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) August 16, 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, Aspen Ridge Apartments
located in West Chicago, Illinois on August 16, 2000. Aspen Ridge Apartments was
sold to Dial Equities, Inc., a Nebraska corporation, for $10,000,000.
The General Partner is currently evaluating the cash requirements of the
Partnership to determine what portion of the net proceeds, if any, would be
available to distribute to the partners in the near future.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's quarterly report on Form 10-QSB for the quarter ended September 30,
2000.
(c) Exhibits
10.27 Purchase and Sale Contract between Registrant and Dial Equities,
Inc., a Nebraska corporation, effective August 16, 2000.
10.28 Amendment to Purchase and Sale contract.
10.29 Escrow Agreement between Registrant and Dial Equities, Inc.
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: September 5, 2000
EXHIBIT 10.27
PURCHASE AND SALE CONTRACT
BETWEEN
ASPEN RIDGE ASSOCIATES, LTD.,
a Texas limited partnership
AS SELLER
AND
DIAL EQUITIES, INC.,
a Nebraska corporation
AS PURCHASER
(Aspen Ridge)
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract" or the "Agreement")
is entered into as of the 23rd day of May, 2000 (the "Effective Date") by and
between ASPEN RIDGE ASSOCIATES, LTD., a Texas limited partnership, having a
principal address at 2000 South Colorado Boulevard, Tower Two, Suite 2-1000,
Denver, Colorado 80222 ("Seller") and DIAL EQUITIES, INC., a Nebraska
corporation, having a principal address at 1104 South 76th Avenue, Omaha,
Nebraska 68124 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to the real estate located in DuPage County,
Illinois, as more particularly described in Exhibit A attached hereto and made a
part hereof. Improvements have been constructed on the property described in
this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such
land, improvements and certain associated property, defined below as the
"Property" on the terms and conditions set forth below, (which terms and
conditions shall control in the event of any conflict with these Recitals), such
that on the Closing Date (as hereinafter defined) the Property will be conveyed
by limited warranty deed to Purchaser.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the
Property, and Seller has agreed to sell the Property to Purchaser, on the terms
and conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser deems necessary
and desirable.
DEFINED TERMS
A. Unless otherwise defined herein, terms with initial capital letters in this
Purchase Contract shall have the meanings set forth in this ARTICLE 1 below.
B. "Business Day" means any day other than a Saturday or Sunday or Federal
holiday or legal holiday in the State of Illinois.
C. "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.
D. "Closing Date" means the date on which date the Closing of the conveyance of
the Property is required to be held under the terms and conditions of this
Purchase Contract (as it may be extended as provided herein), 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.
E. "Excluded Permits" means those Permits which, under applicable law, are
nontransferable and such other Permits as may be designated as Excluded Permits
on Exhibit 1.1.4, if any, attached hereto.
F. Intentionally Omitted.
G. "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, computers (to the extent located on
the Property and owned by Seller but specifically excluding any Buyer's Access
computers, if any), fax machines (to the extent located on the Property and
owned by Seller), copiers (to the extent located on the Property and owned by
Seller), apparatus, appliances and other articles of tangible personal property
now located on the Land or in the Improvements as of the date of this Purchase
Contract and used or usable in connection with any present or future occupation
or operation of all or any part of the Property, including, without limitation,
the tangible personal property identified on Exhibit 1.1.6 attached hereto. The
term "Fixtures and Tangible Personal Property" does not include (i) equipment
leased by Seller and the interest of Seller in any equipment provided to the
Property for use, but not owned or leased, by Seller, or (ii) property owned or
leased by Tenants and guests, employees or other persons furnishing goods or
services to the Property, or (iii) property and equipment owned by Seller, which
in the ordinary course of business of the Property is not used exclusively for
the business, operation or management of the Property or (iv) the property and
equipment, if any, expressly identified in Exhibit 1.1.7.
H. "Improvements" means all buildings and improvements, located on the Land
taken "as is".
I. "Land" means all of those certain tracts of land located in the State of
Illinois described on Exhibit "A" attached hereto, and all rights, privileges
and appurtenances pertaining thereto.
J. "Lease(s)" means the interest of Seller in and to all leases, subleases and
other occupancy agreements, whether or not of record, which provide for the use
or occupancy of space or facilities on or relating to the Property and which are
in force as of the Effective Date for the applicable Property.
