Purchaser is a corporation of the State of Ohio; (b) Purchaser is
qualified and authorized to do business in the State of Ohio; (c) Purchaser has
full right and authority to enter into this Contract and to consummate the
transactions contemplated herein; (d) each of the persons executing this
Contract on behalf of Purchaser is authorized to do so; and (e) this Contract
constitutes a valid and legally binding obligation of Purchaser, enforceable in
accordance with its terms.
Section 6.2 Representations and Warranties of Seller. Seller represents
and warrants to Purchaser as of the date hereof and as of the Closing Date as
follows: (a) Seller is a limited partnership validly existing and duly organized
under the laws of the State of Ohio; (b) Seller has full right and authority to
enter into this Contract and, subject to the consent of its limited partners (as
specified in Section 7.3 of this Contract), to consummate the transactions
contemplated herein; (c) each of the persons executing this Contract on behalf
of Seller is authorized to do so; a(d) this Contract constitutes a valid and
legally binding obligation of Seller, enforceable in accordance with its terms;
(e) Seller is not a foreign corporation, foreign partnership, foreign trust, or
foreign estate (as those terms are defined in the Internal Revenue Code and
Income Tax Regulations); (f) between the date of execution of this Contract and
the date of Closing, Seller shall not, without the consent of Purchaser or as
required in this Contract, place or permit to be placed on the Property, any
liens, easements, restrictions or encumbrances, except this Contract, or
otherwise cause or permit any other change in the title to the Property, (g)
copies of all Tenants Leases and other written contracts to be assigned by
Seller to Purchaser will be made available for review and copying by Purchaser,
and to Seller s best knowledge all of said leases and contracts are binding and
enforceable contracts.
Section 6.3 No Additional Representations or Warranties of Seller.
(a) Purchaser acknowledges and agrees that, except as otherwise
specified in this Contract or the special warranty deed to be
delivered at Closing, Seller has not made, and Seller hereby
specifically disclaims, any warranty, guaranty or representation,
oral or written, past, present or future, of , as to, or concerning,
(a) the nature and condition of the Property, including, without
limitation, the water, soil and geology, and the suitability thereof
and of the property for any and all activities and uses which
Purchaser may elect to conduct thereon; (b) the existence, nature
and extent of any right-of-way, lease, right to possession or use,
lien, encumbrance, license, reservation, condition or other matter
affecting title to the Property; and (c) whether the use or
operation of the Property complies with any and all laws, ordinances
or regulations of any government or other regulatory body. Purchaser
agrees to accept the Property, and acknowledges that the sale of the
Property as provided for herein is made by Seller, on an as is,
where is basis. Purchaser expressly acknowledges that except as
otherwise expressly specified herein and except for any warranty of
title contained in the special warranty deed to be delivered by
Seller to Purchaser at Closing, Seller makes no representation or
warranty of any kind, oral or written, express or implied, or
arising by operation of law, with respect to the Property,
including, but not limited to, any warranties or representations as
to habitability, merchantability, fitness for a particular purpose,
title (other than Seller s warranty of title to be set forth in the
special warranty deed), zoning, tax consequences, physical or
environmental condition, utilities, operating history or
projections, valuation, governmental approvals, the compliance of
the premises with governmental laws, the truth, accuracy or
completeness of any information (including, without limitation, the
submission matters) provided by or on behalf of Seller to Purchaser,
or any other matter or thing regarding the Property. Purchaser
acknowledges that except as expressly specified in any written
instrument delivered by Seller to Purchaser, Seller makes no
representation or warranty of any kind, oral or written, express or
implied, or arising by operation of law regarding or with respect to
any such information (including, without limitation, the submission
matters) provided or to be provided by Seller regarding the
Property.
Further, and without in any way limiting the other provisions of
this contract, Seller had made and makes representation, warranty or
guaranty, and hereby specifically disclaims any warranty, guaranty
or representation, oral or written, past, present or future, with
respect to the presence or disposal on or beneath the Property (or
any parcel in proximity thereto) of hazardous substances or
materials which are categorized as hazardous or toxic under any
local, state or federal law, statute, ordinance, rule or regulation
pertaining to environmental or substance regulation, contamination,
cleanup or disclosure (including, without limitation, asbestos) and
shall have no liability to Purchaser therefor. Without limitation
of the preceding sentence, Seller specifically disclaims any
representation, warranty or guaranty regarding the accuracy of any
environmental reports which may be included within the submission
matters. By acceptance of this contract and the special warranty
deed to be delivered by Seller at the closing, Purchaser
acknowledges that Purchaser s opportunity for inspection and
investigation of the Property (and other parcels in proximity
thereto) will be adequate to enable Purchaser to make Purchaser s
own determination with respect to the presence or disposal on or
beneath the Property (and other parcels in proximity thereto) of
such hazardous substances or materials.
