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) December 23, 1999
CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/2
(Exact name of registrant as specified in its charter)
California 0-11723 94-2883067
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification Number)
incorporation)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(Registrant's telephone number)
(864) 239-1000
N/A
(Former name or former address, if changed since last report)
<PAGE>
Item 5. Other Events
Consolidated Capital Institutional Properties/2 (the "Partnership" or
"Registrant") was formed for the benefit of its limited partners to lend funds
to Consolidated Capital Equity Partners/2 ("CCEP/2"). The Partnership loaned
funds to CCEP/2 subject to a nonrecourse note with a participation interest (the
"Master Loan"). As of December 15, 1999, the Partnership's investment in the
Master Loan was approximately $47,595,000, less an allowance for impairment loss
of approximately $29,129,000, for a net balance of approximately $18,466,000.
On December 23, 1999, CCEP/2 sold Richmond Plaza, one of its investment
properties located in Richmond, VA which secured the Master Loan, to an
unaffiliated third party for net sales proceeds of approximately $67,500 after
payment of closing costs and assumption of the mortgage encumbering the
property. The net proceeds from the sale will be paid to the Registrant as
payment on the Master Loan.
Item 7. Financial Statements and Exhibits
(c) Exhibits
10.29 Purchase and Sale Contract between Registrant and The Bernstein
Companies effective December 23, 1999.
<PAGE>
27
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.
CONSOLIDATED CAPITAL INSTITUTIONAL PROPERTIES/2
By: ConCap Equities, Inc.
Its General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President and Director
Date: January 7, 2000
<PAGE>
Exhibit 10.29
PURCHASE AND SALE CONTRACT
BETWEEN
CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P.,
a California limited partnership
AS SELLER
AND
THE BERNSTEIN COMPANIES,
a District of Columbia corporation
AS PURCHASER
- RICHMOND PLAZA OFFICE BUILDING -
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS.....................................................1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY.....................................4
ARTICLE 3 PURCHASE PRICE & DEPOSIT...........................................4
ARTICLE 4 FINANCING..........................................................5
ARTICLE 5 FEASIBILITY PERIOD.................................................5
ARTICLE 6 TITLE..............................................................7
ARTICLE 7 CLOSING...........................................................10
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER.............................................................14
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING...................................18
ARTICLE 10 BROKERAGE.......................................................21
ARTICLE 11 POSSESSION......................................................21
ARTICLE 12 DEFAULTS AND REMEDIES...........................................21
ARTICLE 13 RISK OF LOSS OR CASUALTY........................................22
ARTICLE 14 RATIFICATION....................................................22
ARTICLE 15 EMINENT DOMAIN..................................................22
ARTICLE 16 MISCELLANEOUS...................................................23
EXHIBIT "A": LEGAL DESCRIPTION...............................................
EXHIBIT "B": ESCROW AGREEMENT................................................
EXHIBIT "C": PERMITTED TITLE EXCEPTIONS......................................
EXHIBIT "D": EXCLUDED PERMITS................................................
EXHIBIT "E": EXCLUDED FIXTURES AND TANGIBLE PERSONAL PROPERTY................
EXHIBIT "F": RENT ROLL........................................................
EXHIBIT "G": FORM OF ESTOPPEL CERTIFICATE.....................................
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as
of the ___ day of June, 1999 (the "Effective Date") by and among CONSOLIDATED
CAPITAL EQUITY PARTNERS/TWO, L.P., a California limited partnership, having a
principal address at c/o BROAD AND CASSEL, 201 South Biscayne Boulevard, Suite
3000, Miami, Florida 33131, Attn: Gary M. Carman, P.A. ("Seller") and THE
BERNSTEIN COMPANIES, a District of Columbia corporation (or its permitted
assignee), having a principal address at c/o THE BERNSTEIN COMPANIES, 3299 K
Street N.W., Suite 700,Washington, D.C. 20007, Attn: Joe Galli ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1...Seller is the owner of a parcel of real estate more particularly described
in Exhibit A attached hereto and made a part hereof located in the City of
Richmond, Virginia on which improvements have been constructed, having a street
address of 111 South Sixth Street, Richmond, Virginia, and commonly known as the
"Richmond Plaza" office building.
R-2...Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date as defined in this Purchase Contract the Property will be conveyed
by special warranty deed to Purchaser;
R-3...Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on and subject to the
terms and conditions set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have
the meanings set forth in this Article 1 below.
1.1.1 "Business Day" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the Commonwealth of Virginia.
1.1.2 "Closing" means the consummation of the purchase and sale and
related transactions contemplated by this Purchase Contract in
accordance with the terms and conditions of this Purchase Contract.
1.1.3 "Closing Date" means the date on which date the Closing of the
conveyance of the Property is held under the terms and conditions of
this Purchase Contract and on which date full payment of the
Purchase Price for the Property shall have been paid to and received
by Seller in immediately available U.S. funds. The Closing Date
shall be not later than thirty (30) days following conclusion of the
Feasibility Period.
1.1.4 "Commercial Lease(s)" means all leases, subleases and other
occupancy agreements, whether or not of record, which provide for
the use or occupancy of space or facilities on or relating to the
Property and which are in force as of the Effective Date for the
Property, and inclusive of all leases which may have been approved
by the Purchaser prior to the Closing Date.
1.1.5 "Purchase Contract" means this Purchase and Sale Purchase Contract
by and between Seller and Purchaser.
1.1.6 "Effective Date" shall mean the date on which the last of Purchaser
or Seller executes this Purchase Contract.
1.1.7 "Excluded Permits" [Intentionally Omitted]
1.1.8 "Financing Commitment" [Intentionally Omitted]
1.1.9 "Fixtures and Tangible Personal Property" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of personal property now located on
the Land or in the Improvements as of the date of this Purchase
Contract or acquired between the Effective Date and the Closing
Date, and used or usable in connection with any present or future
occupation or operation of all or any part of the Property. The term
"Fixtures and Tangible Personal Property" does not include (i)
equipment leased by Seller and the interest of Seller in any
equipment provided to the Property for use, but not owned or leased
by Seller, or (ii) property owned or leased by Tenants and guests,
employees or other persons furnishing goods or services to the
Property or (iii) property and equipment owned by Seller, which in
the ordinary course of business of the Property is not used
exclusively for the business, operation or management of the
Property or (iv) the property and equipment, if any, expressly
identified in Exhibit "E".
1.1.10"Land" means all of that certain tract of land located in Richmond,
Virginia commonly known as The Richmond Plaza Office Building, 111
South 6th Street, Richmond, Virginia more particularly described in
Exhibit "A" attached hereto and made a part hereof and all rights,
privileges, easements, rights-of-way, and appurtenances pertaining
thereto.
1.1.11"Property" means the Land and Improvements described in the
Recitals and all rights of Seller relating to the Land and the
Improvements, including without limitation, any rights, title and
interest of Seller, if any, in and to (i) any strips and gores
adjacent to the Land and any land lying in the bed of any street,
road, or avenue opened or proposed, in front of or adjoining the
Land, to the center line thereof; (ii) any unpaid award for any
taking by condemnation or any damage to the Property by reason of a
change of grade of any street or highway; (iii) all of the
easements, rights, privileges, and appurtenances belonging or in any
way appertaining to the Property; together with all Fixtures and
Tangible Personal Property, Property Contracts which Purchaser
elects to assume, Commercial Leases, Permits other than Excluded
Permits and the Miscellaneous Property Assets owned by Seller which
are located on the Property and used in its operation.
1.1.12"Property Contracts" means all purchase orders, maintenance,
service, or utility contracts and similar contracts, which relate to
the ownership, maintenance, construction or repair and/or operation
of the Property which Purchaser elects to assume prior to the end of
the Feasibility Period, except Commercial Leases.
1.1.13"Improvements" means all buildings and improvements, located on the
Land taken "as is" containing approximately 261,929 gross square
feet of office building.
1.1.14"Miscellaneous Property Assets" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of tangible
and intangible personal property relating to the ownership or
operation of the Property and owned by Seller, excluding, however,
(i) receivables, relating solely to the period prior to the Closing
Date (ii) Property Contracts, (iii) Commercial Leases, (iv) Permits,
(v) cash or other funds, whether in petty cash or house "banks," or
on deposit in bank accounts or in transit for deposit, (vi) refunds,
rebates or other claims, or any interest thereon, for periods or
events occurring prior to the Closing Date, (vii) utility and
similar deposits, (viii) insurance or other prepaid Items (other
than proceeds payable under insurance with respect to the Property)
or (ix) books and records, except to the extent that Seller receives
a credit on the Closing Statement for any such item.
1.1.15"Permits" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned
by Seller or used in or relating to the ownership, occupancy or
operation of the Property or any part thereof not subject to a
Commercial Lease.