K. "Miscellaneous Property Assets" means all contract rights, leases,
concessions, warranties, plans, drawings and other items of intangible personal
property relating to the ownership or operation of the Property and owned by
Seller, excluding, however, (i) receivables, (ii) Property Contracts, (iii)
Leases, (iv) Permits, (v) cash or other funds, whether in petty cash or house
"banks," or on deposit in bank accounts or in transit for deposit, (vi) refunds,
rebates or other claims, or any interest thereon, for periods or events
occurring prior to the Closing Date, (vii) utility and similar deposits, or
(viii) insurance or other prepaid items or (ix) Seller's proprietary books and
records, except to the extent that Seller receives a credit on the closing
statement for any such item. The term "Miscellaneous Property Assets shall also
include the following, but only to the extent owned by Seller and in Seller's
possession or control (provided Seller shall only be required to use reasonable
efforts to obtain items that are in Seller's control but not in Seller's
possession).: site plans, surveys, soil and substrata studies, architectural
renderings, plans and specifications, engineering plans and studies, floor
plans, tenant data sheets, landscape plans and other plans or studies of any
kind, if any, which relate to the Land and or the Improvements or the Fixtures
and Tangible Personal Property. The term "Miscellaneous Property Assets" shall
also include all of Seller's rights, if any, in and to the name "Aspen Ridge".
L. "Permits" means all licenses and permits granted by governmental authorities
having jurisdiction over the Property in respect of the matter to which the
applicable license or permit applies and owned by Seller and used in or relating
to the ownership, occupancy or operation of the Property or any part thereof not
subject to a Lease.
M. "Permitted Exceptions" means those exceptions or conditions permitted to
encumber the title to the Property in accordance with the provisions of Section
6.2. N. "Property" means the Land and Improvements and all rights of Seller
relating to the Land and the Improvements, including without limitation, any
rights, title and interest of Seller, if any, in and to (i) any strips and gores
adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts and 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. O. "Property Contracts" means all purchase
orders, maintenance, service, laundry or utility contracts and similar
contracts, which relate to the ownership, maintenance, construction or repair
and/or operation of the Property and which are not cancelable on 30 days' or
shorter Notice, except Leases. P. "Purchase Contract" means this Purchase and
Sale Contract by and between Seller and Purchaser.
Q. "Purchase Price" means the total consideration to be paid by Purchaser to
Seller for the purchase of the Property.
R. "Survey" shall have the meaning ascribed thereto in Section 6.7.
S. "Tenant" means any person or entity entitled to occupy any portion of the
Property under a Lease.
T. "Title Commitment" or "Title Commitments" shall have the meaning ascribed
thereto in Section 6.1.
U. "Title Insurer" shall have the meaning set forth in Section 6.1.
PURCHASE AND SALE OF PROPERTY
V. 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.
PURCHASE PRICE & DEPOSIT
W. The total purchase price ("Purchase Price") for the Property shall be Ten
Million and No/100 Dollars ($10,000,000.00), which shall be paid by Purchaser,
as follows:
X. One (1) Business Day after Purchaser has received from Seller a duplicate
original of this Purchase Contract showing Seller's acceptance hereof, Purchaser
shall deliver to Stewart Title Guaranty Company ("Escrow Agent" or the "Title
Insurer") a deposit in the sum of One Hundred Thousand and no/100 Dollars
($100,000.00), in cash, (such sum being hereinafter referred to and held as the
"Initial Deposit"). Purchaser shall also deliver a quitclaim deed to the Escrow
Agent in the form attached as Exhibit 3.1.1. Purchaser and Seller each approve
the form of Escrow Agreement attached as Exhibit B.
Y. At or before 5:00 p.m. Central time on the date of expiration of the
Feasibility Period (as hereinafter defined), provided Purchaser has not
terminated this Purchase Contract pursuant to Section 5.2 below, Purchaser shall
deliver to Escrow Agent an additional deposit in the sum on One Hundred Thousand
and No/100 Dollars ($100,000.00), in cash (such sum being hereinafter referred
to as the "Additional Deposit").