Purchaser, and anyone claiming, by, through or under Purchaser,
hereby fully releases and discharges Seller, its general partner and
each of their respective affiliates and the Seller s, general
partner s and their respective affiliates, employees, officers,
directors, partners, representatives and agents, and their
respective personal representatives, heirs, successors and assigns
from any and all cost, loss, liability, damage, expense, lien, fine,
fee, demand, claim, action or cause of action arising from or
related to any construction defects, errors, omissions, or other
conditions affecting the Property. Purchaser further acknowledges
and agrees that this release shall be given full force and effect
according to each of its expressed terms and provisions, including,
but not limited to, those relating to unknown and suspected claims,
damages and causes of action. This covenant releasing Seller, its
general partner and their respective affiliates shall be binding
upon Purchaser, its personal representatives, heirs, successors and
assigns. This waiver and release of claims shall survive the
closing and the termination of this contract forever.
ARTICLE VII
Conditions Precedent to Purchaser's and Seller's Performance
Section 7.1 Conditions to Purchaser's Obligations. Purchaser's obligation
under this Contract to purchase the Property is subject to the fulfillment of
each of the following conditions, within the applicable time frame provided in
this Contract (any or all of which may be waived by Purchaser):
(a) Seller shall be ready, willing and able to deliver title to
the Property in accordance with the terms and conditions of this
Contract;
(b) The representations and warranties of Seller contained herein
shall be true, accurate and correct as of the Closing Date; and
(c) Seller shall have delivered all the documents and other items
required pursuant to Section 8.2(a), and shall have performed, in
all material respects, all other covenants, undertakings and
obligations, and complied with all conditions required by this
Contract to be performed or complied with by the Seller at or prior
to the Closing;
(d) The receipt of a survey pursuant to Section 4.2 hereof
satisfactory in form and substance to the Purchaser within twenty
days after the Effective Date, and all items shown on the survey
being satisfactory to Purchaser;
(e) Purchaser's approval within the Inspection Period of (1) the
condition of title to the Property (including, without limitation,
approval of covenants, easements, restrictions, and other matters
recorded as to the Property, (2) any and all assessments against the
Property, (3) the zoning of the Property; and (4) all restrictions,
limitations or conditions on the development and ownership of the
Property;
(f) Purchaser's satisfaction within the Inspection Period as to
all matters discovered in Purchaser s inspection of the Property,
including Purchaser s inspection and approval of the condition of
the roof (including, but not limited to environmental matters),
structural condition of the Improvements Inspection and Feasibility
Study of the mechanical and electrical systems, and all other
physical conditions and a determination that the Premises has not
been used for the storage or disposal of any materials which
violated federal, state, local or regional statutes, ordinances,
orders, judgments, rulings, or regulations relating to pollution or
environmental matters. Purchaser shall have the right to have a
Phase I and Phase II Environmental Study performed at it s expense.
The Phase I and Phase II Environmental Study shall be in such form
and context that is satisfactory to Purchaser and which reports
indicate there are no environmental problems on the Property. If
the environmental condition of the Property as revealed in such
report is unsatisfactory to Purchaser, at Purchaser's sole election,
it shall have the right to terminate the Contract within the
Inspection Period and to the return of the Earnest Money Deposit
actually paid.
(g) At the time of Closing, the Property shall be free from all
building orders and the Property not violating the building, fire,
safety and other codes of the city, county, state or federal
authorities with jurisdiction in these matters, because of condition
or circumstances first existing after the expiration of the
Inspection Period;
(h) At the time of Closing, there are not existing any condition
or circumstance, or any law, statute, code, ordinance, rule or
regulation, including, without limitation, any environmental law,
statute, code, rule or regulation enacted or first effective after
the expiration of the Inspection Period, which will or does
materially and adversely affect the use and operation of the
Premises for office and manufacturing purposes.
