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) March 31, 1998
Krupp Realty Limited Partnership-IV
Massachusetts 0-11987
04-2772783
(State or other jurisdiction of
(Commission (IRS employer
incorporation or organization) file
number) identification no.)
470 Atlantic Avenue, Boston, Massachusetts
02210
(Address of principal executive offices)
(Zip Code)
(617) 423-2233
(Registrant's telephone number, including
area code)
<PAGE>
Item 2. Acquisition or Disposition of Assets
Disposition of Indian Run Apartments
On January 27, 1998, Krupp Realty Limited
Partnership-IV (the "Partnership")
entered into a Purchase and Sale
Agreement to sell Indian Run Apartments,
a 256-unit multi-family apartment complex
located in Abilene, Texas, with MBS
Realty Investors, Ltd., an unaffiliated
third party. The transaction was
consummated on March 31, 1998 for
consideration of $5,850,000, less
repayment of the existing mortgage note
and closing costs.
Item 7. Financial Statements, Proforma
Financial Information and Exhibits
(a) Financial Statements of Business Acquired
Response: Not applicable
(b) Pro Forma Financial Information
On March 31, 1998, Krupp Realty Limited
Partnership-IV (the "Partnership") sold Indian
Run Apartments ("Indian Run") to MBS Realty
Investors, Ltd., an unaffiliated party, for
consideration of $5,850,000.
The Partnership has presented in this Form 8-
K, a Pro Forma Consolidated Balance Sheet at
December 31, 1997 and Pro Forma Consolidated
Statement of Operations for the year ended
December 31, 1997. See Note 1 to the Pro
Forma Consolidated Financial Statements for
further discussion of this matter.
In management's opinion, all adjustments
necessary to reflect the above discussed
transactions have been made. The unaudited
pro forma Consolidated Balance Sheet and
Statement of Operations are not necessarily
indicative of what actual results of
operations of the Partnership would have been
for the periods, nor does it purport to
represent the Partnership's results of
operations for future periods.
KRUPP REALTY LIMITED PARTNERSHIP-IV AND SUBSIDIARIES
PRO FORMA BALANCE SHEET
December 31, 1997
(unaudited)
<TABLE>
<CAPTION>
ASSETS
Actual at Pro Forma
December 31, Pro Forma December 31,
1997 Adjustments 1997
(Note 1) (Note 1) (Note 1)
Multi-family apartment complexes,
net of accumulated depreciation of
<S> <C> <C> <C>
$26,859,567 $14,947,503 $(2,824,497) $ 12,123,006
Cash and cash equivalents 402,621 (1,849) 400,772
Replacement reserve and repair escrows 302,985 (20,206) 282,779
Prepaid expenses and other assets 852,446(149,896) 702,550
Deferred expenses, net of accumulated
amortization of $218,977 212,763 (55,698) 157,065
Total assets $ 16,718,318$ (3,052,146)$13,666,172
LIABILITIES AND PARTNERS' EQUITY
Liabilities:
Mortgage notes payable $ 20,327,586$(2,647,719)$ 17,679,867
Due to affiliates 41,571 (278) 41,293
Accrued expenses and other
liabilities 1,212,728 (200,915) 1,011,813
Total liabilities 21,581,885 (2,848,912)18,732,973
Partners' deficit (4,863,567) (203,234) (5,066,801)
Total liabilities and
Partners' deficit $ 16,718,318$ (3,052,146)$ 13,666,172
</TABLE>
See accompanying note to
pro forma financial statements.<PAGE>
KRUPP REALTY LIMITED PARTNERSHIP-IV AND SUBSIDIARIES
PRO FORMA STATEMENT OF OPERATIONS
For the Year Ended December 31, 1997
(unaudited)
<TABLE>
<CAPTION>
As Reported for Pro Forma for
the Year Ended Pro Forma the
Year Ended
December 31, 1997 Adjustments
December 31, 1997 (Note 1) (Note 1) (Note 1)
Revenue:
<S> <C> <C> <C>
Rental $ 7,667,293 $(1,246,618) $ 6,420,675
Other income 53,992 (300) 53,692
Total revenue 7,721,285 (1,246,918) 6,474,367
Expenses:
Operating 2,169,020 (364,685) 1,804,335
Maintenance 677,491 (107,510) 569,981
Real estate taxes 759,158 (124,251) 634,907
General and
administrative 153,734 - 153,734
Management fees 308,841 (58,101) 250,740
Depreciation and
amortization 2,179,399 (393,912) 1,785,487
Interes 1,312,291 253,634) 1,058,657
Total expenses 7,559,934 (1,302,093) 6,257,841
Income before minority
interest 161,351 55,175 216,526
Minority interest (4,235) - (4,235)
Net income $ 157,116 $ 55,175 $ 212,291
</TABLE>
See accompanying note to
pro forma financial statements.
KRUPP REALTY LIMITED PARTNERSHIP-IV AND SUBSIDIARIES
NOTE TO PRO FORMA FINANCIAL STATEMENTS
(1)Basis of Presentation
The Pro Forma Balance Sheet at December 31, 1997
is based on the historical Balance Sheet of the
Partnership as reported on Form 10-K for the
year ended December 31, 1997. The Pro Forma
adjustment represents an adjustment to the
Partnership's financial statements to show the
effect of the sale. The Pro Forma Balance Sheet
at December 31, 1997 reflects the balance sheet
as if the sale had occurred prior to December
31, 1997.
The Pro Forma Statement of Operations for the
year ended December 31, 1997 is based on the
historical Statement of Operations for the
Partnership as presented in the annual report on
Form 10-K for the year ended December 31, 1997.
The Pro Forma adjustments represent Indian Run's
net income for the year presented. The Pro
Forma Statement of Operations for the year ended
December 31, 1997 reflects the results of
operations of the Partnership as if the
Partnership had sold Indian Run prior to January
1, 1997. The Pro Forma Statement of Operations
does not reflect any gain or loss which may be
recognized by the Partnership as a result of the
sale.
(c)Exhibits
1. Purchase and Sale Agreement dated January
27, 1998 between Krupp Realty Limited
Partnership-IV and MBS Realty Investors, Ltd.
<PAGE>
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, thereunto duly authorized.
Krupp Realty Limited Partnership-IV
(Registrant)
BY: /s/Wayne H. Zarozny
Wayne H. Zarozny
Treasurer and Chief Accounting
Officer of the Krupp
Corporation, a General Partner.
DATE: April 15, 1998
<PAGE>
PURCHASE AND SALE AGREEMENT
AGREEMENT dated as of January 27, 1998
between Krupp Realty Limited Partnership IV,
a Massachusetts limited partnership,
("Seller"), with an address of c/o Berkshire
Property Management Company, 1000 Parkwood
Circle, Atlanta, GA 30330, Attention:
Stephen C. Parthum, Telecopier No. 770-955-
9559 and MBS Realty Investors, Ltd., a
[Louisiana] partnership in commendam
("Buyer"), with an address of One Galleria
Boulevard, Suite 1950, Metairie, LA 70001,
Telecopier No. 504-836-5096.