1.1.16"Permitted Exceptions" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with
the provisions of Section 6.2.
1.1.17 "Purchase Price" shall have the meaning set forth in
Section 3.1.
1.1.18 "Survey" shall have the meaning ascribed thereto in Section
6.9.
1.1.19 "Tenant" means any person or entity entitled to occupy any
portion of the Property under a Commercial Lease.
1.1.20 "Title Commitment" or "Title Commitments" shall have the
meaning ascribed thereto in Section 6.1.
1.1.21 "Title Insurer" shall have the meaning set forth in Section
6.1.
ARTICLE 2
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and Purchaser
agrees to purchase the Property from Seller, in accordance with the terms
and conditions set forth in this Purchase Contract.
ARTICLE 3
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be
FIFTEEN MILLION DOLLARS ($15,000,000.00), which shall be paid by
Purchaser, as follows:
3.1.1 Within five (5) days of the Effective Date, Purchaser shall deliver
to Fidelity National Title Insurance Company, at its Virginia State
Office, 3961-A Stillmen Parkway, Glen Allen, Virginia 23060, Attn:
Betty B. Sears, ("Escrow Agent" or the "Title Company") a deposit in
the sum of FIFTY THOUSAND DOLLARS ($50,000.00) in cash, which sum
shall be increased at the time of expiration of the Feasibility
Period (defined below) at which time Purchaser shall tender an
additional sum of ONE HUNDRED THOUSAND DOLLARS ($100,000.00) in
cash, such that the total deposit at the time of expiration of the
Feasibility Period shall equal ONE HUNDRED FIFTY THOUSAND DOLLARS
($150,000.00) (such sums being hereinafter collectively referred to
and held as the "Deposit"). Purchaser and Seller each approve the
form of Escrow Agreement attached as Exhibit B.
3.1.2 The Escrow Agent shall hold the Deposit and make delivery of the
Deposit to the party entitled thereto under the terms hereof. Escrow
Agent shall invest the Deposit in such short-term, high-grade
securities, interest-bearing bank accounts, money market funds or
accounts, bank certificates of deposit or bank repurchase agreements
as Escrow Agent is jointly directed by Seller and Purchaser, and all
interest and income thereon shall become part of the Deposit and
shall be remitted to the party entitled to the Deposit, as set forth
below.
3.1.3 Monies held as the Deposit shall be applied (and paid over to the
Seller) on the Date of Closing as a credit against the Purchase
Price payable by the Purchaser. If the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing
to failure of satisfaction of a condition precedent to Purchaser's
obligations, the Deposit shall be returned and refunded to
Purchaser, and neither party shall have any further liability
hereunder, subject to and except for Purchaser's liability under
Section 5.4.
3.1.4.If the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of
performance by Seller, Purchaser shall be entitled to the remedies
set forth in ARTICLE 13 hereof. If the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing
to failure of performance by Purchaser, the Deposit shall be
forfeited by Purchaser and the sum thereof shall go to Seller
forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in
ARTICLE 13 below.
ARTICLE 4
FINANCING
4.1 [This Section Intentionally Omitted]
ARTICLE 5
FEASIBILITY PERIOD
5.1 Subject to the terms of section 5.4 below, for thirty (30) calendar days
following the Effective Date (the "Feasibility Period"), Purchaser, and
its agents, contractors, engineers, surveyors, attorneys, and employees
("Consultants") shall have the right from time to time to enter onto the
Property:
5.1.1 To conduct and make any and all customary physical and regulatory
studies, tests, examinations and inspections, or investigations of
or concerning the Property (including without limitation,
environmental, engineering and feasibility studies, evaluation of
drainage and flood plain, soil tests for bearing capacity and
percolation and surveys, including topographical surveys, and
investigation of all zoning, code requirements applicable to the
Property);
5.1.2 To confirm any and all matters which Purchaser may reasonably desire
to confirm with respect to title, lease and tenant information, and
books and records concerning the Property;
5.1.3 To ascertain and confirm the suitability of the property for
Purchaser's intended use of the Property;
5.2 Seller covenants and agrees that it will cooperate with Purchaser in
Purchaser's investigations and inspections in that it shall provide
Purchaser with all records, reports, studies, surveys, maps, rent roll,
leases etc. in Seller's possession and control which relate to the
Property, within five (5) days following the Effective Date. Purchaser
covenants and agrees that it shall conduct its investigations and
inspections in such a manner so as not to disrupt the existing tenants or
the operation of the Property.
5.3 (a) Should the results of a Phase I environmental study undertaken
pursuant to subparagraph 5.1.1 above warrant or indicate, in Purchaser's
sole discretion, the undertaking of a Phase II environmental
investigation, then the Feasibility Period shall be extended by up to
thirty (30) days, at Purchaser's election, provided Purchaser has given
Seller notice of such election prior to the expiration of the Feasibility
Period.
Should the results of any of the matters referred to in sub-paragraphs
5.1.1, 5.1.2 and 5.1.3 above appear unsatisfactory to Purchaser for any
reason, then Purchaser in its sole discretion shall have the right to
terminate this Purchase Contract by giving written Notice to that effect
to Seller and Escrow Agent on or before 5:00 p.m. EST on the date of
expiration of the Feasibility Period (but subject to extension for
late-delivered survey pursuant to subsection 6.9.1 hereof). If Purchaser
exercises such right to terminate, this Purchase Contract shall terminate
and be of no further force and effect, subject to and except for
Purchaser's liability under Section 5.4, and Escrow Agent shall forthwith
return the Deposit to Purchaser. If Purchaser fails to provide Seller with
written Notice of cancellation prior to the end of the Feasibility Period
in strict accordance with the Notice provisions of this Purchase Contract,
this Purchase Contract shall remain in full force and effect and
Purchaser's obligation to purchase the Property shall be non-contingent
and unconditional except only for satisfaction of the conditions expressly
stated in this ARTICLE 5 and in ARTICLE 9.
5.4 Purchaser shall indemnify and hold Seller harmless for any actions taken
by Purchaser and its Consultants on the Property in connection with
Purchaser's investigations during the Feasibility Period. Purchaser shall
indemnify, defend (with attorneys reasonably acceptable to Seller) and
hold Seller harmless from any and all claims, damages, costs and liability
which may arise due to such entries, surveys, tests, investigations and
the like. Seller shall have the right, without limitation, to disapprove
any and all entries, surveys, tests, investigations and the like that in
their reasonable judgment could result in any injury to the Property or
breach of any agreement, or expose Seller to any liability, costs, liens
or violations of applicable law, or otherwise adversely affect the
Property or Seller's interest therein. No consent by the Seller to any
such activity shall be deemed to constitute a waiver by Seller or
assumption of liability or risk by Seller. In the event Purchaser
terminates this Purchase Contract, or fails to close the purchase, then
Purchaser hereby agrees to restore the Property to the same condition
existing immediately prior to Purchaser's exercise of its rights pursuant
to this ARTICLE 5 at Purchaser's sole cost and expense. Purchaser shall
maintain casualty insurance and comprehensive public liability insurance
with broad form contractual and personal injury liability endorsements
with respect to the Property and Purchaser's activities carried on
therein, in amounts (including deductible amounts) and with such insurance
carriers as shall be approved by Seller and naming Seller and its
affiliates as Loss Payees or Additional Insureds (at the option of
Seller), with endorsements acceptable to Seller, including a waiver of
defenses of the insurer based on the actions or inaction of Purchaser.
Such liability insurance shall provide coverages of not less than
$1,000,000.00 for injury or death to any one person and $3,000,000.00 for
injury or death to more than one person and $500,000.00 with respect to
property damage, by water or otherwise). The provisions of this Section
shall survive the Closing or termination of this Purchase Contract.
5.5 Purchaser shall not permit any mechanic's or materialman's liens or any
other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser.
Purchaser shall give notice to Seller a reasonable time prior to entry
onto the Property and shall permit Seller to have a representative present
during all investigations and inspections conducted with respect to the
Property. Purchaser shall take all reasonable actions and implement all
protections necessary to ensure that all actions taken in connection with
the investigations and inspections of the Property, and all equipment,
materials and substances generated, used or brought onto the Property pose
no material threat to the safety of persons or the environment and cause
no damage to the Property or other property of Seller or other persons.
All information made available by Seller to Purchaser in accordance with
this Purchase Contract or obtained by Purchaser in the course of its
investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall
use commercially reasonable efforts to prevent its agents and employees
from divulging such information to any unrelated 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 Purchase Contract, and
except as may be required by applicable law, including Purchaser's
attorneys and representatives, prospective lenders and engineers.