(i) Purchaser obtaining within the Inspection Period one hundred
percent (100%) financing of the purchase price from the Huntington
Bank on terms and conditions acceptable to Purchaser, together with
a Five Hundred Thousand Dollar ($500,000.00) loan for improvements
and renovation on terms and conditions acceptable to Purchaser.
(j) Receipt and approval within the Inspection Period by Purchaser
of all leases and other written agreements between the Seller and
all Tenants on the Property;
(k) Notwithstanding anything contained in this Contract to the
contrary, if the purchase and sale of the Property is not closed as
contemplated herein for the reason that a condition precedent to
Purchaser s performance set forth in this Contract has not been
satisfied, as determined by Purchaser, or waived in writing by
Purchaser, the Earnest Money Deposit actually paid by Purchaser
shall be immediately returned to Purchaser.
Section 7.2 Conditions to Seller's Obligations. Seller's obligation under
this Contract to sell the Property to Purchaser is subject to the fulfillment of
each of the following conditions (all or any of which may be waived by Seller).
(a) the representations and warranties of Purchaser contained
herein shall be true, accurate and correct as of the Closing Date;
and
(b) Purchaser shall have delivered the funds required hereunder
and all the documents to be executed by Purchaser set forth in
Section 8.2(b) and shall have performed, in all material respects,
all other covenants, undertakings and obligations, and complied with
all conditions required by this Contract to be performed or complied
with by Purchaser at or prior to Closing.
ARTICLE VIII
Closing
Section 8.1 Time and Place. The consummation of the purchase and sale of
the Property ( Closing ) shall take place at the office of the Title Company at
a time mutually agreeable to Seller and Purchaser on or before December 29,
1995.
Section 8.2 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver, or cause to
be delivered, to Purchaser each of the following items:
(i) A standard form ALTA Owner s Policy of Title Insurance
dated no earlier than the date of the filing of the deed
described in Section 8.2(a)(ii) hereof, issued by the Title
Company, and insuring Purchaser s title in the amount of the
Purchaser Price, subject only to the Permitted Exceptions and
conforming to the requirements of Article IV hereof ( Title
Policy ).
(ii) A Special Warranty Deed duly executed and acknowledged
by Seller in the form attached hereto as Exhibit B and made
a part hereof for all purposes sufficient to convey to
Purchaser good title to the Property free and clear of all
liens and encumbrances, except for the Permitted Exceptions.
(iii) An Assignment and Assumption of Leases ( Assignment of
Leases ) duly executed and acknowledged by Seller in the form
attached hereto as Exhibit C and made a part hereof for all
purposes.
(iv) A Blanket Conveyance, Bill of Sale and Assignment
( Bill of Sale ) duly executed by Seller in the form attached
hereto as Exhibit D and made a part hereof for all purposes.
(v) All keys and master keys to all locks located on the
Property that are in Seller s possession.
(vi) All original Tenant leases that are in Seller's
possession together with letters addressed to the Tenants of
the Property ( Notice Letters ) in the form attached hereto as
Exhibit F and made a part hereof for all purposes, or in
such other form as may be mutually agreed upon by Seller and
Purchaser.
(vii) All original contracts that are in Seller's
possession.
(viii) A Non-Foreign Affidavit in the form attached hereto as
Exhibit E and made a part hereof for all purposes.
(ix) All amounts owing to Purchaser by Seller under Article
IX hereof.
(x) Evidence satisfactory to Purchaser and the Title Company
that the person or persons executing this Contract and the
closing documents on behalf of Seller have full right, power
and authority to do so.
(xi) A rent roll prepared with respect to the Property in
the form normally prepared by Seller which shall be certified,
to Seller s knowledge, as being true and correct in all
material respects as of a date not more than five (5) days
prior to Closing.
(xii) Other items reasonably requested by the Title Company
for the sale of the Property in accordance with this Contract
or for administrative requirements for consummating the
Closing.
(b) Purchaser. At the Closing, Purchaser shall deliver to Seller
each of the following items:
(i) The Purchase Price in Current Funds.
(ii) The Assignment of Leases, duly executed and
acknowledged by Purchaser.
(iii) The Bill of Sale, duly executed by Purchaser.