Z. As used herein, the term "Deposit" shall mean collectively, the Initial
Deposit, the Additional Deposit (to the extent paid), and the Extension Deposit
(as hereinafter defined in Section 7.1.1 or such portion thereof that has
theretofore been delivered to Escrow Agent). 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 directed by and Purchaser and all interest and income
thereon shall become part of the Deposit and shall be remitted to the party
entitled to the Deposit, as set forth below. AA. If the sale of the Property is
closed by the date fixed therefor (or any extension date provided for herein),
monies held as the Deposit shall be applied to the Purchase Price on the Closing
Date. If the sale of the Property is not closed by the date fixed therefor (or
any such extension date) owing to failure of satisfaction of a condition
precedent to Purchaser's obligations, the Deposit shall be returned and refunded
to Purchaser, and neither party shall have any further liability hereunder,
subject to and except for Purchaser's liability under Section 5.3.
BB. 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 hereof. If the sale of the
Property is not closed by the date fixed therefor (or any such extension date)
owing to failure of performance by Purchaser, Seller shall be entitled to the
remedies set forth in ARTICLE 12 below.
FINANCING
CC. Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement, and Purchaser's acquisition of such funds shall not be a contingency
to the Closing.
FEASIBILITY PERIOD
DD. Subject to the terms of Section 5.3 below, for forty-five (45) calendar days
following Purchaser's receipt of the Materials (as hereinafter defined), but in
no event later than July 24, 2000 (the "Feasibility Period"), Purchaser, and its
agents, contractors, prospective lenders, engineers, surveyors, attorneys, and
employees ("Consultants") shall have the right from time to time to enter onto
the Property:
EE. To conduct and make any and all studies, tests, examinations and
inspections, or investigations of or concerning the Property that Purchaser, in
its reasonable discretion deems advisable (including without limitation,
engineering and feasibility studies, evaluation of drainage and flood plain,
soil tests for bearing capacity and percolation and surveys, including
topographical surveys). FF. To confirm any and all matters which Purchaser may
reasonably desire to confirm with respect to the Property.
GG. To ascertain and confirm the suitability of the property for Purchaser's
intended use of the Property. HH. To review all Miscellaneous Property Assets
and Materials (as hereinafter defined) other than Seller's proprietary
information, including, Materials held by the Property Manager and the Regional
Property Manager (as defined in Section 8.1.4 of this Purchase Contract).
II. Purchaser shall have the right to terminate this Purchase Contract for any
reason, or no reason, by giving written Notice to Seller and Escrow Agent on or
before 5:00 p.m. Central time on the date of expiration of the Feasibility
Period. If Purchaser exercises such right to terminate, this Purchase Contract
shall terminate and be of no further force and effect, subject to and except for
Purchaser's liability under Section 5.3, and Escrow Agent shall forthwith
deliver the Quitclaim Deed of all of Purchaser's right and interest in the
Property to Seller, and then promptly return the Deposit to Purchaser. If
Purchaser fails to provide Seller with written Notice of cancellation prior to
the end of the Feasibility Period in strict accordance with the Notice
provisions of this Purchase Contract, this Purchase Contract shall remain in
full force and effect and Purchaser's obligation to purchase the Property shall
be non-contingent and unconditional except only for satisfaction of the
conditions expressly stated in this ARTICLE 5 and in ARTICLE 9, and except as
expressly set forth in ARTICLE 13 and 15.
JJ. Purchaser shall indemnify and hold Seller harmless for any actions taken by
Purchaser and its Consultants on the Property. Purchaser shall indemnify, defend
(with attorneys selected by Seller) and hold Seller harmless from any and all
claims, damages, costs and liability which may arise due to such entries,
surveys, tests, investigations and the like. Seller shall have the right,
without limitation, to disapprove any and all entries, surveys, tests,
investigations and the like that in their reasonable judgment could result in
any injury to the Property or breach of any agreement, or expose Seller to any
liability, costs, liens or violations of applicable law, or otherwise adversely
affect the Property or Seller's interest therein. No consent by the Seller to
any such activity shall be deemed to constitute a waiver by Seller or assumption
of liability or risk by Seller. Purchaser hereby agrees to restore the Property
to the same condition existing immediately prior to Purchaser's exercise of its
rights pursuant to this ARTICLE 5 at Purchaser's sole cost and expense.
Purchaser shall maintain casualty insurance and comprehensive public liability
insurance with 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.