ARTICLE 6
TITLE
6.1 Seller shall promptly secure and forward to Purchaser a commitment for
title insurance for the Property in an amount equal to the Purchase Price
("Title Commitment,") issued by an agent of Seller's choosing on Fidelity
National Title Insurance Company, a title insurance company which is
licensed to do business in the jurisdiction in which the Property is
located ("Title Insurer") for an owner's title insurance policy on the
most recent standard American Land Title Association ("ALTA") Policy form,
together with legible copies of all instruments identified as exceptions
therein. Seller agrees that it shall be solely responsible for payment of
all costs relating to procurement of the Title Commitment and any Owner's
title policy. Purchaser shall be responsible for all costs associated with
any lender's title insurance policy.
6.2 Purchaser agrees to accept title to the Land and Improvements, so long as
the same is insurable at ordinary rates and any conveyance by special
warranty or equivalent deed pursuant to this Purchase Contract shall be
subject only to the following as of the Closing, all of which shall be
deemed "Permitted Exceptions" and Purchaser agrees to accept the deed and
title subject thereto:
6.2.1 All exceptions noted in Exhibit "C" attached hereto;
6.2.2 All Commercial Leases;
6.2.3 Real estate and property taxes solely to the extent not due and
payable (provided that Seller shall pay all taxes attributable to
the period prior to closing).
6.3 The existence of other mortgages, liens, or encumbrances shall not be
objections to title, provided that the same are fully paid, discharged or
released and properly executed instruments in recordable form necessary to
satisfy and remove the same of record are delivered to the Title Insurer
at Closing or, in the alternative, with respect to any institutional
mortgage or deed of trust liens, that payoff letters from the holder of
the mortgage or deed of trust liens shall have been delivered to and
accepted by the Title Insurer (sufficient to remove the same from the
policy issued at Closing), together in either case, with recording and/or
filing fees.
6.4 Unpaid liens for taxes, charges, and assessments shall not be objections
to title, but the amount thereof plus interest and penalties thereon shall
be deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser, subject to the provisions for
apportionment of taxes and charges contained herein.
6.5 If at Closing, the state of title is other than in accordance with the
requirements set forth in this Purchase Contract or if any condition to be
fulfilled by Seller shall not be satisfied, Purchaser shall provide Seller
with written Notice thereof at such time, or such title objection or
unfulfilled condition shall be deemed waived by Purchaser in which case
Purchaser and Seller shall proceed to consummate the Closing on the
Closing Date. If Purchaser timely gives Seller such Notice, Seller at its
sole option and within Seven (7) calendar days following receipt of such
Notice may elect to cure such objection or unfulfilled condition for up to
Thirty (30) calendar days. Should Seller be able to cure such title
objection or condition, or should Purchaser waive such objection or
condition within such period for cure, then the Closing shall take place
on or before Fifteen (15) calendar days after Notice of such cure or
waiver.
6.6 If during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such title objection or satisfy such
unfulfilled condition, Seller shall give Purchaser written Notice thereof,
and if Purchaser does not waive such objection by written Notice delivered
to Seller and the title company issuing the Title Commitment on or before
Seven (7) calendar days following the date Seller gives such Notice, then
this Purchase Contract shall automatically terminate, in which event
Purchaser shall release and quitclaim all of Purchaser's right and
interest in such Property to Seller, Purchaser shall be entitled to return
of the Deposit, and the parties hereto shall have no further obligations
to each other.
6.7 Seller covenants that it will not create, permit or cause any lien or
encumbrance (other than Commercial Leases approved by Purchaser) to attach
to the Property between the date of this Purchase Contract and the Closing
Date; any such monetary lien or encumbrance so attaching by voluntary act
of Seller shall be discharged by the Seller at or prior to Closing on the
Closing Date or any postponed Closing Date.
6.8 Purchaser shall not have any right to terminate this Purchase Contract or
object to any lien, encumbrance, exception or other matter that is a
Permitted Exception or that has been waived or deemed to have been waived
by Purchaser.
6.9 Purchaser at its sole cost and expense, may cause to be prepared a survey
for the Property ("Survey") to be delivered to Purchaser and Seller within
the Feasibility Period. The Survey (i) shall be prepared in accordance
with and shall comply with the minimum requirements of the ALTA; (ii)
shall be in a form, and shall be certified as of a date satisfactory to
Title Insurer to enable Title Insurer to delete standard survey exceptions
from the title insurance policy to be issued pursuant to the Title
Commitments, except for any Permitted Exceptions; (iii) shall specifically
show all improvements, recorded easements to the extent locatable, set
back lines, and such other matters shown as exceptions by the Title
Commitments; (iv) shall specifically show the right of way for all
adjacent public streets; (v) shall specifically disclose whether (and, if
so, what part of) any of the Property is in an area designated as
requiring flood insurance under applicable federal laws regulating
lenders; (vi) shall contain a perimeter legal description of the Property
which may be used in the special warranty deed, if applicable in the
jurisdiction where the Property is located; (vii) shall be certified to
Purchaser, Purchaser's lender (if any), Seller and Title Insurer as being
true and correct; and (viii) shall certify that the legal description set
forth therein describes the same, and comprises all of, the real estate
comprising the Property to be purchased by Purchaser pursuant to the terms
of this Purchase Contract. In the event the perimeter legal description of
the Property contained in the Survey differs from that contained in the
deed or deeds by which Seller took title to the Property, the latter
description shall be used in the special warranty deed delivered to
Purchaser at Closing, and the Survey legal shall be used in a quitclaim
deed to the Property which also shall be delivered to Purchaser at
Closing.
6.9.1 Should such Survey disclose conditions that give rise to a title
exception other than a Permitted Exception, Purchaser shall have the
right to object thereto within the Feasibility Period (or with ten
(10) days after receipt of the survey whichever is later, but in no
event later than forty-five (45) days from the Effective Date) in
accordance with the procedures set forth in ARTICLE 5 above.
6.9.2 Purchaser agrees to make payment in full of all costs of obtaining
Surveys required by this Purchase Contract on or before Closing or
termination of this Purchase Contract.
ARTICLE 7
CLOSING
7.1 Dates, Places Of Closing Costs, Prorations, and Delinquent Rent.
7.1.1 The Closing shall take place in the Virginia State Office of the
Title Insurer, or such other place as the parties shall mutually
agree upon at a time mutually agreed upon on the Closing Date. If
requested by Seller or Purchaser, the parties shall agree to conduct
closing through a pre-closing, an escrow or other arrangement
reasonably requested by the parties, whereby the parties and their
attorneys need not be physically present at the Closing and may
deliver documents by overnight air courier or other means.
7.1.2 Seller shall pay the "Grantor Tax", and Purchaser shall pay the
"Recordation Tax", or the parties shall allocate the responsibility
for payment of transfer taxes as is customary in the jurisdiction of
the Property location. Each party shall bear the costs of its own
legal counsel.
7.1.3 The Closing Date may be extended without penalty at the option of
Seller to a date not later than Ninety (90) Days following the
Closing Date specified above to satisfy a condition required
hereunder to be satisfied by Seller, or such other date as is
mutually acceptable to Seller and Buyer.
7.1.4.All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal
property taxes, other operating expenses and fees, shall be prorated
as of the Closing Date, Seller being charged and credited for all of
same attributable to the period up to the Closing Date (and credited
for any amounts pre-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 and any interest thereon under Tenant leases, if
any, shall be transferred by Seller to Purchaser at the Closing or
credited against the Purchase Price. Any real estate ad valorem or
similar taxes for the Property, or any installment of assessments
payable in installments which installment is payable in the year of
Closing, shall be prorated to the date of Closing, based upon actual
days involved. The proration of real property taxes or installments
of assessments shall be based upon the assessed valuation and tax
rate figures for the year in which the Closing occurs to the extent
the same are available; provided, that in the event that actual
figures (whether for the assessed value of the Property or for the
tax rate) for the year of Closing are not available at the Closing
Date, the proration shall be made using figures from the preceding
year. The proration shall be final and unadjustable except as
provided in the following paragraph. For purposes of this Section
7.1.4. and Section 7.1.5. and 7.1.6. the terms "Rent" and "Rents"
shall include, without limitation, base rents, additional rents,
percentage rents and common area maintenance charges. The provisions
of this Section shall apply during the Proration Period (as defined
below).
7.1.5.If any of the items subject to proration hereunder cannot be
prorated at the Closing because the information necessary to compute
such proration is unavailable, or if any errors or omissions in
computing prorations at the Closing are discovered subsequent to the
Closing, then such item shall be reapportioned and such errors and
omissions corrected as soon as practicable after the Closing Date
and the proper party reimbursed, which obligation shall survive the
Closing for a period (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. Neither party hereto
shall have the right to require a recomputation of a Closing
proration or a correction of an error or omission in a Closing
proration unless within the Proration Period one of the parties
hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice
thereof to the other party together with a copy of its good faith
recomputation of the proration and copies of all substantiating
information used in such recomputation.
