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) June 2, 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, 51 North High Street,
located in Columbus, OH on June 2, 2000. 51 North High Street was sold to 51
North Associates, LLC, an unrelated party, for $3,226,800.
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 June 30,
2000.
(c) Exhibits
10.24 Purchase and Sale Contract between Registrant and S&R Restaurants, Inc.,
effective June 2, 2000.
10.25 Addendum to Purchase and Sale Contract.
10.26 Second Addendum 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: June 16, 2000
EXHIBIT 10.24
PURCHASE AND SALE CONTRACT
BETWEEN
FIFTY-ONE NORTH HIGH STREET, L.P.
AS SELLER
AND
S&R RESTAURANTS, INC.
AS PURCHASER
TABLE OF CONTENTS
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 FEASBILITY PERIOD ...............................................5
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 .................................16
ARTICLE 10 BROKERAGE ......................................................17
ARTICLE 11 POSSESSION .....................................................17
ARTICLE 12 DEFAULTS AND REMEDIES ..........................................17
ARTICLE 13 RISK OF LOSS OR CASUALTY ......................................18
ARTICLE 14 ASBESTOS MATTERS ...............................................18
ARTICLE 15 EMINENT DOMAIN .................................................19
ARTICLE 16 MISCELLANEOUS ..................................................19
ARTICLE 17 RATIFICATION....................................................24
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of the
___ day of _____________, 2000 ("Effective Date") by and among Fifty-One North
High Street, L.P., a South Carolina limited partnership, having a principal
address at Fifty-One North High Street, L.P., c/o AIMCO, Tower Two, 2000 S.
Colorado Boulevard, Suite 2-1000, Denver, Colorado 80222, Attention: Tim Works,
Harry Alcock, Martha Carlin, with a copy to: Argent Real Estate Services, Inc.
1401 Brickell Avenue, Suite 520, Miami, Florida 33131, Attention: David
Marquette ("Seller") and S&R RESTAURANTS, INC., d/b/a McKnight Development
Company, a Delaware corporation, having a principal address at 249 North Craig
Street, Pittsburgh, Pennsylvania 15213 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual covenants and
agreements herein after set forth, Seller and Purchaser hereby agree as follows:
RECITALS
R-1. Seller holds legal title to a parcel of real estate more particularly
described in Exhibit A attached hereto and made a part hereof located in
Franklin County, State of Ohio on each of which improvements have been
constructed.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date as defined in this Purchase Contract the Property will be conveyed
by special warranty deed to Purchaser;
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
R-4. Purchaser has made such investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser has deemed
necessary and desirable, has approved the same in all respects, subject only to
the representations, warranties and covenants set forth in this Purchase
Contract and does hereby agree to consummate the transactions contemplated by
this Purchase Contract as set forth below.
ARTICLE 1
DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have
the meanings set forth in this Article I below.
1.1 Terms with initial capital letters in this Purchase Contract shall
have the meanings set forth in this Article I below.
1.1.1 "Broker" means the Seller's broker Ehle, Morrison Group, Ltd.
1.1.2 "Business Day" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the State of Ohio.
1.1.3 "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.
1.1.4 "Closing Date" means the date on which 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, which date
shall be the date sixty (60) days after the end of the Feasibility
Period (unless such date, shall not be a Business Day, in which
event Closing shall occur on the next Business Day), or such
extension date provided for under ARTICLE 7.
1.1.5 "Commercial Lease(s)" means the interest of Seller in and to all
leases and subleases, 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
applicable Property; provided, however, that the term "Commercial
Leases" (i) shall also include any modifications to such leases
after the Effective Date and any new leases entered into after the
Effective Date (subject to the further agreement that any such
modifications or new leases shall be subject to the approval of
Purchaser, which shall not be unreasonably withheld or delayed) and
(ii) shall exclude any leases expiring or terminating pursuant to
the terms and conditions thereof or terminated by Seller prior to
the Closing Date upon default thereunder.
1.1.6"Consultants" shall have the meaning ascribed thereto in Section 5.1.
1.1.7 [INTENTIONALLY DELETED]
1.1.8 "Deposit" shall have the meaning ascribed thereto in Section 3.1.1.1.
1.1.9 "Effective Date" shall mean the date first written above.
1.1.10"Escrow Agent" shall have the meaning ascribed thereto in Section
3.1.
1.1.11"Existing Mortgage" means the Mortgage and Security
Agreement dated May 30, 1984 between The Great-West Life Assurance
Company, as Mortgagee, and 51 North High Street Co., Ltd., as
Mortgagor, as amended by the Assumption of Loan and Modification of
Mortgage between Fifty-One North High Street, L.P. (as successor in
interest to Consolidated Capital Properties V, successor in interest
to 51 North High Street Co., Ltd., by the Assignment of Mortgage and
Related Documents dated December 12, 1989, and recorded in Official
Record 14496E01, Franklin County, Ohio Recorder's Office) and Great
Western Life & Annuity Insurance Company dated March 11, 1996.
1.1.12 "Existing Mortgage Note" means the Mortgage Note dated May
30, 1984 between The Great-West Life Assurance Company, as Holder, and
51 North High Street Co., Ltd., as Maker, as amended by Modification
of Mortgage Note between Fifty-One North High Street, L.P. (as
successor in interest to Consolidated Capital Properties V, successor
in interest to 51 North High Street Co., Ltd., by deed from
Consolidated Capital Properties V to Fifty One North High Street, L.P.
dated February 28, 1996 and recorded in Official Record 31653HO8,
Franklin County, Ohio Recorder's Office) and Great Western Life &
Annuity Insurance Company dated March 11, 1996.
1.1.13 "Excluded Permits" means those permits which, under applicable
law are nontransferable.
1.1.14 "Feasibility Period" shall have the meaning ascribed thereto in
Section 5.1.
1.1.15 [INTENTIONALLY DELETED]
1.1.16 [INTENTIONALLY DELETED]
1.1.17"Fixtures and Tangible Personal Property" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus,
appliances and other articles of personal property now located on
the Land or in the Improvements as of the date of this Purchase
Contract and used or usable in connection with any present or future
occupation or operation of all or any part of the Property. The term
"Fixtures and Tangible Personal Property" does not include (i)
equipment leased by Seller and the interest of the 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.
1.1.18"Improvements" means all buildings and improvements, located on the
Land taken "as is" containing approximately 115,000 gross square
feet of Commercial Space.
1.1.19"Land" means all of that certain tract of land located in Franklin
County, State of Ohio commonly known as 51 North High Street,
Columbus, Ohio more particularly described in Exhibit A attached
hereto and made a part hereof and all rights, privileges and
appurtenances pertaining thereto.
1.1.20"Miscellaneous Property Assets" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of
intangible personal property relating to the Seller's operation of
the Property, excluding , however, (i) receivables, (ii) Property
Contracts, (iii) Permits, (v) cash or other funds, whether in petty
cash or house "banks," or on deposit in bank accounts or in transit
for deposit, (vi) refunds, rebates or other claims, or any interest
thereon, for periods or events occurring prior to the Closing Date,
(vii) utility and similar deposits, or (viii) insurance or other
prepaid items or, (ix) books and records, except to the extent that
Seller receives a credit on the Closing Statement for any such item.
1.1.21"Permits" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the
matter to which the applicable license or permit applies and owned
by Seller or used in or relating to the ownership, occupancy or
operation of the Property or any part thereof not subject to a
Commercial Lease.
1.1.22"Permitted Exceptions" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with
the provisions of Section 6.2.
