FORM 8-K - CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 24, 1997
CENTURY PROPERTIES FUND XV
(Exact name of registrant as specified in its charter)
California 0-9680 94-2625577
(State or other jurisdiction (Commission (I.R.S. Employer
incorporation) File Number) Identification
Number)
One Insignia Financial Plaza
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (864) 239-1000
N/A
(Former name or former address, if changed since last report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
The Registrant sold Summerhill Apartments on September 24, 1997. Summerhill
Apartments was sold to McNeil Capital L.L.C, an unrelated party, for $6,150,000.
The Managing General Partner is currently evaluating its cash needs to determine
what portion of the net proceeds can be distributed to its partners in the near
future.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's quarterly report on Form 10-QSB for the quarter ended September 30,
1997.
(c) Exhibits
10.7 Contract of Sale between Registrant and McNeil Capital L.L.C. dated
July 31, 1997.
10.8 First Amendment to Contract of Sale between Registrant and McNeil
Capital L.L.C. dated September 9, 1997.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CENTURY PROPERTIES FUND XV
By: FOX CAPITAL MANAGEMENT CORPORATION
Its Managing General Partner
By: /s/ William H. Jarrard, Jr.
President and Director
Date: October 7, 1997
EXHIBIT 10.7
CONTRACT OF SALE
THIS CONTRACT OF SALE (this "Contract") is made and entered into by and
between SUMMERHILL PROPERTIES, L.P., a California limited partnership
("Seller"), and McNEIL CAPITAL LIMITED LIABILITY COMPANY, a Delaware limited
liability company ("Purchaser").
ARTICLE I.
SALE OF THE PROPERTY
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 all the following described
property (collectively, the "Property"):
(a) All of that certain tract or parcel of land (the "Land") located
in Dallas County, Texas, more particularly described on Exhibit A attached
hereto and made a part hereof for all purposes, together with the 240-unit
garden apartment complex and all other improvements, structures and
fixtures located on the Land (the "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 owned by Seller and attached to or
located on the Land or Improvements (the "Personalty"), provided, that
Seller shall not sell computer software programs and other proprietary
information used in connection with the Property;
(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 (the "tenant Leases"), and all unapplied deposits,
whether security or otherwise ("Deposits"), paid by tenants ("Tenants")
under the Tenant Leases and described on the Closing Rent Roll (hereinafter
defined) to be provided by Seller at Closing; and
(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 (the "Contracts").
ARTICLE II.
PURCHASE PRICE
2.1 Purchase Price. The total Purchase Price (herein so called) to be
paid by Purchaser to Seller for the Property shall be Six Million Two Hundred
Fifty Thousand and No/100 Dollars ($6,250,000.00). The Purchase Price shall be
payable in cash or Current Funds (defined below) at the Closing (hereinafter
defined).
ARTICLE III.
EARNEST MONEY DEPOSIT
3.1 Amount and Timing. Within five (5) days after the Effective Date
(hereinafter defined), Purchaser shall deliver to Chicago Title Company located
at 139 Spring Creek Village, Suite 2-C, Dallas, Texas 75248, Attention: J. David
Griffin (the "Title Company"), Fifty Thousand Dollars ($50,000.00) (the "Initial
Deposit") in cash or Current Funds, to be held by the Title Company in escrow to
be applied or disposed of by the Title Company as is provided in this Contract.
In the event Purchaser fails to deposit the Initial Deposit with the Title
Company as herein provided, Seller may, at its option, terminate this Contract,
in which event neither Seller nor Purchaser shall have any further obligations
hereunder except for provisions of this Contract which expressly survive the
termination of this Contract. Prior to the end of the Inspection Period (as
hereinafter defined) Purchaser shall deposit with the Title Company an
additional earnest money deposit in the amount of Fifty Thousand and No/100
Dollars ($50,000.00) (the "Subsequent Deposit") in cash or Current Funds to be
held by the Title Company in escrow to be applied or disposed of by the Title
Company as provided in this Contract. If the Purchaser does not terminate this
Contract pursuant to Section 5.2 hereof and fails to deposit the Subsequent
Deposit on or before the end of the Inspection Period, then this Contract shall
terminate and the Title Company shall pay the Initial Deposit to Purchaser and
thereafter neither Seller nor Purchaser shall have any further obligations
hereunder except for provisions of this Contract which expressly survive the
termination of this Contract. The term "Earnest Money Deposit", as used in this
Contract, shall mean (i) the Initial Deposit prior to deposit of the Subsequent
Deposit, and (ii) both the Initial Deposit and the Subsequent Deposit combined
after the deposit of the Subsequent Deposit. 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.
3.2 Application and Interest. If the purchase and sale 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 Purchaser. 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
4.1 Title Commitment. Not later than fifteen (15) days after the
Effective Date, Seller shall cause to be furnished to Purchaser, a current
Commitment for Title Insurance for the Land and Improvements (the "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 (hereinafter defined)
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 (the "Exception Documents") that
create or evidence conditions or exceptions to title affecting the Property, as
described in the Title Commitment.
4.2 Survey. Not later than thirty (30) days after the Effective Date,
Seller shall provide to Purchaser a current certified survey of the Land and
Improvements (the "Survey") certified within the last sixty (60) days and
satisfactory to the Title Company for purposes of modifying the standard survey
exception in Schedule B of the Title Policy to be issued. If Seller's Survey is
not satisfactory to Purchaser, or the Title Company in order to enable it to
modify the standard survey exception to read "Shortages in area only", then
Seller shall pay the cost to prepare a survey of the Property that is sufficient
for Purchaser and the Title Company, and that is certified to Seller, Purchaser
and the Title Company. The Survey shall show all recorded and visible and
apparent easements, roads, walkways, bodies of water and setback lines affecting
the Land and Improvements.
4.3 Review of Title and Survey. Purchaser shall have until ten (10) days
after receipt of the last of the Title Commitment, Exception Documents, and
Survey in which to notify Seller in writing (the "Title Objection Notice") of
any objections Purchaser has to any matters shown or referred to in the Title
Commitment, the Exception Documents or the Survey; provided, that Purchaser
shall not object to current real estate taxes and assessments, all of which
shall be Permitted Exceptions hereunder. 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 within the
aforementioned ten (10) day period, shall be deemed to be permitted exceptions
to the status of Seller's title (such encumbrances, exceptions or other matters,
together with such other matters included pursuant to other provisions of this
Contract, shall be referred to as the "Permitted Exceptions").