7.1.6.If on the Closing Date any Tenant is in arrears in any Rent payment
under any Tenant lease (the "Delinquent Rent"), any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing
shall be applied to amounts due and payable by such Tenant during
the following periods in the following order of priority: (i) first,
to the period of time on or after the Closing Date, and (ii) 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, shall be promptly paid to the other
party. After the Closing, Seller shall continue to have the right,
but not the obligation, in its own name, to demand payment of and to
collect Delinquent Rent owed to Seller by any Tenant, which right
shall include, without limitation, the right to continue or commence
legal actions or proceedings against any Tenant (provided, that
Seller shall not commence any legal actions or proceedings against
any Tenant which continues as a Tenant at the Property after Closing
without the prior consent of Purchaser, which may be withheld in its
sole discretion), and the delivery of the Assignment as defined in
Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or
liability to Purchaser in connection with all efforts by Seller to
collect such Delinquent Rent and to take all steps, whether before
or after the Closing Date, as may be necessary to carry out the
intention of the foregoing, including, without limitation, the
delivery to Seller, upon demand, of any relevant books and records
(including, without limitation, rent statements, receipted bills and
copies of tenant checks used in payment of such rent), the execution
of any and all consents or other documents, and the undertaking of
any act reasonably necessary for the collection of such Delinquent
Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate
Purchaser to terminate any Tenant lease with an existing Tenant or
evict any existing Tenant from the Property. The provisions of this
Section 7.1.6. shall apply during the Proration Period.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of
the following items, as applicable:
7.2.1.1 Special warranty deed to Purchaser or permitted assignee.
The acceptance of the deed at Closing, shall be deemed to
be full performance of, and discharge of, every agreement
and obligation on Seller's part to be performed under this
Purchase Contract, except for those that this Purchase
Contract specifically provides shall survive Closing.
7.2.1.2 A Bill of Sale without recourse or warranty except as to
title with no liens, and right to convey covering all
Fixtures and Tangible Personal Property required to be
transferred to Purchaser with respect to such Property.
Purchaser shall countersign the same so as to effect an
assumption by Purchaser, including, without limitation, of
Seller's obligations thereunder.
7.2.1.3 An Assignment (to the extent assignable and in force and
effect) without recourse or warranty except as to title
with no liens, and right to assign all of Seller's right,
title and interest in and to the Miscellaneous Property
Assets, subject to any required consents. Purchaser shall
countersign the same so as to effect an assumption by
Purchaser, including, without limitation, of Seller's
obligations thereunder.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A vendor's affidavit in the customary form reasonably
acceptable to Purchaser to enable Title Insurer to delete
the standard exceptions, (other than matters constituting
any Permitted Exceptions to the title insurance policy set
forth in this Purchase Contract and matters which are to be
completed or performed post-Closing) to be issued pursuant
to the Title Commitment; provided that such affidavit does
not subject Seller to any greater liability, or impose any
additional obligations, other than as set forth in this
Purchase Contract; and
7.2.1.6 A certification of Seller's non-foreign status pursuant to
Section 1445 of the Internal Revenue Code of 1986, as
amended.
7.2.1.7 The original Title Commitment, "marked" to delete
requirements and all but Permitted Exceptions.
7.2.1.8 Except for the items expressly listed above to be delivered
at Closing, delivery of any other required items shall be
deemed made by Seller to Purchaser, if Seller leaves such
documents at the Property in their customary place of
storage or in the custody of Purchaser's representatives.
7.2.1.9 The original Tenant Leases and lease files, to the extent
that Seller has possession and control over them.
7.2.1.10 Such other instruments, documents or certificates as are
required to be delivered by Seller to Purchaser in
accordance with any of the other provisions of this
Purchase Contract.
7.2.2 Purchaser. At Closing, Purchaser shall deliver to Seller the
following items with respect to each Property being conveyed or
transferred by merger at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3 hereof
plus or minus the adjustments or prorations required by
this Purchase Contract. If at Closing there are any liens
or encumbrances on the Property that Seller is obligated or
elects to pay and discharge, Seller may use any portion of
the Purchase Price for the Property(s) to satisfy the same,
provided that Seller shall have delivered to Purchaser, or
to Purchaser's designee, on such Closing instruments in
recordable form sufficient to satisfy such liens and
encumbrances of record (or, as to any mortgages or deeds of
trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing
such instruments.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale.
7.2.2.4 A countersigned counterpart of the Assignment.
7.2.2.5 Such other instruments, documents or certificates as are
required to be delivered by Purchaser to Seller in
accordance with any of the other provisions of this
Purchase Contract.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 Representations And Warranties Of Seller.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the
following as of the Effective Date and as of the Closing Date:
8.1.1.1 Seller identified in the Recitals is lawfully and duly
organized, and in good standing under the laws of the state
of its formation set forth in the initial paragraph of this
Purchase Contract; and has the power and authority to sell
and convey the Property and to execute the documents to be
executed by Seller and has taken as applicable, all
corporate, partnership, limited liability company or
equivalent entity actions required for the execution and
delivery of this Purchase Contract, and the consummation of
the transactions contemplated by this Purchase Contract.
The compliance with or fulfillment of the terms and
conditions hereof will not conflict with, or result in a
breach of, the terms, conditions or provisions of, or
constitute a default under, any Purchase Contract,
agreement, contract indenture, obligation order, rule, etc.
to which Seller is a party or by which Seller or any
Subsidiary Owner is otherwise bound. Seller has not made
any other Purchase Contract for the sale of, or given any
other person the right to purchase, all or any part of any
of the Property applicable to the foregoing representation;
8.1.1.2 Seller is the sole and exclusive owner of insurable, fee
title (legal and equitable) to the Property, including all
real property contained therein required to be sold to
Purchaser, subject only to the Permitted Exceptions;
8.1.1.3 There are no adverse or other parties in possession
of the Property, except for tenants under the Commercial
Leases;
8.1.1.4 The joinder of no person or entity other than Seller is
necessary to convey the Property, fully and completely to
Purchaser at Closing, or to fulfill Seller's obligations
and Seller has all necessary right and authority to convey
and assign to Purchaser all contract rights and warranties
required to be conveyed and assigned to Purchaser
hereunder;
8.1.1.5 Seller is not a "foreign person", and Purchaser has no duty
to collect withholding taxes for Seller pursuant to the
Foreign Investors Real Property Tax Act of 1980, as
amended;
8.1.1.6 There are no actions, proceedings, litigation or
governmental investigations or condemnation actions either
pending or, to Seller's knowledge threatened against the
Property, as applicable;
8.1.1.7 There are no claims for labor performed, materials
furnished or services rendered in connection with
constructing, improving or repairing any of the Property,
as applicable, caused by Seller and which remain unpaid
beyond the date for which payment was due and in respect of
which liens may or could be filed against any of the
Property, as applicable;
8.1.1.8 To Seller's actual knowledge, (i) the tenants listed in the
Rent Roll (as attached as Exhibit F) are the only tenants
occupying the Property; (ii) there are no other leases,
tenancies or other arrangements under which any other party
has a right to occupy all or any part of the Property;
(iii) copies of all Commercial Leases, and all amendments
thereto and guaranties thereof, if any, have been or will
be furnished by Seller to Purchaser and the copies so
provided are true, correct and complete, and there are no
unwritten agreements or understanding relating thereto;
(iv) the Commercial Leases have not been amended, modified
or terminated (except for any amendments delivered to
Purchaser pursuant to the preceding sentence) and are in
full force and effect; (v) the Commercial Leases are
presently in full force and effect and there are no
material defaults thereunder; (vi) the Rent Roll is true,
accurate and correct in all material respects; and (vii)
all leasing and real estate brokerage fees and commissions
and tenant allowance or concessions, if any, for the
initial term, and any renewal term presently in effect, of
each Commercial Lease have been paid, unless otherwise
disclosed to Purchaser prior to the conclusion of the
Feasibility Period.
8.1.1.9 To Seller's actual knowledge , there are no other contracts
which relate to or affect the Property which have not been
disclosed or will not have been disclosed to Purchaser
during the Feasibility Period.
8.1.1.10 Seller has received no notice as to pending or threatened
adverse zoning changes, the existence of any Hazardous
Materials, ADA violations or condemnation regarding the
Property.
8.1.1.11 That to the best of Seller's knowledge and belief, the
Property is in good operating condition with no material
defects and is not in need of any material repairs; and
that the Property is in material compliance with all
applicable laws.