In consideration of the mutual
undertakings and covenants herein contained,
Seller and Buyer hereby covenant and agree as
follows:
SECTION 1
SALE OF PROPERTY AND ACCEPTABLE TITLE
1.01. Agreement
to Buy and to Sell; Property. Seller shall
sell to Buyer, and Buyer shall purchase from
Seller, at the price and upon the terms and
conditions set forth in this Agreement the
following:
(a) that certain tract or parcel
of land located in the City of Abilene,
Taylor County, Texas, more particularly
described in Schedule A attached hereto (the
"Land");
(b) the 256 unit apartment
complex, commonly known as Indian Run
Apartments, which contains related
improvements, facilities, amenities,
structures, driveways and walkways, all of
which have been constructed on the Land
(collectively, the "Improvements");
(c) all right, title and interest
of Seller in and to any alleys, strips or
gores adjoining the Land, and any easements,
rights-of-way or other interests in, on,
under or to, any land, highway, street, road,
right-of-way or avenue, open or proposed, in,
on, under, across, in front of, abutting or
adjoining the Land, and all right, title and
interest of Seller in and to any awards for
damage thereto by reason of a change of grade
thereof;
(d) the accessions, appurtenant
rights, privileges, appurtenances and all the
estate and rights of Seller in and to the
Land and the Improvements, as applicable, or
otherwise appertaining to any of the property
described in the immediately preceding
clauses (a), (b) and/or (c);
(e) the personal property listed
in Schedule B attached hereto owned by Seller
and located on or in or used solely in
connection with the Land and Improvements
(collectively, the "Personal Property"); and
(f) all of Seller's interest in
any intangible property now or hereafter,
owned by Seller and used solely in connection
with the Land, Improvements and Personal
Property, including without limitation the
right to use any trade style or name now used
in connection with the same, any contract
rights, escrow or security deposits, utility
agreements or other rights related to the
ownership of or use and operation of the
Property, as hereinafter defined.
All of the items described in
subparagraphs (a), (b), (c), (d), (e) and (f)
above are collectively the "Property".
1.02. Title.
Seller shall convey to Buyer by special
warranty deed (the "Deed"), and Buyer shall
accept the fee simple title to, the Property
in accordance with the terms of this
Agreement, and Buyer's obligation to accept
said title shall be conditioned upon Buyer
then being conveyed good and clear record and
marketable fee simple title to the Property,
subject only to the Permitted Exceptions (as
hereinafter defined).
(a) Within fourteen (14) days from
the date of this Agreement, or as soon
thereafter as Lawyers Title Insurance Company
or such other nationally recognized title
insurance company chosen by Seller (the
"Title Insurer") may prepare same, Seller
shall obtain and deliver a copy to Buyer of a
Commitment For Title Insurance for an ALTA
Owner's Form B Title Insurance Policy (the
"Title Policy") and legible copies of all
instruments and plans mentioned therein as
exceptions to title (all of such items are
hereinafter collectively referred to as the
"Commitment"). The Commitment shall be in
the amount of the Purchase Price (as defined
in Section 2.01 hereof). The cost of the
Title Policy shall be paid by Seller. Should
such Commitment contain any title exceptions
which are not acceptable to Buyer, in its
sole discretion, Buyer shall, prior to
sixteen (16) days after delivery of the
Commitment to Buyer, notify Seller if any
such exceptions are unacceptable. If Buyer
fails to so notify Seller of any unacceptable
exceptions as described above, the exceptions
set forth in Schedule B of the Commitment
shall be deemed accepted by Buyer and
included as the "Permitted Exceptions". If
any exceptions are unacceptable to Buyer and
Buyer timely notifies Seller in writing of
such fact as above provided, Seller, in
Seller's sole discretion, shall have thirty
(30) days from the date Seller receives
notice of such unacceptable exceptions to
remove or cure such exceptions and the date
of Closing shall be extended to the
expiration of such thirty (30) day period, if
necessary. If Seller fails or refuses to
cure said unacceptable exceptions within the
time period above provided, Buyer may
(i) terminate this Agreement and the Deposit
shall be returned to Buyer, or (ii) waive
such exceptions and accept title subject
thereto, in which event there shall be no
reduction in the Purchase Price.
Simultaneously with the delivery of the
Deed, Seller shall enter into, and deliver to
Buyer a bill of sale and instrument of
transfer and assignment without warranty (the
"General Instrument"), in form and substance
reasonably satisfactory to Seller's and
Buyer's counsel, assigning and transferring
all of the Seller's right, title and interest
in and to all of the tangible and intangible
personal property constituting the Property.
1.03. Survey.
Within fifteen (15) days from the date
hereof, Seller shall obtain and deliver to
Buyer an as-built survey (the "Survey") of
the Land and the Improvements prepared by a
surveyor or engineer licensed in the State
where the Property is located with a current
certificate attached thereto or endorsed
thereon executed by the surveyor in the form
of the Minimum Standard Detail Requirements
Certificate for Land Title Surveys. Such
survey shall indicate all improvements,
easements, highways, right-of-ways and other
matters affecting or abutting the Property
and shall be sufficient in form and content
to induce the Title Insurer to delete all
standard and printed survey exceptions
contained in the Title Commitment. The cost
of the Survey shall be paid by Seller.
Should such Survey contain any
encumbrances, encroachments or other survey
defects (collectively "survey matters") which
are not acceptable to Buyer in its sole
discretion, Buyer shall, prior to the
expiration of the Inspection Period (as
defined in Section 16.01), notify Seller if
any such survey matters are unacceptable. If
Buyer fails to so notify Seller of the
unacceptable survey matters as described
above, the Survey shall be deemed accepted by
Buyer. If any survey matters are
unacceptable to Buyer and Buyer timely
notifies Seller in writing of such fact as
above provided, Seller, in Seller's sole
discretion, shall have thirty (30) days from
the date Seller receives notice of such
unacceptable survey matters to cure such
survey matters and the date of Closing shall
be extended to the expiration of such thirty
(30) day period, if necessary. If Seller
fails or refuses to cure said unacceptable
survey matters within the time period
provided, Buyer may (i) terminate this
Agreement and the Deposit shall be returned
to Buyer, or (ii) waive such survey matters
and accept title subject thereto, in which
event there shall be no reduction in the
Purchase Price.
SECTION 2
PURCHASE PRICE, ACCEPTABLE FUNDS,
DEPOSIT AND ESCROW OF DEPOSIT
2.01. Purchase
Price. The purchase price ("Purchase Price")
to be paid by Buyer to Seller for the
Property is Five Million Eight Hundred Fifty
Thousand Dollars ($5,850,000.00) subject to
the prorations and adjustments as hereinafter
provided in this Agreement.
2.02. Payment of
Monies. All monies payable under this
Agreement, unless otherwise specified in this
Agreement, shall be paid by wire transfer.