(iv) Evidence satisfactory to Seller and the Title Company
that the person or persons executing this Contract and the
closing documents on behalf of Purchaser have full right,
power and authority to do so.
(v) The Notice Letters duly executed by Purchaser.
(vi) Other items reasonably requested by the Title Company
for the sale of the Property in accordance with this Contract
or for administrative requirements for consummating the
Closing.
Section 8.3 Costs of Closing. The escrow fees of the Title Company shall
be paid by Purchaser. Any costs of closing the sale of the Property, including,
without limitation, recording costs, documentary stamp taxes, deed taxes,
transfer taxes, intangible taxes, mortgage taxes or other similar taxes, frees
or assessments, shall be paid by Seller. All costs relating to the Title Policy
obtained by Purchaser shall be paid by Purchaser, and the costs relating to the
Survey shall be paid as set forth in Section 4.2. All other expenses incurred
by Seller and Purchaser with respect to the Closing, including, but not limited
to, the attorneys fees and costs and expenses incurred in connection with
negotiating, preparing and closing the transaction contemplated by this
Contract, shall be borne and paid exclusively by the party incurring such
expense.
Section 8.4 Prorations.
(a) All normal and customarily proratable items, including,
without limitation, rents, operating expenses and leasing
commissions, other expenses and fees, and payments relating to any
agreements affecting the Property which survive the Closing, shall
be prorated as of, and including, the Closing Date, Seller being
charged and credited for all of same attributable to the period up
to, and including, the Closing Date (and credited for any amounts
paid by Seller attributable to the period after Closing) and
Purchaser being responsible for, and credited or charged, as the
case may be, for all of same attributable to the period after the
Closing Date. All unapplied Deposits under Tenant Leases in the
possession of Seller, if any, shall be transferred by Seller to
Purchaser at the Closing. Any real estate ad valoreum or similar
taxes for the Property, or any installment of assessments payable in
installments which installment is payable in the year of Closing,
shall be prorated to the date of Closing, based upon actual days
involved. In connection with the proration of real property taxes
or installments of assessments, such proration shall be based upon
the assessed valuation and tax rate figures for the year in which
the Closing occurs to the extent the same are available; provided,
that in the event that actual figures (whether for the assessed
value of the Property or for the tax rate) for the year of Closing
are not available at the Closing Date, the proration shall be made
using figures from the preceding year for the figures which are
unavailable for the year of Closing. The proration shall be final
and unadjustable, except as provided in the following paragraph. In
the event the Property has been assessed for property tax purposes
at such rates as would result in roll-back taxes upon the changes
in land usage or ownership of the Property, Purchaser agrees to pay
all such taxes and hereby indemnifies, holds harmless and agrees to
defend Seller and its general partner and each of their respective
affiliates, and their and their affiliates officers, directors,
employees, agents and representatives from and against any and all
causes of action, costs, expenses, fees, liens, fines, damages,
claims, losses and liabilities for or relating to such taxes. The
provisions of this Section 8.4 shall survive the Closing and the
termination of this Contract forever.
(b) If any of the items subject to proration under the foregoing
provisions of this Section 8.4 cannot be prorated at the Closing
because of the unavailability of the information necessary to
compute such proration, or if any errors or omissions in computing
prorations at the Closing are discovered subsequent to the Closing,
then such item shall be reapportioned and such errors and omissions
corrected as soon as practicable after the Closing Date and the
proper party reimbursed, which obligation shall survive the Closing
for a period of one hundred twenty (120) days after the Closing Date
as hereinafter provided. Neither party hereto shall have the right
to require a recomputation of a Closing proration or a correction of
an error or omission in a Closing proration unless within the
aforestated one hundred twenty (120) day period one of the parties
hereto (i) has obtained the previously unavailable information or
has discovered the error or omission and (ii) has given notice
thereof to the other party, together with a copy of its good faith
recomputation of the proration and copies of all substantiating
information used in such recomputation. The failure of a party to
obtain any previously unavailable information or discover an error
or omission with respect to an item subject to proration hereunder
and to give notice thereof as provided above within one hundred
twenty (120) days after the Closing Date shall be deemed a waiver of
its right to cause a recomputation or a correction of an error or
omission with respect to such item after the Closing Date.