1.1.23"Property" means the Land and Improvements described in the
Recitals and all rights of Seller relating to the Land and the
Improvements, including without limitation, any rights, title and
interest of Seller, if any, in and to (i) any strips and gores
adjacent to the Land and any land lying in the bed of any street,
road, or avenue opened or proposed, in front of or adjoining the
Land, to the center line thereof, (ii) any unpaid award for any
taking by condemnation or any damage to the Property by reason of a
change of grade of any street or highway; (iii) all of the
easements, rights, privileges, and appurtenances belonging or in any
way appertaining to the Property; together with all Fixtures and
Tangible Personal Property, the right, if any and only to the extent
transferable, of Seller(s) issued to Property Contracts and
Commercial Leases, Permits other than Excluded Permits and the
Miscellaneous Property Assets owned by Seller which are located on
the Property and used in its operation.
1.1.24"Property Contracts" means all purchase orders, maintenance,
service, or utility contracts and similar contracts, which relate to
the maintenance, construction or repair and/or operation of the
Property and which are not cancelable on 90 days' or shorter notice,
except Commercial Leases.
1.1.25 "Proration Period" shall have the meaning ascribed thereto in
Section 7.1.4.
1.1.26 "Purchase Contract" means this Purchase and Sale Contract by and
between Seller and Purchaser.
1.1.27 "Purchase Price" means the total consideration to be paid by
Purchaser to Seller for the purchase of the Property.
1.1.28 "Purchaser" means S&R RESTAURANTS, INC., a Delaware corporation.
1.1.29 "Rent" or "Rents" shall have the meaning ascribed thereto in
Section 7.1.3.
1.1.30 "Seller" shall mean Fifty-One North High Street, L.P., a South
Carolina limited partnership.
1.1.31 "Survey" shall have the meaning ascribed thereto in Section 6.11.
1.1.32 "Tenant" means any person or entity entitled to occupy any
portion of the Property under a Commercial Lease.
1.1.33 "Title Commitment" or "Title Commitments" shall have the meaning
ascribed thereto in Section 6. 1.
1.1.34 "Title Company" shall have the meaning ascribed thereto in
Section 3.1.1.1.
1.1.35 "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") to be paid to Seller for the
sale of the Property to Purchaser as provided herein shall be Three
Million Two Hundred Fifty Thousand Dollars ($3,250,000.00), subject to
payment in accordance with Section 3.1.2 hereinbelow. The Purchase Price
shall be paid by Purchaser, subject to credit and adjustment hereinafter
provided and subject to all the terms and conditions herein contained.
3.1.1 Deposit.
3.1.1.1 On the date hereof, Purchaser shall deliver to Fidelity
National Title Insurance Company, National Title Services
("Escrow Agent" or the "Title Company"), the amount of One
Hundred Thousand Dollars ($100,000.00) (the "Deposit") via
wire transfer pursuant to the wiring instructions attached
hereto as Exhibit 3.1.1.1. Purchaser and Seller shall each
approve the form of Escrow Agreement attached hereto as
Exhibit B.
3.1.1.2 The Escrow Agent shall hold the Deposit and make delivery of
the Deposit to the party entitled thereto under the terms
hereof. Escrow Agent shall invest the Deposit in such
short-term, high-grade securities, interest-bearing bank
accounts, money market funds or accounts, bank certificates
of deposit or bank repurchase agreements as Escrow Agent, in
its discretion, deems suitable (provided that Escrow Agent
shall invest the Deposit 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.
3.1.1.3 If the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by the mutual
written consent of the parties hereto, given or withheld in
their respective sole discretion), funds held as the Deposit
shall be applied (and paid over to the Seller) on the Date
of Closing. If the sale of the Property is not closed by the
date fixed therefor (or any such extension date) owing to
failure of satisfaction of a condition precedent to
Purchaser's obligations, the Deposit shall be returned and
refunded to Purchaser, and neither party shall have any
further liability hereunder.
3.1.1.4 If the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of
performance by Seller, Purchaser shall be entitled to the
remedies set forth in ARTICLE 12. 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.
3.1.2 On the Closing Date Purchaser shall pay Seller the amount of Three
Million Two hundred Fifty Thousand Dollars ($3,250,000.00), subject
to credit and adjustment as provided herein, in cash via
wire-transfer of current funds pursuant to the wire instructions
pursuant to Exhibit 3.1.1.1.
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. Purchaser's obligations under this Purchase Contract are not
contingent or conditioned on its ability to obtain financing. Purchaser's
obligation to purchase the Property shall be non-contingent and
unconditional except only for satisfaction of the conditions expressly
stated ARTICLE 5.
ARTICLE 5
FEASBILITY PERIOD
5.1 Subject to the terms of section 5.3 below, for fifteen (15) Business 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, with reasonable
notice, 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.
5.1.2 To confirm any and all matters which Purchaser may reasonably desire
to confirm with respect to the Property.
5. 2 Should the results of any of the matters referred to in sub-sections
5.1.1 and 5.1.2 above appear unsatisfactory to Purchaser for any reason
whatever Purchaser shall have the right, in its sole discretion, to
terminate this Purchase Contract and shall provide Seller with written
Notice of said termination. Purchaser shall provide Seller with all copies
of documentation resulting from the studies, tests, examinations,
inspections or investigations obtained by Purchaser during the Feasibility
Period and the Title Company shall return the Deposit to Purchaser and
Purchaser shall release and quitclaim all of Purchaser's rights and
interest in the Property to Seller, and the parties hereto shall have no
further obligation to each other, subject to and except for Purchaser's
liability under Section 5.3. The foregoing notwithstanding, Purchaser
hereby acknowledges and agrees that Purchaser's obligations under this
Purchase Contract are not contingent or conditioned on the state of repair
of the HVAC equipment on the Property, and Purchaser's dissatisfaction
with said HVAC equipment shall not constitute a basis for objection by
Purchaser under this Section 5.2.
5.3 Purchaser shall indemnify and hold Seller and Broker 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 and Broker 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
and Broker to any liability, costs, liens or violations of applicable law,
or otherwise adversely affect the Property or Seller's interest therein.
No consent by the Seller to any such activity shall be deemed to
constitute a waiver by Seller and Broker or assumption of liability or
risk by Seller and Broker. 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 comprehensive public liability insurance
with broad form contractual and personal injury liability endorsements
with respect to the Property and Purchaser's activities carried on
therein, in amounts (including deductible amounts) and with such insurance
carriers as shall be approved by Seller and naming Seller and its
affiliates as Loss Payees or Additional Insureds (at the option of
Seller), with endorsements acceptable to Seller, including a waiver of
defenses of the insurer based on the actions or inaction of Purchaser.
Such liability insurance shall provide coverages of not less than
$1,000,000.00 for injury or death to any one person and $3,000,000.00 for
injury or death to more than one person and $500,000.00 with respect to
property damage, by water or otherwise). The provisions of this Section
shall survive the Closing or termination of this Purchase Contract.
5.4 Purchaser shall not permit any mechanics' or materialmans' liens or any
other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser.
Purchaser shall give notice to Seller a reasonable time prior to entry
onto the Property and shall permit Seller to have a representative present
during all investigations and inspections conducted with respect to the
Property. Purchaser shall take all reasonable actions and implement all
protections necessary to ensure that all actions taken in connection with
the investigations and inspections of the Property, and all equipment,
materials and substances generated, used or brought onto the Property pose
no material threat to the safety of persons or the environment and cause
no damage to the Property or other property of Seller or other persons.
All information made available by Seller to Purchaser in accordance with
this Purchase Contract or obtained by Purchaser in the course of its
investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall
use its best efforts to prevent its agents and employees from divulging
such information to any unrelated third parties except as reasonably
necessary to third parties engaged by Purchaser for the limited purpose of
analyzing and investigating such information for the purpose of
consummating the transaction contemplated by this Purchase Contract,
including Purchaser's attorneys and representatives, prospective lenders
and engineers. Purchaser shall provide Seller with a copy of all
documentation resulting from Purchaser's studies, tests, examinations,
inspections and investigations of or concerning the Property upon receipt
thereof by Purchaser.