4.4 Objections to Status of Title and Survey. If Purchaser timely objects
to any item shown or referred to in the Title Commitment, Exception Documents or
Survey within the ten (10) day period set forth in Section 4.3, Seller shall be
given until ten (10) days after receipt of the Title Objection Notice 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 or fails to timely respond, then
Purchaser may, at its option execrable within five (5) days following (i) the
date of receipt by Purchaser of written notice from Seller stating that Seller
is unable or unwilling to cure such objections, or (ii) the expiration of said
ten (10) day period set forth in this Section 4.4, whichever first occurs,
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 for provisions of
this Contract which expressly survive termination of this Contract. In the
event Purchaser fails to notify Seller, within such five (5) day period, that
Purchaser has elected to proceed under either subpart (a) or (b) of the
immediately preceding sentence, Purchaser shall be deemed to have elected to
proceed under subpart (a), and this Contract shall remain in full force and
effect. If Seller notifies Purchaser that it elects to cure any such objections
but is unable to cure same by Closing, or, if Seller fails to notify Purchaser
of its intentions with respect to such objections and fails to cure same 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 for provisions of this Contract which expressly survive termination of
this Contract. Anything in this Contract to the contrary notwithstanding any
cure by Seller must be completed and the Closing must occur by October 1, 1997.
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 of not more than one (1) year terms
remaining in effect at Closing to the extent shown on a certified rent roll (the
"Rent Roll") delivered by Seller to Purchaser pursuant to Section 5.3 hereof and
recertified and resubmitted to Purchaser as of date not more than five (5)
business days prior to the Closing Date (the "Closing Rent Roll"); (b) taxes and
assessments for the year in which 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
not exceeding $50,000.00 consented to by Purchaser in writing, provided that (i)
Seller causes such liens or encumbrances to be insured or bonded around such
that same do not appear as an exception in the Title Policy issued to Purchaser
pursuant to the Commitment, and (ii) Seller agrees to indemnify Purchaser from
all claims, suits, demands, damages, losses or costs (including reasonable
attorney's fees) incurred by Purchaser as a result of such liens or
encumbrances.
ARTICLE V.
INSPECTION BY PURCHASER
5.1 Inspection Period. Purchaser shall have a period of time commencing
on the Effective Date and expiring at 5:00 p.m., Dallas, Texas, time on the
thirtieth (30th) day thereafter (the "Inspection Period") within which to
examine the Property and all portions thereof and to conduct its feasibility
study thereof. The Inspection Period shall be inclusive of the Effective Date.
Seller agrees that, during the Inspection Period, Seller will allow Purchaser
and Purchaser's agents access to the Property during normal business hours to
conduct inspections (including the interior of all apartments), soil and
engineering, hazardous waste, marketing, feasibility, zoning, code compliance,
and other studies or tests and to otherwise determine the feasibility of the
Property for Purchaser's intended use. Notwithstanding the foregoing, (a) the
costs and expenses of Purchaser's investigation shall be borne solely by
Purchaser, (b) prior to the expiration of the Inspection Period, Purchaser shall
restore the Property to the condition which existed prior to Purchaser's entry
thereon and investigation thereof to the extent the condition of the Property
was affected (other than to a de minimis amount) by or as a result of the
actions of Purchaser or its agents, contractors or representatives, (c)
Purchaser shall not interfere, interrupt or disrupt the operation of Seller's
business on the Property and, further, such access by Purchaser and/or its
agents shall be subject to the rights of Tenants under Tenant Leases, (d) in the
event the transaction contemplated by this Contract does not close for any
reason, Purchaser shall deliver to Seller a descriptive listing of all tests,
reports and inspections conducted by Purchaser with respect to the Property and
upon Seller's written request and, subject to (i) the approval of the
preparer(s) (which Purchaser will use commercially reasonable efforts to obtain,
but without being obligated to incur any costs therefor) and (ii) the
exculpation in writing of Purchaser from any liability for the contents thereof,
deliver copies thereof to Seller, (e) Purchaser shall not permit any mechanics
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, (f) Purchaser shall give notice to Seller a reasonable time prior
to entry onto the Property and shall permit Seller to have a representative
present during all investigations and inspections conducted with respect to the
Property, and (g) 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 Closing of the purchase of the Property by
Purchaser, Purchaser shall use its best efforts to prevent its agents and
employees from divulging such information to any 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 Seller harmless for, from and against
any claims, liabilities, causes of action, damages, liens, losses, costs and
expenses (including, without limitation, attorney's fees) incident to, resulting
from or in any way arising out of any of Purchaser's and its agent's,
contractor's and representative's activities on the Property, including, without
limitation, any tests or inspections conducted by Purchaser or its agents,
contractors or representatives on the Property. The agreements contained in
this Section 5.1 shall survive the Closing and not be merged therein and shall
also survive any termination of this Contract.
5.2 Approval of Inspections. If Purchaser determines prior to the
expiration of the Inspection Period, that the Property is not satisfactory to
Purchaser for any reason, then Purchaser may deliver written notice of such
determination to Seller within such Inspection Period, given in accordance with
the provisions of Section 13.1 hereof, stating that Purchaser is not satisfied
with the condition of the Property, in which event the Title Company shall
return the Earnest Money Deposit to Purchaser and neither party shall have any
further rights or liabilities hereunder, except for provisions of this Contract
which expressly survive termination of this Contract. If Purchaser does not
timely deliver written notice of termination within such Inspection Period, the
conditions of this Section 5.2 shall be deemed satisfied, and Purchaser shall be
deemed to have approved the condition of the Property and may not thereafter
terminate this Contract pursuant to this Section 5.2.
5.3 Matters to be Delivered by Seller.
(a) No later than five (5) business days after the Effective Date,
Seller shall deliver to Purchaser the following items (collectively, the
"Submission Mattress") to the extent the same are available to the Seller:
(i) Unaudited operating statements for the calendar years 1995
and 1996, year-to-date operating statements, and the approved
management company operating budget for 1997;
(ii) A copy of real and personal property tax bills and paid
receipts for the last two (2) calendar years;
(iii) A current inventory of all Personalty owned by Seller
and attached to or located the Land or Improvements;
(iv) Copies of any and all service, maintenance, management or
other contracts relating to the ownership and operation of the
Property;
(v) A certificate of fire, hazard, extended coverage, liability
and other insurance policies held by Seller with respect to the
Property;
(vi) Copies of all Tenant Leases (to be made available to
Purchaser and reviewed at the Property);
(vii) Copies of all written notices, citations, demands or
the like from any governmental persons or entities, relating to the
environmental or physical condition, flooding or drainage of the Land,
Improvements or Personalty included within the Property which have
been received by Seller within the twelve (12) months prior to the
Effective Date;
(viii) A list of all personnel, with job titles and salaries,
employed by Seller or its property management company working on a
full-time basis at the Property;
(ix) A list of all insurance claims filed with respect to the
Property within the twelve (12) months prior to the Effective Date;
(x) Copies of all licenses and permits held by Seller with
respect to the Property;
(xi) A current Rent Roll for the Property, certified to Seller's
current actual knowledge as being true and correct in all material
respects as of the date of such Rent Roll with an updated version,
dated no earlier than one (1) week prior to Closing;
(xii) A copy of the form currently used for Tenant Leases
with respect to the Property, which Seller shall continue to use until
Closing (provided, that Seller may make commercially reasonable
changes to such form with respect to any Tenant Leases signed by
Seller between the Effective Date and the Closing Date);
(xiii) Any environmental, construction or engineering studies
regarding the Property which Seller has in its possession.