2.03. Payment of
Purchase Price. The Purchase Price, subject
to prorations and adjustments, shall be paid
as follows:
(a) Fifty Thousand Dollars
($50,000.00) to be paid as a deposit this day
(the "Initial Deposit");
(b) Fifty Thousand Dollars
($50,000.00) to be paid as a deposit upon the
expiration of the Inspection Period (the
"Subsequent Deposit", and together with the
Initial Deposit, the "Deposits"); and
(c) The balance of the Purchase
Price shall be paid at the time of delivery
of the Deed by wire transfer in accordance
with wiring instructions to be provided by
Seller.
2.04. Deposits;
Escrow Agent. The Deposits shall be
delivered by Buyer to Lawyers Title Insurance
Corporation, 225 Franklin Street, Boston, MA
02110, Attn: Robert Soule, National Division
(the "Escrow Agent") simultaneously with the
complete execution of this Agreement. At the
Closing, the Escrow Agent shall release the
Deposits to Seller, which Deposits shall be
credited against the balance of the Purchase
Price owed by Buyer to Seller. Escrow Agent
shall agree to hold and dispose of the
Deposits in accordance with the terms and
provisions of this Agreement.
2.05. Escrow
Provisions. Escrow Agent hereby acknowledges
receipt by Escrow Agent of the Initial
Deposit paid by Buyer to be applied on the
Purchase Price of the Property under the
terms thereof. Escrow Agent agrees to hold,
keep and deliver the Deposits and all other
sums delivered to it pursuant hereto in
accordance with the terms and provisions of
this Agreement. Escrow Agent shall not be
entitled to any fees or compensation for its
service hereunder. Escrow Agent shall be
liable only to hold said sums and deliver the
same to the parties named herein in
accordance with the provisions of this
Agreement, it being expressly understood that
by acceptance of this Agreement Escrow Agent
is acting in the capacity of a depository
only and shall not be liable or responsible
to anyone for any damages, losses or expenses
unless same shall have been caused by the
gross negligence or willful malfeasance of
Escrow Agent. In the event of any
disagreement between Buyer and Seller
resulting in any adverse claims and demands
being made in connection with or for the
monies involved herein or affected hereby,
Escrow Agent shall be entitled to refuse to
comply with any such claims or demands so
long as such disagreement may continue; and
in so refusing Escrow Agent shall make no
delivery or other disposition of any of the
monies then held by it under the terms of
this Agreement, and in so doing Escrow Agent
shall not become liable to anyone for such
refusal; and Escrow Agent shall be entitled
to continue to refrain from acting until
(a) the rights of the adverse claimants shall
have been finally adjudicated in a court of
competent jurisdiction of the monies involved
herein or affected hereby, or (b) all
differences shall have been adjusted by
agreement between Seller and Buyer, and
Escrow Agent shall have been notified in
writing of such agreement signed by the
parties hereto. Escrow Agent shall not be
required to disburse any of the monies held
by it under this Agreement unless in
accordance with either a joint written
instruction of Buyer and Seller or an Escrow
Demand from either Buyer or Seller in
accordance with the provisions hereinafter.
Upon receipt by the Escrow Agent from either
Buyer or Seller (the "Notifying Party") of
any notice or request (the "Escrow Demand")
to perform any act or disburse any portion of
the monies held by the Escrow Agent under the
terms of this Agreement, the Escrow Agent
shall give written notice to the other party
(the "Notified Party"). If within five (5)
days after the giving of such notice, Escrow
Agent does not receive any written objection
to the Escrow Demand from the Notified Party,
the Escrow Agent shall comply with the Escrow
Demand. If the Escrow Agent does receive
written objection from the Notified Party in
a timely manner, Escrow Agent shall take no
further action until the dispute between the
parties has been resolved pursuant to either
clause (a) or (b) above. Further, Escrow
Agent shall have the right at all times to
pay all sums held by it (i) to the
appropriate party under the terms hereof, or
(ii) into any court of competent jurisdiction
after a dispute between or among the parties
hereto has arisen, whereupon Escrow Agent's
obligations hereunder shall terminate.
Seller and Buyer jointly and severally
agree to indemnify and hold harmless said
Escrow Agent from any and all costs, damages
and expenses, including reasonable attorneys'
fees, that said Escrow Agent may incur in its
compliance of and in good faith with the
terms of this Agreement; provided, however,
this indemnity shall not extend to any act of
gross negligence or willful malfeasance on
the part of the Escrow Agent.
SECTION 3
THE CLOSING
3.01. Closing.
(a) Except as otherwise provided in this
Agreement, the delivery of all documents
necessary for the closing of this transaction
pursuant to this Agreement (the "Closing")
shall take place at the offices of the Title
Insurer located in Abilene, Texas or such
other place as Seller and Buyer shall
mutually agree, at 10:00 A.M. local time on
March 31, 1998 (the "Closing Date"). It is
agreed that time is of the essence of this
Agreement.
SECTION 4
SELLER'S PRE-CLOSING DELIVERIES
Seller shall within five (5) days of the
date of this Agreement furnish to Buyer for
inspection and approval by Buyer the
following:
4.01. Leases. Seller shall provide
Buyer with access on-site to the originals of
all leases and related lease files.
4.02. Permits. Copies of all
certificates of occupancy (if any), and other
permits and licenses (if any) required for
the occupancy and operation of the Property.
4.03. Taxes. A copy of 1995, 1996 and
1997 (if available) real estate and personal
property tax statements for the Property.
4.04. Current Rent Roll. A list of the
current rents now being collected on each of
the apartment units in the Improvements which
includes: apartment number, unit type,
current status, tenant name, commencement and
termination dates, market rent, lease rent,
deposits and details of any concessions.
4.05. Service Contracts. Copies of all
service, maintenance, supply and management
contracts affecting the use, ownership,
maintenance and/or operation of the Property.
4.06. Utility Bills. Copies of all
utility bills (gas, electric, water and
sewer) relating to the Property for the
immediate prior twelve (12) month period.
4.07. Termite Report. Copies of the
most recent termite inspection report, if
any.
4.08. Income and Expense Statements.
Copies of income and expense statement for
1995, 1996 and 1997 (through October)
prepared by Seller.
SECTION 5
REPRESENTATIONS AND WARRANTIES OF SELLER
Seller represents and warrants to Buyer
as of the date hereof as follows:
5.01. Ownership. Seller is the sole
owner of the Property.
5.02. Leases. As of the date of the
Agreement, there are no leases, subleases,
licenses or other rental agreements or
occupancy agreements (written or verbal)
which grant any possessory interest in and to
any space situated on or in the Improvements
or that otherwise give rights with regard to
use of the Improvements other than the leases
(the "Leases") described in Schedule C
attached hereto (the "Rent Roll"). The Rent
Roll is true, accurate and complete as of the
date hereof. Except as otherwise
specifically set forth in the Rent Roll or
elsewhere in this Agreement:
(a) the Leases are in full force
and effect and none of them has been
modified, amended or extended;
(b) Seller has neither sent written
notice to any tenant of the Property, nor
received any notice from any such tenant,
claiming that such tenant, or Seller, as the
case may be, is in default, which default
remains uncured other than as shown on
Schedule C attached hereto;
(c) to the best knowledge of
Seller, no action or proceeding instituted
against Seller by any tenant of any unit in
the Property is presently pending;
(d) there are no security deposits
or other deposits other than those set forth
in the Rent Roll;
(e) no rent has been paid more than
thirty (30) days in advance under any lease
of any unit in the Property other than as
shown on the Rent Roll; and
(f) no leasing commission shall be
due for any period subsequent to the Closing
and Buyer shall not be liable for any lease
commission incurred by Seller prior to
Closing unless such leasing commission arises
pursuant to a new lease entered into after
the date of this Agreement and approved by
Buyer pursuant to Section 8.01.
5.03. Service and Management Contracts.
Schedule D attached hereto lists all
services, maintenance, supply and management
contracts (collectively, "Service Contracts")
affecting the operation of the Property. At
Closing, Buyer shall be required to assume
the obligations, as owner, under those
Service Contracts which are non-cancellable
and are designated by the letters "NC" on
Schedule D (the "Non-Cancellable Service
Contracts"). With respect to all other
Service Contracts, Buyer may give written
notice to Seller at any time prior to the
expiration of the Inspection Period
designating the Service Contracts which Buyer
elects not to assume. Buyer shall be deemed
to have approved, and agreed to assume, all
Service Contracts as to which Buyer does not
give such written notice on a timely basis.
At Closing, Buyer shall assume the Non-
Cancellable Service Contracts and all other
Service Contracts, which Buyer has or is
deemed to have, approved (collectively the
"Assumed Service Contracts') and Seller shall
terminate all other Service Contracts.
5.04. Ability to Perform. Seller has
full power to execute, deliver and carry out
the terms and provisions of this Agreement
and has taken all necessary action to
authorize the execution, delivery and
performance of this Agreement, and this
Agreement constitutes the legal, valid and
binding obligation of Seller enforceable in
accordance with its terms. Except as set
forth in this Agreement, no order,
permission, consent, approval, license,
authorization, registration, or validation
of, or filing with, or exemption by, any
governmental agency, commission, board or
public authority is required to authorize, or
is required in connection with, the
execution, delivery and performance of this
Agreement by Seller or the taking by Seller
of any action contemplated by this Agreement.
5.05. No Actions. There are no pending,
or to Seller's knowledge, threatened legal
actions or proceedings against or relating to
the Seller or the ownership of the Property.
5.06. No Violation Notice. Seller has
not received written notice:
(a) from any federal, state, county
or municipal authority alleging any fire,
health, safety, building, pollution,
environmental, zoning or other violation of
law in respect of the Property or any part
thereof, which has not been entirely
corrected;
(b) concerning the possible or
anticipated condemnation of any part of the
Property, or the widening, change of grade or
limitation on use of streets abutting the
same or concerning any special taxes or
assessments levied or to be levied against
the Property or any part thereof;
(c) from any insurance company or
bonding company of any defects or
inadequacies in the Property or any part
thereof, which would adversely affect the
insurability of the same or cause the
imposition of extraordinary premiums or
charges therefor or of insurance or bond; or
(d) concerning any change in the
zoning classification of the Property or any
part thereof.
5.07. No Management Contracts,
Employment Contracts, Unions, Pension Plans.
Seller has not entered into any management
contracts, employment contracts or labor
union contracts and has not established any
retirement, pension or profit sharing plans
relating to the operation or maintenance of
the Property which shall survive the Closing
or for which Buyer shall have any liability
or obligation.
5.08. Environmental Compliance. Seller
has no actual knowledge, and has not received
written notice from any governmental
authority or other person, that (a) the
Property is in violation of any Environmental
Law (as defined in Section 6.01) or (b) the
Property or Seller is the subject of any
administrative or judicial action or
proceeding pursuant to any Environmental Law
in connection with the Property.
Any reference in this Section 5 to
Seller's knowledge, representation, warranty
or notice of any matter, shall only mean such
knowledge or notice that is actually known by
or has actually been received by Stephen C.
Parthum, the authorized agent of Seller. Any
representation or warranty of the Seller is
based solely upon those matters of which
Stephen C. Parthum has actual knowledge. Any
knowledge or notice given, had or received by
any of Seller's agents, servants or
employees, other than Stephen C. Parthum,
shall not be imputed to Seller.
SECTION 6
AS-IS CONDITION
6.01. As-Is. Buyer acknowledges and
agrees that it will be purchasing the
Property based solely upon its inspection and
investigations of the Property and that Buyer
will be purchasing the Property based solely
upon its inspection and investigations of the
Property and that Buyer will be purchasing
the Property "AS IS" and "WITH ALL FAULTS"
based upon the condition of the Property as
of the date of this Agreement, subject to
reasonable wear and tear and loss by fire or
other casualty or condemnation from the date
of this Agreement until the Closing. Without
limiting the foregoing, Buyer acknowledges
that, except as may otherwise be specifically
set forth elsewhere in this Agreement,
neither Seller nor its consultants or agent
have made any other representations or
warranties of any kind upon which Buyer is
relying as to any matters concerning the
Property, including, but not limited to, the
condition of the land or any Improvements,
the existence or nonexistence of asbestos,
toxic water or any hazardous material, the
tenants of the Property or the leases
affecting the Property, economic projections
or market studies concerning the Property,
any development rights, taxes, bonds,
covenants, conditions and restrictions
affecting the Property, water or water
rights, topography, drainage, soil, subsoil
of the Property, the utilities serving the
Property or any zoning, environmental or
building laws, rules or regulations affecting
the Property. Seller makes no representation
that the Property complies with Title III of
the Americans with Disabilities Act or any
fire codes or building codes. Buyer hereby
releases Seller from any and all liability in
connection with any claims which Buyer may
have against Seller, and Buyer hereby agrees
not to assert any claims, for contribution,
cost recovery or otherwise, against Seller,
relating directly or indirectly to the
existence of asbestos or hazardous materials
or substances on, or environmental conditions
of, the Property. As used herein, the term
"Hazardous Materials" or "Hazardous
Substances" means (i) hazardous wastes,
hazardous substances, hazardous constituents,
toxic substances or related materials whether
solids, liquids or gases, including but not
limited to substances defined as "hazardous
wastes," "Hazardous substances," "toxic
substances," "pollutants," "contaminants,"
"radioactive materials," or other similar
designations in, or otherwise subject to
regulation under, the Comprehensive
Environmental Response, Compensation and
Liability Act of 1980, as amended ("CERCLA"),
42 U.S.C. 9601 et seq.; the Toxic Substance
Control Act ("TSCAS"), 15 U.S.C. 2601 et
seq.; the Hazardous Materials Transportation
Act, 49 U.S.C. 1802; the Resource
Conservation and Recovery Act ("RCRA"), 42
U.S.C. 9601, et seq.; the Clean Water Act
("CWA"), 33 U.S.C. 1251 et seq.; the Safe
Drinking Water Act, 42 U.S.C. 300f et seq.;
the Clean Air Act ("CAA"), 42 U.S.C. 7401 et
seq.; and in any permits, licenses,
approvals, plans, rules, regulations or
ordinances adopted, or other criteria and
rules, regulations or ordinances adopted, or
other criteria and guidelines promulgated
pursuant to the preceding laws or other
similar federal, state or local laws,
regulations, rules or ordinance now or
hereafter in effect relating to environmental
matters (collectively the "Environmental
Laws"); and (ii) any other substances,
constituents or wastes subject to any
applicable federal, state or local law,
regulation or ordinance, including any
environmental law, now or hereafter in
effect, including but not limited to
(A) petroleum, (B) refined petroleum
products, (C) waste oil, (D) waste aviation
or motor vehicle fuel and (E) asbestos.