ARTICLE 6
TITLE
6.1 Seller, at Seller's sole cost and expense, has caused to be prepared a
commitment for title insurance for the Property in an amount equal to the
Purchase Price ("Title Commitment") issued by the Title Company ("Title
Insurer") for an owner's title insurance policy on the 1992 standard
American Land Title Association ("ATLA") Policy form, together with
legible copies of all instruments identified as exceptions therein, and
shall provide Purchaser with a copy of the Title Commitment within seven
(7) days after the Effective Date. In the event Purchaser elects to have
an owner's title insurance policy pursuant to the Title Commitment issued
for the Property in an amount equal to the Purchase Price ("Owner's Title
Policy"), then Purchaser shall pay at Closing the cost of the Owner's
Title Policy, excluding the costs of extended coverage, endorsements or
affirmative insurance. Purchaser agrees that it shall be solely
responsible for payment of all costs relating to (a) any extended
coverage, endorsements or affirmative insurance for the Owner's Title
Policy, or (b) a Lender's title policy that Purchaser may elect to have
issued for the Property.
6.2 Purchaser agrees to accept title to the Land and Improvements, so long as
the same is insurable at ordinary rates and any conveyance by special
warranty deed pursuant to this Purchase Contract shall be subject to the
following, all of which shall be deemed "Permitted Exceptions" and
Purchaser agrees to accept the deed and title subject thereto:
6.2.1 All exceptions shown in the Title Commitment dated January 25, 1999
issued by Title Company (other than mechanics' liens and taxes due
and payable in respect of the period preceding Closing); and
6.2.2 Such exceptions and matters as the Title Company shall be willing to
omit as exceptions to coverage; and
6.2.3 All Commercial Leases; and
6.2.4 All Property Contracts created in the ordinary course of business by
Seller, which are not identified for termination by Purchaser during
the Feasibility Period; and
6.2.5 Real estate and property taxes to the extent not due and payable; and
6.2.6 Defects and exceptions which do not materially and adversely affect
the condition of title to the Property and its use as of the
Effective Date.
6.2.7 Any other exceptions noted in Exhibit 6.2.7 attached hereto.
6.3 The existence of the Existing Mortgage or other mortgages, liens, or
encumbrances shall not be objections to title, provided that properly
executed instruments in recordable form necessary to satisfy and remove
the same of record are delivered to the Title Insurer at Closing or, in
the alternative, with respect to the Existing Mortgage or any mortgage or
deed of trust liens, that payoff letters from the holder of the mortgage
or deed of trust liens shall have been delivered to and accepted by the
Title Insurer (sufficient to remove the same from the Policy at Closing),
together in either case with recording and/or filing fees.
6.4 Unpaid liens for taxes, charges, and assessments shall not be objections
to title, but the amount thereof plus interest and penalties thereon shall
be deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser, subject to the provisions for
apportionment of taxes and charges contained herein.
6.5 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the Property or
otherwise against Purchaser or its affiliates, and provided further that
the Title Insurer agrees to omit such taxes as exceptions to coverage with
respect to any lender's mortgagee insurance policy.
6.6 If on the Closing Date, the state of title is other than in accordance
with the requirements set forth in this Purchase Contract or if any
condition to be fulfilled by Seller shall not be satisfied, Purchaser
shall provide Seller with written Notice thereof at such time, or such
title objection or unfulfilled condition shall be deemed waived by
Purchaser in which case Purchaser and Seller shall proceed to consummate
the Closing on the Closing Date. If Purchaser timely gives Seller such
Notice, Seller at its sole option and within Seven (7) calendar days
following receipt of such Notice may elect to cure such objection or
unfulfilled condition for up to Ninety (90) calendar days. Should Seller
be able to cure such title objection or condition, or should Seller be
able to cause title insurance over the same by the Closing Date or any
postponed Closing Date, or should Purchaser waive such objection or
condition within such period for cure, then the Closing shall take place
on or before thirty (30) calendar days after Notice of such cure or
waiver.
6.7 If during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such title objection or cause a title
insurance company to insure over such matter or satisfy such unfulfilled
condition, Seller shall give Purchaser written Notice thereof, and if
Purchaser does not waive such objection by written Notice delivered to
Seller and the title company issuing the Title Commitment on or before
Seven (7) calendar days following the date Seller gives such Notice, then
this Purchase Contract shall automatically terminate, in which event
Purchaser shall provide Seller with all copies of documentation resulting
from the studies, tests, examinations, inspections or investigations
during the Feasibility Period and the Title Company shall return the
Deposit to Purchaser and Purchaser shall release and quitclaim all of
Purchaser's right and interest in such Property to Seller, and the parties
hereto shall have no further obligations to each other.
6.8 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance to attach to the Property between the date of this Purchase
Contract and the Closing Date without the consent of Purchaser; any such
monetary lien or encumbrance so attaching to the Property shall be
discharged by the Seller at or prior to Closing on the Closing Date or any
postponed Closing Date. Except as expressly provided above in this Article
6, Seller shall not be required to undertake efforts to remove any other
lien, encumbrance or exception to make any expenditure of money or
institute litigation or any other judicial or administrative proceeding
and Seller may elect not to discharge the same.
6.9 Anything to the contrary notwithstanding, Purchaser shall not have any
right to terminate this Purchase Contract or object to any lien,
encumbrance, exception or other matter that is a Permitted Exception, that
has been waived or deemed to have been waived by Purchaser.
6.10 Purchaser shall not have any right to terminate this Purchase Contract or
object to any lien, encumbrance, exception or other matter that is a
Permitted Exception or that has been waived or deemed to have been waived
by Purchaser.
6.11 Seller has caused to be prepared a survey for the Property ("Survey"),
which as of the date hereof has been delivered to Purchaser for approval
by Purchaser within the Feasibility Period. Seller has paid the cost of
the Survey as delivered, and Seller shall pay the cost of certifying the
Survey to Purchaser, Purchaser's lender, and the Title Insurer. In the
event the perimeter legal description of the Property contained in the
Survey does not materially differs from that contained in the deed or
deeds by which Seller took title to the Property, the latter description
shall be used in the special warranty deed delivered to Purchaser at
Closing, and the Survey legal shall be used in a quitclaim deed to the
Property which also shall be delivered to Purchaser at Closing.
6.11.1Should such Survey disclose conditions that give rise to a title
exception other than a Permitted Exception, Purchaser shall have the
right to object thereto within the Feasibility Period in accordance
with the procedures set forth in Section 5.2.
6.11.2Purchaser agrees to make payment in full of all costs of obtaining
Surveys required by this Purchase Contract on or before Closing or
termination of this Purchase Contract.
ARTICLE 7
CLOSING
7.1 Dates, Places Of Closing, Prorations, and Delinquent Rent.
7.1.1 The Closing shall take place in the offices of the Title Company in
the jurisdiction of the Land, at Title First Agency, Inc., 555 South
High Street, Columbus, Ohio 43215 or such other place as the parties
shall mutually agree at 11:00 a.m. Eastern Daylight Savings Time on
the Closing Date; provided that Purchaser agrees to conduct Closing
through a pre-closing, an escrow or other arrangement reasonably
requested by Seller, whereby Seller and Purchaser and their
respective attorneys need not be physically present at the Closing
and may deliver documents by overnight air courier or other means.
7.1.2 The Closing Date may be extended without penalty at the option of
Seller to a date not later than ninety (90) Days following the
Closing Date to satisfy a condition to be satisfied by Seller, or
such later date as is mutually acceptable to Seller and Buyer.
Provided Purchaser is not in default hereunder, the Closing Date may
be extended at the option of Purchaser for one (1) period of thirty
(30) days by Purchaser's written Notice to Seller within ten (10)
days prior to the expiration of the initial Closing Date and
Purchaser's payment of Fifty Thousand Dollars ($50,000.00) in cash
to the Seller, which sum shall not be returned to Purchaser under
any circumstances except Seller's default hereunder, but shall be
applied to the Purchase Price at Closing.
7.1.3 All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal
property taxes, other operating expenses and fees, shall be prorated
as of the Closing Date, Seller being charged and credited for all of
same attributable to the period up to the Closing Date (and credited
for any amounts paid by Seller attributable to the period on or
after the Closing Date) and Purchaser being responsible for, and
credited or charged, as the case may be, for all of same
attributable to the period on and after the Closing Date. All
unapplied deposits under Tenant leases, if any, shall be transferred
by Seller to Purchaser at the Closing. Seller shall pay at Closing
any accrued but unpaid leasing commissions. The foregoing
notwithstanding, upon and after the Effective Date, Purchaser shall
be responsible for all costs associated with leasing a portion of
the Property to the State of Ohio, including without limitation,
leasing commissions associated with extension, renewal or
modification of any existing lease or any future lease. Purchaser
shall assume at Closing the obligation to pay any payments due
parties to other agreements affecting the Property which survive
Closing. Any real estate ad valorem or similar taxes for the
Property, or any installment of assessments payable in installments
which installment is payable in the year of Closing, shall be
prorated to the date of Closing, based upon actual days involved.
The proration of real property taxes or installments of assessments
shall be based upon the assessed valuation and tax rate figures for
the year in which the Closing occurs to the extent the same are
available; provided, that in the event that actual figures (whether
for the assessed value of the Property or for the tax rate) for the
year of Closing are not available at the Closing Date, the proration
shall be made using figures from the preceding year. The proration
shall be final and unadjustable except as provided in the following
Section 7.1.4. For purposes of this Section 7.1.3 and Section 7.1.4
and 7.1.5 the terms "Rent" and "Rents" shall include, without
limitation, base rents, additional rents, tenant(s) proportionate
share of operating expenses, percentage rents and common area
maintenance charges. The provisions of this Section 7.1.3 shall
apply during the Proration Period (as defined below). Any Real
Estate Transfer Tax shall be at Seller's expense. The current
installment of special assessments, if any, which are a lien upon
the real estate as of the date of this Purchase Contract shall be
Seller's expense. Upon Closing, Seller shall be released from any
further liability to Purchaser or otherwise in connection with taxes
and assessments; and Purchaser shall indemnify and hold Seller
harmless against any such claims accruing after the Effective Date.
Seller shall be responsible for taxes and assessments prior to
Closing to be paid at Closing pursuant to this Section 7.1.3.
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. Any Rents that have accrued,
but have not yet been paid shall be prorated in accordance with
estimates based upon the prior years' information (or reasonable
estimates of Seller if no such prior years' information is
available), and shall be subsequently readjusted and reapportioned
upon receipt. Purchaser shall pay Seller for Rents that have
accrued, but are not yet due and payable, at Closing.
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 before the Closing Date, and (ii) second, to
the period of time after the Closing Date. If Delinquent Rent or any
portion thereof received by Seller or Purchaser after the Closing
are due and payable to the other party by reason of this allocation,
the appropriate sum, less a proportionate share of any reasonable
attorneys' fees and costs and expenses expended in connection with
the collection thereof, shall be promptly paid to the other party.
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, upon demand, of any relevant
books and records (including, without limitation, rent statements,
receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and
the undertaking of any act reasonably necessary for the collection
of such Delinquent Rent by Seller; provided, however, that
Purchaser's obligation to cooperate with Seller pursuant to this
sentence shall not obligate Purchaser to terminate any Tenant lease
with an existing Tenant or evict any existing Tenant from the
Property. The provisions of this Section 7.1.5 shall apply during
the Proration Period.
7.2 Items To Be Delivered Prior To Or At Closing.
7.2.1 Seller. At Closing, Seller shall deliver to Purchaser, each of the
following items, as applicable:
7.2.1.1 Special Warranty deed to Purchaser. The acceptance of the
deed at Closing, shall be deemed to be full performance of,
and discharge of, every agreement and obligation on Seller's
part to be performed under this Purchase Contract, except
for those that this Purchase Contract specifically provides
shall survive Closing. The form of such instrument shall be
prepared by the Seller.
7.2.1.2 A Bill of Sale and Assignment of Lease, without recourse or
warranty, covering all Property Contracts, Commercial
Leases, 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, including, without limitation, of Seller's
obligations thereunder accruing after the Closing Date. The
form of such instrument shall be prepared by the Seller
subject to Purchaser's approval.
7.2.1.3 An Assignment (to the extent assignable and in force and
effect) without recourse or warranty 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. The form of such instrument shall be
prepared by the Seller.
7.2.1.4 A closing statement executed by Seller.
7.2.1.5 A vendor's affidavit or at Seller's option an indemnity, as
applicable, in the customary form reasonably acceptable to
Seller to enable Title Insurer to delete the standard
exceptions, (other than matters constituting any Permitted
Exceptions to the title insurance policy set forth in this
Purchase Contract and matters which are to be completed or
performed post-Closing) to be issued pursuant to the Title
Commitments; 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 A letter to the United States of America, as Tenant under
Lease dated December 30, 1996 between Insignia Commercial
Group and United States of America, as amended, waiving all
rights under the Lease against the United States of America,
except unpaid rent through the Closing Date.
7.2.1.8 Except for the items expressly listed above to be delivered
at Closing, delivery of any other required items shall be
deemed made by Seller to Purchaser, if Seller leaves such
documents at the Property in their customary place of
storage or in the custody of Purchaser's representatives.
7.2.1.9 A Release of Mortgage from the mortgagee under the Existing
Mortgage in said mortgagee's standard form.
7.2.1.10Such other instruments, documents or certificates as are
required to be delivered by Seller to Purchaser in
accordance with any of the other provisions of this Purchase
Contract.
7.2.2Purchaser. At Closing, Purchaser shall deliver to Seller the
following items with respect to each Property being conveyed or
transferred at such Closing:
7.2.2.1 The full Purchase Price as required by ARTICLE 3 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 to satisfy the same,
provided that Seller shall have delivered to Purchaser, or
to Purchaser's designee, on such Closing instruments in
recordable form sufficient to satisfy such liens and
encumbrances of record, together with the cost of recording
or filing such instruments. Purchaser, if request is made
within a reasonable time prior to Closing, agrees to provide
at Closing separate certified or cashier's checks as
requested, aggregating not more than the amount of the
balance of the portion of Purchase Price, to facilitate the
satisfaction of any such liens or encumbrances. 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 and
Assignment of Lease.
7.2.2.4 A countersigned counterpart of the Assignment.
7.2.2.5 Such other instruments, documents or certificates as are
required to be delivered by Purchaser to Seller in
accordance with any of the other provisions of this Purchase
Contract.
7.3 Closing Costs. Except as expressly provided in this Purchase Contract,
each party shall pay its own costs and expenses, including attorneys' fees
and expenses incurred through the Closing Date.
ARTICLE 8
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 Representations And Warranties Of Seller.
8.1.1 For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Seller represents and warrants to Purchaser the
following as of the Effective Date and as of the Closing Date:
8.1.1.1 Seller identified in the Recitals is a limited partnership
duly organized, and in good standing under the laws of the
state of its formation set forth in the initial paragraph of
this Purchase Contract; and has or at 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
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 or any Subsidiary Owner is otherwise bound. Seller
has not made any other Purchase Contract for the sale of, or
given any other person the right to purchase, all or any
part of any of the Property applicable to the foregoing
representation;
8.1.1.2 Seller owns insurable, fee title to the Property, including
all real property contained therein required to be sold to
Purchaser, subject only to the Permitted Exceptions;
8.1.1.3 There are no adverse or other parties in possession of the
Property, except for occupants, guests and tenants under the
Commercial Leases.
8.1.1.4 The joinder of no person or entity other than Seller is
necessary to convey the Property, fully and completely to
Purchaser at Closing, or to fulfill Seller's obligations and
Seller has all necessary right 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 any Property ,
as applicable;
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, undertaken by or on behalf of Seller 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;
8.1.2 Except for the representations and warranties expressly set forth in
Subsection 8.1.1, the Property is expressly purchased and sold "AS
IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase Price and the
terms and conditions set forth herein are the result of arm's-length
bargaining between entities familiar with transactions of this kind,
and said price, terms and conditions reflect the fact that Purchaser
shall have the benefit of, and is relying upon, no information
provided by Seller or Broker and no 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, the state, federal, county or local law,
ordinance, order, permit or suitability, compliance or lack of
compliance of the Property with any regulation, or any other
attribute or matter of or relating to the Property (other than any
covenants of title contained in the deeds conveying the Property and
the representations set forth above). Purchaser represents and
warrants that as of the date hereof and as of the Closing Date, it
has and shall have reviewed and conducted such independent analyses,
studies, reports, investigations and inspections as it deems
appropriate in connection with the Property. If Seller provides or
has provided any documents, opinions or work product of consultants,
surveyors, architects, engineers, title companies, governmental
authorities or any other person or entity with respect to the
Property, Purchaser and Seller agree that Seller has done so or
shall do so only for the convenience of both parties, Purchaser
shall not rely thereon and the reliance by Purchaser upon any such
documents, opinions or work product shall not create or give rise to
any liability of or against Seller, Broker or any Subsidiary Owner,
Seller's partners or affiliates or any of their respective partners,
officers, directors, participants, employees, contractors,
attorneys, consultants, representatives, agents, successors, assigns
predecessors-in-interest. Purchaser shall rely only upon any title
insurance obtained by Purchaser with respect to title to the
Property. Purchaser acknowledges and agrees that no representation
has been made and no responsibility is assumed by Seller with
respect to current and future applicable zoning or building code
requirements or the compliance of the Property with any other laws,
rules, ordinances or regulations, the financial earning capacity or
expense history of the Property, the continuation of contracts,
continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Commercial Leases or,
without limiting any of the foregoing, occupancy at Closing. Prior
to Closing, Seller shall have the right, but not the obligation, to
enforce its rights against any and all Property occupants, guests or
tenants. Purchaser agrees that the departure or removal, prior to
Closing, of any of such guests, occupants or tenants shall not be
the basis for, nor shall it give rise to, any claim on the part of
Purchaser, nor shall it affect the obligations of Purchaser under
this Purchase Contract in any manner whatsoever; and Purchaser shall
close title and accept delivery of the deed with or without such
tenants in possession and without any allowance or reduction in the
Purchase Price under this Purchase Contract. Purchaser hereby
releases Seller from any and all claims and liabilities relating
foregoing matters, except as provided in Section 8.1.3.
8.1.3 Seller and Purchaser agree that except for the representations pertaining
to title and the authority to transfer title pursuant to Sections 8.1.1.1
and 8.1.1.2 those representations contained in Section 8.1 shall survive
Closing for a period of one (1) year (that is, any proceeding based on the
breach of a representation contained in this Section 8.1 that survives
Closing must be commenced within one (1) year subsequent to the date of
such representation). In the event that Seller breaches any representation
contained in Section 8.1 and Purchaser had knowledge of such breach,
Purchaser shall be deemed to have waived any right of recovery and Seller
shall not have any liability in connection therewith.
8.1.4 Any statement contained in the representations and warranties in
this Section 8.1 and made to the "knowledge" of Seller shall mean
ONLY the actual knowledge of Seller based upon the information
communicated to Seller by Harold Winegardner, a representative of
the management company managing the Property as of the date of this
Purchase Contract, in a certification addressed to Seller and dated
as of the Effective Date, a copy of which has been furnished to
Purchaser on or prior to the Effective Date; and otherwise any
reference to the "knowledge" of Seller shall not be deemed to imply
any duty of investigation or inquiry by Seller, and shall not be
construed to include the knowledge of any member, partner, officer,
director, agent, employee or representative of the Seller or any
affiliate of the Seller, imputed to Seller or constructively
attributed to Seller.
8.2 Representations And Warranties Of Purchaser
8.2.1 For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in
accordance herewith, Purchaser represents and warrants to Seller the
following as of the Effective Date and as of the Closing Date:
8.2.2 With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1 Purchaser is a corporation, duly organized, validly
existing and in good standing under the laws of Delaware.
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, (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.
8.2.2.6 Seller and Purchaser agree that except for the
representations pertaining to authority to enter into this
Purchase Contract pursuant to Sections 8.2.2.2 and 8.2.2.4
those representations contained in Section 8.2 shall survive
Closing for a period of one (1) year (that is, any
proceeding based on the breach of a representation contained
in this Section 8.2 that survives Closing must be commenced
within one (1) year subsequent to the date of such
representation). In the event that Purchaser breaches any
representation contained in Section 8.2 and Seller had
knowledge of such breach, Seller shall be deemed to have
waived any right of recovery and Purchaser shall not have
any liability in connection therewith.
8.2.2.7 Any statement contained in the representations and
warranties in this Section 8.2 and made to the "knowledge"
of Purchaser shall mean the actual knowledge of Purchaser
based upon the information communicated to Purchaser by
____________________, a representative of the Purchaser as
of the date of this Purchase Contract, in a certification
addressed to Purchaser and dated as of the Effective Date, a
copy of which has been furnished to Seller on or prior to
the Effective Date; and otherwise any reference to the
"knowledge" of Purchaser shall not be deemed to imply any
duty of investigation or inquiry by Purchaser, and shall not
be construed to include the knowledge of any member,
partner, officer, director, agent, employee or
representative of the Purchaser or any affiliate of the
Purchaser, imputed to Purchaser or constructively attributed
to Purchaser.
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 claim against the Property.
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 Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably
satisfactory to Purchaser;
9.1.2 Each of the representations and warranties of Seller contained
herein shall be true and correct in all material respects as of
Closing Date;
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 and
execution and delivery by Seller of all documents provided in
Section 7.2.1;
9.1.4 Seller shall have terminated the Exclusive Management
Agreement between Seller and Insignia Commercial Group, Inc. dated
January 1, 1995 and provided evidence of said termination to
Purchaser; and
9.1.5 Seller shall have terminated the Exclusive Leasing Agreement between
Seller and Insignia Commercial Group, Inc. dated January 1, 1995 and
provided evidence of said termination to Purchaser.
9.2 Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation to close with respect to
conveyance of a particular Property under this Purchase Contract shall be
subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent:
9.2.1 Purchaser's representations and warranties set forth in this
Purchase Contract shall be true and correct in all material respects
on the Closing Date.
9.2.2 Purchaser shall have fully performed and complied in all material
respects with all covenants, conditions, and other obligations 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, and execution by Purchaser of all documents provided
in Section 7.2.2.
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 or Seller.
9.2.4 Prior to the Closing Date, Seller shall have obtained written
approval from the mortgagee under the Existing Mortgage of Seller's
written provisional request to prepay on the Closing Date the entire
unpaid principal balance, interest and all penalties incurred
thereby, due under the Existing Mortgage Note. Seller shall pay all
penalties associated with the prepayment of the Existing Mortgage
Note.
ARTICLE 10
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only with
Broker in connection with this Purchase Contract. Seller and Purchaser
each represent and warrant 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 agree to
indemnify the other party from and against all claims for brokerage
commissions and finder's fees arising from or attributable to the acts of
omissions of the indemnifying party.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Escrow Agent is authorized and directed to pay to
Broker, the commission as forth in the separate agreement. All commissions
shall be paid simultaneously with any disbursements made at Closing. This
paragraph and disbursement instructions may not be amended or revoked
without the prior written consent of Broker.
10.3 Broker shall not be deemed a party or third party beneficiary of this
Purchase Contract except for Purchaser's obligations to Seller and Broker
set forth in Section 5.3.
10.4 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller
or Purchaser.
ARTICLE 11
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing.
ARTICLE 12
DEFAULTS AND REMEDIES
12.1 In the event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's default or inability
to convey the Property as required by this Purchase Contract, or defaults
hereunder prior to the Closing Date and consummation of the Closing does
not occur by reason of such termination or default by Purchaser, Seller
and Purchaser agree that it would be impractical and extremely difficult
to estimate the damages which Seller may suffer. Therefore, Seller and
Purchaser hereby agree that the reasonable estimate of the total net
detriment that Seller would suffer in the event that Purchaser terminates
this Purchase Contract or defaults hereunder prior to the Closing Date is
and shall be, as Seller's sole 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 and performance of the above as
liquidated damages is not intended as a forfeiture or penalty within the
meaning of applicable law and is intended to settle all issues and
questions about the amount of damages suffered by Seller in the applicable
event, except only for damages under Section 5.3, 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, and the right of Seller to collect such liquidated damages to
the extent not theretofore paid by Purchaser.
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 or inability to convey the Property
as provided herein, Purchaser's sole remedy shall be to elect to terminate
this Purchase Contract and receive reimbursement of the Deposit (or so
much thereof as has been received by Escrow Agent), seek an action for
reimbursement of all direct out of pocket costs and expenses, including,
but not limited to, surveying, title examination, environment and other
property inspections and attorneys' fees (provided such costs shall not
exceed $50,000.00, Purchaser to pay any such costs in excess of such sum)
or to seek specific performance of this Purchase Contract.
ARTICLE 13
RISK OF LOSS OR CASUALTY
13.1 The risk of loss or damage to the Property by fire or other casualty until
the date of Closing is assumed by the Seller, provided that the Seller's
responsibility shall be only to the extent of any recovery from insurance
now carried on the Property. If any of the Improvements shall be destroyed
or damaged prior to the Closing, and the estimated cost of repair or
replacement exceeds Three Hundred Twenty-Five Thousand Dollars
($325,000.00), Purchaser may, by written notice given to Seller within
fifteen (15) days after receipt of written notice from Seller of such
damage or destruction, elect to terminate this Purchase Contract, in which
event the Deposit shall immediately be returned by Escrow Agent to
Purchaser and except as expressly provided herein, subject to and except
for Purchaser's liability under Sections 5.3 and 5.4, the rights, duties,
obligations, and liabilities of all parties hereunder shall immediately
terminate and be of no further force or effect. If Purchaser does not
elect to terminate this Purchase Contract, pursuant to this Section 13.1,
or has no right to terminate this Purchase Contract (because the damage or
destruction does not exceed $325,000.00), and the sale of the Property is
consummated, Purchaser shall be entitled to receive all insurance proceeds
paid or payable to Seller by reason of such destruction or damage under
the insurance policies carried by Seller (less amounts of insurance
theretofore received and applied by Seller to restoration). If the amount
of said casualty or rent loss insurance proceeds is not settled by the
date of Closing, Seller shall execute at Closing all proofs of loss,
assignments of claim, and other similar instruments to ensure that
Purchaser shall receive all of Seller's right, title, and interest in and
under said insurance proceeds. Seller shall not, in any event, be
obligated to effect any repair, replacement, and/or restoration, but may
do so at its option in which case Seller may apply the insurance proceeds
to the costs of restoration.
ARTICLE 14
ASBESTOS MATTERS
Purchaser acknowledges that Seller and Broker have disclosed the presence
of asbestos in the Property and that Seller has delivered to Purchaser in
the Property Information Packet a copy of the Asbestos Operations and
Maintenance (O&M) Program prepared by Insignia Commercial Group dated
August 1995 ( the "O&M" Plan"). Purchaser hereby agrees to assume the
remediation obligations under the O&M Plan and to continue to observe and
perform the recommendations contained therein.
ARTICLE 15
EMINENT DOMAIN
In the event that at the time of Closing all or any part of the Property
is (or has previously been) acquired, or is about to be acquired, by
authority of any governmental agency in purchase in lieu thereof (or in
the event that at such time there is any notice of any such acquisition by
any such governmental agency), Purchaser shall have the right, at
Purchaser's option, to terminate this Purchase Contract by giving written
Notice within Fifteen (15) days of the occurrence of such event and
recover the Deposit hereunder, or to settle in accordance with the terms
of this Purchase Contract for the full Purchase Price and receive the full
benefit or any condemnation award. It is expressly agreed between the
parties hereto that this paragraph shall in no way apply to customary
dedications for public purposes which may be necessary for the development
of the subject property.
ARTICLE 16
MISCELLANEOUS
16.1 Exhibits And Schedules
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
16.2 Assignability
This Purchase Contract is not assignable without first obtaining the prior
written approval of the non-assigning party; provided however that
Purchaser may assign its interest in this Purchase Contract to any entity
controlled by or under common control with Purchaser pursuant to a written
assumption agreement, signed by the assignor and the assignee and pursuant
to which the named Purchaser shall remain liable jointly and severally
with such assignee as Purchaser for all obligations of Purchaser under
this Purchase Contract.
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 shall be in writing and shall
be deemed to have been properly given or served for all purposes (i) if
sent by Federal Express or the nationally recognized overnight carrier for
next business day delivery, on the first business day following deposit of
such notice with such carrier, or (ii) if personally delivered, on the
actual date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid, on the Fifth (5th) business day following the
date of mailing addressed as follows:
If to Seller: If to Purchaser:
Fifty-One North High Street, L.P. S&R Restaurants, Inc.
c/o AIMCO d/b/a McKnight Development Company
Tower Two 249 Craig Street
2000 S. Colorado Boulevard Pittsburgh, PA 15213
Suite 2-1000
Denver, Colorado 80222 with a copy to:
Attention: Tim Works
Harry Alcock Klett Lieber Rooney & Schorling
Martha Carlin 40th Floor, One Oxford Center
Pittsburgh, Pennsylvania 15219
and FAX 412-392-2128
Attention: Bernard Eisen
Argent Real Estate Services, Inc.
1401 Brickell Avenue
Suite 520
Miami, Florida 33131
FAX 305-371-6898
Attention: David Marquette
with a copy to:
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
FAX 202-508-6200
Attention: Richard A. Cohn
and
Bryan Cave LLP
211 North Broadway
One Metropolitan Square, Suite 3600
St. Louis, Missouri 63102-2750
FAX: 314-259-2020
Attention: Bruce E. Lowry, Jr.
and
Fredric Ehle
Ehle, Morrison Group, Ltd.
820 West Superior Avenue
Suite 430 Cleveland, Ohio 44113-1800 FAX: 216-623-3899
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 of Ohio shall govern the validity, construction,
enforcement, and interpretation of this Purchase Contract, unless
otherwise specified herein except for the conflict of laws provisions
thereof. All claims, disputes and other matters in question arising out of
or relating to this Purchase Contract, or the breach thereof, shall be
decided by proceedings instituted and litigated in the United States
District Court for the district in which the Property is situated, and the
parties hereto expressly consent to the venue and jurisdiction of such
court.