8.1.2 Except for the representations and warranties expressly set forth
above in Subsection 8.1.1, the Property is expressly purchased and
sold "AS IS", "WHERE IS," and "WITH ALL FAULTS." The Purchase Price
and the terms and conditions set forth herein are the result of
arm's-length bargaining between entities familiar with transactions
of this kind, and said price, terms and conditions reflect the fact
that Purchaser shall have the benefit of, and is relying upon, no
information provided by Seller and, other than as set forth above in
Section 8.1.1, no statements, representations or warranties, express
or implied, shall be enforceable directly against Seller, including,
without limitation, any relating to the value of the Property, the
physical or environmental condition of the Property, the state,
federal, county or local law, ordinance, order, permit or
suitability, compliance or lack of compliance of the Property with
any regulation, or any other attribute or matter of or relating to
the Property (other than any covenants of title contained in the
deed(s) conveying the Property and the representations set forth
above). Purchaser represents and warrants that as of the date hereof
and as of the Closing Date, it has and shall have reviewed and
conducted such independent analyses, studies, reports,
investigations and inspections as it deems appropriate in connection
with the Property. If Seller provides or has provided any documents,
opinions or work product of consultants, surveyors, architects,
engineers, title companies, governmental authorities or any other
person or entity with respect to the Property, Purchaser and Seller
agree that Seller has done so or shall do so only for the
convenience of both parties, Purchaser shall not rely thereon and
the reliance by Purchaser upon any such documents, opinions or work
product shall not create or give rise to any liability of or against
Seller, any Subsidiary Owner, Seller's partners or affiliates or any
of their respective partners, officers, directors, participants,
employees, contractors, attorneys, consultants, representatives,
agents, successors, assigns or predecessors-in-interest. Except as
may be herein provided, Purchaser shall rely only upon the Title
Commitment obtained by Seller for the benefit of Purchaser with
respect to title to the Property. Purchaser acknowledges and agrees
that no representation has been made and no responsibility is
assumed by Seller with respect to current and future applicable
zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the
financial earning capacity or expense history of the Property, the
continuation of contracts, continued occupancy levels of the
Property, or any part thereof, or the continued occupancy by tenants
of any Commercial Leases or, without limiting any of the foregoing,
occupancy at Closing. Prior to Closing, Seller shall have the right,
but not the obligation, to enforce its rights against any and all
Property occupants, guests or tenants. Purchaser agrees that the
departure or removal, prior to Closing, of any of such guests,
occupants or tenants shall not be the basis for, nor shall it give
rise to, any claim on the part of Purchaser, nor shall it affect the
obligations of Purchaser under this Purchase Contract in any manner
whatsoever; and Purchaser shall close title and accept delivery of
the deed with or without such tenants in possession and without any
allowance or reduction in the Purchase Price under this Purchase
Contract. Purchaser hereby releases Seller from any and all claims
and liabilities relating to the foregoing matters, except as
provided in Section 8.1.3 below.
8.1.3 Seller and Purchaser agree that those representations contained in
Section 8.1 shall survive Closing for a period of One (1) year (that
is, any proceeding based on the breach of a representation contained
in Section 8.1 that survives Closing must be commenced within One
(1) year subsequent to the date of such representation). In the
event that Seller breaches any representation contained in Section
8.1 and Purchaser had actual knowledge of such breach at Closing and
proceeded to close notwithstanding such breach, Purchaser shall be
deemed to have waived any right of recovery and Seller shall not
have any liability in connection therewith.
8.1.4 For purposes of this Purchase Contract, the term Seller's
"knowledge" shall mean and refer to only 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 individual personal liability. As used
herein, the term "Designated Representative" shall refer to Sarah M.
Murman, (Property Manager, Insignia/ESG, Inc. Real Estate-Seller's
property manager) being the person with the most "day -to-day"
knowledge of the Property.
8.2 Representations And Warranties Of Purchaser
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Purchaser represents and warrants to Seller the
following as of the Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1 The Bernstein Companies, is a corporation duly organized,
validly existing and in good standing under the laws of
District of Columbia.
8.2.2.2 Purchaser, acting through any of its or their duly
empowered and authorized officers or members, has full
power and authority to enter into this Purchase Contract,
to execute and deliver the documents and instruments
required of Purchaser herein, and to perform its
obligations hereunder; and no further consent of any of
Purchaser's officers or members are required to so empower
or authorize Purchaser.
8.2.2.3 No pending or, to the knowledge of Purchaser, threatened
litigation exists which if determined adversely would
restrain the consummation of the transactions contemplated
by this Purchase Contract or would declare illegal, invalid
or non-binding any of Purchaser's obligations or covenants
to Seller.
8.2.2.4 Purchaser is duly authorized to execute and deliver, acting
through its duly empowered and authorized officers and
members, respectively, and perform this Purchase Contract
and all documents and instruments and transactions
contemplated hereby or incidental hereto, and such
execution, delivery and performance by Purchaser does not
(i) violate any of the provisions of their respective
certificates of incorporation or bylaws, (ii) violate any
provision of any law, governmental rule or regulation
currently in effect, (iii) violate any judgment, decree,
writ, injunction, award, determination or order currently
in effect that names or is specifically directed at
Purchaser or its property, and (iv) require the consent,
approval, order or authorization of, or any filing with or
notice to, any court or other governmental authority.
8.2.2.5 The joinder of no person or entity other than Purchaser is
necessary to consummate the transactions to be performed by
Purchaser and Purchaser has all necessary right and
authority to perform such acts as are required and
contemplated by this Purchase Contract.
8.2.3 Purchaser has not dealt with any broker, finder or any other person,
in connection with the purchase of or the negotiation of the
purchase of the Property that might give rise to any claim for
commission against Seller or lien or claim against the Property.
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 Without limiting any of Purchaser's rights hereunder, Purchaser's
obligation to close under this Purchase Contract, shall be subject to and
conditioned upon the fulfillment of each and all of the following
conditions precedent:
9.1.1 All of the documents required to be delivered by Seller to Purchaser
at Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably
satisfactory to Purchaser;
9.1.2 Each of the representations and warranties of Seller contained
herein shall be true as of the Closing Date;
9.1.3 Seller shall have complied with, fulfilled and performed each of the
covenants, terms and conditions to be complied with, fulfilled or
performed by Seller hereunder;
9.1.4 No later than five (5) business days prior to the Closing Date,
Seller shall obtain and deliver to Purchaser estoppel certificates,
dated no earlier than 30 days prior to Closing ("Estoppel
Certificates"), from at least 70% of Tenants of the Property (based
on square footage of the Property), but which must include Estoppel
Certificates from James River Corporation and from Department of
Information and Technology (State of Virginia), and which must not
reflect any material inconsistency with the Rent Roll. Seller shall
use reasonable, diligent and good faith efforts to obtain each such
Estoppel Certificate substantially in the form attached to this
Agreement as Exhibit G and certified to Purchaser and any and all
other parties required by Purchaser during the Feasibility Period
(the "Purchaser's Form Certificate"); provided, however, that in the
event that Seller is unable to obtain the Purchaser's Form
Certificate from any Tenant, Seller shall use reasonable and good
faith efforts to obtain, from that Tenant, an Estoppel Certificate
in the form required by that Tenant's respective Commercial Lease;
If Seller fails (despite its diligent efforts) to obtain (and timely
deliver) an Estoppel Certificate, from the number of Required
Tenants as determined above, Purchaser's sole remedy shall be either
to (i) terminate this Purchase Contract, and receive a return of its
deposit; or (ii) proceed to close and waive the requirement of such
an Estoppel Certificate with respect to the Required Tenant's Lease
and tenancy for which Seller fails to procure an Estoppel
Certificate.
9.1.5 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly
set forth above.
9.2 Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation to close with respect to
conveyance of a particular Property under this Purchase Contract shall be
subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct when made, and
shall be true and correct on the Closing Date and as of the
Effective Date as though such representations and warranties were
made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase
Contract to be performed or complied with by it at or prior to
Closing including, without limitation, payment in full of the
Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either Purchaser
or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the
transactions contemplated by this Purchase Contract or declare
illegal, invalid or nonbinding any of the covenants or obligations
of the Purchaser.
ARTICLE 10
COVENANTS OF SELLER
10.1 Effective as of the Contract Date, Seller hereby covenants with Purchaser
as follows:
10.1.1Seller shall neither terminate, extend, or amend any Commercial
Lease, in any material respect, nor execute any new lease, license,
or other agreement affecting the ownership or operation of the
Property or for personal property, equipment, or vehicles, without
Purchaser's prior written approval (which approval shall not be
unreasonably withheld and shall be deemed given if Purchaser's
written disapproval is not delivered to Seller within five (5)
business days following Seller's written request for such approval).
If Purchaser approves, then it shall assume responsibility for
tenant improvements and leasing commissions.