Section 8.5 Possession and Closing. Possession of the Property shall be
delivered to Purchaser by Seller at the Closing, subject to the Permitted
Exceptions and the rights of the Tenants. Purchaser shall make its own
arrangements for the provision of public utilities to the Property and Seller
shall terminate its contracts with such utility companies that provide services
to the Property as of the end of business on the Closing Date.
Section 8.6 Delinquent Rent.
(a) Application of Delinquent Rent. If on the Closing Date any
Tenant is in arrears in the payment of any rent under any Tenant
Lease (the Delinquent Rent ) payable by it, any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing
shall be applied to amounts due and payable by such Tenant during
the following periods in the following order of priority: (A) first,
to the period of time prior to the Closing Date, and (B) second, to
the period of time after the Closing Date. If Delinquent Rent or
any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this
allocation, the appropriate sum, less a proportionate share of any
reasonable attorneys fees and costs and expenses expended in
connection with the collection thereof, shall be promptly paid to
the other party. The provisions of this Section 8.6(a) shall
survive the Closing and the termination of this Contract forever.
(b) Collection of Delinquent Rent. After the Closing, Seller
shall continue to have the right, 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, and the
delivery of the Assignment of Leases (as defined in Section
8.2(a)(iii)) shall not constitute a waiver by Seller of such right.
Purchaser agrees to cooperate with Seller 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
top 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 the
reasonable costs and expenses incurred by Purchaser in complying
with this Section 8.6(b) shall be promptly paid or reimbursed by
Seller. The provisions of this Section 8.6(b) shall survive the
Closing and the termination of this Contract forever.
ARTICLE IX
Condemnation or Casualty
Section 9.1 Condemnation.
(a) In the event that all or any Significant Portion (as defined
in Section 9.1(b) of the Property is condemned or taken by eminent
domain or conveyed by deed in lieu thereof, or if any condemnation
proceeding is commenced for all or any portion of the Property,
prior to Closing, Purchaser may elect to terminate this Contract by
written notice thereof to the Seller within ten (10) days after
Seller notifies Purchaser, in writing, of the condemnation, taking
or deed in lieu or institution of such condemnation proceeding. If
Purchaser does not terminate this Contract pursuant to this Section
9.1(a), then both parties shall proceed to close the transaction
contemplated herein pursuant to the terms hereof, in which event
Seller shall, except as limited in Section 9.1(b) hereof, at its
option deliver to Purchaser at the Closing any proceeds actually
received by or on behalf of Seller attributable to the Property from
such condemnation, eminent domain proceeding or deed in lieu thereof
(except for proceeds previously used to restore or repair the
Property) or assign its interest in and to any such proceeds and
there shall be no reduction in the Purchase Price.
(b) For purposes of Section 9.1(a), Significant Portion of the
Property shall be deemed to be any portion of the Property with
either a fair market value or replacement cost in an amount equal to
or grater than Two Hundred Fifty Thousand Dollars ($250,000.00).
The foregoing provision shall survive the Closing and the
termination of this Contract forever.
(c) In the event that less than a Significant Portion of the
Property is condemned, taken by eminent domain, conveyed by deed in
lieu thereof or is the subject of a condemnation proceeding, neither
party shall have the right to terminate this Contract, but Seller
shall deliver to Purchaser at Closing any proceeds actually received
by or on behalf of Seller attributable to the Property from such
condemnation or eminent domain proceeding or deed in lieu thereof,
or assign its interest in and to such proceeds to Purchaser, and
there shall be no reduction of the Purchase Price.
Section 9.2 Casualty.
(a) In the event that all or any Substantial Portion (as defined
in Section 9.2(b)) of the Property shall be damaged or destroyed by fire
or other casualty prior to Closing, Purchaser may terminate this Contract
by written notice thereof to the Seller within thirty (30) days after
Seller notifies Purchaser, in writing, of the casualty. If the Purchaser
does not terminate this Contract as aforesaid, then both parties shall
proceed to close the transaction contemplated herein pursuant to the terms
hereof, in which event Seller shall, except as limited in Section 9.2(b)
hereof, deliver to Purchaser at the Closing any insurance proceeds
actually received by or on behalf of Seller attributable to the Property
from such casualty (except for proceeds previously used to repair the
Property) and assign to Purchaser all of Seller s right, title and
interest in and to any claims which Seller may have under the insurance
policies covering the Property, and there shall be no reduction in the
Purchase Price. In the event less than a Substantial Portion of the
Property shall be damaged or destroyed by fire or other casualty prior to
Closing, then the parties shall proceed in accordance with the second
sentence in this Section 9.2(a).