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 of the provisions of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision
shall be fully severable. The Purchase Contract shall be construed and
enforced as if such illegal, invalid, or unenforceable provision had never
comprised a part of this Purchase Contract; and the remaining provisions
of this Purchase Contract shall remain in full force and effect and shall
not be affected by the illegal, invalid, or unenforceable provision or by
its severance from this Purchase Contract. In lieu of such illegal,
invalid, or unenforceable provision, there shall be added automatically as
a part of this Purchase Contract a provision as similar in terms to such
illegal, invalid, or unenforceable provision as may be possible to make
such provision legal, valid, and enforceable.
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.
17.13 Confidentiality
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Purchase Contract
(i) as required by law, (ii) to consummate the terms of this Purchase
Contract, or any financing relating thereto, or (iii) to Purchaser's or
Seller's lenders, attorneys and accountants. Any information provided by
Seller to Purchaser under the terms of this Purchase Contract is for
informational purposes only. In providing such information to Purchaser,
Seller makes no representation or warranty, express, written, oral,
statutory, or implied, and all such representations and warranties are
hereby expressly excluded. Purchaser shall not in any way be entitled to
rely upon the accuracy of such information. Such information is also
confidential and Purchaser shall be prohibited from making such
information public to any other person or entity other than its agents and
legal representatives, without Seller's prior written authorization, which
may be granted or denied in Seller's sole discretion.
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
Except as otherwise provided herein, no remedy herein conferred or
reserved is intended to be exclusive of any other available remedy or
remedies, but each and every such remedy shall be cumulative and shall be
in addition to every other remedy given under this Purchase Contract or
now or hereafter existing at law or in equity. No delay or omission to
exercise any right or power accruing upon any default, omission, or
failure of performance hereunder shall impair any right or power or shall
be construed to be a waiver thereof, but any such right and power may be
exercised from time to time and as often as may be deemed expedient. No
waiver, amendment, release, or modification of this Purchase Contract
shall be established by conduct, custom, or course of dealing.
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 the sale of the
Property to Purchaser as a Like Kind Exchange under Internal Revenue Code
Section 1031 whereby Seller will acquire certain property (the "Like Kind
Exchange Property") in conjunction with the sale of the Property (the
"Like Kind Exchange"). Purchaser shall cooperate fully and promptly with
Seller's conduct of the Like Kind Exchange, provided that all costs and
expenses generated in connection with the Like Kind Exchange shall be
borne solely by Seller, and Purchaser shall not be required to take title
to or contract for the purchase of any other property. 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. In no event shall the
Closing Date be delayed by the Like Kind Exchange. Seller shall indemnify
and hold harmless Purchaser from and against any and all liability arising
from and out of the Like Kind Exchange.
ARTICLE 17
RATIFICATION
17.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before ________________, 2000.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as of the
date first set forth above.
SELLER: PURCHASER:
FIFTY-ONE NORTH HIGH STREET, L.P. S&R RESTAURANTS, INC.
By: CCP/V FIFTY-0NE GP, L.L.C., By: __________________________
its General Partner
Printed: ______________________
By: CONSOLIDATED CAPITAL PROPERTIES V,
its Manager Title: ________________________
EXHIBIT A
TO
PURCHASE AND SALE CONTRACT
BETWEEN
FIFTY-ONE NORTH HIGH STREET, L.P.
AND
S&R RESTAURANTS, INC.
LEGAL DESCRIPTION
Situated in the State of Ohio, County of Franklin, City of Columbus, more
particularly described as:
Situated in Half Section Number Twenty-Five (25), Township 5, Range 22,
Refugee Lands, in the State of Ohio, County of Franklin and City of
Columbus and being Lot Number Two Hundred Seventy-nine (279) in said City
of Columbus. The same being situated at the southwest corner of Gay and
High Street, and extending west, at the said width 187-1/2 feet on Gay
Street. Said inlot 279 being numbered and delineated on the plat of the
Town of Columbus of record in Deed Volume F, page 332 et. seq.
<PAGE>
EXHIBIT 3.1.1.1
WIRING INSTRUCTIONS
Bank Name: Chase Bank of Texas
5177 Richmond Avenue
Houston, Texas 77056
ABA: 113000609
To Credit: Fidelity National Title Insurance Company
Escrow Account No. 19 - National Title Services
Account No.: 081-00092817
File No.: 98210015
Attn: Lolly Avant
<PAGE>
EXHIBIT B
TO
PURCHASE AND SALE CONTRACT
BETWEEN
FIFTY-ONE NORTH HIGH STREET, L.P.
AND
S&R RESTAURANTS, INC.
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this day of _____________, 2000
by and among, Fifty-One North High Street, L.P., a South Carolina limited
partnership ("Seller"); S&R RESTAURANTS, INC., a Delaware corporation
("Purchaser"); FIDELITY NATIONAL TITLE COMPANY, NATIONAL TITLE SRVICES ("Escrow
Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of this ____ day of
_________, 2000; and
Whereas, the Purchase Contract requires that Purchaser provide a Deposit
in the amount of One Hundred Thousand Dollars ($100,000.00) in cash upon the
execution of the Purchase Contract to be held pursuant to an escrow agreement
approved by Purchaser and Seller.
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Thousand Dollars ($100,000.00) in cash (the "Escrow Fund"), to be
deposited, held, invested, and disbursed for the benefit of Seller and Purchaser
and their respective successors and assigns, as provided herein and as provided
in the Purchase Contract. Escrow Agent also hereby acknowledges receipt of a
quitclaim deed executed by Purchaser (the "Quitclaim Deed") and agrees to hold
and release the Quitclaim Deed in accordance with the terms of this Escrow
Agreement.
2. Investment of Escrow Fund. All funds received by Escrow Agent shall be held
in insured accounts and invested in such short-term, high-grade securities,
money market funds or accounts, interest bearing bank accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable (provided that Escrow Agent shall invest the Escrow
Fund 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 Escrow Fund and shall be remitted to the party entitled
to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefore (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall return the Quitclaim Deed to Purchaser and 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 and shall forthwith deliver the
Quitclaim Deed to Seller, (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 and shall forthwith deliver the Quitclaim Deed to Seller, (d) if
the sale of the Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of performance by Purchaser, Escrow Agent shall
forthwith deliver to Seller the Quitclaim Deed and the Escrow Fund in
immediately available funds by wire transfer in accordance with the instructions
of Seller, and (e) if Purchaser shall have canceled the Purchase Contract on or
before the expiration of the Feasibility Period (as defined in the Purchase
Contract), the Escrow Agent shall return and refund the Escrow Fund to Purchaser
and shall forthwith deliver the Quitclaim Deed 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 of the Quitclaim Deed and the safekeeping
and investment of money, instruments, and securities received by it as Escrow
Agent and for their disbursement in accordance with the written escrow
instructions given it in accordance with this Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal,
interest and quitclaim deed of the Escrow Fund in accordance with the joint
written instructions signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, and addressed as set forth below:
(a) If to Seller:
Fifty-One North High Street, L.P.
c/o AIMCO
Tower Two
2000 S. Colorado Boulevard
Suite 2-1000
Denver, Colorado 80222
Attention: Tim Works
Harry Alcock
Martha Carlin
and
Argent Real Estate Services, Inc.
1401 Brickell Avenue
Suite 520
Miami, Florida 33131
FAX 305-371-6898
Attention: David Marquette
with a copy to:
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
FAX 202-508-6200
Attention: Richard A. Cohn
and
Bryan Cave LLP
211 North Broadway
One Metropolitan Square
Suite 3600
St. Louis, Missouri 63102-2750
FAX: 314-259-2020
Attention: Bruce E. Lowry, Jr.
and
Fredric Ehle
Ehle, Morrison Group, Ltd.