10.1.2Seller shall not terminate, extend, or amend any existing Property
Contract or enter into any new contract with respect to the
ownership and operation of the Property that will survive the
Closing, or that would otherwise affect the use, operation or
enjoyment of the Property after Closing, without Purchaser's prior
written approval (which approval shall not be unreasonably withheld
and shall be deemed given if Purchaser's written disapproval is not
delivered to Seller within five (5) business days following Seller's
request for such approval). If Purchaser approves, it shall be
required to assume all obligations of such contract(s).
10.1.3Seller shall operate and manage the Property in the same manner in
which it is being operated as of the Effective Date, maintaining
present services, and shall maintain the Property in its same repair
and working order; and shall perform, when due, all of Seller's
obligations under the Commercial Leases, Property Contracts, Permits
and other agreements relating to the Property and otherwise in
accordance with all applicable laws, ordinances, rules and
regulations affecting the Property. Except as otherwise specifically
provided herein, at Closing, Seller shall deliver the Property in
substantially the same condition as exists on the Effective Date,
reasonable wear and tear and damage by casualty or condemnation
excepted.
10.1.4Seller shall, to the extent Seller obtains knowledge thereof,
promptly notify Purchaser of any material change in any condition
with respect to the Property, or of the occurrence of any event or
circumstance, that makes any representation or warranty of Seller to
Purchaser under this Purchase Contract untrue or misleading, or any
covenant of Purchaser under this Purchase Contract incapable or less
likely of being performed.
ARTICLE 11
BROKERAGE
11.1 Seller represents and warrants to Purchaser that it has dealt only with
Mr. Andy Glick, Pinnacle Realty, 7316 Wisconsin Avenue, Suite 300,
Bethesda, Maryland 20814 ("Broker") in connection with this Purchase
Contract. Seller and Purchaser each represents and warrants to the other
that other than Mr. Andy Glick, Pinnacle Realty, 7316 Wisconsin Avenue,
Suite 300, Bethesda, Maryland 20814, it has not dealt with or utilized the
services of any other real estate broker, sales person or finder in
connection with this Purchase Contract, and each party agrees to indemnify
the other party from and against all claims for brokerage commissions and
finder's fees arising from or attributable to the acts of omissions of the
indemnifying party.
11.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
11.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller
or Purchaser.
ARTICLE 12
POSSESSION
12.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of
entry for inspection as set forth in ARTICLE 5.
ARTICLE 13
DEFAULTS AND REMEDIES
13.1 In the Event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey
title as required by this Purchase Contract, or defaults hereunder prior
to the Closing Date and consummation of the Closing does not occur by
reason of such termination or default by Purchaser, Seller and Purchaser
agree that it would be impractical and extremely difficult to estimate the
damages which Seller may suffer. Therefore, Seller and Purchaser hereby
agree that, except for the Purchaser's obligations to Seller under Section
5.4, the reasonable estimate of the total net detriment that Seller would
suffer in the event that Purchaser terminates this Purchase Contract or
defaults hereunder prior to the Closing Date is and shall be, as Seller's
sole remedy (whether at law or in equity), the right to receive from the
Escrow Agent and retain the full amount of the Deposit. The payment and
performance of the above as liquidated damages is not intended as a
forfeiture or penalty within the meaning of applicable law and is intended
to settle all issues and questions about the amount of damages suffered by
Seller in the applicable event, except only for damages under Section 5.4
above, irrespective of the time when the inquiry about such damages may
take place. Upon any such failure by Purchaser hereunder, this Purchase
Contract shall be terminated, and neither party shall have any further
rights or obligations hereunder, each to the other, except for the
Purchaser's obligations to Seller under Section 5.4 above, and the right
of Seller to collect such liquidated damages to the extent not theretofore
paid by Purchaser.
13.2 Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a
result of Seller's default hereunder, Purchaser's sole remedy shall be to
(i) elect to terminate this Purchase Contract and receive reimbursement of
the Deposit (or so much thereof as has been received by Escrow Agent) or
(ii) to seek specific performance of this Purchase Contract, or, in the
event Closing has occurred, Purchaser may file an action against Seller
seeking recovery for all actual losses, damages, costs and expenses
suffered as a result of such default of Seller, but in no event shall
Purchaser be entitled to recover consequential damages as a result of any
such alleged breach or default by Seller.
ARTICLE 14
RISK OF LOSS OR CASUALTY
14.1 Seller agrees to keep the Property insured between the Effective Date and
the date of Closing. In the event that at the time of Closing all or
substantially all of the Property is (or has been) damaged by fire or
other casualty, Purchaser may elect, in its sole discretion to (i)
terminate this Purchase Contract by written notice to Seller in which
event the Deposit shall be returned to Purchaser, or (ii) proceed to close
subject to (1) a reduction in the Purchaser Price equal to the deductible
under Seller's casualty insurance policy for the Property and (2) an
assignment to Purchaser of any insurance proceeds in respect of fire or
other casualty occurring between the date of ratification of this contract
and the time of settlement and Seller shall reasonably cooperate with
Purchaser in the adjustment and settlement of any such claims. Seller
shall not, in any event, be obligated to effect any repair, replacement,
and/or restoration, but may do so at its option in which case Seller may
apply the insurance proceeds to the costs of restoration.
ARTICLE 15
RATIFICATION
15.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before June 15, 1999 at 5:oo p.m., DST.
ARTICLE 16
EMINENT DOMAIN
16.1 In the event that at the time of Closing all or any part of the Property
is (or has previously been) acquired, or is about to be acquired, by
authority of any governmental agency in purchase in lieu thereof (or in
the event that at such time there is any notice of any such acquisition by
any such governmental agency), Purchaser shall have the right, at
Purchaser's option, to terminate this Purchase Contract by giving written
Notice within Fifteen (15) days of the occurrence of such event and
recover the Deposit hereunder, or to settle in accordance with the terms
of this Purchase Contract for the full Purchase Price and receive the full
benefit or any condemnation award.
ARTICLE 17
MISCELLANEOUS
17.1 Exhibits And Schedules
All Exhibits and Schedules annexed hereto are a part of this
Purchase Contract for all purposes.
17.2 Assignability
This Purchase Contract is assignable by Purchaser to an affiliate of
Purchaser (meaning an entity which is wholly owned or controlled by
Purchaser) without the necessity of obtaining the prior written
approval of the Seller, but shall not be then further assigned
without Seller's prior written approval.
17.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the
benefit of Seller and Purchaser, and their respective successors,
heirs and permitted assigns.
17.4 Captions
The captions, headings, and arrangements used in this Purchase
Contract are for convenience only and do not in any way affect,
limit, amplify, or modify the terms and provisions hereof.
17.5 Number And Gender Of Words
Whenever herein the singular number is used, the same shall include
the plural where appropriate, and words of any gender shall include
each other gender where appropriate.
17.6 Notices
All Notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice")
shall be in writing and shall be deemed to have been properly given
or served for all purposes (i) if sent by Federal Express or the
nationally recognized overnight carrier for next business day
delivery, on the first business day following deposit of such Notice
with such carrier, or (ii) if personally delivered, on the actual
date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid, on the Third (3rd) business day following
the date of mailing addressed as follows:
If to Seller: If to Purchaser:
Consolidated Capital Equity The Bernstein Companies
Partners/Two L.P. 3299 K Street NW, Suite 700
c/o AIMCO Washington, D.C. 20007
18730 South Bellaire Street Attn: Joe Galli
Suite 1700
Denver, CO 80222
and and
David Marquette
Argent Real Estate Services, N/A
Inc.
1401 Brickell Avenue
Suite 520
Miami, Florida 33131
e-mail: [email protected]
---------------------
Fax: (305) 371-6898
with a copy to: With a copy to:
Gary Carman, Esq. David M. Martin, Esq.
and and David Tiger, Esq.
Thomas J. Palmieri, Esq. SWIDLER BERLIN
Broad and Cassel 3000 K Street, Suite 300
201 S. Biscayne Boulevard Washington, D.C. 20007
Suite 3000 Phone: (202) 424-7598
Miami, Florida 33144 e-mail: [email protected]
--------------------
Phone: (305) 373-9400 e-mail: [email protected]
------------------
e-mail: Fax: (202) 424-7645
[email protected] Fax: (202) 424-7643
---------------------------
Fax: (305) 373-9443
Any of the parties may designate a change of address by Notice in
writing to the other parties. Whenever in this Purchase Contract the
giving of Notice by mail or otherwise is required, the giving of
such Notice may be waived in writing by the person or persons
entitled to receive such Notice.
17.7 Governing Law And Venue
The laws of the Commonwealth of Virginia shall govern the validity,
construction, enforcement, and interpretation of this Purchase
Contract, unless otherwise specified herein except for the conflict
of laws provisions thereof. All claims, disputes and other matters
in question arising out of or relating to this Purchase Contract, or
the breach thereof, shall be decided by proceedings instituted and
litigated in the United States District Court for the district in
which the Property is situated, and the parties hereto expressly
consent to the venue and jurisdiction of such court.