(b) Seller will also allow Purchaser to review copies of documents
(including, without limitation, work orders) with respect to the Property
which are maintained at Seller's management office at the Property.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES; DISCLAIMERS AND WAIVERS
6.1 Representations and Warranties of Purchaser. Purchaser and each of
the persons executing this Contract on its behalf represents and warrants to
Seller as of the date hereof and as of the Closing Date as follows:
(a) Purchaser is a limited liability company, duly organized and
validly existing under the laws of the State of Delaware;
(b) Purchaser has full right and authority to enter into this
Contract and to consummate the transactions contemplated herein;
(c) Each of the persons executing this Contract on behalf of
Purchaser is authorized to do so; and
(d) This Contract constitutes a valid and legally binding obligation
of Purchaser, enforceable in accordance with its terms.
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 California;
(b) Seller has full right and authority to enter into this Contract
and to consummate the transactions contemplated herein;
(c) Each of the persons executing this Contract on behalf of Seller
is authorized to do so;
(d) This Contract constitutes a valid and legally binding obligation
of Seller, enforceable in accordance with its terms;
(e) To the Seller's current actual knowledge, there is no pending
litigation with respect to the Property and, to Seller's current actual
knowledge, no litigation has been threatened against Seller with respect to
the Property;
(f) To the Seller's current actual knowledge, the 1995, 1996 and 1997
year-to-date operating statements provided by Seller are true and correct
in all material respects;
(g) Except to the extent delivered to Purchaser or as set forth in
any environmental reports delivered to or obtained by Purchaser with
respect to the Property, Seller has not received any written notice from
any governmental authority that there is, and Seller has no current actual
knowledge of, any presence, release, threat of release, placement on or in
the Property, or the generation, transportation, storage, treatment or
disposal at the Property, of any hazardous substance in violation of
applicable laws (as used herein "Hazardous substance" means any matter
giving rise to liability under the Resources Conservation Recovery Act
(ARCRA"), 42 U.S.C. Section 6901 et seq., as amended, the Comprehensive
Environmental Response, Compensation and Liability Act (ACERCLA"), 42
U.S.C. Section 9601, et seq., as amended, or generally any substances or
materials which are categorized as hazardous or toxic, including, without
limitation, any contaminant, oil, gasoline or other petroleum hydrocarbons,
radioactive or other material, the removal of which is required or the
maintenance of which is prohibited or penalized by any local, state or
federal agency, authority or governmental unit pursuant to any local, state
or federal law, statute, ordinance, rule or regulation);
(h) Seller has not received written notice of any special assessments
with respect to the Property which are not shown on the tax statements
delivered to Purchaser;
(i) To the Seller's current actual knowledge, Seller has received no
written notice that the Property is not in compliance with applicable
zoning, building, fire or other municipal codes; and
(j) To the Seller's current actual knowledge, Seller has received no
written notice that the Property is in violation of any laws applicable to
the Property.
As used herein, the term Seller's current actual knowledge, or similar terms and
phrases, shall mean and refer to only the current actual knowledge of the
Designated Representative (as hereinafter defined) of the Seller and shall not
be construed to refer to the knowledge of any other partner, officer, director,
agent, employee or representative of the Seller, or any affiliate of the Seller,
or to impose upon such Designated Representative any duty to investigate the
matter to which such actual knowledge or the absence thereof pertains, or to
impose upon such Designated Representative any individual personal liability.
As used herein, the term "Designated Representative" shall refer to David S.
Sherbal and Paula Hawley.
6.3 NO ADDITIONAL REPRESENTATIONS OR WARRANTIES OF SELLER. PURCHASER
ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN THIS CONTRACT OR
THE SPECIAL WARRANTY DEED OR THE BILL OF SALE 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; OR (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 AAS IS, WHERE IS, AND WITH ALL FAULTS" BASIS.
PURCHASER EXPRESSLY ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED
HEREIN OR IN THE BILL OF SALE AND EXCEPT FOR ANY WARRANTY OF TITLE CONTAINED IN
THE SPECIAL WARRANTY DEED AND IN THE BILL OF SALE 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 AND BILL OF SALE), ZONING, TAX CONSEQUENCES, PHYSICAL OR
ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION,
GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PREMISES WITH GOVERNMENTAL LAWS,
THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION (INCLUDING, WITHOUT
LIMITATION, THE SUBMISSION MATTERS) PROVIDED BY OR ON BEHALF OF SELLER TO
PURCHASER, OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY. PURCHASER
ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SPECIFIED IN ANY WRITTEN INSTRUMENT
DELIVERED BY SELLER TO PURCHASER, SELLER MAKES NO REPRESENTATION OR WARRANTY OF
ANY KIND, ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW
REGARDING OR WITH RESPECT TO ANY SUCH INFORMATION (INCLUDING, WITHOUT
LIMITATION, THE SUBMISSION MATTERS) PROVIDED OR TO BE PROVIDED BY SELLER
REGARDING THE PROPERTY.
FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THIS
CONTRACT, EXCEPT AS EXPRESSLY SET FORTH IN THIS CONTRACT, SELLER HAS NOT MADE
AND DOES NOT MAKE ANY 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 SELLER 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, AND PURCHASER ACCEPTS THE RISK OF THE PRESENCE OR
DISPOSAL OF ANY SUCH SUBSTANCES OR MATERIALS. PURCHASER AGREES THAT SHOULD ANY
CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL
CONDITIONS ON THE PROPERTY BE REQUIRED AFTER THE DATE OF CLOSING, SUCH CLEAN-UP,
REMOVAL OR REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL BE PERFORMED AT
THE SOLE COST AND EXPENSE OF PURCHASER UNLESS CAUSED BY SELLER'S ACTS OR
OMISSIONS.
PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER, HEREBY
FULLY RELEASES AND DISCHARGES SELLER, ITS EMPLOYEES, OFFICERS, DIRECTORS,
PARTNERS, REPRESENTATIVES AND AGENTS, AND THEIR RESPECTIVE PERSONAL
REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS FROM ANY COST, LOSS, LIABILITY,
DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TO
ANY CONSTRUCTION DEFECTS, ERRORS, OMISSION, OR OTHER CONDITIONS AFFECTING THE
PROPERTY; PROVIDED, THAT THIS SHALL NOT RELEASE SELLER FROM CLAIMS, IF ANY,
ARISING AS A RESULT OF ANY WRITTEN REPRESENTATION OR WARRANTY OF SELLER BEING
FALSE WHEN MADE. 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
SHALL BE BINDING UPON PURCHASER, ITS PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS
AND ASSIGNS.
THE PROVISIONS OF THIS SECTION 6.3 (INCLUDING, WITHOUT LIMITATION, THE
WAIVER AND RELEASE OF CLAIMS CONTAINED HEREIN) SHALL SURVIVE THE CLOSING OR
EARLIER TERMINATION OF THIS CONTRACT.