KK. Purchaser shall not permit any mechanic's or materialmen's liens or any
other liens to attach to the Property by reason of the performance of any work
or the purchase of any materials by Purchaser or any other party in connection
with any studies or tests conducted by or for Purchaser. Purchaser shall give
notice to Seller a reasonable time prior to entry onto the Property (e.g. at
least 48 hours notice), shall deliver proof of insurance coverage required above
to Seller and shall permit Seller to have a representative present during all
investigations and inspections conducted with respect to the Property. Purchaser
shall take all reasonable actions and implement all protections necessary to
ensure that all actions taken in connection with the investigations and
inspections of the Property, and all equipment, materials and substances
generated, used or brought onto the Property pose no material threat to the
safety of persons or the environment and cause no damage to the Property or
other property of Seller or other persons. All information made available by
Seller to Purchaser in accordance with this Purchase Contract or obtained by
Purchaser in the course of its investigations shall be treated as confidential
information by Purchaser, and, prior to the purchase of the Property by
Purchaser, Purchaser shall use its best efforts to prevent its Consultants,
agents and employees from divulging such information to any unrelated third
parties except as reasonably necessary to third parties engaged by Purchaser for
the limited purpose of analyzing and investigating such information for the
purpose of consummating the transaction contemplated by this Purchase Contract,
including Purchaser's attorneys and representatives, prospective lenders and
engineers.
LL. Seller shall deliver to Purchaser within ten (10) calendar days from the
Effective Date copies of all leases, contracts, engineering studies, surveys,
permits, a current rent roll (on Seller's standard form), real estate tax
statements for the last two calendar years, financial and operating statements
for the last two calendar years, environmental site assessments, warranties,
prior title policies, Property Contracts and other materials (the "Materials")
in Seller's possession or control relating to the Property (other than
proprietary information of Seller). If the sale of the Property is not closed by
the date fixed therefor, Purchaser shall, within five (5) calendar days, return
all such Materials to Seller.
TITLE
MM. Within ten (10) calendar days from the Effective Date, at its sole cost and
expense, Seller shall promptly obtain from Stewart Title Guaranty Company (the
"Title Insurer") a preliminary title report or commitment (the "Title
Commitment") to issue an Owner's Policy of Title Insurance (the "Title Policy")
insuring Purchaser's title to the Property to be good and indefeasible in the
amount of the Purchase Price, subject only to the Permitted Exceptions
(described below) and other liens and encumbrances not constituting objections
to title in accordance herewith. A copy of the Title Commitment and the
documents of record reflected therein and Seller's existing survey shall be
furnished to the Purchaser and attorney for Seller. On or before the expiration
of the Feasibility Period, Purchaser shall give written notice (the "Objection
Notice") to the attorneys for Seller of any conditions of title to which
Purchaser objects (the "Objections") separately specifying and setting forth
each of such Objections. Seller shall be entitled to reasonable adjournments of
the Closing Date to cure the Objections. If Purchaser gives Seller an Objection
Notice within the period set forth above, then all matters disclosed on the
Title Commitment which are not objected to in such Objection Notice shall be
deemed to be Permitted Exceptions. If Purchaser fails to give Seller an
Objection Notice within the period set forth above, then all matters disclosed
on the Title Commitment shall be deemed to be Permitted Exceptions. NN. If
Seller gives Purchaser notice (the "Response Notice") that Seller is unable or
unwilling to cure the Objection on or before the Closing Date, Purchaser may, as
its exclusive remedy, elect by written notice given to Seller within five (5)
days after the Response Notice is given, either (a) to accept, such title as
Seller is able to convey without any reduction or abatement of the Purchase
Price, in which event those Objections contained in the Response Notice that
Seller is unable or unwilling to cure shall also be deemed Permitted Exceptions,
or (b) to terminate this Purchase Contract in which event the Deposit shall be
returned to Purchaser. If Purchaser fails to give notice of its election to
terminate this Agreement within such five (5) day period, Purchaser shall be
deemed to have waived said objections and to have elected to proceed to close
the transactions contemplated by this Purchase Contract in which event those
Objections contained in the Response Notice that Seller is unable or unwilling
to cure shall also be deemed Permitted Exceptions.
OO. The existence of liens or encumbrances other than the Permitted Exceptions
shall be deemed to be Permitted Exceptions if the Title Insurer will insure
Purchaser's title clear of the matter or will insure against the enforcement of
such matter out of the Property. Unpaid liens for real estate and personal
property taxes for years prior to the fiscal year in which the Closing Date
occurs and any other matter which Seller is obligated to pay and discharge at
the Closing shall not be deemed objections to title, but the amount thereof
chargeable to Seller, plus interest and penalties thereon, if any, shall be
deducted from the Purchase Price on the Closing Date and paid to the Title
Insurer for the payment of such matters at Closing.
PP. Notwithstanding the foregoing, any deeds of trust and/or mortgages
(including any and all mortgages which secure that certain loan on the Property
in the original principal amount of $5,750,000.00 made by GMAC against the
Property (collectively, "Liens") shall be deemed objectionable exceptions,
whether Purchaser gives written notice of such or not, and shall be paid off,
satisfied, discharged and/or cured by Seller at or before Closing, the same
being a material obligation of Seller under this Purchase Contract.
QQ. Intentionally Deleted.
RR. 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 (other than Leases and Property Contracts in the ordinary
course of business); any such monetary lien or encumbrance so attaching by
voluntary act of Seller (hereinafter, a "Voluntary Intervening Lien") shall be
discharged by the Seller at or prior to Closing on the Closing Date or any
postponed Closing Date. Except as expressly provided above, Seller shall not be
required to undertake efforts to remove any other lien, encumbrance, security
interest, exception, objection or other matter, 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; provided, however, if any lien or
encumbrance (other than a Voluntary Intervening Lien) attaches to the Property
between the date of this Purchase Contract and the Closing Date, Seller shall be
required to satisfy or discharge said lien or encumbrance at or prior to the
Closing, provided that Seller shall not be required to expend more than $200,000
in connection with such satisfaction or discharge. If the amount required to
satisfy or discharge such lien or encumbrance exceeds $200,000, Purchaser shall
have the option of either (a) paying the excess amount over $200,000 required to
satisfy or discharge such lien, and proceeding to the Closing, or (b)
terminating this Purchase Contract, in which case, the Deposit shall be returned
and refunded to Purchaser and neither party shall have any further liability
hereunder, subject to and except for Purchaser's liability under Section 5.3 of
this Purchase Contract. Seller shall have no option to terminate this Purchase
Contract if Purchaser has elected to pay the amount in excess of $200,000 to
satisfy or discharge such lien or encumbrance.
SS. Purchaser may cause to be prepared a survey for the Property ("Survey") to
be delivered to Purchaser and Seller within the Feasibility Period. The cost of
the Survey in the form set forth below shall be shared equally by Purchaser and
Seller. Any additional items required by Purchaser or its lender on the Survey
shall be paid by Purchaser. The Survey (i) shall be prepared in accordance with
and shall comply with the minimum requirements of the ALTA/ACSM Land Title
Surveys, jointly established and adopted by ALTA, ACSM and NSPS in 1999 and
shall include items 1 through 4, 6, 7(a), (b)(1), and (c), and 8 through 10,
11(b), 14 through 16 of Table A hereof; (ii) shall be in a form, and shall be
certified as of a date satisfactory to Title Insurer to enable Title Insurer to
delete standard survey exceptions from the title insurance policy to be issued
pursuant to the Title Commitments, except for any Permitted Exceptions; (iii)
shall specifically show all improvements, recorded easements to the extent
locatable, set back lines, and such other matters shown as exceptions by the
Title Commitments; (iv) shall specifically show the right of way for all
adjacent public streets; (v) shall specifically disclose whether (and, if so,
what part of) any of the Property is in an area designated as requiring flood
insurance under applicable federal laws regulating lenders; (vi) shall contain a
perimeter legal description of the Property which may be used in the limited
warranty deed or equivalent deed; (vii) shall be certified to Purchaser,
Purchaser's lender, Seller and Title Insurer as being true and correct; and
(viii) shall certify that the legal description set forth therein describes the
same, and comprises all of, the real estate comprising the Property to be
purchased by Purchaser pursuant to the terms of this Purchase Contract. In the
event the perimeter legal description of the Property contained in the Survey
differs from that contained in the deed or deeds by which Seller took title to
the Property, the latter description shall be used in the limited 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. Purchaser, at Purchaser's sole cost and expense, may also cause to be
prepared an environmental report for the Property ("Environmental Report").
TT. Should such Survey disclose conditions that give rise to a title exception
other than a Permitted Exception, Purchaser shall have the right to object
thereto within the Feasibility Period in accordance with the procedures set
forth in Section 6.1 above.