17.8 Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between
the parties and supersedes all prior Purchase Contracts and
understandings, if any, relating to the Property, and may be amended
or supplemented only by an instrument in writing executed by the
party against whom enforcement is sought.
17.9 Severability
If any of the provisions of this Purchase Contract is held to be
illegal, invalid, or unenforceable under present or future laws,
such provision shall be fully severable. The Purchase Contract shall
be construed and enforced as if such illegal, invalid, or
unenforceable provision had never comprised a part of this Purchase
Contract; and the remaining provisions of this Purchase Contract
shall remain in full force and effect and shall not be affected by
the illegal, invalid, or unenforceable provision or by its severance
from this Purchase Contract. In lieu of such illegal, invalid, or
unenforceable provision, there shall be added automatically as a
part of this Purchase Contract a provision as similar in terms to
such illegal, invalid, or unenforceable provision as may be possible
to make such provision legal, valid, and enforceable.
17.10 Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be
deemed an original for all purposes and all such counterparts shall,
collectively, constitute one Purchase Contract. In making proof of
this Purchase Contract, it shall not be necessary to produce or
account for more than one such counterparts.
17.11 Further Acts
In addition to the acts and deeds recited herein and contemplated
and performed, executed and/or delivered by Seller and Purchaser,
Seller and Purchaser agree to perform, execute and/or deliver or
cause to be performed, executed and/or delivered any and all such
further acts, deeds, and assurances as may be necessary to
consummate the transactions contemplated hereby.
17.12 Construction
No provision of this Purchase Contract shall be construed in favor
of, or against, any particular party by reason of any presumption
with respect to the drafting of this Purchase Contract; both
parties, being represented by counsel, having fully participated in
the negotiation of this instrument.
17.13 Confidentiality
Purchaser shall not disclose the terms and conditions contained in
this Purchase Contract, shall keep the same confidential, provided
that Purchaser may disclose the terms and conditions of this
Purchase Contract (i) as required by law, (ii) to consummate the
terms of this Purchase Contract, or any financing relating thereto,
or (iii) to Purchaser's or Seller's lenders, attorneys and
accountants, agents or consultants. Any information provided by
Seller to Purchaser under the terms of this Purchase Contract is for
informational purposes only. In providing such information to
Purchaser, Seller makes no representation or warranty, express,
written, oral, statutory, or implied, unless specifically provided
herein and any other representations or warranties are hereby
expressly excluded. Purchaser shall not in any way be entitled to
rely upon the accuracy of such information. Such information is also
confidential and Purchaser shall be prohibited from making such
information public to any other person or entity other than its
agents and legal representatives, without Seller's prior written
authorization, which may be granted or denied in Seller's sole
discretion.
17.14 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the
essence with respect to this Purchase Contract.
17.15 Cumulative Remedies And Waiver
Except as otherwise provided herein, no remedy herein conferred or
reserved is intended to be exclusive of any other available remedy
or remedies, but each and every such remedy shall be cumulative and
shall be in addition to every other remedy given under this Purchase
Contract or now or hereafter existing at law or in equity. No delay
or omission to exercise any right or power accruing upon any
default, omission, or failure of performance hereunder shall impair
any right or power or shall be construed to be a waiver thereof, but
any such right and power may be exercised from time to time and as
often as may be deemed expedient. No waiver, amendment, release, or
modification of this Purchase Contract shall be established by
conduct, custom, or course of dealing.
17.16 Litigation Expenses
In the event either party hereto commences litigation against the
other to enforce its rights hereunder, the prevailing party in such
litigation shall be entitled to recover from the other party its
reasonable attorneys' fees and expenses incidental to such
litigation.
17.17 Time Periods
Should the last day of a time period fall on a weekend or legal
holiday, the next Business Day thereafter shall be considered the
end of the time period.
17.18 Exchange
At the requesting party's sole cost and expense, Seller or Purchaser
may structure the sale or purchase of the Property as a Like Kind
Exchange under Internal Revenue Code Section 1031 whereby one party
will acquire certain property (the "Like Kind Exchange Property") in
conjunction with the sale of another property (the "Like Kind
Exchange"). Each party shall cooperate fully and promptly with the
other's conduct of the Like Kind Exchange, provided that all costs
and expenses generated in connection with the Like Kind Exchange
shall be borne solely by the requesting party, and the other party
shall not be required to take title to or contract for the purchase
of any other property. If a qualified intermediary is used to
effectuate the exchange, any assignment of the rights or obligations
of Seller hereunder shall not relieve, release or absolve Seller of
its obligations to Purchaser. In no event shall the Closing Date be
delayed by the Like Kind Exchange. The requesting party shall
indemnify and hold harmless the other party from and against any and
all liability arising from and out of the Like Kind Exchange.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as
of the date first set forth above.
Seller: CONSOLIDATED CAPITAL EQUITY
PARTNERS/TWO L.P., a California
limited partnership
By: [SEAL]
---------------------------
Printed:
Title:
Purchaser: THE BERNSTEIN COMPANIES, a District of
Columbia corporation
By: [SEAL]
---------------------------
Printed:
Title:
<PAGE>
EXHIBIT "A": LEGAL DESCRIPTION
ALL that certain piece or parcel of land with all improvements
thereon and appurtenances thereto belonging, lying and being in
the City of Richmond, Virginia, bounded on the north by the south
line of East Cary Street, on the east by the west line of South
Seventh Street, on the south by the north line of East Canal
Street and on the west by the east line of South Sixth Street,
and being more particularly shown on that certain plat of survey
dated February 10, 1984, prepared by Chas. H. Fleet & Assoc.,
R.F. Jett, Commonwealth of Virginia Certified Land Surveyor,
Certificate No. 14 and 545, which plat survey is entitled "Plat
of Property Situated Between 6th Street, 7th Street, Canal Street
and Cary Street, Richmond, Virginia", and recorded in Plat Book
26, page 25.
Being the same property conveyed to Consolidated Capital Equity
Partners/Two L.P., a California Limited Partnership, by deed from Equity
Partners/Two, a California General Partnership, dated November 15, 1990,
recorded November 19, 1990, in Deed Book 252, page 1410, in the Clerk's
Office, Circuit Court, City of Richmond, Virginia.
<PAGE>
MIA1\REALEST\155978.1
24115/0010 TJP vv 5/17/99 8:42 AM
<PAGE>
EXHIBIT "B": ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this day of _____________,
1999 by and among, CONSOLIDATED CAPITAL EQUITY PARTNERS/TWO L.P., a California
limited partnership ("Seller"); THE BERNSTEIN COMPANIES, a District of Columbia
corporation ("Purchaser"); and FIDELITY NATIONAL TITLE INSURANCE COMPANY
("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of June _____, 1999; and
Whereas, the Purchase Contract requires that Purchaser provide a Deposit
in the amount of ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000.00) in cash to be
held pursuant to an escrow agreement approved by Purchaser and Seller.
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of the
initial deposit of FIFTY THOUSAND DOLLARS ($50,000.00) in cash (the "Escrow
Fund"), to be deposited, held, invested, and disbursed for the benefit of Seller
and Purchaser and their respective successors and assigns, as provided herein
and as provided in the Purchase Contract.
2. Investment of Escrow Fund. All funds received by Escrow Agent shall be held
in insured accounts and invested in such short-term, high-grade securities,
money market funds or accounts, as jointly directed by Seller and Purchaser and
all interest and income thereon together with all subsequent contract deposits
and all interest and income thereon shall become part of the Escrow Fund and
shall be remitted to the party entitled to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefore (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall deliver the Escrow Fund to Seller in immediately available funds by
wire transfer in accordance with the instructions of Seller on the Closing Date
as set forth in the Purchase Contract, (b) if the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to failure
of satisfaction of a condition precedent to Purchaser's obligations, the Escrow
Agent shall return and refund the Escrow Fund to Purchaser, (c) if the sale of
the Property is not closed by the date fixed therefor (or any such extension
date) owing to failure of performance by Seller, Purchaser shall give Notice to
the Escrow Agent and Seller and in such Notice shall state whether it elects as
its remedy return of the Escrow Fund or specific performance of the Purchase
Contract; if Purchaser elects return of the Escrow Fund, Escrow Agent shall
return and refund the Escrow Fund to Purchaser (d) if the sale of the Property
is not closed by the date fixed therefor (or any such extension date) owing to
failure of performance by Purchaser, Escrow Agent shall forthwith deliver to
Seller the Escrow Fund in immediately available funds by wire transfer in
accordance with the instructions of Seller, and (e) if Purchaser shall have
canceled the Purchase Contract on or before the expiration of the Feasibility
Period (as defined in the Purchase Contract), the Escrow Agent shall return and
refund the Escrow Fund to Purchaser.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within Ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within Two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4. Liability. Escrow Agent will be obligated to perform only the duties that are
expressly set forth herein. In case of conflicting demands upon Escrow Agent, it
may (i) refuse to comply therewith as long as such disagreement continues and
make no delivery or other disposition of any funds or property then held (and
Escrow Agent shall not be or become liable in any way for such failure or
refusal to comply with such conflicting or adverse claims or demands, except for
its failure to exercise due care, willful breach and willful misconduct); and
(ii) continue to so refrain and so refuse to act until all differences have been
adjusted by agreement and, Escrow Agent has been notified thereof in writing
signed jointly by Seller and Purchaser or (iii) to interplead the portion of
Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping and investment of money, instruments, and
securities received by it as Escrow Agent and for their disbursement in
accordance with the written escrow instructions given it in accordance with this
Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal,
interest and quitclaim deed of the Escrow Fund in accordance with the joint
written instructions signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, and addressed as set forth below:
If to Seller: If to Purchaser:
(a) Consolidated Capital Equity The Bernstein Companies
Partners/Two L.P. 3299 K Street NW, Suite 700
c/o AIMCO Washington, D.C. 20007
18730 South Bellaire Street Attn: Joe Galli
Suite 1700
Denver, CO 80222
and and
David Marquette N/A
Argent Real Estate Services,
Inc.