6.4 No Reliance on Documents. Except as expressly stated herein or in any
written instrument delivered by Seller to Purchaser in connection herewith,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any materials, data or information (including, without
limitation, the Submission Matters) delivered by Seller to Purchaser in
connection with the transaction contemplated hereby. Purchaser acknowledges and
agrees that all materials, data and information (including, without limitation,
the Submission Matters) delivered by Seller to Purchaser in connection with the
transaction contemplated hereby are provided to Purchaser as a convenience only
and that any reliance on or use of such materials, data or information by
Purchaser shall be at the sole risk of Purchaser.
6.5 Effect and Survival of Disclaimers. Seller has informed and hereby
does inform Purchaser that the compensation to be paid to Seller for the
Property has been decreased to take into account that the Property is being sold
subject to the provisions of this Article VI. Seller and Purchaser agree that
the provisions of this Article VI shall survive Closing.
ARTICLE VII.
CONDITIONS PRECEDENT TO PURCHASER'S AND
SELLER'S PERFORMANCE
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 (any or all of which may be waived by Purchaser):
(a) The representations and warranties of Seller contained herein
shall be true, accurate and correct as of the Closing Date;
(b) Seller shall be ready, willing and able to deliver title to the
Property in accordance with the terms and conditions of this Contract; 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.
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 which are for the benefit of Seller, 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
8.1 Time and Place. The consummation of the purchase and sale of the
Property (the "Closing") shall take place at the office of the Title Company (it
being contemplated that the Closing will occur by the delivery of Closing
documents into escrow with the Title Company) on the fifteenth (15th) day after
the end of the Inspection Period, or at such earlier date and time as Purchaser
and Seller may mutually agree (the "Closing Date").
8.2 Items to be Delivered at the Closing.
(a) Seller. At the Closing, Seller shall deliver, or cause to be
delivered, to the Title Company, for recording or delivery to the
Purchaser, as applicable, each of the following items:
(i) A standard form Texas Owner Policy of Title Insurance with
survey exception limited to "Shortages" in area," 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 Purchase Price, subject only to
the Permitted Exceptions (the "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 and
indefeasible title to the Property free and clear of all liens and
encumbrances except for the Permitted Exceptions.
(iii) An Assignment and Assumption of Leases (the "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 the Notice Letters (as hereinafter defined) addressed to
the Tenants of the Property.
(vii) Original counterparts of all service contracts that are
in Seller's possession and which are to be assumed by Purchaser.
(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) business 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 the Title
Company, for recording or delivery to Seller, as applicable, each of
the following items:
(i) The cash portion of the Purchase Price in Current Funds.
(ii) The Assignment of Leases, duly executed and acknowledged by
Purchaser.
(iii) The Bill of Sale, duly executed by Purchaser.
(iv) Such additional funds in cash or Current Funds, as may be
necessary to cover Purchaser's share of the closing costs and
prorations hereunder.
(v) 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.
(vi) The Notice Letters duly executed by Purchaser.
(vii) Purchaser and Seller shall, at Purchaser's sole
expense, execute and deliver a letter (the "Notice Letter") to each
Tenant who is listed on the Rent Roll delivered at Closing, by
certified mail, return receipt requested (unless hand delivery is
permitted by law in which case the Notice Letters may be hand
delivered by Purchaser), which letter shall state that the Property
has been sold to Purchaser; that the tenant's security deposit has
been delivered to Purchaser; that Purchaser accepts responsibility for
tenant's security deposit; the exact dollar amount of the tenant's
security deposit; and appropriate instructions in relation to the
payment of future rentals and the giving of notice; all in the manner
required by '92.105(b) of the Texas Property Code.
8.3 Costs of Closing. Except as otherwise herein provided, the escrow
fees of the Title Company, any and all recording costs, documentary stamp taxes,
deed taxes, transfer taxes or other similar taxes, fees or assessments, and any
and all premiums and other costs relating to the Title Policy, and all costs of
obtaining the Survey, shall all be paid equally by Seller and Purchaser. Any
costs, including, without limitation, recording costs, loan fees and attorneys'
fees, relating to (a) any financing obtained by the Purchaser for the purchase
of the Property, and/or (b) any documentary stamp taxes, deed taxes, transfer
taxes, intangible taxes, mortgage taxes or other similar taxes, fees or
assessments incurred in connection with any such financing shall be borne and
paid exclusively by Purchaser. 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 same, unless otherwise
expressly provided in this Contract.
8.4 Perorations. All normal and customarily proratable items, including,
without limitation, rents, operating expenses and other expenses and fees
(excluding leasing commissions), and payments relating to any agreements
affecting the Property which survive the Closing, shall be prorated as of the
Closing Date, Seller being charged and credited for all of same attributable to
the period up to the Closing Date (and credited for any amounts paid by Seller
attributable to the period on or after the Closing Date) and Purchaser being
responsible for, and credited or charged, as the case may be, for all of same
attributable to the period on and after the Closing Date. All unapplied
Deposits under Tenant Leases in the possession of Seller, if any, shall be
transferred by Seller to Purchaser at the Closing. Any real estate ad valorem
or similar taxes for the Property, or any installment of assessments payable in
installments which installment is payable in the year of Closing, shall be
prorated to the date of Closing, based upon actual days involved. 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. The provisions of this Section 8.4 shall survive the
Closing.
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 material
errors or omissions in computing prorations at the Closing are discovered
subsequent to the Closing, then such item shall be reapportioned and such errors
and omissions corrected as soon as practicable after the Closing Date and the
proper party reimbursed, which obligation shall survive the Closing for a period
(the "Probation Period") from the Closing Date until the later of (a) one
hundred twenty (120) days after the Closing Date, or (b) December 31, 1997.
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.
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.
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 on or after
the Closing Date, and (B) second, to the period of time before the Closing
Date. If Delinquent Rent or any portion thereof received by Seller or
Purchaser after the Closing are due and payable to the other party by
reason of this allocation, the appropriate sum, less a proportionate share
of any reasonable attorneys' fees and costs and expenses expended in
connection with the collection thereof, shall be promptly paid to the other
party. The provisions of this Section 8.6(a) shall survive the Closing.
Any delinquent rent shall be shown on all Rent Rolls and the Closing Rent
Roll (as of the respective date of such rent rolls) provided by Seller
pursuant to the terms hereof.
(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, but Seller shall have no right
to evict or otherwise affect any Tenant's use, occupancy, lease or
possession of the Property. Purchaser agrees to cooperate with Seller in
connection with all efforts by Seller to collection 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 shall not be required to do anything
which would be detrimental to its landlord-tenant relationship with any
Tenant or which would prejudice Purchaser's own rights at law, in equity or
pursuant to any Tenant Lease. The provisions of this Section 8.6(b) shall
survive the Closing.
ARTICLE IX.