(b) For the purposes of Section 9.2(a), a Substantial Portion of
the Property shall be deemed to be any portion of the Property with either
a fair market value or replacement cost in an amount equal to or greater
than Two Hundred Fifty Thousand Dollars ($250,000.00). The foregoing
provision shall survive the Closing and the termination of this Contract
forever.
ARTICLE X
Defaults and Remedies
Section 10.1 Default by Purchaser. If Seller shall not be in default
hereunder and Purchaser refuses or fails to consummate the Closing under this
Contract for reasons other than as expressly set forth in Section 4.4, Section
5.2, or Article IX hereof or other than due to a failure of a condition
precedent to Purchaser s obligation to close as set forth in Section 7.1 hereof,
Seller may at its sole option either (a) enforce specific performance of this
Contract against Purchaser or (b) terminate this Contract in which event neither
party shall have any further rights, duties, or obligations hereunder, except as
provided in Sections 4.2, 5.1 and 11.1 hereof, and Seller shall be entitled to
receive or retain the Earnest Money Deposit as liquidated damages (Seller and
Purchaser hereby acknowledging that the amount of damages in the event of
Purchaser s default is difficult or impossible to ascertain but that such amount
is a fair estimate of such damage). Notwithstanding anything contained in this
Section to the contrary, in the event of any other default by Purchaser under
this Contract, including, without limitation, breach of any covenant,
representation or indemnity, which survives the Closing or termination of this
Contract, Seller shall have any and all rights and remedies available at law or
in equity by reason of such default.
Section 10.2 Default by Seller. If Purchaser shall not be in
default hereunder and if Seller refuses or fails to consummate the Closing under
this Contract other than due to a termination permitted hereunder or a failure
of a condition precedent to Seller s obligation to close as set forth in Section
7.2 hereof, Purchaser shall be entitled to a refund of the Earnest Money Deposit
and Purchaser may thereafter, at Purchaser s sole option, as its sole and
exclusive remedies, either (a) terminate this Contract in which event neither
party shall have any further rights, duties or obligations hereunder except as
provided in Sections 4.2, 5.1 hereof, or (b) enforce specific performance of
this Contract against Seller, provided, however, that if the remedy of specific
performance is unavailable because Seller has transferred the Property to a
third party, then Purchaser shall have the right to bring an action against
Seller to recover Purchaser s actual damages from Seller arising as a direct
result of Seller s default, plus any proceeds received by Seller from said third
party purchaser in excess of the purchase price contained in this Contract.
Section 10.3 Attorneys' Fees. If it shall be necessary for either
Purchaser or Seller to employ an attorney to enforce its rights pursuant to this
Contract, the non-prevailing party shall reimburse the prevailing party for its
reasonable attorneys' fees.
ARTICLE XI
Brokerage Commission
Section 11.1 Brokerage Commission. Seller and Purchaser represent
each to the other that each has had no dealings with any broker, finder or other
party concerning the purchase of the Property except James P. O'Connell and/or
William A. Schneller, of CB Commercial Real Estate Group, Inc. ( Broker ).
Seller hereby agrees to pay at Closing commissions due to Broker arising out of
any agreement executed by Seller; provided, however, that Seller's obligation to
pay, and Broker's right to receive, this commission or any other amount with
respect to this Contract or the Property is expressly conditioned upon Closing
the sale of the Property and Seller s receipt of the Purchase Price. Broker
shall have no right to receive this commission or any other amount with respect
to this Contract or the Property unless and until Closing shall be final and
fully consummated and Seller shall have received the Purchase Price as provided
in this contract. Seller agrees to indemnify Purchaser and hold Purchaser
harmless from any loss, liability, damage, cost or expense (including, without
limitation, reasonable attorneys fees and expenses) arising out of or paid or
incurred by Purchaser by reason of any claim to any broker s, finder s or other
fee in connection with this transaction by any party claiming by, through or
under Seller (including, without limitation, James P. O'Connell and/or William
A. Schneller of CB Commercial Real Estate Group, Inc.). Purchaser agrees to
indemnify and defend Seller and its general partner and their respective
affiliates and their and their affiliates officers, directors, employees,
agents and representatives, and hold each of them harmless from any and all
loss, liability, damage, claim, cause of action, fine, fee, lien, cost or
expense (including, without limitation, reasonable attorneys fees and expenses)
arising out of or paid or incurred by any of them by reason of any claim to any
broker's, finder's or other fee in connection with this transaction by any party
claiming by, through or under Purchaser or its affiliates. Notwithstanding
anything to the contrary contained herein, the indemnities set forth in this
Article XI shall survive the closing and the termination of this Contract
forever.