1401 Brickell Avenue
Suite 520
Miami, Florida 33131
e-mail: [email protected]
---------------------
Fax: (305) 371-6898
(b)
with a copy to: with a copy to:
Gary Carman, Esq. David M. Martin, Esq.
and and David Tiger, Esq.
Thomas J. Palmieri, Esq. SWIDLER BERLIN
Broad and Cassel 3000 K Street, Suite 300
201 S. Biscayne Boulevard Washington, D.C. 20007
Suite 3000 Phone: (202) 424-7598
Miami, Florida 33144 e-mail: [email protected]
--------------------
Phone: (305) 373-9400 e-mail: [email protected]
------------------
e-mail: Fax: (202) 424-7645
[email protected] Fax: (202) 424-7643
---------------------------
Fax: (305) 373-9443
(c) If to Escrow Agent:
Fidelity National Title Insurance Company
Virginia State Office
3961-A Stillmen Parkway
Glen Allen, Virginia 23060
Attn: Betty B. Sears
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive an fee of N/A for its services hereunder, but
be paid or reimbursed for all expenses, disbursements and advances, including
reasonable attorney's fees, incurred or paid in connection with carrying out its
duties hereunder, all amounts to be payable by Purchaser and not out of the
Escrow Fund. Non-payment of such fee by Purchaser shall not entitle Escrow Agent
to refuse or fail to act as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections
------------------------------
contained in this Escrow Agreement are inserted for convenience of reference
only, and neither form a part of this Escrow Agreement or are to be used in
its construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
------------
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to any Seller for any mistakes in judgment
in the performance of any function hereunder, except for failure to exercise due
care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way
---------------------------
limit the liabilities, obligations and remedies of Seller and Purchaser as
set forth in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and
--------------
construed in accordance with the laws of the Commonwealth of Virginia.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
---------------
17. Entire Agreement; Modification. This Escrow Agreement supersedes all
--------------------------------
prior agreements and constitutes the entire agreement with respect to the
subject matter hereof. It may not be altered or modified without the written
consent of all parties.
[ Signatures appear on the following page ]
<PAGE>
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed on its behalf duly authorized persons, all as of the
day and year first above written.
CONSOLIDATED CAPITAL EQUITY
PARTNERS/TWO L.P., a California
limited partnership
By:
Name:
Its:
THE BERNSTEIN COMPANIES, a District of
Columbia corporation
By:
Name:
Its:
FIDELITY NATIONAL TITLE INSURANCE COMPANY
By:
Name:
Its:
<PAGE>
EXHIBIT "C": PERMITTED TITLE EXCEPTIONS
1. Taxes assessed for the year of the date of Closing, and subsequent
years.
2. Easements, or claims of easements, not shown by the public records,
boundary line disputes, overlaps, encroachments, and any matters not of
record which would be disclosed by an accurate survey and inspection of
the premises. (Note: this "standard" survey exception to be deleted upon
production of a properly certified survey of the Property, but any
particular matters such as the foregoing revealed by the survey will be
included as exceptions).
3. Easement granted Virginia Electric and Power Company dated September 23,
1978, recorded in Deed Book 694B, page 20 for construction, operation and
maintenance of electric transformers, together with attachments,
equipment, etc.
4. Unrecorded Lease with The Commonwealth of Virginia, Department of Information
Technology, as modified from time to time by unrecorded instrument and further
modified by Agreement dated February 24, 1984, recorded March 14, 1984, in Deed
Book 828, Page 1880, Settlement Agreement dated April 16, 1993, recorded in Deed
Book 356, Page 1461, by Lease Extension Agreement dated June 25, 1993, recorded
in Deed Book 356, Page 1450 and by Amendment to Lease dated March 1, 1994,
recorded in Deed Book 392, Page 1316.
5. Deed of Lease with the Commonwealth of Virginia by the Supreme Court of
Virginia dated October 16, 1995, recorded November 17, 1995, as
Instrument No. 95-22123.
6. Rights of tenants in possession under unrecorded leases.
<PAGE>
EXHIBIT "D": EXCLUDED PERMITS
[Intentionally Omitted]
<PAGE>
EXHIBIT "E": EXCLUDED FIXTURES AND TANGIBLE PERSONAL PROPERTY
NONE
<PAGE>
EXHIBIT "F": RENT ROLL
(June, 1999)
<PAGE>
EXHIBIT "G": FORM OF ESTOPPEL CERTIFICATE
To: The Bernstein Companies, its successor and assigns; and Fidelity
National Title Insurance Company
(Lease to be Attached)
ESTOPPEL CERTIFICATE
The undersigned, ______________________________________ ("Tenant"), hereby
certifies that:
1. Annexed hereto as Exhibit A is a true and correct copy of the lease
("Lease"), dated as of the ____________ day of ________________, 19___, by and
between the undersigned, as tenant ("Tenant"), and
________________________________________________ as landlord ("Landlord"),
covering certain [insert type of property] space ("Premises") in the building
located at _____________________ ("Building"). The net rentable square footage
of the Premises is ________________________.
2. The Lease is valid and in full force and effect on the date hereof. The term
of the Lease commenced on ____________, 19___, and the termination date of the
present term of the Lease, excluding renewals, is __________________, 19___.
3. There are no other agreements between Landlord and Tenant with respect
to the Premises.
4. There are no uncured defaults on the part of Tenant or on the part of
Landlord under the Lease, and no event has occurred and no condition exists
which, with the giving of notice or the lapse of time, or both, will constitute
a default under the Lease.
5. There are no accrued and unpaid tenant concessions or allowances except
- ---------------------------------.
6. Fixed Rent payable by Tenant presently is $______________ per month and
no such rent has been paid more than 30 days in advance of its due date.
Tenant's security deposit is $_______________.
7. Additional Rent (including Tenant's share of tax increases and cost of living
increases) payable by Tenant presently is $______________ per month and no such
rent has been paid more than 30 days in advance of its due date.
8. Tenant claims no present charge, lien or claim of offset under the Lease or
otherwise, against rents or other charges due or to become due thereunder.
9. Tenant has accepted possession of the Premises and any improvements required
by the terms of the Lease to be made by the lessor thereunder have been
completed to the satisfaction of Tenant.
10. The address for notices to be sent to Tenant is as set forth in the
Lease.
11. This Estoppel Certificate may be relied upon by any prospective purchaser of
the Building or lender to a purchaser of the Building. If any prospective lender
so requires, whether currently or at a future date, Tenant will execute and
deliver, for the benefit of such lender, a subordination, nondisturbance and
attornment agreement, in form and substance reasonably and mutually acceptable
to Tenant and such lender.
12. Tenant has no right of first refusal, option or other right to purchase the
Premises or the Building, nor does Tenant have any right to unilaterally cancel
the Lease. Tenant has no renewal options or expansion options.
13. Rents payable pursuant to the Lease are not based upon the income or
profits of Tenant.
14. There is not a material amount of personal property demised to the
Tenant under or in connection with the Lease.
15. Except for those services required (under the express terms of the Lease) to
be provided by Landlord to Tenant, the Landlord provides no other services to
the Tenant in connection with its lease of the Premises.
16. The Lease was not entered into in connection with a sale/leaseback
transaction.
17. There are no subleases under or in connection with the Lease.
IN WITNESS WHEREOF, the undersigned has executed and delivered this
Estoppel Certificate on the ___________ day of ______________, 19____.
-------------------------------
(Tenant)
By:
Title:
