Form 8-K - CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 7, 2000
CONSOLIDATED CAPITAL PROPERTIES V
(Exact name of registrant as specified in its charter)
California 0-13083 94-2918560
(State or other jurisdiction (Commission (I.R.S. Employer
incorporation) File Number) Identification Number)
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)
Item 2. Acquisition or Disposition of Assets.
The Registrant sold one of its investment properties, Sutton Place Apartments,
located in Corpus Christi, Texas on September 7, 2000. Sutton Place Apartments
was sold to George Van Vliet, an unrelated party, for $5,400,000.
The General Partner is currently evaluating the cash requirements of the
Partnership to determine what portion of the net proceeds, if any, would be
available to distribute to the partners in the near future.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's quarterly report on Form 10-QSB for the quarter ended September 30,
2000.
(c) Exhibits
10.27 Purchase and Sale Contract between Registrant effective September 7,
2000.
10.28 First Amendment to Purchase and Sale Contract.
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 PROPERTIES V
By: ConCap Equities, Inc.
Its General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date: November 13, 2000
EXHIBIT 10.27
PURCHASE AND SALE CONTRACT
BETWEEN
SUTTON PLACE CCP V, L.P.,
a South Carolina limited partnership
AS SELLER
AND
GEORGE VAN VLIET, or permitted assigns
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract" or the "Agreement")
is entered into as of the ________ day of June, 2000 (the "Effective Date") by
and between SUTTON PLACE CCP V, L.P., a South Carolina limited partnership,
having a principal address at 2000 South Colorado Blvd., Tower Two, Suite
2-1000, Denver, Colorado 80222 ("Seller") and GEORGE VAN VLIET or permitted
assigns, having a principal address at 10425 Bluff Road, Eden Prairie, Minnesota
55347-5009 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual covenants and
agreements hereinafter set forth, Seller and Purchaser hereby agree as follows:
RECITALS
R-1. Seller holds fee title to the parcel or parcels of real estate located in
Nueces County, Texas, as more particularly described in Exhibit "A" attached
hereto and made a part hereof. Improvements have been constructed on the land
described in this Recital.
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 hereinafter defined) 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 the terms and
conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of the Property, as Purchaser deems necessary and
desirable.
ARTICLE 1
DEFINED TERMS
1.1 Unless otherwise defined elsewhere herein, 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 State in which the Land is located.
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 required to be held under the terms and conditions
of this Purchase Contract and on which date full payment of the Purchase Price
for the Property shall have been paid to and received by Seller in immediately
available U.S. funds.
1.1.4 "Deed" has the meaning given such term in Section 7.2.1.1.
1.1.5 "Excluded Permits" means those Permits which, under applicable
law, are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit "B", if any, attached hereto.
1.1.6 "Fixtures and Tangible Personal Property" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, computers (to the extent
located on the Property and owned by Seller), fax machines (to the extent
located on the Property and owned by Seller), copiers (to the extent located on
the Property and owned by Seller), apparatus, appliances and other articles of
tangible personal property now located on the Land or in the Improvements as of
the date of this Purchase Contract and used or usable in connection with any
present or future occupation or operation of all or any part of the Property,
but only to the extent transferable. 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 "C".
1.1.7 [Intentionally Omitted.]
1.1.8"Improvements" means all buildings and improvements, located on
the Land, taken "as is".
1.1.9 "Land" means all of those certain tracts of land described on
Exhibit "A" attached hereto, and all rights, privileges and appurtenances
pertaining thereto.
1.1.10 "Lease(s)" means the interest of Seller in and to 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 or
thereafter as permitted in Section 6.5.
1.1.11 "Management Contract" means the agreement(s) between
Seller and Manager pertaining to the Land and Improvements.
1.1.12"Manager" means Insignia Management Group, LP, or one of its
affiliates.
1.1.13 "Miscellaneous Property Assets" means all contract rights,
leases, concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property and
owned by Seller, but only to the extent transferable, excluding, however, (i)
receivables, (ii) Property Contracts, (iii) Leases, (iv) Permits, (v) Fixtures
and Tangible Personal Property, (vi) Security Deposits, (vii) cash or other
funds, whether in petty cash or house "banks," or on deposit in bank accounts or
in transit for deposit, (viii) refunds, rebates or other claims, or any interest
therein, for periods or events occurring prior to the Closing Date, (ix) utility
and similar deposits, (x) insurance or other prepaid items, (xi) Seller's
proprietary books and records, and (xii) the Management Contract, except to the
extent that Seller receives a credit on the closing statement for any such item.
The term "Miscellaneous Property Assets" shall also include the following, but
only to the extent owned by Seller and in Seller's possession: site plans,
surveys, soil and substrata studies, architectural renderings, plans and
specifications, engineering plans and studies, floor plans, tenant data sheets,
landscape plans and other plans or studies of any kind, if any, which relate to
the Land and or the Improvements or the Fixtures and Tangible Personal Property.
The term "Miscellaneous Property Assets" shall also include all of Seller's
rights, if any, in and to the name "Sutton Place Apartments".
1.1.14 "Mortgage" shall have the meaning given such term in Section
6.4.
1.1.15"Mortgagee" means the current holder of record of the
Mortgage.
1.1.16 "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 and
used in or relating to the ownership, occupancy or operation of the Property or
any part thereof not subject to a Lease.
1.1.17 "Permitted Exceptions" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with the
provisions of Section 6.2.
1.1.18 "Property" means the Land and Improvements 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, Leases, Security Deposits, Permits other than
Excluded Permits, and the Miscellaneous Property Assets.
1.1.19 "Property Contracts" means all purchase orders, construction
contracts, bonds, warranties, maintenance, service, or utility contracts,
employment agreements and other similar contracts, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property
and which are not cancelable on 90 days' or shorter notice, except Leases.
1.1.20 "Purchase Contract" means this Purchase and Sale Contract by
and between Seller and Purchaser.
1.1.21 "Purchase Price" means the total consideration to be paid by
Purchaser to Seller for the purchase of the Property as set forth in Section
3.1.
1.1.22 "Security Deposits" means all (i) prepaid rent held as
security, (ii) security deposits, and (iii) pet deposits, if any, held by Seller
under any of the Leases.
1.1.23 "Seller's Note Obligations" shall mean the promissory note or
notes more particularly described on Schedule 1.1.23.
1.1.24"Survey"shall have the meaning ascribed thereto in Section 6.1.
1.1.25 "Tenant" means any person or entity entitled to occupy any
portion of the Property under a Lease.
1.1.26 "Title Commitment" or "Title Commitments" shall have the
meaning ascribed thereto in Section 3.1.1.
1.1.27 "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
Five Million four Hundred Thousand and No/100 Dollars ($5,400,000.00), which
shall be paid by Purchaser, as follows:
3.1.1 On the date hereof, Purchaser shall deliver to Stewart Title
Guaranty Company ("Escrow Agent" or the "Title Insurer") a deposit in the sum of
One Hundred Thousand and No/100 Dollars ($100,000.00), in cash, (such sum being
hereinafter referred to and held as the "Deposit"). Seller and Purchaser agree
that the Twenty Thousand and No/100 Dollars ($20,000.00) of the Deposit shall be
nonrefundable to Purchaser except as otherwise specifically provided herein
(such sum being hereinafter referred to and held as the "Nonrefundable
Portion"). Purchaser and Seller each approve the form of Escrow Agreement
attached as Exhibit "D". Seller and Purchaser further agree that the amount of
One Hundred and No/100 Dollars ($100.00) shall be paid by Purchaser to Seller
concurrently with the deposit into escrow of the Deposit, as consideration for
Seller's execution and delivery of this Purchase Contract (the "Independent
Contract Consideration"). The Independent Contract Consideration is independent
of any other consideration or payment provided for in this Purchase Contract
and, notwithstanding anything to the contrary herein, is non-refundable in all
events.
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 an interest-bearing bank account acceptable to
Seller and Purchaser at one or more federally insured national banking
association(s) or such other investment as jointly directed by Seller and
Purchaser should Seller and Purchaser each in their respective sole discretion
determine to issue such joint investment instructions to the Escrow Agent, and
all interest and income thereon shall become part of the Deposit and shall be
remitted to the party entitled to the Deposit, as set forth below.
3.1.3 If the sale of the Property is closed by the date fixed
therefor (or any extension date provided for herein or by the mutual written
consent of the parties hereto, given or withheld in their respective sole
discretion), monies held as the Deposit shall be applied to the Purchase Price
on the Closing Date and the balance of the Purchase Price, less adjustments
provided for herein, shall be paid at Closing to Seller in immediately available
funds. If the sale of the Property is not closed by the date fixed therefor (or
any such extension date) owing to the termination of this Purchase Contract by
Purchaser pursuant to Article 5 or Article 6 (other than Section 6.5), the
Deposit, less the Nonrefundable Portion (which shall be delivered to Seller),
shall be returned and refunded to Purchaser. If the sale of the Property is not
closed by the date fixed therefor (or any such extension date) owing to the
termination of this Purchase Contract pursuant Section 6.5 or Section 9.2.6, the
Deposit shall be returned and refunded to Purchaser in its entirety. If the sale
of the Property is not closed by the date fixed therefor (or any such extension
date) owing to the failure of performance by Seller, Purchaser shall be entitled
to the remedy elected by it under and as set forth in Article 12 hereof.
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
Purchaser, the Deposit shall be forfeited by Purchaser and the sum thereof shall
go to Seller forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in Article 12
below.
ARTICLE 4
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement, and Purchaser's acquisition of such funds shall not be a contingency
to the Closing. It is specifically agreed that Seller shall not be obligated to
prepay the Seller's Note Obligations until the Closing Date and then only from
the proceeds of the Purchase Price.
ARTICLE 5
FEASIBILITY PERIOD
5.1 Subject to the terms of Section 5.3 below, for thirty (30) calendar
days following the later of (a) the Effective Date, or (b) Purchaser's receipt
of the "Materials" (as hereinafter defined), but in no event later than
forty-five (45) 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 studies, tests,
examinations and inspections, or investigations of or concerning the Property
(including without limitation, engineering and feasibility studies, evaluation
of drainage and flood plain, soil tests for bearing capacity and percolation and
surveys, including topographical surveys).
5.1.2 To confirm any and all matters which Purchaser may reasonably
desire to confirm with respect to the Property.
5.1.3 To ascertain and confirm the suitability of the Property
for Purchaser's intended use.
5.1.4 To review all Materials and, at the offices of the Manager
located at the Property, to review and copy (at Buyer's expense) Seller's books
and records relating to the Property (other than Seller's proprietary
information) and all Leases.
5.2 Purchaser shall have the right to terminate this Purchase Contract for
any reason, or no reason, by giving written Notice to Seller and Escrow Agent on
or before 5:00 p.m. Central Standard Time, on the date of expiration of the
Feasibility Period. 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 5.3, and Escrow Agent
shall promptly return the Deposit, less the Nonrefundable Portion (which shall
be delivered to Seller), 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.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions
taken by Purchaser and its Consultants on the Property. Purchaser shall
indemnify, defend (with attorneys selected by Seller) and hold Seller harmless
from any and all claims, damages, costs and liability which may arise due to
such entries, surveys, tests, investigations and the like. 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. Purchaser shall exercise
commercially reasonable efforts to minimize disruption to the Tenants in
connection with Purchaser's or its Consultants' activities pursuant to this
Section. 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.
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 commercial
general liability insurance with broad form contractual and personal injury
liability endorsements with respect to Purchaser's activities on the Property
pursuant to this Section 5.2, with coverages of not less than $1,000,000.00 for
injury or death to any one person and $2,000,000.00 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 for a period of one (1) year from the
Execution Date.
5.4 Purchaser shall not permit any mechanic's or materialmen's liens or
any other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser. Purchaser
shall give notice to Seller a reasonable time prior to entry onto the Property,
shall deliver proof of insurance coverage required above to Seller 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 its
best efforts to prevent its Consultants, 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, including Purchaser's attorneys and
representatives, prospective lenders and engineers.
5.5 Seller shall deliver to Purchaser within ten (10) calendar days from
the Effective Date copies of (a) Seller's form residential lease agreement(s)
used at the Property, (b) all Property Contracts, (c) all Permits (to the extent
in Seller's possession), (d) any surveys, engineering reports, environmental
reports, building inspection reports, site plans or related studies and reports
in Seller's possession or control relating to the Property and prepared for
Seller by third parties (other than proprietary information of Seller), and (e)
those items set forth in Schedule 5.4 (collectively, the "Materials"). On
Purchaser's request, Seller will provide to Purchaser with reasonable promptness
a copy of its policies of insurance relating to the Property. If the sale of the
Property is not closed by the date fixed therefor, Purchaser shall, within five
(5) calendar days, return all such Materials to Seller.
ARTICLE 6
TITLE
6.1 Seller shall promptly cause to be delivered to Purchaser (a) a
preliminary title report or commitment (the "Title Commitment") prepared by
Stewart Title Guaranty Company (the "Title Insurer") to issue an Owner's Policy
of Title Insurance (the "Title Policy") insuring title to the Property to be
good and indefeasible in the amount of the Purchase Price, subject only to the
Permitted Exceptions (described below) and other liens and encumbrances not
constituting objections to title in accordance herewith, together with legible
copies of all instruments identified therein as exceptions, and (b) a survey of
the Land and Improvements, prepared in accordance with and complying with the
minimum requirements of ALTA, in a form, and certified as of a date satisfactory
to the Title Insurer to delete standard survey exceptions from the Title Policy,
except for any Permitted Exceptions, and (i) showing all improvements, recorded
easements (to the extent locatable), set back lines and such other matters shown
as exceptions by the Title Commitments; (ii) showing the right of way for all
adjacent public streets; (iii) specifically disclosing whether (and, if so, what
part of) any of the Property is in an area designated as requirement flood
insurance under applicable federal laws regulating lenders; (iv) containing a
perimeter legal description of the Property; (v) certified to Purchaser,
Purchaser's lender, Seller and Title Insurer as being true and correct; and (vi)
certifying the legal description set forth therein as describing the Property to
be purchased by Purchaser pursuant to the terms of this Purchase Contract (the
"Survey"). On or before the earlier to occur of (a) ten (10) days following
Purchaser's receipt of the Title Commitment, the documents of record reflected
therein, and the Survey, Purchaser shall give written notice (the "Objection
Notice") to the attorneys for Seller of any conditions of title subject to which
Purchaser is not obligated to take the Property pursuant to the provisions of
this Purchase Contract (the "Objections") separately specifying and setting
forth each such objection. Seller shall have no obligation to cure any matter
set forth in the Objection Notice, but shall extend the Closing Date for up to
an additional thirty (30) days to cure any such matter. If Seller gives
Purchaser notice (the "Response Notice") that Seller is unable or unwilling to
cure any Objection set forth in the Objection Notice, or if Seller fails to or
does not give Purchaser a Response Notice, Purchaser may, as its exclusive
remedy, elect by written notice to Seller, within five (5) business days after
the Objection Notice is given, either (a) to accept such title as Seller is able
to convey without any reduction or abatement of the Purchase Price, or (b) to
terminate this Purchase Contract in which event the Deposit, less the
Nonrefundable Portion (which shall be delivered to Seller), shall be returned to
Purchaser. If Purchaser fails to give notice of its election to terminate this
Agreement within such five (5) business day period, Purchaser shall be deemed to
have waived such Objections and to have elected to proceed to close the
transactions contemplated by this Purchase Contract.
6.2 All matters disclosed on the Title Commitment which are not objected
to in the Objection Notice as timely delivered or which are waived or deemed
waived by Purchaser pursuant to the provisions of Section 6.1 above, and any
matter affecting title to the Property, even though not reflected in the Title
Commitment if the Title Insurer will insure Purchaser's title clear of the
matter or will insure against the enforcement of such matter, shall be deemed to
be Permitted Exceptions, other than (a) the Mortgage, and (b) unpaid liens for
real estate and personal property taxes for years prior to the fiscal year in
which the Closing Date occurs and any other matter which Seller is obligated to
pay and discharge at the Closing under this Purchase Contract, and the amount
thereof chargeable to Seller, plus interest and penalties thereon, if any, shall
be deducted from the Purchase Price on the Closing Date and paid to the Title
Insurer for the payment of such matters. Purchaser agrees to accept title to the
Land and Improvements, so long as the same is indefeasible, and the Deed shall
be subject to the Permitted Exceptions.
6.3 Seller agrees that it shall be solely responsible for payment of all
costs relating to the issuance of the Title Policy, and Purchaser agrees that it
shall be solely responsible for payment of all costs, fees and premiums related
to all endorsements or amendments thereof.
6.4 Notwithstanding the foregoing, any deeds of trust and/or mortgages
(including any and all mortgages which secure the Seller's Note Obligations)
against the Property (whether one or more, the "Mortgage") shall not be deemed
Permitted Exceptions, whether Purchaser gives written notice of such or not, and
subject to the provisions of Section 9.1.8 and Section 9.2.5, shall be paid off,
satisfied, discharged and/or cured by Seller at or before Closing.
6.5 Seller covenants that from the Effective Date until the Closing Date
it will not voluntarily create or cause any lien or encumbrance to attach to the
Property between the Effective Date and the Closing Date, other than (a) Leases
entered into in the ordinary course of business on terms and conditions similar
to those currently offered to tenants under existing Leases and subject to the
same tenant financial profiles as currently used by Seller, and (b) Property
Contracts whose terms extend beyond the Closing Date (unless consented to by
Purchaser); any such monetary lien or encumbrance so attaching by voluntary act
of Seller (hereinafter, a "Voluntary Intervening Lien") shall be discharged by
the Seller at or prior to Closing on the Closing Date or any extended Closing
Date.
6.6 Purchaser shall be responsible for the costs of the Survey. 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 Deed. Purchaser, at
Purchaser's sole cost and expense, may also cause to be prepared an
environmental report for the Property.
ARTICLE 7
CLOSING
7.1 Date, Place Of Closing, Prorations, Delinquent Rent and Closing Costs.
7.1.1 The Closing shall occur thirty (30) days following the
expiration of the Feasibility Period, through an escrow with Escrow Agent,
whereby the Seller, Purchaser and their attorneys need not be physically present
at the Closing and may deliver documents by overnight air courier or other
means. Notwithstanding the foregoing, Purchaser shall have the right to extend
the Closing Date for up to an additional thirty (30) days from the date set
forth above on the condition that, on or before 5:00 P.M., Houston, Texas time
of the date which is not later than three (3) Business Days preceding the
Closing Date set forth above, Purchaser shall (i) deliver to Escrow Agent an
additional non-refundable deposit in the amount of $54,000.00, which deposit
shall be added to and constituted as a portion of the Deposit, to be held and
applied in accordance with the provisions of this Purchase Contract applicable
to the Deposit, and (ii) deliver to Seller written notice that Purchaser is
exercising its right to extend the Closing Date.
7.1.2 The Closing Date may be extended without penalty at the option
of Seller to a date not later than thirty (30) days following the Closing Date
specified above to satisfy a condition to be satisfied by Seller, or such later
date as is mutually acceptable to Seller and Purchaser.
7.1.3 All normal and customarily proratable items, including,
without limitation, rents and other income from the Property ("Rents"),
operating expenses, personal property taxes, shall be prorated as of the Closing
Date, Seller being charged or credited, as appropriate, for all of same
attributable to the period up to the Closing Date (and credited for any amounts
paid by Seller attributable to the period on or after the Closing Date, if
assumed by Purchaser) 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 Security Deposits, if any, shall be
transferred by Seller to Purchaser at the Closing or Seller shall be given a
credit therefor against the Purchase Price, as Seller may elect. Purchaser shall
assume at Closing the obligations under the Property Contracts assumed by
Purchaser, provided that any payments under the Property Contracts have been
prorated. 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 calendar 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 provisions of this Section 7.1.3 shall apply during the
Proration Period (as defined below). Rents and all related charges shall be
prorated based on actual collections as of the Closing Date.
7.1.4 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. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
proration hereunder and to give Notice thereof as provided above within the
Proration Period shall be deemed a waiver of its right to cause a recomputation
or a correction of an error or omission with respect to such item after the
Closing Date.
7.1.5 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 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, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after Closing
shall be forwarded to Purchaser for disbursement in accordance with the order of
payment provided herein above. 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 will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or liability to
Purchaser in connection with all efforts by Seller to collect such Delinquent
Rent and to take all steps, whether before or after the Closing Date, as may be
necessary to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, within seven (7) days after a written
request, 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 7.1.5 shall apply during the
Proration Period.
7.1.6 Seller shall pay the cost of all transfer taxes (e.g., excise
stamp taxes) and Purchaser shall pay the cost of all recording costs with
respect to the Closing. Seller and Purchaser shall share equally in the costs of
the Escrow Agent for escrow fees but not any other fees and charges of the Title
Insurer.
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 in the form attached as Exhibit
"E" (the "Deed"). The acceptance of such 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 in the
form attached as Exhibit "F", covering all Property Contracts, Leases, Security
Deposits, Permits (other than Excluded Permits) and 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 of, among other things, Seller's obligations thereunder.
7.2.1.3 An Assignment (to the extent assignable and in force
and effect) without recourse or warranty in the form attached as Exhibit "G" of
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 title affidavit or, at Seller's option, an
indemnity, as applicable, in the customary form reasonably acceptable to Seller
and Title Insurer to enable Title Insurer to delete the standard exceptions to
the title insurance policy to be issued pursuant to the Title Commitment (the
"Title Policy") (other than matters constituting any Permitted Exceptions and
matters which are to be completed or performed post-Closing); 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 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.
7.2.1.8 Evidence that the Management Agreement has been
terminated.
7.2.1.9 A rent roll for the Property, updated to the Closing
Date and certified by Seller, listing the monthly base rent payable, lease
expiration date and unapplied Security Deposits for each lease.
7.2.1.10 Resolutions, certificates of good standing, and such
other organizational documents as Title Insurer shall reasonably require
evidencing Seller's authority to consummate this transaction.
7.2.1.11 To the extent in Seller's possession or control,
originals or copies of the Leases, Property Contracts, Permits (other than
Excluded Permits), lease files, warranties, guaranties, operating manuals, keys
to the Property and Seller's books and records (other than proprietary
information) regarding the Property.
7.2.2 Purchaser. At Closing, Purchaser shall deliver to the Title
Company (for disbursement to Seller upon the Closing) the following items with
respect to the Property being conveyed 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 Title Company, 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. The existence of any such liens or encumbrances shall not be deemed
objections to title if Seller shall comply with the foregoing requirements.
7.2.2.2 A closing statement executed by Purchaser.
7.2.2.3 A countersigned counterpart of the Bill of Sale in the
form attached as Exhibit "F".
7.2.2.4 A countersigned counterpart of the Assignment in the
form attached as Exhibit "G".
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.
7.2.3 Notice to Tenants. At Closing, Seller and Purchaser shall
execute and deliver a letter, dated as of the date of Closing and addressed to
all Tenants, informing such Tenants of the transfer of the Property and the
assignment of the Leases to Purchaser, together with an instruction to pay all
amounts due or to become due under the Leases to Purchaser, including an
acknowledgment by Purchaser of receipt of all security deposits (specifying the
exact dollar amount of the security deposit) and that Purchaser is responsible
for the Tenant's security deposit, and in compliance with Section 92.105 of the
Texas Property Code. The letter shall be in the form of Exhibit "H" attached
hereto.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 Representations, Warranties and Covenants 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 is lawfully and duly organized, and, if
applicable, in good standing under the laws of the state of its formation set
forth in the initial paragraph of this Purchase Contract, and has or at the
Closing shall have the power and authority to sell and convey the Property and
to execute the documents to be executed by Seller and prior to the Closing will
have 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 to which Seller is a party or by which Seller is otherwise bound.
Seller has not made any other contract for the sale of, or given any other
person the right to purchase, all or any part of any of the Property;
8.1.1.2 Seller owns indefeasible fee title to the Property,
including all real property contained therein required to be sold to Purchaser,
subject only to the Permitted Exceptions (provided, however, that if this
representation is or becomes untrue, Purchaser's remedies shall be limited to
the right to terminate this Purchase Contract within five (5) days of receipt by
Purchaser from the Title Insurer of such information, and receive a return of
the Deposit, and Seller shall have no other liability as a result thereof,
either before or after Closing);
8.1.1.3 There are no adverse or other parties in possession of
the Property, except for occupants, guests and tenants under the Leases
(provided, however, that if this representation is or becomes untrue,
Purchaser's remedies shall be limited to the right to terminate this Purchase
Contract within five (5) days of receipt by Purchaser from the Title Insurer of
such information and receive a return of the Deposit, and Seller shall have no
other liability as a result thereof, either before or after Closing);
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 under this Purchase Contract, and
Seller has or at the Closing shall have all necessary right and authority to
convey and assign to Purchaser all contract rights and warranties required to be
conveyed and assigned to Purchaser hereunder;
8.1.1.5 Purchaser has no duty to collect withholding taxes for
Seller pursuant to the Foreign Investors Real Property Tax Act of 1980, as
amended;
8.1.1.6 To Seller's knowledge, there are no actions,
proceedings, litigation or governmental investigations or condemnation actions
either pending or threatened against the Property, as applicable, and Seller
agrees to promptly notify Purchaser in writing of any such action, proceeding,
litigation or investigation which is instituted or threatened after the
Effective Date;
8.1.1.7 Seller has no knowledge of any claims for labor
performed, materials furnished or services rendered in connection with
constructing, improving or repairing any of the Property, as applicable, caused
by Seller and which remain unpaid beyond the date for which payment was due and
in respect of which liens may or could be filed against any of the Property, as
applicable;
8.1.1.8 To Seller's knowledge, Seller has not received any
written notice of any proposed taking, condemnation or special assessment with
respect to the Property;
8.1.1.9 To Seller's knowledge, Seller has not received any
written notice of any uncured violations of any federal, state, county or
municipal law, ordinance, order, regulation or requirement affecting the
Property;
8.1.1.10 To Seller's knowledge, Seller has not received any
written notice of any default by Seller under any of the Property Contracts that
will not be terminated on the Closing Date;
8.1.1.11 Until the Closing Date, Seller agrees to maintain its
existing insurance policies covering the Property in full force and effect
through the Closing Date, to continue to maintain the Property in substantially
the same manner and with the same care as Seller has been operating the Property
immediately prior to the Effective Date, and to cause any of the units on the
Property that are vacant as of three days prior to the Closing Date to be in
"make ready" condition on the Closing Date; and
8.1.1.12 To Seller's knowledge, all documents relating to the
Property that are delivered by Seller to Purchaser in connection with this
Purchase Contract, are true, correct and complete in all material respects, and
none contain any untrue statement of a material fact or omit to state a material
fact.
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 not
relying upon any information provided by Seller or Broker or statements,
representations or warranties, express or implied, made by or enforceable
directly against Seller or Broker, including, without limitation, any relating
to the value of the Property, the physical or environmental condition of the
Property, any state, federal, county or local law, ordinance, order or permit;
or the 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 and the representations
set forth in this Article 8). If Seller provides or has provided any documents,
summaries, opinions or work product of consultants, surveyors, architects,
engineers, title companies, governmental authorities or any other person or
entity with respect to the Property, including, without limitation, the offering
prepared by Broker, 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, summaries, opinions or
work product shall not create or give rise to any liability of or against
Seller, Seller's partners or affiliates or any of their respective partners,
officers, directors, participants, employees, contractors, attorneys,
consultants, representatives, agents, successors, assigns or
predecessors-in-interest. Purchaser 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 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. Except as otherwise
set forth herein, 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.
8.1.3 Seller agrees that Purchaser shall be entitled to rely on the
foregoing representations and warranties made by Seller herein and that
Purchaser has so relied. Seller and Purchaser agree that those representations
and warranties contained in Section 8.1 shall survive Closing for a period of
one (1) year (the "Survival Period"). Seller shall have no liability after the
Survival Period with respect to the representations and warranties contained
herein except to the extent that Purchaser has filed a lawsuit against Seller
during the Survival Period for breach of any representation or warranty. In the
event that Seller breaches any representation contained in Section 8.1 and
Purchaser had knowledge of such breach prior to the Closing Date, Purchaser
shall be deemed to have waived any right of recovery, and Seller shall not have
any liability in connection therewith.
8.1.4 Representations and warranties above made to the knowledge of
Seller shall not be deemed to imply any duty of inquiry. 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 duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to (a) Harry Alcock, or (b) Liz Sanchez, of Manager.
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 and to the extent
applicable, Purchaser represents and warrants, in particular, that:
8.2.2.1 Any assignee of Purchaser will be duly organized,
validly existing and in good standing under the laws of the state of its
organization.
8.2.2.2 Purchaser, acting through any of its or their duly
empowered and authorized officers or members, has all necessary power and
authority to own and use its properties and to transact the business in which it
is engaged, and has full power and authority to enter into this Purchase
Contract, to execute and deliver the documents and instruments required of
Purchaser herein, and to perform its obligations hereunder; and no 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][partnership agreement], (ii) violate any provision of any law,
governmental rule or regulation currently in effect, (iii) violate any judgment,
decree, writ, injunction, award, determination or order currently in effect that
names or is specifically directed at Purchaser or its property, and (iv) require
the consent, approval, order or authorization of, or any filing with or notice
to, any court or other governmental authority.
8.2.2.5 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.
8.2.4 Purchaser will cooperate with Seller in obtaining the consent
of the holder(s) of the Seller's Note Obligations to the prepayment thereof (if
required).
ARTICLE 9
CONDITIONS PRECEDENT TO CLOSING
9.1 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 the 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, warranties and covenants of
Seller contained herein shall be true in all material respects as of the Closing
Date (and Purchaser shall be permitted to perform an inspection of the Property
immediately prior to the Closing Date to verify same);
9.1.3 Seller shall have complied with, fulfilled and performed in
all material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Seller hereunder;
9.1.4 Neither Seller nor Seller's general partner shall be a debtor
in any bankruptcy proceeding or shall have been in the last 6 months a debtor in
any bankruptcy proceeding;
9.1.5 A taking of all or any part of the Property must not have been
commenced or threatened in writing;
9.1.6 Seller shall have terminated any Property Contracts which are
not being assumed by Purchaser as of the Closing Date (and which are capable of
being terminated by Seller without penalty or cost to Seller).
9.1.7 All consents to the sale of the Property (or applicable part
thereof) required for the prepayment of the Seller's Note Obligations which may
be required shall have been obtained, all on terms and conditions reasonably
acceptable to Purchaser.
9.1.8 Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above. If any of the above conditions is not satisfied, then notwithstanding
anything to the contrary contained in this Purchase Contract, Purchaser may, at
its option (a) extend the Closing Date to permit satisfaction of such condition,
(b) waive such condition and proceed to Closing and accept title to the Property
with an agreed-upon offset or deduction from the Purchase Price (assuming Seller
and Purchaser can agree upon such offset or deduction amount, and neither party
has any obligation to come to an agreement), (c) waive such condition and
proceed to Closing and accept title to the Property without any offset or
deduction from the Purchase Price, or (d) notify Seller of Purchaser's election
to terminate this Purchase Contract and receive a return of the Deposit from the
Escrow Agent.
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 the Property under this Purchase Contract shall be subject to and conditioned
upon the fulfillment of each and all of the following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
and as of the Effective Date as though such representations and warranties were
made at and as of such date and time.
9.2.2 Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase Contract to be
performed or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price.
9.2.3 There shall not be pending or, to the knowledge of either
Purchaser or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or nonbinding
any of the covenants or obligations of the Purchaser.
9.2.4 Seller shall have received all consents and approvals to the
consummation of the transactions contemplated hereby (a) of Seller's partners
(to the extent required by the partnership agreement of Seller or its general
partner) or (b) that are required by law.
9.2.5 The conditions of Section 9.1.8 shall have been satisfied.
9.2.6 Notwithstanding anything to the contrary, there are no other
conditions on Seller's obligation to Close except as expressly set forth above.
If any of the above conditions is not satisfied, then notwithstanding anything
to the contrary contained in this Purchase Contract, Seller may, at its option
(a) extend the Closing Date to permit satisfaction of such condition, (b) waive
such condition and proceed to Closing, or (c) notify Purchaser of Seller's
election to terminate this Purchase Contract and receive the Deposit from the
Escrow Agent (which Seller shall retain as liquidated damages, as its sole and
exclusive remedy hereunder, in accordance with the provisions of Article 12
hereof, provided, however, that in the case of any failure to satisfy the
conditions contained in Sections 9.2.4 and/or 9.2.5 above and all of the other
conditions of Seller's obligation to close have been satisfied, Seller shall not
be entitled to receipt of the Deposit but the Deposit shall be returned to
Purchaser by the Escrow Agent.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only
with O'Boyle Properties, Inc. and Southwest Residential Partners, Inc.
(collectively, "Broker") in connection with this Purchase Contract. Seller and
Purchaser each represents and warrants to the other that other than Broker, it
has not dealt with or utilized the services of any other real estate broker,
sales person or finder in connection with this Purchase Contract, and each party
agrees to indemnify the other party from and against all claims for brokerage
commissions and finder's fees arising from or attributable to the acts or
omissions of the indemnifying party.
10.2 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.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
10.4 The Texas Real Estate License Act requires written notice to
Purchaser from any licensed real estate broker or salesman who is to receive a
commission from Purchaser that Purchaser should have an attorney of its own
selection examine an abstract of title to the property being acquired or that
Purchaser should be furnished with or should obtain a title insurance policy.
Notice to that effect is, therefore, hereby given to Purchaser on behalf of
Broker.
ARTICLE 11
POSSESSION
11.1 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 12
DEFAULTS AND REMEDIES
12.1 In the event Purchaser terminates this Purchase Contract for any
reason other than pursuant to Article 5 or Article 6, or because of Seller's
inability to convey title or to satisfy Section 9.2.4 or Section 9.2.5, or
defaults hereunder on or 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 5.3, the reasonable estimate of the total net detriment that Seller
would suffer in the event that Purchaser so terminates this Purchase Contract or
defaults hereunder on or prior to the Closing Date is and shall be, as Seller's
sole and exclusive 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 of
the Deposit 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 5.3 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 5.3 above, and
the right of Seller to collect the Deposit as liquidated damages.
12.2 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 (which shall not include Seller's inability to
convey title or to satisfy Section 9.2.4 or Section 9.2.5), Purchaser's sole
remedy shall be to elect to either (a) terminate this Purchase Contract and
receive reimbursement of the Deposit, or (b) enforce specific performance of
this Purchase Contract. In the event Purchaser is unable to enforce the remedy
of specific performance after using commercially reasonable efforts to seek to
enforce such remedy, then in lieu of obtaining specific performance, Purchaser
shall have the right to bring suit for damages against Seller in an amount not
to exceed $100,000.00 in addition to receiving reimbursement of the Deposit.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 In the event that the Property is damaged or destroyed by fire or
other casualty after the Effective Date but prior to Closing, and the cost of
repair is more than $100,000, then Seller will have no obligation to repair such
damage or destruction and, at Purchaser's option, this Agreement shall
terminate. In the event Purchaser elects not to terminate this Agreement, this
transaction shall be closed in accordance with the terms of this Agreement,
notwithstanding any such damage or destruction, and Purchaser shall receive, at
Closing all insurance proceeds pertaining thereto (plus a credit against the
Purchase Price in the amount of any deductible payable by Seller in connection
therewith), but only to the extent the damage or destruction has not been
repaired by Seller out of the insurance proceeds.
13.2 In the event that the Property is damaged or destroyed by fire or
other casualty after the Effective Date but prior to the Closing, and the cost
of repair is less than $100,000, this transaction shall be closed in accordance
with the terms of this Agreement, notwithstanding the damage or destruction;
provided, however, Seller shall make such repairs if they can be reasonably
effected before the Closing. If Seller is unable to effect such repairs, then
Purchaser shall receive at Closing all insurance proceeds pertaining thereto
(plus a credit against the Purchase Price in the amount of any deductible
payable by Seller in connection therewith), but only to the extent the damage or
destruction has not been repaired by Seller out of the insurance proceeds.
ARTICLE 14
LEAD-BASED PAINT DISCLOSURE
14.1 [Intentionally Deleted]
ARTICLE 15
EMINENT DOMAIN
15.1 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 or intent to
acquire 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 Purchaser's receipt from Seller of the occurrence of
such event and recover the Deposit hereunder, or to settle in accordance with
the terms of this Purchase Contract for the full Purchase Price and receive the
full benefit or any condemnation award.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules
All Exhibits and Schedules, whether or not annexed hereto, are a part of
this Purchase Contract for all purposes.
16.2 Assignability
Subject to Section 16.18, this Purchase Contract is not assignable
without first obtaining the prior written approval of the non-assigning party,
except that Purchaser may assign all or an undivided interest in this Purchaser
Contract (a) to an entity which is majority owned or controlled by George Van
Vliet, provided that George Van Vliet is not released from its liability
hereunder, or (b) if Seller consents thereto (which consent shall not be
unreasonably withheld or delayed).
16.3 Binding Effect
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 Captions
The captions, headings, and arrangements used in this Purchase Contract
are for convenience only and do not in any way affect, limit, amplify, or modify
the terms and provisions hereof.
16.5 Number And Gender Of Words
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 Notices
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing and
shall be deemed to have been properly given or served for all purposes (i) if
sent by Federal Express or a 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 Fifth (5th) business day following the date of mailing, or (iv)
if sent by telecopier, then on the actual date of delivery (as evidenced by a
telecopier confirmation) provided that a copy of the telecopy and confirmation
is also sent by U.S. mail, addressed as follows:
If to Seller: If to Purchaser:
Sutton Place CCP V, L.P. Mr. George Van Vliet
2000 South Colorado Boulevard Van Vliet Real Estate Company
Tower Two, Suite 2-1000 10425 Bluff Road
Denver, Colorado 80222 Eden Prairie, Minnesota
Attn: Mr. Harry Alcock 55347-5009
Telephone No. (303) 691-4344 Telephone No. (612) 996-9189
Facsimile No. (303) 691-5662 Facsimile No. (612) 996-9189
and with a copy to:
Sutton Place CCP V, L.P. Krahmer & Bishop, P.A.
2000 South Colorado Boulevard 204 Lake Avenue, Suite 201
Tower Two, Suite 2-1000 P.O. Box 409
Denver, Colorado 80222 Fairmont, Minnesota 56031
Attn: Mr. Pat Stucker Attn: David J. Bishop
Telephone No. (303) 691-4321 Telephone No. (507) 238-9432
Facsimile No. (303) 692-0786 Facsimile No. (507) 538-9434
With a copy to: And:
Jackson Walker L.L.P. Carrier, Cramer & Weatherbie
112 E. Pecan 5956 Sherry Lane, Suite 1204
Suite 2100 Dallas, Texas 75225
San Antonio, Texas 78205 Attn: David A. Weatherbie
Attn: Eileen E. Scherlen, Esq. Telephone No. (214) 369-2250
Telephone No. (210) 978-7784 Facsimile No. (214) 361-7842
Facsimile No. (210) 978-7790
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of Notice by
mail or otherwise is required, the giving of such Notice may be waived in
writing by the person or persons entitled to receive such Notice.
16.7 Governing Law And Venue
The laws of the State in which the Land is located 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 a court for the district in
which the Property is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
16.8 Entirety And Amendments
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if any,
relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
16.9 Severability
If any provision of this Purchase Contract is held to be illegal, invalid,
or unenforceable under present or future laws, such provision shall be fully
severable. The Purchase Contract shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Purchase Contract; and the remaining provisions of this Purchase Contract shall
remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
16.10 Multiple Counterparts
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
16.11 Further Acts
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered any and all such further acts, deeds, and assurances
as may be necessary to consummate the transactions contemplated hereby.
16.12 Construction
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to the
drafting of this Purchase Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
16.13 Confidentiality
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that Purchaser may
disclose the terms and conditions of this Purchase Contract (i) as required by
law, (ii) to consummate the terms of this Purchase Contract, or any financing
relating thereto, or (iii) to Purchaser's or Seller's lenders, attorneys and
accountants. Any information provided by Seller to Purchaser under the terms of
this Purchase Contract is for informational purposes only. In providing
information to Purchaser which has been prepared for Seller by third parties,
Seller makes no representation or warranty, express or implied, as to such
information. All information provided to Purchaser by Seller is 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.
16.14 Time Of The Essence
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.15 Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies herein conferred or referred except as
expressly stated otherwise, but each and every such remedy shall be cumulative
and shall be in addition to every other remedy given under this Purchase
Contract. No delay or omission to exercise any right or power accruing upon any
default, omission, or failure of performance hereunder shall impair any right or
power or shall be construed to be a waiver thereof, but any such right and power
may be exercised from time to time and as often as may be deemed expedient. No
waiver, amendment, release, or modification of this Purchase Contract shall be
established by conduct, custom, or course of dealing.
16.16 Litigation Expenses
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall be
entitled to recover from the other party its reasonable attorneys' fees and
expenses incidental to such litigation.
16.17 Time Periods
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time period.
16.18 Exchange
At Seller's sole cost and expense, Seller may structure and consummate the
sale of the Property to Purchaser as part of a like-kind exchange (an
"Exchange") intended to qualify under ss. 1031 of the Internal Revenue Code of
1986, as amended, provided that: (a) the Closing shall not be delayed or
affected by reason of an Exchange; (b) Seller shall effect an Exchange through
an assignment of this Agreement, and its rights under this Agreement, to a
qualified intermediary; and (c) Purchaser shall not be required to take an
assignment of the agreement relating to the exchange property or be required to
acquire or hold title to any real property for purposes of consummating an
Exchange. Purchaser shall cooperate fully and promptly with Seller's conduct of
the Exchange, provided that all costs and expenses generated in connection with
the Exchange shall be borne solely by Seller. If Seller uses a qualified
intermediary to effectuate the Exchange, any assignment of the rights or
obligations of Seller hereunder shall not relieve, release or absolve Seller of
its obligations to Purchaser. Seller shall indemnify and hold harmless Purchaser
from and against any and all liability arising from and out of the Exchange.
16.19 No Personal Liability of Officers, Trustees or Directors of Seller's
Partners
Purchaser acknowledges that this Agreement is entered into by Seller which
is a South Carolina limited partnership, and Purchaser agrees that no individual
officer, trustee, director or representative of the partners of Seller shall
have any personal liability under this Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
16.20 [Intentionally deleted]
16.21 No Exclusive Negotiations
Seller shall have the right, at all times, to solicit backup offers and
enter into discussions, negotiations, or any other communications concerning or
related to the sale of the Property with any third-party; provided, however,
that such communications are subject to the terms of this Agreement, and that
Seller shall not enter into any contract or binding agreement with a third-party
for the sale of the Property unless such agreement is contingent on the
termination of this Agreement without the Property having been conveyed to
Purchaser.
16.22 DTPA WAIVER.
IT IS THE INTENT OF SELLER AND PURCHASER THAT THE RIGHTS AND REMEDIES WITH
RESPECT TO THE TRANSACTION CONTEMPLATED BY THIS AGREEMENT SHALL BE GOVERNED BY
LEGAL PRINCIPLES OTHER THAN THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER
PROTECTION ACT. ACCORDINGLY, TO THE MAXIMUM EXTENT APPLICABLE AND PERMITTED BY
LAW (AND WITHOUT ADMITTING SUCH APPLICABILITY), PURCHASER HEREBY WAIVES THE
PROVISIONS OF THE TEXAS DECEPTIVE TRADE PRACTICES-CONSUMER PROTECTION ACT,
CHAPTER 17, SUBCHAPTER 3 (OTHER THAN SECTION 17.555, WHICH IS NOT WAIVED), TEXAS
BUSINESS AND COMMERCE CODE, A LAW THAT GIVES CONSUMERS SPECIAL RIGHTS AND
PROTECTIONS. FOR PURPOSES OF THE WAIVERS SET FORTH IN THIS AGREEMENT, PURCHASER
HEREBY WARRANTS AND REPRESENTS UNTO SELLER THAT (A) PURCHASER HAS KNOWLEDGE AND
EXPERIENCE IN FINANCIAL AND BUSINESS MATTERS THAT ENABLE IT TO EVALUATE THE
MERITS AND RISKS OF THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, (B)
PURCHASER IS NOT IN A SIGNIFICANTLY DISPARATE BARGAINING POSITION WITH SELLER
REGARDING THE TRANSACTIONS CONTEMPLATED UNDER THIS AGREEMENT, (C) PURCHASER IS
REPRESENTED BY LEGAL COUNSEL THAT IS SEPARATE AND INDEPENDENT OF SELLER AND
SELLER'S LEGAL COUNSEL AND (D) PURCHASER HAS CONSULTED WITH PURCHASER'S LEGAL
COUNSEL REGARDING THIS AGREEMENT PRIOR TO PURCHASER'S EXECUTION OF THIS
AGREEMENT AND VOLUNTARILY CONSENTS TO THIS WAIVER.
[Remainder of Page Intentionally Left Blank]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
Seller:
SUTTON PLACE CCP V, L.P.,
a South Carolina limited partnership
By: CCP V SUTTON PLACE GP, L.L.C.,
a South Carolina limited liability
company,
its general partner
By: Consolidated Capital Properties V,
its manager and sole member
By: ConCap Equities, Inc.,
its general partner
By: ____________
Name: Harry Alcock
Title: Executive Vice
President
Purchaser:
George Van Vliet
EXHIBIT A
LEGAL DESCRIPTION
(Sutton Place)
A DESCRIPTION of 9.722 acre tract of land consisting of Lot 1 through 8
inclusive in Block 4 of Club Estates South, a Subdivision recorded in Volume 44,
Page 18 of Map Records, Nueces County, Texas, said 9.722 acre tract being
situated in Nueces County, Texas and being more particularly described by metes
and bounds described as follows:
BEGINNING at 5/8 inch iron pipe found in southerly right-of-way line of
Snowgoose Road (60 feet wide) marking most northeasterly corner of said Lot 8,
same being northwest corner of Lot 18, Section 5, Frank Mokry as shown on plat
recorded in Volume A, Pages 41-43 Map Records, Nueces County, Texas;
THENCE, S 28 56' 28" West, (called S 29 02' 00" West, 847.87 feet), with common
line of said Lot 18, Frank Mclary and Lots 8 and 7 pass 5/8 inch iron rod at
distance of 746.65 feet for total distance of 847.52 feet to 5/8 inch iron rod
found in northerly right-of-way line of Shadowbend Drive (60 feet wide) for
southeast corner of herein described tract of land;
THENCE, N 60 58' 00" West, 450.88 feet with northerly right-of-way line of
Shadowbend Drive to 5/8 inch iron rod found and the beginning of a curve to the
right;
THENCE, 15.71 feet following an arc of a curve to the right of having radius of
10.00 feet, a central angle of 90 00' 00" chord of 14.14 feet and a chord
bearing of N 15 57' 44" West to a 5/8 inch iron rod found in a southeast
right-of-way line of Edgebrook Drive (60 feet wide);
THENCE, N 28 58' 15" East, 39.47 feet (called N 29 92' 33" East, 40 feet) with
southerly line of said Edgebrook Drive to a 5/8 inch iron rod found and the
beginning of a curve to the right;
THENCE, 38.20 feet (called 37.62 feet)following an arc of said curve to the
right having a radius of 170.00 feet, a central angle of 12 52' 29" (12 40' 49"
called), a chord 38.12 and a chord bearing of N 35 38' 38" East to the beginning
of non tangent curve to the left and to 5/8 inch iron road set;
THENCE, 70.47 feet along an arc of said curve to the left being southeasterly
right-of-way line of Shadowbend Drive having a radius of 35.00 feet , a central
angle 115 21' 38" West, a chord 59.16 feet, and a chord bearing of N 16 9' 21"
West, to 5/8 inch iron rod set and the beginning of reverse curve to the right;
THENCE, 37.71 feet following an arc of said curve to the right and southeasterly
right-of-way line of said Shadowbend Drive having a radius of 170.00 feet, a
central angle of 12 42' 36", a chord of 37.63 feet and a chord bearing of N 67
28' 52" West, to 5/8 inch iron road found and the point of tangency;
LEGAL DESCRIPTION
(CONTINUED)
THENCE, N 61 07' 34" West, 75.99 feet (called N 60 55' 40" West, 75.65 feet) to
5/8 inch iron road found and the beginning of non tangent curve to the right;
THENCE, 15.51 (called 15.71 feet) along an arc of said curve to the right having
a radius of 10.00 feet, a central angle of 88 51' 14" (called 90 ), a chord of
14.00 feet and a chord bearing of N 14 02' 09" West to a 5/8 inch iron rod found
in southeasterly right-of-way line of Everhart Road (80 feet wide);
THENCE, N 28 54' 59" East, 299.78 feet (called N 29 04' 20" East, 300.00 feet)
with southeasterly right-of-way line of said Everhart Road to 5/8 inch iron rod
found, marking common corner of Lots 8 and 9;
THENCE, S 61 11' 05" East, 199.94 feet (called S 60 59' 39" East, 200.00 feet),
with south line of Lot 9 to a 5/8 inch iron rod found;
THENCE, N 29 01' 21" East, 411.48 feet (called N 29 04' 20" East, 411.26 with
common line of Lots 8 and 9 to a 5/8 inch iron rod found in southwesterly
right-of-way of Snowgoose Road;
THENCE, S 61 03' 54" East, 420.84 feet (called S 61 00' 45" East, 421.00) with
said right-of-way line of Snowgoose Road to the POINT OF BEGINNING continuing at
9.722 acres of land more or less.
EXHIBIT B
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
EXHIBIT C
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
1. Any "Buyer's Access" computers and related software.
EXHIBIT D
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____day of
________________, 2000 by and among SUTTON PLACE CCP V, L.P., a South Carolina
limited partnership ("Seller"), and GEORGE VAN VLIET or permitted assigns
("Purchaser"); and STEWART TITLE GUARANTY 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 the ________ day of
______________, 2000; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) in cash
(the "Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Now, therefore, the parties agree to the following:
1.____Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Thousand and No/100 Dollars ($100,000.00) in cash (constituting the
Deposit) 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, including
the Deposit (collectively, the "Escrow Fund"), shall be held in insured accounts
and invested in an interest-bearing bank account acceptable to Seller and
Purchaser at one or more federally insured national banking association(s) or
such other investment jointly directed by Seller and Purchaser should Seller and
Purchaser each in their respective sole discretion determine to issue such joint
investment instructions to the Escrow Agent) and all interest and income thereon
shall become part of the Escrow Fund and shall be remitted to the party entitled
to the Escrow Fund, as set forth below.
3.____Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (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 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) or pursuant to the provisions of Article 6
(excluding Section 6.5 thereof) of the Purchase Contract, the Escrow Agent shall
return and refund the Escrow Fund, less the Nonrefundable Portion of the Escrow
Fund, to Purchaser and the Nonrefundable Portion of the Escrow Fund shall be
delivered to Seller.
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 and
interest of the Escrow Fund in accordance with the joint written instructions
signed by Seller and Purchaser.
8.____Notices. Any required or permitted Notice or other communication under
this Escrow Agreement ("Notice") shall be given as follows. All Notices,
requests, demands and other communications hereunder shall be deemed to have
been duly given if the same shall be in writing and shall be 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, or sent by facsimile transmission (with a copy
of the facsimile confirmation and the facsimile transmission also sent by U.S.
Mail) and addressed as set forth below:
If to Seller: If to Purchaser:
Sutton Place CCP V, L.P. Mr. George Van Vliet
2000 South Colorado Boulevard Van Vliet Real Estate Company
Tower Two, Suite 2-1000 10425 Bluff Road
Denver, Colorado 80222 Eden Prairie, Minnesota
Attn: Mr. Harry Alcock 55347-5009
Telephone No. (303) 691-4344 Telephone No. (612) 996-9189
Facsimile No. (303) 691-5662 Facsimile No. (612) 996-9189
______and with a copy to:
Sutton Place CCP V, L.P. Krahmer & Bishop, P.A.
2000 South Colorado Boulevard 204 Lake Avenue, Suite 201
Tower Two, Suite 2-1000 P.O. Box 409
Denver, Colorado 80222 Fairmont, Minnesota 56031
Attn: Mr. Pat Stucker Attn: David J. Bishop
Telephone No. (303) 691-4321 Telephone No. (507) 238-9432
Facsimile No. (303) 692-0786 Facsimile No. (507) 538-9434
With a copy to: And:
Jackson Walker L.L.P. Carrier, Cramer & Weatherbie
112 E. Pecan 5956 Sherry Lane, Suite 1204
Suite 2100 Dallas, Texas 75225
San Antonio, Texas 78205 Attn: David A. Weatherbie
Attn: Eileen E. Scherlen, Esq. Telephone No. (214) 369-2250
Telephone No. (210) 978-7784 Facsimile No. (214) 361-7842
Facsimile No. (210) 978-7790
If to Escrow Agent:
Stewart Title Guaranty Company
1980 Post Oak Boulevard
Houston, Texas 77056
Attn: Wendy Howell
Facsimile No. (713) 552-1703
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 a fee of $300.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorneys' fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, 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 Seller or Purchaser 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 State of Texas.
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.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller:
SUTTON PLACE CCP V, L.P.,
a South Carolina limited partnership
By: CCP V SUTTON PLACE GP, L.L.C.,
a South Carolina limited liability
company,
its general partner
By: Consolidated Capital Properties V,
its manager and sole member
By: ConCap Equities, Inc.,
its general partner
By: ____________
Name: Harry Alcock
Title: Executive Vice
President
Purchaser:
George Van Vliet
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By:
Name:
Title:
EXHIBIT E
FORM OF SPECIAL WARRANTY DEED
(TEXAS)
THE STATE OF TEXAS ss.
ss.
COUNTY OF NUECES ss.
SUTTON PLACE CCP V, L.P., a South Carolina limited partnership
("Grantor"), for and in consideration of Ten and No/100 Dollars ($10.00) and
other good and valuable consideration, the sufficiency of which is hereby
acknowledged and confessed, has GRANTED and CONVEYED, and by these presents does
GRANT and CONVEY unto ____________________________, a _____________________
("Grantee"), its legal representatives, successors and assigns forever, all
those certain lots, tracts or parcels of land in Nueces County, Texas, more
particularly described on Exhibit A attached hereto and incorporated herein by
this reference for all purposes, together with all the improvements, structures
and fixtures situated thereon, and all appurtenances, rights and privileges
thereunto attached or in anywise belonging (the "Property");
EXCEPT THAT, this conveyance is expressly made subject to the Permitted
Exceptions described in Exhibit B hereto, to the extent the same are validly
existing and applicable to the Property (the "Permitted Encumbrances")
TO HAVE AND TO HOLD the above described premises unto the said GRANTEE,
its successors and assigns forever, and the GRANTOR does hereby bind itself, its
successors and assigns to forever warrant and defend said premises unto the said
GRANTEE, its successors and assigns against the lawful claims of any person now
claiming or to claim the same or any part thereof by through or under Grantor,
but not otherwise, subject only to the Permitted Encumbrances.
In addition, Grantor hereby conveys to Grantee, for the same consideration
set forth above and subject to the same consideration set forth above and
subject to the Permitted Encumbrances, all of Grantor's right, title and
interest, if any, in and to any minerals, oil, gas and other hydrocarbon
substances, development rights, air rights, water, water rights, wastewater or
other utility rights, water stock relating to the land, strips and gores,
streets, alleys, easements, rights-of-way, public ways, or other rights of
Grantor appurtenant, abutting or adjoining the Property.
EXCEPT AS TO THE SPECIAL WARRANTY OF TITLE SET FORTH ABOVE, IT IS
EXPRESSLY UNDERSTOOD AND AGREED THAT THE GRANT AND CONVEYANCE OF THE PROPERTY IS
"AS-IS", "WHERE-IS" AND "WITH ALL FAULTS" OF ANY KIND INCLUDING BUT NOT LIMITED
TO ANY MATTER, FACT OR CONDITION PERTAINING TO OR AFFECTED BY ANY APPLICABLE
LAW, RULE OR REGULATION PERTAINING TO WATER, AIR, WASTE OR ENVIRONMENTAL
PROTECTION (WHETHER ABOVE, WITHIN, UNDER OR ADJACENT TO THE PROPERTY). GRANTOR
HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, AND EXPRESSLY DISCLAIMS WARRANTIES, EXPRESS OR IMPLIED, AS TO THE
FITNESS, ENVIRONMENTAL COMPLIANCE, HANDICAPPED ACCESSIBILITY LAW COMPLIANCE,
ELECTROMAGNETIC FIELD EXPOSURE LEVELS, AREA, CONDITION, QUALITY, QUANTITY,
CHARACTER, SIZE, VALUE OF THE PROPERTY OR IMPROVEMENTS THEREON, EXPENSES,
DESCRIPTION, MERCHANTABILITY OR HABITABILITY OF THE PROPERTY, FITNESS OF THE
PROPERTY FOR A PARTICULAR PURPOSE OR OTHERWISE. GRANTEE, BY ITS ACCEPTANCE
HEREOF, DOES HEREBY RELEASE AND FOREVER DISCHARGE GRANTOR, ITS OFFICERS,
DIRECTORS AND TRUSTEES AND THEIR RESPECTIVE AGENTS, EMPLOYEES, SUCCESSORS AND
ASSIGNEES FROM ANY AND ALL CLAIMS, OBLIGATIONS AND LIABILITIES (WHETHER BASED IN
TORT, UNDER CONTRACT OR OTHERWISE) ATTRIBUTABLE, IN WHOLE OR IN PART, TO ANY
SUCH REPRESENTATION (OTHER THAN THE SPECIAL WARRANTY OF TITLE SET FORTH HEREIN)
AND/OR ALLEGED REPRESENTATION.
Grantee, by its acceptance hereof, hereby assumes payment of all standby
charges, ad valorem real estate taxes and assessments with respect to the 2000
calendar year and subsequent calendar years not yet due and payable, each to the
extent attributable to all or any portion of the Property.
Grantee's address: 10425 Bluff Road
Eden Prairie, Minnesota 55347-5009
Executed as of ____ day of ________________, 2000.
SUTTON PLACE CCP V, L.P.,
a South Carolina limited partnership
By: CCP V SUTTON PLACE GP, L.L.C.,
a South Carolina limited liability
company,
its general partner
By: Consolidated Capital Properties V,
its manager and sole member
By: ConCap Equities, Inc.,
its general partner
By: ____________
Name: Harry Alcock
Title: Executive Vice
President
THE STATE OF __________ss.
ss.
COUNTY OF ___________ ss.
______This instrument was acknowledged before me on the ____ day of
________________, 2000, by Harry Alcock, Executive Vice President of ConCap
Equities, Inc., general partner of Consolidated Capital Properties V, manager
and sole member of CCP V Sutton Place GP, L.L.C., a South Carolina limited
liability company, general partner of Sutton Place CCP V, L.P., a South Carolina
limited partnership, on behalf of said partnership.
______GIVEN UNDER MY HAND AND SEAL OF OFFICE this the ____ day of _____________,
2000.
Notary Public in and for the State of ________
EXHIBIT "A"
LEGAL DESCRIPTION
EXHIBIT "B"
PERMITTED ENCUMBRANCES
EXHIBIT F
FORM OF BILL OF SALE
This Bill of Sale ("Assignment") is executed by SUTTON PLACE CCP V, L.P.,
a South Carolina limited partnership ("Seller"), in favor of GEORGE VAN VLIET or
permitted assigns ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of ______________, 2000 ("Purchase Contract"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
(collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Property" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a. Property Contracts. All of Seller's rights and interests in and to
purchase orders, maintenance, service or utility contracts or similar
contracts which relate to the ownership, maintenance, construction or
repair or operation of the Project, but only to the extent
transferable.
b. Leases. All of Seller's rights and interests in and to leases,
subleases, and other occupancy agreements, whether or not of record,
which provide for use or occupancy of space or facilities on or
relating to the Project.
c. Security Deposits. All of Seller's rights and interests in and to any
and all (i) prepaid rent held as security, (ii) security deposits, and
(iii) pet deposits, if any, held by Seller under any of the leases
assigned pursuant hereto.
d. Licenses and Permits. All of Seller's rights and interests in and to
all licenses or permits granted by governmental authorities having
jurisdiction over the Project and utilized with respect to the
Project.
e. Fixtures and Tangible Personal Property. All of Sellers rights and
interests in and to all fixtures, furniture, furnishings, fittings,
equipment, machinery, computers (to the extent located on the Property
and owned by Seller), fax machines (to the extent located on the
Property and owned by Seller), copiers (to the extent located on the
Property and owned by Seller), apparatus, appliances and other
articles of tangible personal property now located on the Project or
in the improvements thereon and used in connection with any present or
future occupation or operation of all or any part of the Project, but
only to the extent transferable.
The term "Property" shall not include any of the foregoing: (i) to
the extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall create
a transfer or assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without recourse
or warranty, to Purchaser all of Seller's right, title and interest, if any, in
and to the Property, subject to any rights of consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property and
agrees to perform all of the covenants and obligations of Seller thereunder.
Purchaser further agrees to indemnify, defend and hold Seller harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Property, pertaining to acts arising on and after the date hereof.
Seller further agrees to indemnify, defend and hold Purchaser harmless from and
against any and all cost, loss, harm or damage which may arise in connection
with the Property, pertaining to acts arising on and after the date hereof
4. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall constitute
one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State in which the Property is located.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 2000
Seller:
SUTTON PLACE CCP V, L.P.,
a South Carolina limited partnership
By: CCP V SUTTON PLACE GP, L.L.C.,
a South Carolina limited liability
company,
its general partner
By: Consolidated Capital Properties V,
its manager and sole member
By: ConCap Equities, Inc.,
its general partner
By: ____________
Name: Harry Alcock
Title: Executive Vice
President
Purchaser:
George Van Vliet
EXHIBIT G
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by SUTTON PLACE CCP V,
L.P., a South Carolina limited partnership ("Seller"), in favor of GEORGE VAN
VLIET or permitted assigns ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of _______________, 2000 ("Purchase Contract"), in which
Seller has agreed to sell and Purchaser has agreed to purchase the real property
described in Exhibit "A" attached thereto and the improvements located thereon
collectively, the "Project"). Capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in the Purchase Contract.
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "Miscellaneous Property Assets" shall mean all
contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property relating to the ownership or operation of
the Property and owned by Seller, but only to the extent transferable. The term
"Miscellaneous Assets" shall also include the following, but only to the extent
owned by Seller and in Seller's possession: site plans, surveys, soil and
substrata studies, architectural renderings, plans and specifications,
engineering plans and studies, floor plans, tenant data sheets, landscape plans
and other plans or studies of any kind, if any, which relate to the Land and or
the Improvements or the Fixtures and Tangible Personal Property. The term
"Miscellaneous Property Assets" shall also include all of Seller's rights, if
any, in and to the name "Sutton Place Apartments".
2. The term "Miscellaneous Property Assets" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
3. Assignment. Seller hereby assigns, sells and transfers, without recourse
or warranty, to Purchaser all of Seller's right, title and interest, if any, in
and to the Miscellaneous Property Assets, subject to any rights of consent as
provided therein.
4. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Miscellaneous
Property Assets and agrees to perform all of the covenants and obligations of
Seller thereunder. Purchaser further agrees to indemnify, defend and hold Seller
harmless from and against any and all cost, loss, harm or damage which may arise
in connection with the Miscellaneous Property Assets, pertaining to acts arising
on and after the date hereof. Seller further agrees to indemnify, defend and
hold Purchaser harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Miscellaneous Property Assets arising
prior to the date hereof.
5. Counterparts. This Assignment may be executed in counterparts, each of which
shall be deemed an original, and both of which together shall constitute one and
the same instrument.
6. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State in which the Project is located.
8. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: ___________, 2000
Seller:
SUTTON PLACE CCP V, L.P.,
a South Carolina limited partnership
By: CCP V SUTTON PLACE GP, L.L.C.,
a South Carolina limited liability
company,
its general partner
By: Consolidated Capital Properties V,
its manager and sole member
By: ConCap Equities, Inc.,
its general partner
By: ____________
Name: Harry Alcock
Title: Executive Vice
President
Purchaser:
George Van Vliet
<PAGE>
EXHIBIT H
[Tenants at Sutton Place Apartments]
6838 Everhart Road
Corpus Christi, Texas 78413
Re: Your lease at _______________________
Dear Tenant:
Effective as of __________, 2000, SUTTON PLACE CCP V, L.P., a _________
limited partnership (the "Seller"), has sold the Sutton Place Apartments located
at 6838 Everhart Road, Corpus Christ, Texas 78413 (and has assigned your lease)
to _______________ (the "Purchaser"). In connection with such sale and
assignment, the Purchaser has assumed the Seller's obligations as landlord under
your lease and has also been transferred any unapplied and refundable portion of
your security deposit(s). The amount of your security deposit is
$------------------------------.
All rent thereafter due should be made payable to the Purchaser and
forwarded to the following address:
========================
------------------------
All inquiries you may have should be addressed to the property manager at
the address set forth above.
Very truly yours,
-------------------------------
George Van Vliet
<PAGE>
SCHEDULE 1.1.23
Promisorry Note dated September 6, 1996, in the original principal amount
of $2,800,000.00, executed by Seller and payable to the order of First Union
National Bank of North Carolina.
<PAGE>
SCHEDULE 5.5
1. Income Statement for 1999 and monthly income and expense reports and
monthly rent rolls for each month in 1999 (other than January,
unless available) and the first three months of 2000.
2. Real property tax statements, personal property tax statements
and notices of appraised value for 1998 and 1999.
3. Any correspondence to or from the Texas Natural Resources Conservation
Commission relating to the Property.
4. A current rent roll prepared and certified to by Seller or Manager
as of April 1, 2000, which shall include the following information
for each unit:
a. Unit number
b. Tenant names
c. Monthly rental
d. Tenant security deposit amount
e. Expiration date of the lease
f. Move in date
g. Any current or deferred rent specials
h. Any governmental financial assistance for rental payments
under Section 8
i. Any defaults in any lease which Seller has actual knowledge
j. Any rights to renew or extend lease which Seller has
actual knowledge
5. All notices of violation issued by any governmental authority in
connection with the Property and all documents relating to
litigation pending or threatened in connection with the Property,
other than notices of payment due, that are in Seller's possession.
6. All water / sewer, gas and electricity monthly bills for the 12
months prior to the Effective Date.
7. List of Fixtures and Tangible Personal Property (subject to
replacements thereof made in the ordinary course of business).
8. Copies of the original certificates of occupancy for the Property
(to the extent in Seller's possession).
9. Schedule listing monthly physical occupancy for calendar year 2000
year to date.
10. Copies of monthly payroll registers, monthly cash receipts journals
and monthly general ledgers for 2000 to date.
11. Bank records for the month of April, 2000 and for September, 1999.
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..............................................6
ARTICLE 6 TITLE...........................................................7
ARTICLE 7 CLOSING.........................................................9
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER........................................13
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................17
ARTICLE 10 BROKERAGE......................................................19
ARTICLE 11 POSSESSION.....................................................20
ARTICLE 12 DEFAULTS AND REMEDIES..........................................20
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................21
ARTICLE 14 LEAD-BASED PAINT DISCLOSURE....................................22
ARTICLE 15 EMINENT DOMAIN.................................................21
ARTICLE 16 MISCELLANEOUS..................................................22
<PAGE>
EXHIBIT 10.28
FIRST AMENDMENT
TO PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Amendment") is
entered into as of the 29th day of August, 2000, by and between SUTTON PLACE CCP
V, L.P., a South Carolina limited partnership ("Seller"), and GEORGE VAN VLIET
("Purchaser").
RECITALS:
A. Purchaser and Seller have entered into that certain Purchase and Sale
Contract (the "Purchase Contract") dated as of June 20, 2000, covering certain
parcels of real property located in Nueces County, Texas, as more particularly
described in the Purchase Contract.
B. Purchaser and Seller desire to amend the Purchase Contract in certain
respects, as set forth below.
C. All capitalized terms used but not defined in this Amendment shall
have the meaning ascribed to them in the Purchase Contract.
AGREEMENTS:
FOR TEN DOLLARS AND OTHER GOOD AND VALUABLE CONSIDERATION THE RECEIPT AND
SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, Purchaser and Seller hereby agree
as follows:
1. Section 7.1.1 of the Purchase Contract is hereby amended and restated
in its entirety as follows:
The Closing shall occur on September 12, 2000, or such earlier date
as Seller and Purchaser shall agree, through an escrow with Escrow Agent,
whereby the Seller, Purchaser and their attorneys need not be physically present
at the Closing and may deliver documents by overnight air courier or other
means. Notwithstanding the foregoing, Purchaser shall have the right to extend
the Closing Date for up to an additional thirty (30) days from the date set
forth above on the condition that, on or before 5:00 P.M., Houston, Texas time
of the Closing Date set forth above, Purchaser shall (i) deliver to Escrow Agent
an additional non-refundable deposit in the amount of $54,000.00, which deposit
shall be added to and constitute a portion of the Deposit, to be held and
applied in accordance with the provisions of this Purchase Contract applicable
to the Deposit, and (ii) deliver to Seller written notice that Purchaser is
exercising its right to extend the Closing Date.
2. Except as expressly modified by this Amendment, the Purchase Contract
is in full force and effect as originally written.
3. This Amendment may be executed (a) by facsimile transmission, the same
of which will be treated as an original, and (b) in one or more counterparts,
each of which shall be deemed an original and all of which combined shall
constitute one and the same instrument.
4. Each of the parties executing this Amendment represents and warrants
that it has been fully authorized and has the requisite authority to bind the
respective party to the terms hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first set forth above.
Seller:
SUTTON PLACE CCP V, L.P.,
a South Carolina limited partnership
By: CCP V SUTTON PLACE GP, L.L.C.,
a South Carolina limited liability
company, its general partner
By: Consolidated Capital Properties V,
its manager and sole member
By: ConCap Equities, Inc.,
its general partner
By:
Harry Alcock
Executive Vice President
Purchaser:
George Van Vliet