CONDEMNATION OR CASUALTY
9.1 Condemnation.
(a) In the event that all or any substantial portion 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
substantial portion of the Property, prior to Closing, Purchaser may elect
to terminate this Contract by written notice thereof to Seller within ten
(10) days after Seller notifies Purchaser of the condemnation, taking or
deed in lieu or institution of such condemnation proceeding. If Purchaser
does not terminate this Contract as aforesaid, then both parties shall
proceed to close the transaction contemplated herein pursuant to the terms
hereof, in which event Seller shall, except as limited in Section 9.1(b)
hereof, at its option deliver to Purchaser at the Closing any proceeds
actually received by Seller attributable to the Property from such
condemnation, eminent domain proceeding or deed in lieu thereof or assign
its interest in and to any such proceeds, and there shall be no reduction
in the Purchase Price.
(b) For the purpose of this Section 9.1(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 $300,000.00.
9.2 Casualty.
(a) In the event that all or any substantial portion 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 Seller
within ten (10) days after Seller notifies Purchaser of the casualty. If
Purchaser does not terminate this Contract as aforesaid, then both parties
shall proceed to close the transaction contemplated herein pursuant to the
terms hereof, in which event Seller shall, except as limited in Section
9.2(b) hereof, deliver to Purchaser at the Closing any insurance proceeds
actually received by Seller attributable to the Property from such casualty
(except for proceeds previously used to repair the Property) and assign to
Purchaser all of Seller's right, title and interest in and to any claims
which Seller may have under the insurance policies covering the Property,
and the Purchase Price will be reduced by the amount of any insurance
deductible. 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 $300,000.00.
ARTICLE X.
DEFAULTS AND REMEDIES
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 shall, as its
sole and exclusive remedy, terminate this Contract in which event neither party
shall have any further rights, duties, or obligations hereunder except for
provisions of this Contract which expressly survive the termination 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 breach by Purchaser of any express covenant, representation or indemnity
herein contained, which expressly 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.
10.2 Default by Seller. If Purchaser shall not be in default hereunder and
if Seller refuses or fails to consummate the Closing under this Contract other
than due to a termination permitted hereunder or a failure of a condition
precedent to Seller's obligation to close as set forth in Section 7.2 hereof,
Purchaser may, at Purchaser's sole option, as its sole and exclusive remedies,
either (a) terminate this Contract in writing in which event neither party shall
have any further rights, duties or obligations hereunder except for provisions
of this Contract which expressly survive the termination hereof, and Purchaser
shall be entitled to a refund of the Earnest Money Deposit, or (b) enforce
specific performance of this Contract against Seller. In no event shall Seller
be liable to Purchaser for any damages, including, without limitation, any
actual, punitive, speculative or consequential damages or damages for loss of
opportunity or lost profit.
10.3 Attorney's 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
attorney's fees.
ARTICLE XI.
BROKERAGE COMMISSIONS
11.1 Brokerage Commission. Seller and Purchaser each represent to the
other that it has had no dealings with any broker, finder or other party
concerning the purchase of the Property. Seller hereby agrees to pay at Closing
reimbursement of costs and expenses and other charges and amounts due to
Insignia Capital Advisors, Inc., arising out of any agreement executed by
Seller. 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 brokers', finder's or other fee in
connection with this transaction by any party claiming by, through or under
Seller. Purchaser agrees to indemnify Seller and hold Seller 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
Seller 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. Notwithstanding anything to the contrary contained herein, the
indemnities set forth in this Article XI shall survive the Closing.
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 policy
of title insurance.
ARTICLE XII.
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, in the
same manner done by Seller prior to the date hereof (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
13.1 Notices. Any notice provided or permitted to be given under this
Contract must be in writing and may be served by (a) depositing same in the
United States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, (b) delivering the same
in person to such party via a hand delivery service, Federal Express or any
other nationally recognized courier service that provides a return receipt
showing the date of actual delivery of same to the addressee thereof, or (c)
facsimile transmission with confirmation of receipt to the party sending same,
if a copy is deposited in the United States Mail as provided in 13.1(a) above.
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: SUMMERHILL Properties, L.P.
One Insignia Financial Plaza
P.O. Box 1089
Greenville, South Carolina 29602
Attention: David S. Sherbal
Facsimile No.: 864/239-1066
Telephone No.: 864/239-2815
With a copy to:Liechty & McGinnis, P.C.
10440 North Central Expressway, Suite 1100
Dallas, Texas 75231
Attention: Lorne O. Liechty, Esq.
Facsimile No.: 214/265-0615
Telephone No.: 214/265-0008
If to Purchaser:McNeil Capital Limited Liability Company
13760 Noel Road, Suite 600, LB 70
Dallas, Texas 75240
Attention: Blake Clemens
Facsimile No.: 972/448-5700
Telephone No.: 972/448-5800
With a copy to:Barbara Smith, Esq.
13760 Noel Road, Suite 600, LB 70
Dallas, Texas 75240
Facsimile No.: 972/448-5711
Telephone No.: 972/448-5800
If to Title
Company: Chicago Title Insurance Company
139 Spring Creek Village, Suite 2-C
Dallas, Texas 75248
Attention: J. David Griffin
Facsimile No.: 972/960-8708
Telephone No.: 972/960-1644
13.2 GOVERNING LAW. THIS CONTRACT IS BEING EXECUTED AND DELIVERED, AND IS
INTENDED TO BE PERFORMED IN, THE STATE OF TEXAS, AND THE LAWS OF SUCH STATE
SHALL GOVERN THE VALIDITY, CONSTRUCTION, ENFORCEMENT AND INTERPRETATION OF THIS
CONTRACT.
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.
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.
13.5 Assignment. This Contract may be assigned in whole or in part by
Purchaser to any person or entity controlling, controlled by or under common
control with Purchaser without the prior written consent of Seller, provided
that no such assignment shall relieve Purchaser of its liabilities or
obligations under this Contract, including post-closing indemnification's
contained herein. Any assignment of this Contract by Purchaser other than as
provided foregoing shall, at Seller's option, be null and void and of no effect.
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.
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.
13.8 Interpretation. The parties acknowledge that each party and its
counsel have reviewed this Contract, and the parties hereby agree that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of this Contract or any amendments or exhibits hereto. In case any one or more
of the provisions contained in this Contract shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof, and this Contract
shall be construed as if such invalid, illegal or unenforceable provisions had
never been contained herein. When the context in which words are used in this
Contract indicates that such is the intent, words in the singular number shall
include the plural and vice versa, and words in the masculine gender shall
include the feminine and neuter genders and vice versa.
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.
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.
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.
13.12 Risk of Loss. Risk of loss or damage to the Property, or any
part thereof, by fire or any other casualty from the date this Contract is fully
executed up to the time of delivering the special warranty deed transferring
title to the Property to the Purchaser will be on the Seller and, thereafter,
will be on the Purchaser.
13.13 Effective Date. As used herein, the term "Effective Date" shall
mean for all purposes in this Contract the date on which the Title Company
acknowledges 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.
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.
In the event that any event hereunder is to occur, or a time period is to
expire, on a date which is not a business day, such event shall occur or such
time period shall expire on the next succeeding business day.
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.