820 West Superior Avenue
Suite 430
Cleveland, Ohio 44113-1800
(b) If to Purchaser:
S&R Restaurants, Inc.
d/b/a McKnight Development Company
249 Craig Street
Pittsburgh, PA 15213
and
Klett Lieber Rooney & Schorling
40th Floor, One Oxford Center
Pittsburgh, Pennsylvania 15219
FAX 412-392-2128
Attention: Bernard Eisen
(c) If to Escrow Agent:
Fidelity National Title Insurance Co.
Bank of America Center
700 Louisiana, Suite 2600
Houston, TX 77002
Attention: Lolly Avant
Phone: 713-228-3009
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 Three Hundred Dollars ($300.00) for
its services hereunder, and be paid or reimbursed for all expenses,
disbursements and advances, including reasonable attorney's fees, incurred or
paid in connection with carrying out its duties hereunder, all amounts to be
payable by Purchaser and not out of the Escrow Fund. Non-payment of such fee by
Purchaser shall not entitle Escrow Agent to refuse or fail to act as required by
this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to any Seller for any mistakes in judgment
in the performance of any function hereunder, except for failure to exercise due
care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Ohio.
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 on its behalf duly authorized persons, all as of the
day and year first above written.
S&R RESTAURANTS, INC., a Delaware corporation
By:
Name:
Its:
FIFTY-ONE HIGH STREET, L.P., a South Carolina
limited partnership
By: CCP/V FIFTY-0NE GP, L.L.C.,
its General Partner
By: CONSOLIDATED CAPITAL PROPERTIES V,
its Manager
By: CONCAP EQUITIES, INC.,
its General Partner
By:
Name:
Its:
FIDELITY NATIONAL TITLE INSURANCE COMPANY, NATIONAL TITLE SERVICES
By:
Name:
Its:
EXHIBIT 6.2.7
TITLE EXCEPTIONS
1. Special taxes or assessments that have accrued after the Effective Date of
the Purchase Contract becoming a lien or payable after the date of the
Special Warranty Deed to be delivered at Closing.
2. Unrecorded easements, discrepancies or conflicts in boundary lines, shortage
in area and encroachments which an accurate and complete survey would
disclose.
3. Rights of eminent domain, governmental rights of police power and other
governmental or quasi-governmental rights.
4. Rights of tenants in possession of the Property pursuant to unrecorded
leases, as tenants only.
5. Visible and apparent easements and all underground easements, if any, the
existence of which may arise by unrecorded grant or by use.
6. Present and future laws, ordinances, restrictions, resolutions, orders and
regulations and all present and future ordinances, laws, regulations and
orders of all federal, state, county, municipal or other governments,
agencies, boards, bureaus, commissions, authorities and bodies now or
hereafter having or acquiring jurisdiction of the Property and the use and
improvement thereof, including any restricting or regulating or prohibiting
the occupancy, use or enjoyment of the Property, or regulating the character,
dimensions or location of any improvement now or hereafter erected on the
Property, or prohibiting a separation in ownership or a reduction in the
dimensions or area of the Property, and the effect of any violation of such
law, ordinance or governmental regulation.
7. Other covenants, conditions, limitations, restrictions, rights,
rights-of-way, liens, encumbrances, encroachments, defects, reservations,
easements, agreements and other matters of record, if any.
<PAGE>
EXHIBIT 10.25
Bruce E. Lowry, Jr.
direct dial number
(314) 259-2530
INTERNET ADDRESS [email protected]
March 20, 2000
VIA FACSIMILE AND FEDERAL EXPRESS
Bernard Eisen, Esq.
Klett Lieber Rooney & Schorling
40th Floor, One Oxford Centre
Pittsburgh, Pennsylvania 15219-6498
Re: Fifty-One North High Street, L.P. ("Seller") and
S&R Restaurants, Inc. ("Purchaser")
Dear Mr. Eisen:
We are in receipt of your facsimile correspondence dated March 16,
2000 regarding the letter from American Geosciences, Inc. (the "Environmental
Letter") and their inspection of the Property subject to that certain Purchase
and Sale Contract between Seller and Purchaser dated February 29, 2000 (the
"Purchase Contract"). The Environmental Letter states that the cost of bringing
the Property into compliance with the Asbestos Control Program dated August 1995
(the "Asbestos Control Program") is $23,200.00 for certain repairs and asbestos
removal described therein. A copy of the letter is enclosed herein.
I have been authorized by Seller to consent to an adjustment to the
Purchase Price under the Purchase Contract in an amount equal to Twenty Three
Thousand Two Hundred and No/100ths Dollars ($23,200.00) (the costs associated
with bringing the Property into compliance with the Asbestos Control Program).
The adjustment to the Purchase Price will be taken at Closing as a reduction to
the Purchase Price pursuant to Section 7.2.2.1 of the Purchase Contract.
By signing below, Purchaser agrees to these terms and waives any
objections to the satisfactory condition of the Property pursuant to Section 5.2
of the Purchase Contract with respect to the environmental condition thereof.
Should you have any questions regarding this matter, please call.
Very Truly Yours,
Bruce E. Lowry, Jr., Esq.
Agreed and acknowledged this ____ day of March, 2000.
S&R Restaurants, Inc.
By:____________________________________
Printed:_________________________________
Title:___________________________________
Encl/BEL
cc: Harry Alcock (via facsimile w/encl)
David Marquette (via facsimile w/encl)
Fred Ehle (via facsimile w/encl)
EXHIBIT 10.26
S&R RESTAURANTS, INC.
249 North Craig Street
Pittsburgh, Pennsylvania 15213
May 9, 2000
Fifty-One North High Street Argent Real Estate Services,
Inc. c/o AIMCO 1401 Brickell Avenue
Tower Two Suite 520
2000 S. Colorado Boulevard Miami, Florida 33131
Suite 2-1000 Attention: David Marquette
Denver, Colorado 80222
Attention: Tim Works, Harry Alcock, Martha Carlin
Ladies and Gentlemen:
This letter is to set forth our understanding that the closing on the
transaction contemplated by that certain Purchase and Sale Contract between
Fifty-One North High Street, L.P. ("Seller") and S&R Restaurants, Inc.
("Purchaser") dated February 29, 2000 (the "Purchase Contract") scheduled to
occur on or before the date which is sixty (60) days after the end of the
Feasibility Period pursuant to Section 1.1.4 of the Purchase Contract shall be
modified to reflect a Closing Date of June 1, 2000.
Purchaser hereby acknowledges that all tests and examinations set forth in
ARTICLE 5, FEASIBILITY PERIOD, have been completed and are acceptable to
Purchaser. Purchaser further hereby acknowledges that other than the items to be
delivered at Closing pursuant to ARTICLE 7 and the conditions precedent set
forth in ARTICLE 9 of the Purchase Contract, there are no further conditions to
Purchaser's obligation to close on the transaction contemplated by the Purchase
Contract.
By signing below, Seller acknowledges that title to the Property (as
defined in the Purchase Contract) shall be taken in the name of 51 North
Associates, LLC, an Ohio limited liability company.
If you are in agreement with the proposed modification of the Closing Date
under the Purchase Contract and preparation of closing documents to reflect
receipt of title in the name of 51 North Associates, LLC, please execute a
duplicate copy of this letter and return it to the undersigned.
Very Truly Yours,
S&R RESTAURANTS, INC.
By:____________________________________
Accepted and agreed to this 9th day of May, 2000
FIFTY ONE NORTH HIGH STREET, L.P.
By: CCP/V FIFTY-ONE GP, L.L.C.
its General Partner
By: CONSOLIDATED CAPITAL PROPERTIES V,
its Manager
By: CONCAP EQUITIES, INC.,
its General Partner
By: __________________________
Printed: ____________________________
Title:_______________________________
cc: Bryan Cave LLP (Washington DC)
Bryan Cave LLP (Missouri)
Frederic Ehle