6.02. No Financial Representation.
Seller has provided to Buyer certain
unaudited historical financial information
regarding the Property as described in
Section 4.08. Seller and Buyer hereby
acknowledge that such information has been
provided to Buyer at Buyer's request solely
as illustrative material. Seller represents
that to its knowledge such information is
materially true and accurate. However,
Seller makes no representation or warranty
that such material is complete or that Buyer
will achieve similar financial or other
results with respect to the operations of the
Property, it being acknowledged by Buyer that
Seller's operation of the Property and
allocations of revenues or expenses may be
vastly different than Buyer may be able to
attain. Buyer acknowledges that it is a
sophisticated and experienced purchaser of
real estate and further that Buyer has relied
upon its own investigation and inquiry with
respect to the operation of the Property and
releases Seller from any liability with
respect to such historical information.
SECTION 7
INSURANCE
7.01. Maintenance of Insurance. Until
the Closing, Seller shall maintain its
present insurance on the Property which
insurance in respect of fire and casualty
shall be covered by a standard All-Risk
Policy in the amounts as currently insured.
Subject to the provisions of Section 7.02,
the risk of loss in an to the Property shall
remain vested in Seller until the Closing.
Buyer will obtain its own insurance on the
Property at Closing.
7.02. Casualty or Condemnation. If
prior to the Closing, the Improvements or any
material portion thereof (having a
replacement cost equal to or in excess of
$100,000.00) are damaged or destroyed by fire
or casualty, or any part of the Property is
taken by eminent domain by any governmental
entity, then Buyer or Seller shall have the
option, exercisable by written notice given
to the other party at or prior to the
Closing, to terminate this Agreement,
whereupon all obligations of all parties
hereto shall cease, the Deposit shall be
returned to Buyer and this Agreement shall be
void and without recourse to the parties
hereto except for provisions which are
expressly stated to survive such termination.
If neither Buyer nor Seller elects to
terminate this Agreement or if such damage or
destruction or taking has a replacement cost
or is in an amount of less than $100,000.00,
Buyer shall proceed to purchase the Property
without reduction in the Purchase Price, and
in such case, unless Seller shall have
previously restored the Property to its
condition prior to the occurrence of any such
damage or destruction, Seller shall pay over
or assign to Buyer all amounts received or
due from, and all claims against, any
insurance company or governmental entity as a
result of such destruction or taking.
SECTION 8
SELLER'S OBLIGATIONS PRIOR TO CLOSING
Seller covenants that between the date of
this Agreement and the Closing:
8.01. No Lease Amendments. Prior to
Closing, Seller shall continue its efforts to
lease the Property in a manner consistent
with Seller's prior business practice.
Seller shall not, without Buyer's prior
written consent (a) enter into any new lease
for an apartment unit with a first-time
tenant unless the lease is for a period of no
more than one year and the rent shall be not
less than the market rent reasonably
determined by Seller; or (b) enter into,
amend, renew or extend any Lease for an
apartment unit with an existing tenant unless
the lease is for a period of not more than
one year and that the rent for the amended,
renewal or extension term shall not be less
than the amount of rent noted on the Rent
Roll, for the respective apartment space; or
(c) terminate any Lease except by reason of a
default by the tenant thereunder or by reason
of the provisions contained in the Lease.
8.02. Continuation of Service Contracts.
Seller shall not modify or amend any Service
Contact or enter into any new service
contract for the Property, without the prior
written consent of Buyer which consent shall
not be unreasonably withheld or delayed
unless the same is terminable without penalty
by the then owner of the Property upon not
more than thirty (30) days' notice.
8.03. Replacement of Personal Property.
No personal property included as part of the
Property shall be removed from the Property
unless the same is replaced with similar
items of at least equal quality prior to the
Closing.
8.04. Tax Procedure. Seller shall not
withdraw, settle or otherwise compromise any
protest or reduction proceeding affecting
real estate taxes assessed against the
Property for any fiscal period which begins
subsequent to the Closing without the prior
written consent of Buyer. Real estate tax
refunds and credits received after the
Closing which are attributable to the fiscal
tax year during which the Closing occurs
shall be apportioned between Seller and
Buyer, after deducting the expenses of
collection thereof, based upon the relative
time periods each owns the Property, which
obligation shall survive the Closing.
8.05. Access. Seller shall allow Buyer
or Buyer's representatives access to the
Property, the Leases and other documents
required to be delivered under this Agreement
upon reasonable prior notice, at reasonable
times including Buyer shall be permitted to
make a final inspection of the Property
immediately prior to Closing.
8.06. Operations. Seller shall continue
to operate and maintain the Property in a
manner consistent with Seller's prior
business practice; provided in no event shall
Seller be obligated to make any capital
improvements, repairs or replacements.
SECTION 9
SELLER'S CLOSING OBLIGATIONS
9.01. Closing, Deliveries and
Obligations. At the Closing, Seller shall
deliver the following to Buyer:
(a) Deed. The Deed and the General
Instrument, in form reasonably satisfactory
to Buyer's and Seller's counsel, duly
executed and acknowledged, which together
convey the Property to Buyer, subject only to
Permitted Exceptions.
(b) Assignment of Leases and
Security Deposits. An assignment of the
Leases and Security Deposits in form
reasonably satisfactory to Buyer's and
Seller's counsel.
(c) Lease Records. Original copies
of all Leases, and related documents in the
possession or under the control of Seller.
Such records shall include a schedule of all
cash security deposits and a check or credit
to Buyer in the amount of such security
deposits held by Seller at the Closing under
the Leases together with appropriate
instruments of transfer or assignment with
respect to any lease securities which are
other than cash and a schedule updating the
Rent Roll and setting forth all arrears in
rents and all prepayments of rents.
(d) Permits. Seller shall deliver,
to the extent in the possession of Seller:
original copies of all certificates,
licenses, permits, authorizations and
approvals issued for or with respect to the
Property by governmental authorities having
jurisdiction, except that photocopies may be
substituted if the originals are posted at
the Property.
(e) Service Contracts. An
assignment of the Assumed Service Contracts,
in form reasonably satisfactory to Buyer's
and Seller's counsel, together with all
Assumed Service Contracts in Seller's
possession or control which are in effect at
the Closing.
(f) Title Affidavits. Such
affidavits as the Title Insurer may
reasonably require in order to omit from its
title insurance policy all exceptions for
(i) parties in possession other than under
the rights to possession granted under the
Leases; and (ii) mechanics' liens.
(g) Files. Seller shall make all
of its files and records relating to the
Property available to Buyer at the Property
upon reasonable prior notice for copying,
which obligation shall survive the Closing.
(h) Notices of Sales. Sufficient
letters, executed by Seller and Buyer,
advising the tenants under the Leases of the
sale of the Property to Buyer and directing
that all rents and other payments thereafter
becoming due under the Leases be sent to
Buyer or as Buyer may direct.
(i) Non-Foreign Affidavit. Seller
shall execute and deliver to Buyer and
Buyer's counsel, at Closing such evidence as
may be reasonably required by Buyer to show
compliance by Seller with the Foreign
Investment and Real property Tax Act, IRC
Section 1445(b)(2), as amended.
(j) Survey. The Survey.
9.02. Seller's Expenses. Seller shall
pay its counsel fees and one half of: (i)
title insurance premiums and costs, (ii) one
half of escrow and recording fees, and (iii)
survey costs.
SECTION 10
BUYER'S CLOSING OBLIGATIONS
At the Closing, Buyer shall:
10.01. Payment of Purchase Price.
Deliver to Seller the Purchase Price, as
adjusted for (i) apportionments under
Section 11, and (ii) any adjustments thereto
required pursuant to the express provisions
of this Agreement.
10.02. Assumption. Deliver to Seller
assumption agreements signed by Buyer with
respect to the performance by Buyer of the
landlord's obligations under the Leases,
Security Deposits and the Service Contracts
assumed by Buyer, in each case in respect of
the period from and after the Closing.
10.03. Recording Deed. Cause the Deed to
be recorded.
10.04. Other Documents. Deliver any
other documents required by this Agreement to
be delivered by Buyer.
10.05. Buyer's Expenses. Pay its counsel
fees , survey costs, and one half of: (i)
title insurance premiums and costs, (ii)and
one half of escrow and recording fees., and
(iii) survey costs.
SECTION 11
APPORTIONMENTS AND ADJUSTMENTS TO PURCHASE
PRICE
11.01. Apportionments. The following
apportionments shall be made between the
parties at the Closing as of the close of the
business day prior to the Closing.
(a) prepaid and collected rent;
(b) security deposits;
(c) inasmuch as all current
employees of the Property are the employees
of Seller's management agent, Buyer shall
have no liability for, and there shall be no
adjustment for payment of, wages, vacation
pay, pension and welfare benefits and other
fringe benefits of any persons employed at
the Property;
(d) real estate and personal
property taxes, water charges, sewer rents
and vault charges, if any, on the basis of
the fiscal period for which assessed, except
that if there is a water meter on the
Property, apportionment at the Closing shall
be based on the last available reading,
subject to adjustment after the Closing on a
per diem basis, when the next reading is
available.
(e) Seller shall receive a credit
for utility deposits for any utility accounts
which are transferred to Buyer; and
(f) charges or prepayments under
transferable Service Contracts.
If the Closing shall occur before a new
tax rate is fixed, the apportionment of taxes
at the Closing shall be upon the basis of the
old tax rate for the preceding period applied
to the latest assessed valuation. Promptly
after the new tax rate and valuation is
fixed, the apportionment of taxes shall be
recomputed. Any discrepancy resulting from
such recomputation and any errors or
omissions in computing apportionments at the
Closing shall be promptly corrected, which
obligation shall survive the Closing.
11.02. Application of Rent Payments. If
any tenant is in arrears in the payment of
rent at the Closing, rents received from such
tenant within thirty (30) days after the
Closing shall be applied in the following
order of priority: (a) first to the month in
which the Closing occurred, and (b) then to
any month or months following the month in
which the Closing occurred. If rents or any
portion thereof received by Seller of Buyer
after the Closing are payable to the other
party by reason of this allocation, the
appropriate sum shall be paid to the other
party within thirty (30) days from the
receipt thereof, which obligation shall
survive the Closing. Thereafter, Seller
shall be entitled to attempt to collect from
tenants any rents which were due Seller prior
to Closing, but Buyer shall have no further
obligations with respect thereto.
SECTION 12
FAILURE TO PERFORM
12.01. Buyer's Election. If Seller is
unable to give title or to make conveyance,
or to satisfy all of Seller's obligations as
set forth in this Agreement. Seller, in its
sole discretion, may, but shall not be
obligated to, extend the Closing for a period
not to exceed thirty (30) days during which
period Seller may attempt to satisfy any of
Seller's obligations. If Seller elects, in
its sole discretion, either not to attempt to
satisfy such obligations or Seller extends
the Closing but is unable to satisfy such
obligations, Buyer shall have the right to
elect, in its sole discretion, at the Closing
or the extended Closing, if applicable, to
accept such title as Seller can deliver to
the Property in its then condition and to pay
therefor the Purchase Price without reduction
or offset, in which case Seller shall convey
such title for such price.
12.02. Seller's Inability; Default. If
at the Closing, Seller is unable to give
title or to make conveyance, or to satisfy
all of Seller's obligations as set forth in
this Agreement, and Buyer does not elect to
take title as provided in Section 12.01, the
Deposits shall be forthwith returned to Buyer
and this shall be Buyer's sole remedy at law
and in equity. Subject to Section 1.02 and
the immediately preceding sentence of this
Section 12.02, if at the Closing Seller is
able to give title or to make conveyance or
to satisfy all of Seller's obligations as set
forth in this Agreement, but fails or refuses
to do so, Buyer shall have the right to seek
specific performance of the Seller's
obligations.
12.03. Buyer's Default. The parties
acknowledge that in the event of Buyer's
failure to fulfill its obligations hereunder
it is impossible to compute exactly the
damages which would accrue to the Seller in
such event. The parties have taken these
facts into account in setting the amount of
the Deposits required pursuant to Section
2.03 and hereby agree that: (i) the amount
of the Deposits together with the interest
earned is the pre-estimate of such damages
which would accrue to Seller; (ii) such
amount represents damages and not any penalty
against Buyer; and (iii) if this Agreement
shall be terminated by Seller by reason of
Buyer's failure to fulfill Buyer's
obligations hereunder, the Deposits shall be
Seller's full and liquidated damages in lieu
of all other rights and remedies which Seller
may have against Buyer at law or in equity.
SECTION 13
BROKERAGE AND ASSUMPTION FEES
13.01. Brokerage Fees. Seller and Buyer
mutually represent and warrant that Sage
Properties, Inc. of Houston, Texas ("Broker")
is the only broker with whom they have dealt
in connection with this purchase and sale and
that neither Seller nor Buyer knows of any
broker who has claimed or may have the right
to claim a commission in connection with this
purchase and sale. The commission of the
Broker in the sum of Eighty Seven Thousand
Seven Hundred Fifty Dollars ($87,750) shall
be paid by Seller, but Seller shall be
obligated to pay such commission only if, as
and when the Deed is recorded and the
Purchase Price paid. In any event, Buyer
shall have no obligation to pay a brokerage
commission to Broker or any other broker.
Seller and Buyer shall indemnify and defend
each other against any costs, claims or
expense, including attorneys' fees, arising
out of the breach on their respective parts
of any representations, warranties or
agreements contained in this Section. The
representations and obligations under this
Section shall survive the Closing or, if the
Closing does not occur, the termination of
this Agreement.
SECTION 14
NOTICES
14.01. Effective Notices. All notices
under this Agreement shall be in writing and
shall be delivered personally or shall be
sent by Federal Express or other comparable
overnight delivery courier, addressed as set
forth at the beginning of this Agreement or
by telecopier to the telecopier number as set
forth at the beginning of this Agreement.
Notices shall be deemed effective, when so
delivered. Copies of all such notices to
Seller shall be sent to Walter C. Spiegel,
Esq., Peabody & Brown, 101 Federal Street,
Boston, Massachusetts 02110, Telecopier
No. 617-345-1300 and copies of all such
notices to Buyer shall be sent to Susanne
Cambre, Esq., 3421 North Causeway, Suite 707,
Metairie, LA. Telecopier No. 504-838-9187.
SECTION 15
LIMITATIONS ON SURVIVAL
15.01. Representations and Warranties.
Except as otherwise expressly provided in
this Agreement, no representations,
warranties, covenants or other obligations of
Seller set forth in this Agreement shall
survive the Closing, and no action based
thereon shall be commenced after Closing.
The representations, warranties, covenants
and other obligations of Seller set forth in
Section 5 shall survive until one hundred
twenty (120) days after the Closing, and no
action based thereon shall be commenced more
than one hundred twenty (120) days after the
Closing.
15.02. Merger. The delivery of the Deed
by Seller, and the acceptance and recording
thereof by Buyer, shall be deemed the full
performance and discharge of each and every
obligation on the part of Seller to be
performed hereunder and shall be merged in
the delivery and acceptance of the Deed,
except as provided in Section 15.01 and
except for such other obligations of Seller
which are expressly provided herein to
survive the Closing.
SECTION 16
CONDITIONS
16.01. Inspection Condition. It shall be
a condition of this Agreement that on or
before February 26, 1998 (the "Inspection
Period"), Buyer shall have approved in its
sole discretion, (i) the matters set forth in
Section 4; (ii) all zoning, building code and
other governmental laws, ordinances, rules,
regulations, rulings and decision applicable
to the Property; (iii) an appraisal of the
Property; (iv) an engineering and physical
inspection of the Property; and (v) an
inspection of the financial books and records
relating to all income and expenses of the
Property. In the conduct of its inspection
of the Property, Buyer shall not unreasonably
interfere with the operation of the Property
or the occupancy of the tenants. To the
extent any of the inspections disrupt the
condition of the Property, Buyer shall
restore the Property to its prior condition
thereafter and Buyer shall indemnify Seller
against any loss or damage to person or
property arising from the conduct of Buyer's
inspection of the Property. The foregoing
provisions of this Agreement shall survive
the Closing or any termination of this
Agreement.
In the event that Buyer deems any
inspection matter unacceptable to Buyer, in
Buyer's sole discretion, Buyer shall be
entitled to terminate this Agreement by
written notice given to Seller on or before
the expiration of the Inspection Period, at
which time, the Deposit shall be promptly
returned to Buyer, and, thereafter this
Agreement shall be void and without recourse
to either party except for provisions which
are expressly stated to survive termination
of this Agreement. In the event Buyer does
not so timely deliver written notice of
termination prior to the expiration of the
Inspection Period, then the foregoing
conditions set forth in this Section 16.01
shall automatically be deemed waived by Buyer
and satisfied in full. In the event Buyer
timely elects to terminate this Agreement
during the Inspection Period as permitted
above, and as additional consideration for
Seller granting Buyer the foregoing condition
precedent, Buyer shall deliver to Seller with
Buyer's notice of termination copies of all
studies, surveys, plans, investigations and
reports obtained by or prepared by Buyer in
connection with Buyer's inspection of the
Property. Buyer makes no warranty or
representation as to the accuracy of any
information contained in such documents.
16.02. Environmental Condition. Buyer
shall have the right to obtain, at Buyer's
expense, a report (the "Environmental
Survey") prepared by a qualified consultant
selected by Buyer ("Buyer's Consultant") and
addressed to Buyer concerning the presence of
any (i) contamination of the Property by
Hazardous Materials (as defined in Section
6.01); (ii) apparent violation of
Environmental Laws (as defined in Section
6.01) upon or associated with activities upon
the Property; or (iii) potential incurrence
of Environmental Damages (as hereinafter
defined) by the owners or operators of the
Property (collectively "Environmental
Exceptions"). The Environmental Survey may
be performed at any time or times prior to
the Closing, providedexpiration of the
Environmental Inspection Period (as
hereinafter defined), except that entry upon
the Property shall be on reasonable notice
and under reasonable conditions established
by Seller and, further, provided that in no
event shall Buyer have the right to terminate
this Agreement unless Buyer delivers notice
to Seller on or before the Environmental
Inspection Period (as hereinafter defined) as
set forth below.. Buyer's Consultants are
hereby authorized to enter upon the Property
for such purposes and to perform such testing
and take such samples as may be necessary to
conduct the Environmental Survey in the
reasonable opinion of the Buyer's Consultant.
The Environmental Survey may include,
without limitation, the results of:
(i) a site inspection;
(ii) interviews of present
occupants of the Property;
(iii) a review of public records
concerning the Property and other properties
in the vicinity of the Property; and
(iv) a review of aerial
photographs of the Property and other
evidence of historic land uses.
The Environmental Survey may include, if
determinable by the Buyer's Consultant, based
upon this scope of work, the estimated cost
and period of time required to remediate any
Environmental Exceptions.
The term "Environmental Damages" means
all claims, judgments, damages, losses,
penalties, fines, liabilities (including
strict liability), encumbrances, liens, costs
and expenses of investigation and defense of
claim, whether or not such claim is
ultimately defeated, and of any good faith
settlement or judgment of whatever kind or
nature, contingent or otherwise, matured or
unmatured, foreseeable or unforeseeable,
including, without limitation, reasonable
attorney fees and disbursements and
consultant fees, any of which are incurred at
any time as a result of the existence of
Hazardous Material upon, about, or beneath
the Property or migrating or threatening to
migrate to or from the Property, or the
existence of a violation of Environmental
Laws pertaining to the Property regardless of
whether the existence of such Hazardous
Material or the violation of Environmental
Laws arose prior to the present ownership or
operation of the Property.
If the Environmental Survey requires or
recommends an additional environmental
survey, such additional survey may be
promptly performed at Buyer's expense, if
Buyer so elects.