IN WITNESS WHEREOF, the undersigned have executed this Contract this 31st
day of July, 1997, to be effective as of the Effective Date.
SELLER:
SUMMERHILL PROPERTIES, L.P.,
a California limited partnership
By: Century Summerhill, Inc.,
a California corporation
which is its general partner
By: /s/William H. Jarrard, Jr.
Its: President
Dated: July 30, 1997
PURCHASER:
McNEIL CAPITAL LIMITED LIABILITY
COMPANY, a Delaware limited liability
company
By: /s/Ron Taylor
Its: President
Dated: July 29, 1997
RECEIPT OF EARNEST MONEY DEPOSIT
AND AGREEMENT OF TITLE COMPANY
Chicago Title Insurance Company (the "Title Company"), located at 139
Spring Creek Village, Suite 2-C, Dallas, Texas 75248, hereby acknowledges the
receipt of one (1) fully signed and executed copy of this Contract.
Upon receipt, the Title Company agrees to hold the Earnest Money Deposit in
escrow as escrow agent for the benefit of Seller and Purchaser and to dispose of
the Earnest Money Deposit in strict accordance with the terms and provisions of
this Contract.
CHICAGO TITLE INSURANCE COMPANY
By: /s/J. David Griffin
Name: J. David Griffin
Title: Escrow Officer
Dated: July 31, 1997
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description of the Property]
EXHIBIT B
SPECIAL WARRANTY DEED
STATE OF TEXAS '
' KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS '
SUMMERHILL PROPERTIES, a California limited partnership (hereinafter called
"Grantor"), for and in consideration of the sum of TEN AND No/100 Dollars
($10.00) and other good and valuable consideration in hand paid by
______________________, a ______________ (hereinafter called "Grantee"), whose
mailing address is 13760 Noel Road, Suite 600, LB 70, Dallas, Texas 75240, the
receipt and sufficiency of which are hereby acknowledged, has GRANTED, SOLD AND
CONVEYED and by these presents does GRANT, SELL AND CONVEY unto Grantee that
certain tract or parcel of land situated in Dallas, Dallas County, Texas, and
more particularly described on Exhibit A attached hereto and made a part hereof
for all purposes, together with Grantor's rights and interests in all
improvements, structures and fixtures located thereon and all rights, titles and
interests of Grantor appurtenant thereto (all of the above-described properties
being hereinafter collectively referred to as the "Property"). This conveyance
is made and accepted subject to (a) general real estate taxes on the Property
for the current year which Grantee assumes and agrees to pay, (b) zoning laws
and regulations and ordinances of municipal and other governmental authorities,
if any, affecting the Property, and (c) the matters set forth on Exhibit B
attached hereto and made a part hereof for all purposes (all of the foregoing
being hereinafter collectively referred to as the "Permitted Exceptions").
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances thereto in anywise belonging unto Grantee, its successors and
assigns forever, and Grantor does hereby bind itself, its successors and
assigns, to WARRANT AND FOREVER DEFEND all and singular the Property unto
Grantee, its successors and assigns, against every person whomsoever lawfully
claiming or to claim the same or any part thereof, by, through or under Grantor,
but not otherwise, subject, however, to the Permitted Exceptions.
GRANTEE ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN THE
CONTRACT OF SALE BETWEEN GRANTOR, AS SELLER, AND McNEIL CAPITAL LIMITED
LIABILITY COMPANY, GRANTEE'S ASSIGNOR, AS PURCHASER, DATED JULY ___, 1997 (THE
"CONTRACT"), THIS SPECIAL WARRANTY DEED OR THE BILL OF SALE OF EVEN DATE
HEREWITH, GRANTOR HAS NOT MADE, AND GRANTOR 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 GRANTEE
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. GRANTEE
AGREES TO ACCEPT THE PROPERTY AND ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS
PROVIDED FOR HEREIN IS MADE BY GRANTOR ON AN AS IS, WHERE IS, AND WITH ALL
FAULTS" BASIS. GRANTEE EXPRESSLY ACKNOWLEDGES THAT EXCEPT AS OTHERWISE
EXPRESSLY SPECIFIED HEREIN OR IN THE CONTRACT OR IN THE BILL OF SALE, AND,
EXCEPT FOR THE WARRANTY OF TITLE CONTAINED IN THIS SPECIAL WARRANTY DEED AND IN
THE BILL OF SALE, GRANTOR 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 GRANTOR'S WARRANTY OF TITLE SET FORTH IN THIS SPECIAL WARRANTY DEED AND IN
THE BILL OF SALE), 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 DESCRIBED IN THE CONTRACT OF SALE) PROVIDED BY OR ON BEHALF
OF GRANTOR TO GRANTEE OR ANY OTHER MATTER OR THING REGARDING THE PROPERTY.
GRANTEE ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN ANY WRITTEN
INSTRUMENT DELIVERED BY GRANTOR TO GRANTEE, GRANTOR 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 SUBMISSIONS MATTERS) PROVIDED OR TO BE PROVIDED BY
GRANTOR REGARDING THE PROPERTY.
FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THIS
SPECIAL WARRANTY DEED, GRANTOR HAS MADE AND MAKES NO REPRESENTATION, WARRANTY OR
GUARANTY, AND HEREBY SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR
REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO THE
PRESENCE OR DISPOSALS 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 GRANTEE THEREFOR. WITHOUT LIMITATION OF THE PRECEDING SENTENCE,
GRANTOR 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 SPECIAL WARRANTY DEED, GRANTEE
ACKNOWLEDGES THAT GRANTEE'S OPPORTUNITY FOR INSPECTION AND INVESTIGATION OF THE
PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) HAVE BEEN ADEQUATE TO ENABLE
GRANTEE TO MAKE GRANTEE'S OWN DETERMINATION WITH RESPECT TO THE PRESENCE OR
DISPOSAL ON OR BENEATH THE PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) OR
SUCH HAZARDOUS SUBSTANCES OR MATERIALS, AND GRANTEE ACCEPTS THE RISK OF THE
PRESENCE OR DISPOSAL OF ANY SUCH SUBSTANCES OR MATERIALS. GRANTEE AGREES THAT
SHOULD ANY CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER
ENVIRONMENTAL CONDITIONS ON THE PROPERTY BE REQUIRED AFTER THE DATE OF CLOSING,
SUCH CLEANUP, REMOVAL OR REMEDIATION SHALL BE THE RESPONSIBILITY OF AND SHALL BE
PERFORMED AT THE SOLE COST AND EXPENSE OF GRANTEE.