Purchaser hereby acknowledges that at the time of the execution of
this Contract, Purchaser is advised by this writing that Purchaser should have
an abstract covering the Property examined by an attorney of Purchaser s own
selection, or that Purchaser should be furnished with or obtain an Owner s
Policy of Title Insurance.
ARTICLE XII
Operation of the Property Prior to the Closing
Section 12.1 Operation of the Property Prior to the Closing. Between
the Effective Date and the Closing Date, Seller shall (a) lease, operate, manage
and enter into contracts with respect to the Property as deemed appropriate by
Seller in its sole discretion (provided, however, that without the prior consent
of Purchaser, Seller shall not enter into any service contract that cannot be
terminated with thirty (30) days notice); and (b) advise Purchaser of the
commencement of any litigation, condemnation or other judicial or administrative
proceedings affecting the Property of which Seller has current actual knowledge.
ARTICLE XIII
Miscellaneous
Section 13.1 Notices. Any notice provided or permitted to be given
under this Contract must be in writing and may be served by (a) depositing same
in the United States mail, addressed to the party to be notified, postage
prepaid and registered or certified with return receipt requested, (b)
delivering the same in person to such party via a hand delivery service, Federal
Express or any other nationally recognized courier service that provides a
return receipt showing the date of actual delivery of same to the address
thereof, or (c) facsimile transmission, if a copy is deposited for overnight
delivery with a nationally recognized courier service that provides a return
receipt showing the date of actual delivery of same to the addressee thereof.
Notice given in accordance herewith shall be effective upon receipt at the
address of the addressee. For purposes of notice, the addresses of the parties
shall be as follows:
If to Seller: Race Street Assoc., Ltd.
c/o Insignia Financial Group, Inc.
Post Office Box 1089
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attention: Hugh E. Wall
Facsimile No.: (803) 239-1066
With a copy to: Insignia Financial Group, Inc.
Post Office Box 1089
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attention: John K. Lines,
General Counsel & Secretary
Facsimile No.: (803) 239-1096
And a copy to: John M. Baird
White & Reasor
3305 West End Avenue
Nashville, Tennessee 37203
Facsimile No.: (615) 383-5534
If to Purchaser: West Fourth Associates Limited Partnership
5460 Muddy Creek Road
Cincinnati, Ohio 45238
Attention: Mr. Robert E. Scherrer
Facsimile No.: (513) 451-0200
With a copy to: Gary R. Hoffmann, Esq.
Klaine, Wiley, Hoffmann & Meurer
105 East Fourth Street
Suite 1850
Cincinnati, Ohio 45202
Facsimile No.: (513) 241-6754
If to Title Company: Lawyers Title of Cincinnati, Inc.
125 East Ninth Street
Cincinnati, Ohio 45202
Attention: Mary Ann Schenk, V.P.
Facsimile No.: (513) 421-6440
Section 13.2 Governing Law. THIS CONTRACT IS BEING EXECUTED AND
DELIVERED, AND IS INTENDED TO BE PERFORMED IN THE STATE OF OHIO, AND THE LAWS OF
SUCH STATE SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND
INTERPRETATION OF THIS CONTRACT.
Section 13.3 Entirety and Amendments. This Contract embodies the
entire agreement between the parties and supersedes all prior agreements and
understandings, if any, relating to the transaction described herein, and may be
amended or supplemented only by an instrument in writing executed by the party
against whom enforcement is sought.
Section 13.4 Parties Bound. Subject to the provisions of Section
13.5 hereof, this Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective heirs, personal representatives,
successors and assigns.