To the extent any activities in
connection with the Environmental Survey
disrupt the condition of the Property, Buyer
shall restore the Property to its prior
condition thereafter and Buyer shall
indemnify Seller against any loss or damage
to person or property arising from the
conduct of Buyer's inspection of the
Property. The foregoing provisions of this
Agreement shall survive the Closing or any
termination of this Agreement.
In the event that Buyer deems any matter
disclosed by the Environmental Survey
unacceptable to Buyer, or is not satisfied in
any respect as to the environmental condition
of the Property, in Buyer's sole discretion,
Buyer shall be entitled to terminate this
Agreement by written notice given to Seller
on or before the expiration of February 26,
1998 (the "Environmental Inspection Period"),
at which time, the Deposit shall be promptly
returned to Buyer, and, thereafter this
Agreement shall be void and without recourse
to either party except for provisions which
are expressly stated to survive termination
of this Agreement. In the event Buyer does
not deliver written notice of termination
prior to the expiration of the Environmental
Inspection Period, then the foregoing
condition set forth in this Section 16.02
shall automatically and conclusively be
deemed waived by Buyer and satisfied in full.
In the event Buyer timely elects to terminate
this Agreement during the Environmental
Inspection Period as permitted above, and as
additional consideration for Seller granting
Buyer the foregoing condition precedent,
Buyer shall deliver to Seller with Buyer's
notice of termination copies of all
environmental surveys obtained by or prepared
by Buyer in connection with Buyer's
inspection of the Property. Buyer makes no
warranty or representation as to the accuracy
of any information contained in such
documents.
SECTION 17
MISCELLANEOUS PROVISIONS
17.01. Assignment. Buyer shall be
entitled to assign this Agreement and its
rights hereunder to a corporation, general
partnership, limited partnership or other
lawful entity entitled to do business in the
state in which the Property is located
provided such corporation or partnership,
shall be controlled, controlling or under the
common control with Buyer or an affiliate of
Buyer ("Assignee"). In the event of such an
assignment of this Agreement to Assignee
(a) Buyer shall notify Seller promptly
(b) Buyer shall be released from all
liability under this Agreement from and after
the Closing, (c) Assignee shall assume all
obligations of Buyer under this Agreement and
(d) from and after any such assignment the
term "Buyer" shall be deemed to mean the
Assignee under any such assignment.
17.02. Limitation of Liability. No
shareholders of Seller, nor any of its
respective officers, directors, agents,
employees, heirs, successors or assigns shall
have any personal liability of any kind or
nature for or by reason of any matter or
thing whatsoever under, in connection with,
arising out of or in any way related to this
Agreement and the transactions contemplated
herein, and Buyer hereby waives for itself
and anyone who may claim by, through or under
Buyer any and all rights to sue or recover on
account of any such alleged personal
liability.
No shareholders of Buyer, nor any of its
respective officers, directors, agents,
employees, heirs, successors or assigns shall
have any personal liability of any kind or
nature for or by reason of any matter or
thing whatsoever under, in connection with,
arising out of or in any way related to this
Agreement and the transactions contemplated
herein, and Seller hereby waives for itself
and anyone who may claim by, through or under
Seller any and all rights to sue or recover
on account of any such alleged personal
liability.
17.03. Integration. This Agreement
embodies and constitutes the entire
understanding between the parties with
respect to the transaction contemplated
herein, and all prior agreements,
understandings, representations and
statements, oral or written, are merged into
this Agreement. Neither this Agreement nor
any provision hereof may be waived, modified,
amended, discharged or terminated except by
an instrument signed by the party against
whom the enforcement of such waiver,
modification, amendment, discharge or
termination is sought, and then only to the
extent set forth in such instrument.
17.04. Governing Law. This Agreement
shall be governed by, and construed in
accordance with the laws of the state in
which the Property is located.
17.05. Captions. The captions in this
Agreement are inserted for convenience of
reference only and in no way define, describe
or limit the scope or intent of this
Agreement or any of the provisions hereof.
17.06. Bind and Inure. This Agreement
shall be binding upon and shall inure to the
benefit of the parties hereto and their
respective successors and assigns.
17.07. Drafts. This Agreement shall not
be binding or effective until properly
executed and delivered by both Seller and
Buyer. The delivery by Buyer to Seller of an
executed counterpart of this Agreement shall
constitute an offer which may be accepted by
the delivery to Buyer of a duly executed
counterpart of this Agreement and the
satisfaction of all conditions under which
such offer is made, but such offer may be
revoked by Buyer by written notice given at
any time prior to such acceptance and
satisfaction. The delivery by Seller to
Buyer of a draft of this Agreement shall not
constitute an offer by Seller to sell the
Property.
17.08. Number and Gender. As used in
this Agreement, the masculine shall include
the feminine and neuter, the singular shall
include the plural and the plural shall
include the singular, as the context may
require.
17.09. Attachments. If the provisions of
any schedule or rider to this Agreement are
inconsistent with the provisions of this
Agreement, the provisions of such schedule or
rider shall prevail. Schedules A, B, C and D,
attached are hereby incorporated as integral
parts of this Agreement.
17.10 Recording. Buyer agrees not to
record or file this Agreement, any copy
thereof, or any notice or memorandum hereof
or references hereto with any public records,
including land records. In the event of any
such recording, this Agreement may become
null and void at the option of Seller.
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement under seal as of
the date first above written.
Witness:<PAGE>
SELLER: KRUPP REALTY LIMITED PARTNERSHIP IV,
a Massachusetts limited partnership<PAGE>
By:The Krupp Corporation,
a Massachusetts
corporation,
General Partner<PAGE>
________________________
<PAGE>
By: ____________________ ____________________ Authorized Agent <PAGE>
ByKrupp Company Limited
Partnership - II, General Partner<PAGE>
By:_____________________ <PAGE>
_____________________<PAGE>
Authorized Agent Witness: BUYER: MBS RREALTY
INVESTORS, LTD.<PAGE>
By:M.B.S. Capital Planning, Inc., its
general partner<PAGE>
_____________________________ By:
_____________________________<PAGE>
Name: Title:<PAGE>
The undersigned Broker joins in the execution of this Agreement
to acknowledge and agree to the terms of Section 13.01 hereof.
Broker:
Sage
Properties,
Inc.
By:
____________________________________
Name:
Title:
RECEIPT
The Purchase and Sale Agreement,
together with Buyer's Initial Deposit, has
been received by the Escrow Agent on this
____ day of _______________, 1998, and the
Escrow Agent acknowledges the terms thereof
and agrees to perform as Escrow Agent in
accordance therewith.
ESCROW AGENT:
Lawyers Title
Insurance
Corporation
Dated: __________________________By:
_______________
______________
, its
<PAGE>
List of Schedules
Schedule A - Description
of Land
Schedule B - Personal
Property
Schedule C - Rent Roll
Schedule D - Service
Contracts
<page<
SCHEDULE A
Description of Land