GRANTEE, AND ANYONE CLAIMING, BY, THROUGH OR UNDER GRANTEE, HEREBY FULLY
RELEASES AND DISCHARGES GRANTOR, ITS EMPLOYEES, OFFICERS, DIRECTORS, PARTNERS,
REPRESENTATIVES AND AGENTS, AND THEIR RESPECTIVE PERSONAL REPRESENTATIVES,
HEIRS, SUCCESSORS AND ASSIGNS FROM ANY LIABILITY, DAMAGE OR CAUSE OF ACTION
ARISING FROM OR RELATED TO ANY CONSTRUCTION DEFECTS, ERRORS, OMISSIONS, OR OTHER
CONDITIONS AFFECTING THE PROPERTY; PROVIDED, THAT THIS SHALL NOT RELEASE GRANTOR
FROM CLAIMS, IF ANY, ARISING AS A RESULT OF ANY EXPRESS WRITTEN REPRESENTATION
OR WARRANTY OF GRANTOR CONTAINED IN THE CONTRACT BEING FALSE WHEN MADE. GRANTEE
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 GRANTOR SHALL BE BINDING UPON
GRANTEE, ITS PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS.
Current ad valorem taxes on the Property having been prorated, Grantee
hereby assumes the payment thereof.
IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor to
be effective for all purposes as of the _____ day of _____________, 1997.
GRANTOR:
SUMMERHILL PROPERTIES, L.P.,
a California limited partnership
By:______________________________________
Its:_____________________________________
Dated:___________________________________
STATE OF ____________ '
'
COUNTY OF __________ '
This instrument was acknowledged before me on this _____ day of
_____________, 1997, by _______________________________,
_________________________________ of _________________________________________,
a ____________________________, acting in its capacity as general partner of
Summerhill Properties, L.P., a California limited partnership, known to me to be
the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said ____________________.
_________________________________________
Notary Public, State of ____________
My Commission Expires:
____________________ ___________________________________
Printed Name of Notary Public
GRANTEE'S ADDRESS:
________________________
________________________
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description of the Property]
EXHIBIT B
PERMITTED EXCEPTIONS
[Attach list of Permitted Exceptions created
in accordance with the terms of the Contract]
EXHIBIT C
ASSIGNMENT AND ASSUMPTION OF LEASES
STATE OF TEXAS '
' KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS '
That, SUMMERHILL PROPERTIES, L.P., a California limited partnership
("Assignor"), for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, to Assignor in hand paid, the receipt and
legal sufficiency of which are hereby acknowledged, hereby transfers, assigns
and sets over unto ______________ ________________, a __________________________
("Assignee"), all of the right, title and interest of Assignor in and to all
leases of, and security deposits and prepaid rents relating to space in
(together, the "Leases") the real property described on Exhibit A, attached
hereto and made a part hereof for all purposes.
TO HAVE AND TO HOLD the Leases, together with any and all of the rights and
appurtenances thereto in anywise belonging to Assignor (excluding the right to
receive rents paid under the Leases and which accrued before the date of this
Assignment), unto Assignee and Assignee's successors and assigns forever, and
Assignor does hereby bind Assignor and Assignor's legal representatives and
successors, to WARRANT AND FOREVER DEFEND all and singular the Leases unto
Assignee and Assignee's successors and assigns, against every person whomsoever
lawfully claiming or to claim the same or any part thereof, by, through or under
Assignor, but not otherwise.
In consideration of the foregoing assignment, Assignee hereby assumes, and
agrees to perform all of the obligations of Assignor under the Leases,
including, but not limited to, the obligation to refund any security deposits
and the payment of any deferred leasing commissions that become payable after
the date of this Assignment with respect to any of the Leases, and indemnifies
Assignor and holds Assignor harmless from all loss, cost, liability and expense
arising out of or in connection with the Leases to the extent the same are based
on circumstances arising on or after the date hereof. Assignee takes the Leases
subject to any existing defaults thereunder, but, to the extent required by that
certain Contract of Sale dated _____________, 1997, between Assignor and McNeil
Capital Limited Liability Company, shall pay to Assignor monies collected from
tenants who owe delinquent rents that have accrued as of the date of this
Assignment until all of such delinquent rents have been paid. Assignor hereby
agrees to indemnify and hold Assignee harmless from all loss, cost, liability
and expense arising out of or in connection with the Leases to the extent the
same are based on circumstances arising prior to the date hereof.
EXECUTED effective as of this _____ day of _________, 1997.
ASSIGNOR:
SUMMERHILL PROPERTIES, L.P.,
a California limited partnership
By:_______________________________________
Its:______________________________________
Dated:____________________________________
ASSIGNEE:
_______________________________
Dated:________________________________
STATE OF ____________ '
'
COUNTY OF __________ '
This instrument was acknowledged before me on this _____ day of
_____________, 1997, by _______________________________,
_________________________________ of _________________________________________,
a ____________________________, acting in its capacity as general partner of
Summerhill Properties, L.P., a California limited partnership, known to me to be
the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said ____________________.
_________________________________________
Notary Public, State of ____________
My Commission Expires:
___________________ ________________________________________
Printed Name of Notary Public
STATE OF ____________ '
'
COUNTY OF __________ '
This instrument was acknowledged before me on this _____ day of
_____________, 1997, by _______________________________,
_________________________________ of _________________________________________,
a ____________________________, acting in its capacity as general partner of
_________________________________________, a ___________________________, known
to me to be the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said ____________________.
_________________________________________
Notary Public, State of ____________
My Commission Expires:
____________________ ______________________________________
Printed Name of Notary Public
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description of the Property]
EXHIBIT D
BLANKET CONVEYANCE, BILL OF SALE AND ASSIGNMENT
STATE OF TEXAS '
' KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS '
By a Special Warranty Deed (the "Deed") of even date with the date hereof,
SUMMERHILL PROPERTIES, L.P., a California limited partnership ("Seller"),
conveyed to ________________________, a _______________ ("Purchaser"), the real
property (the "Real Property") described on Exhibit A attached hereto and made a
part hereof for all purposes, together with all improvements located thereon.
As consideration for (a) the conveyance of the Real Property, (b) the
conveyance of the personal property described herein, and (c) the assignments
contained herein, Purchaser has paid the sum of TEN AND NO/100 DOLLARS ($10.00)
and other good and valuable consideration to the Seller.
NOW, THEREFORE, for the consideration above specified, the receipt and
sufficiency of which are expressly acknowledged:
1. The Seller has GRANTED, CONVEYED, SOLD, TRANSFERRED, SET-OVER and
DELIVERED, and by these presents does hereby GRANT, CONVEY, SELL, TRANSFER, SET-
OVER and DELIVER unto the Purchaser, all of Seller's right, title and interest
in and to all items of tangible personal property located on or attached to the
Real Property including, without limitation, all items of personal property
described on Exhibit B hereto (all of the property described in this paragraph 1
is hereinafter referred to as the "Personal Property") (the Real Property and
Personal Property sometimes collectively referred to herein as the "Property").
2. The Seller has ASSIGNED, TRANSFERRED and SET-OVER, and by these
presents does ASSIGN, TRANSFER and SET-OVER unto the Purchaser (to the extent
they are assignable) all of its right, title and interest in and to all service
contracts listed on Exhibit C hereto, all bonds, warranties and guaranties in
Seller's possession which relate to the Real Property or Personal Property.