Section 13.5 Assignment. This Contract may not be assigned, in
whole or in part, by Purchaser without the prior written consent of Seller,
which consent may be granted or withheld by Seller in Seller s sole and absolute
discretion, except that Purchaser shall have the right to assign this Contract
to a limited liability company or limited partnership to be established by
Robert E. Scherrer and/or Susan Scherrer prior to Closing. Any assignment of
this Contract by Purchaser without Seller s prior written consent shall, at
Seller s option, be null and void and of no effect. The parties hereto
acknowledge and agree that one of the conditions to Seller s consent to a
proposed assignment of this Contract by Purchaser may be that any and all sums
received, or to be received, by Purchaser in connection with or in consideration
for such assignment shall be immediately delivered and paid to Seller by
Purchaser and the Purchase Price shall be correspondingly increased to reflect
any such additional sums received by Seller. In the event Seller consents to an
assignment of this Contract by Purchaser, Purchaser shall not be released from
any liability or obligation hereunder.
Section 13.6 Headings. Headings used in this Contract are used for
reference purposes only and do not constitute substantive matter to be
considered in construing the terms of this Contract.
Section 13.7 Survival. Except as otherwise expressly provided
herein, no representations, warranties, covenants, acknowledgments or agreements
contained in this Contract shall survive the Closing of this Contract and the
delivery of the Special Warranty Deed by Seller to Purchaser.
Section 13.8 Interpretation. The parties acknowledge that each
party and its counsel has reviewed this Contract, and the parties hereby agree
that the normal rule of construction to the effect that any ambiguities are to
be resolved against the drafting party shall not be employed in the
interpretation of this Contract or any amendments or exhibits hereto. In case
any one or more of the provisions contained in this Contract shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other provisions
hereof, and this Contract shall be construed as if such invalid, illegal or
unenforceable provisions had never been contained herein. When the context in
which words are used in this Contract indicates that such is the intent, words
in the singular number shall include the plural and vice versa, and words in the
masculine gender shall include the feminine and neuter genders and vice versa.
Section 13.9 Exhibits. All references to Exhibits contained herein
are references to exhibits attached hereto, all of which are hereby made a part
hereof for all purposes.
Section 13.10 Time of Essence. It is expressly agreed by the parties
hereto that time is of the essence with respect to this Contract and Closing
hereunder.
Section 13.11 Multiple Counterparts. This Contract may be executed in a
number of identical counterparts. If so executed, each of such counterparts is
to be deemed an original for all purposes, and all such counterparts shall,
collectively constitute one agreement, but in making proof of this Contract it
shall not be necessary to produce or account for more than one such counterpart.
Section 13.12 Risk of Loss. Risk of loss or damage to the Property, or
any part thereof, by fire or any other casualty following Seller s delivery of
the Special Warranty Deed transferring title to the Property to the Purchaser
will be on the Purchaser.
Section 13.13 Effective Date. As used herein, the term Effective Date
shall mean for all purposes of this Contract the date on which the Title Company
acknowledges receipt of an original of the Contract executed by Purchaser and
Seller with all changes, if any, to the printed portion of this Contract
initialed by Purchaser and Seller.
Section 13.14 Business Days. All references to business days
contained herein are references to normal working business days, i.e., Monday
through Friday of each calendar week, exclusive of federal and national bank
holidays.
Section 13.15 No Recordation of Contract. In no event shall this
Contract or any memorandum hereof be recorded in the public records of the place
in which the Property is situated, and any such recordation or attempted
recordation shall constitute a breach of this Contract by the party responsible
for such recordation or attempted recordation.
Section 13.16 Facsimile Execution. The parties hereto agree that
facsimile execution of this Agreement shall be binding upon the parties hereto.
The parties further agree that within twenty-four hours of the facsimile
execution an original document bearing original signatures will be provided to
the other parties..
IN WITNESS WHEREOF, the parties have executed this Contract as of the date
first above written.
SELLER:
RACE STREET ASSOC., LTD., an
Ohio Limited Partnership
By: CONCAP CCP/V PROPERTIES, INC.,
its General Partner
By: /s/ Robert D. Long, Jr.
Title: CAO/Controller
PURCHASER:
WEST FOURTH ASSOCIATES
LIMITED PARTNERSHIP
By: Scherrer Electrical Contracting, Inc..
General Partner
By: /s/ Robert E. Scherrer
Robert E. Scherrer, President