PURCHASER ACCEPTS THE PROPERTY DESCRIBED IN THIS DOCUMENT (THE "PROPERTY"),
AND ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY TO PURCHASER IS MADE BY
SELLER, ON AN AAS IS, WHERE IS, AND WITH ALL FAULTS" BASIS. PURCHASER EXPRESSLY
ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE SPECIAL
WARRANTY DEED FROM SELLER, AS GRANTOR, TO PURCHASER, AS GRANTEE, OF EVEN DATE
HEREWITH, OR IN THE CONTRACT OF SALE BETWEEN SELLER AND McNEIL CAPITAL LIMITED
LIABILITY COMPANY, DATED _____________, 1997, OR ANY DOCUMENTS DELIVERED
PURSUANT THERETO, SELLER MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, ORAL
OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW WITH RESPECT TO
THE PROPERTY REFERRED TO HEREIN, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES
OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE SET FORTH HEREIN AND IN
THE ABOVE DESCRIBED SPECIAL WARRANTY DEED), ZONING, TAX CONSEQUENCES, PHYSICAL
OR ENVIRONMENTAL CONDITION, UTILITIES, OPERATING HISTORY OR PROJECTIONS,
VALUATION, GOVERNMENTAL APPROVALS, THE COMPLIANCE OF THE PROPERTY WITH
GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR THING
REGARDING THE PROPERTY.
Purchaser hereby assumes and agrees to perform from the effective date
hereof forward all of the covenants and obligations contained in the contracts
assigned hereunder (to the extent such contracts are listed on Exhibit C hereto
and remain in force) which are to be performed by Seller and hereby indemnifies
Seller and agrees to hold Seller harmless from and against all liability, cost,
loss, damage or expense, including reasonable attorney's fees, suffered or
incurred by Seller as a result of any alleged failure of Purchaser to perform
such covenants or obligations.
This Blanket Conveyance, Bill of Sale and Assignment is binding and shall
inure to the benefit of the parties hereto, and their respective successors and
assigns.
TO HAVE AND TO HOLD the Property unto Purchaser, its successors and assigns
forever, and Seller does hereby bind itself, its successors and assigns, to
forever WARRANT AND DEFEND the title to the Property unto Purchaser, its
successors and assigns, against any person whomsoever lawfully claiming, or to
claim the same or any part thereof, by, through or under Seller, but not
otherwise.
EXECUTED effective as of the ______ day of __________, 1997.
SELLER:
SUMMERHILL PROPERTIES, L.P.,
a California limited partnership
By:________________________________
Its:_______________________________
Dated:_____________________________
PURCHASER:
_________________________________
Dated:_________________________________
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description of the Property]
EXHIBIT B
LIST OF PERSONAL PROPERTY
EXHIBIT C
LIST OF CONTRACTS TO BE ASSIGNED
EXHIBIT E
NON-FOREIGN AFFIDAVIT
STATE OF TEXAS '
' KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF DALLAS '
On this date, SUMMERHILL PROPERTIES, L.P., a California limited partnership
(ASeller@), has sold and conveyed certain real property situated in Dallas,
Dallas County, Texas, to _______________________, a ______________
("Purchaser"). Section 1445 of the Internal Revenue Code of 1986, as amended,
provides that a transferee of a U.S. Real Property Interest must withhold tax if
the transferor is a foreign person. To inform Purchaser that withholding of tax
is not required upon the disposition of a U.S. Real Property Interest by Seller,
the undersigned hereby certifies the following on behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign
trust, or foreign estate (as those terms are defined in the Internal Revenue
Code and Income Tax Regulations);
2. Seller's U.S. Employer Identification Number is
_______________________; and
3. Seller's office address is One Insignia Financial Plaza, Greenville,
South Carolina 29602.
Seller understands that this certification may be disclosed to the Internal
Revenue Service by Purchaser and that any false statement contained herein could
be punished by fine, imprisonment, or both.
Under penalties of perjury I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct and
complete, and I further declare that I have authority to sign this document on
behalf of Seller.
Executed this ______ day of ______________, 1997.
SELLER:
SUMMERHILL PROPERTIES, L.P.,
a California limited partnership
By:____________________________
Its:___________________________
Dated:_________________________
STATE OF ____________ '
'
COUNTY OF __________ '
This instrument was acknowledged before me on this _____ day of
_____________, 1997, by _______________________________,
_________________________________ of _________________________________________,
a ____________________________, acting in its capacity as general partner of
Summerhill Properties, L.P., a California limited partnership, known to me to be
the person whose name is subscribed to the foregoing instrument, and
acknowledged to me that he executed the same for the purposes and consideration
therein expressed, in the capacity therein stated and as the act and deed of
said ____________________.
____________________________________
Notary Public, State of ____________
My Commission Expires:
____________________ _____________________________
Printed Name of Notary Public
EXHIBIT 10.8
FIRST AMENDMENT TO CONTRACT OF SALE
(SUMMERHILL SQUARE APARTMENTS)
This First Amendment to Contract of Sale is entered into effective as of
September 9, 1997 (this "First Amendment"), by and between Summerhill
Properties, L.P., a California limited partnership ("Seller"), McNeil Capital
Limited Liability Company, a Delaware limited liability company ("Purchase").
WHEREAS, Seller and Purchaser entered into that certain Contract of Sale
dated effective as of July 31, 1997 (the "Contract"), pursuant to which Seller
has agreed to sell, and Purchaser has agreed to purchase from Seller, Seller's
rights, titles and interests in and to the Property more particularly described
in said Contract of Sale; and
WHEREAS, Seller and Purchaser have agreed to modify the Contract to reduce
the Purchase Price pursuant to the terms of this First Amendment.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser do hereby
agree as follows:
1. Unless otherwise defined in this First Amendment or the context
otherwise requires, each term used in this First Amendment with its initial
letter capitalized which has been defined in the Contract shall have the same
meaning herein as given to such term in the Contract.
2. Section 2.1 of the Contract is hereby amended to read in its entirety
as follows:
2.1 Purchase Price. The total Purchase Price (herein
so called) to be paid by Purchaser to Seller for the
Property shall be Six Million One Hundred Fifty Thousand and
No/100 Dollars ($6,150,000.00). The Purchase Price shall be
payable in cash or Current Funds (defined below) at the
Closing (hereinafter defined).
4. Except as expressly amended by this First Amendment, no term or
provision of the Contract is or shall be amended, modified or supplemented.
5. This First Amendment may be executed in any number of identical
counterparts so long as each party hereto has signed one such counterpart. 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 First Amendment, it shall not be
necessary to produce or account for more than one such counterpart.
IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
effective as of the date first set forth above.
SELLER:
SUMMERHILL PROPERTIES, L.P.,
a California limited partnership
By: Century Summerhill, Inc.,
a California corporation
which is its general partner
By: /s/Kelley Buechler
Its: Assistant Secretary
Dated:
PURCHASER:
McNEIL CAPITAL LIMITED LIABILITY
COMPANY, a Delaware limited liability
company
By: /s/Ron Taylor
Its: President
Dated: September 10, 1997