CLOSING
UU. Dates, Places Of Closing, Prorations, Delinquent Rent and Closing Costs. VV.
The Closing shall occur on the later to occur of (i) the date which is thirty
(30) calendar days after expiration of the Feasibility Period or (ii) the date
which is thirty (30) calendar days after Seller obtains the consents described
in Section 9.2.5 below. The closing shall occur through an escrow with Escrow
Agent, whereby the Seller, Purchaser and their attorneys need not be physically
present (but may be) at the Closing and may deliver documents by overnight air
courier or other means. Notwithstanding the foregoing, (a) Purchaser shall have
the right to close prior to the Closing Date, on the condition that Seller
receives at least three (3) Business Days prior notice thereof, and (b)
Purchaser shall have the right to extend the Closing Date for an additional
thirty (30) calendar days (the "Extension Option") on the condition that (i) on
or before 5 p.m. Central time on the original Closing Date, Purchaser shall
deliver to Escrow Agent an additional non-refundable deposit in the amount of
Fifty Thousand and No/100 Dollars ($50,000.00) (the "Extension Deposit") which
deposit shall be applied toward the Purchase Price, and (ii) Purchaser notifies
Seller on or before 5 p.m. Central time at least three (3) Business Days prior
to the scheduled Closing Date that Purchaser is executing this extension.
WW. The Closing Date may be extended without penalty at the option of Seller to
a date not later than seven (7) days following the Closing Date specified above
to satisfy a condition to be satisfied by Seller, or such later date as is
mutually acceptable to Seller and Purchaser.
XX. 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 or credited, as appropriate, for all of same attributable to the
period up to the Closing Date (and credited for any amounts paid by Seller
attributable to the period on or after the Closing Date, if assumed by
Purchaser) and Purchaser being responsible for, and credited or charged, as the
case may be, for all of same attributable to the period on and after the Closing
Date. All unapplied deposits under Tenant leases, if any, shall be transferred
by Seller to Purchaser at the Closing. Purchaser shall assume at Closing the
obligations under the Property Contracts assumed by Purchaser, provided that any
payments under the Property Contracts have been prorated. Any real estate ad
valorem or similar taxes for the Property, or any installment of assessments
payable in installments which installment is payable in the calendar year of
Closing, shall be prorated to the date of Closing, based upon actual days
involved. The proration of real property taxes or installments of assessments
shall be based upon the assessed valuation and tax rate figures for the year in
which the Closing occurs to the extent the same are available; provided, that in
the event that actual figures (whether for the assessed value of the Property or
for the tax rate) for the year of Closing are not available at the Closing Date,
the proration shall be made using figures from the preceding year. The
provisions of this Section 7.1.3 shall apply during the Proration Period (as
defined below). Rents and all related charges shall be prorated based on actual
collections as of the Closing Date. YY. 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.
ZZ. If on the Closing Date any Tenant is in arrears in any Rent payment under
any Tenant lease (the "Delinquent Rent"), any Delinquent Rent received by
Purchaser and Seller from such Tenant after the Closing shall be applied to
amounts due and payable by such Tenant during the following periods in the
following order of priority: (i) first, to the period of time after the Closing
Date, and (ii) second, to the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after closing
shall promptly be forwarded to Purchaser for disbursement in accordance with the
order of payment provided herein above. After the Closing, Seller shall continue
to have the right, but not the obligation, in its own name, to demand payment of
and to collect Delinquent Rent owed to Seller by any Tenant, which right shall
include, without limitation, the right to continue or commence legal actions or
proceedings against any Tenant (provided, that Seller shall not commence any
legal actions or proceedings against any Tenant which continues as a Tenant at
the Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or liability to
Purchaser in connection with all efforts by Seller to collect such Delinquent
Rent and to take all steps, whether before or after the Closing Date, as may be
necessary to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, within seven (7) days after a written
request, of any relevant books and records (including, without limitation, rent
statements, receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and the
undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property.
AAA. Seller shall pay the cost of all transfer taxes (e.g., excise stamp taxes)
and documents releasing Seller's deeds of trust or mortgages, and Purchaser
shall pay the cost of all other recording costs with respect to the Closing.
Seller shall pay the cost of obtaining the Title Policy ( an ALTA Owner's Policy
of Title Insurance, 10-17-92 form), and Standard endorsements thereto, provided
the Survey is provided by Purchaser and certified to the Title Insurer. Seller
and Purchaser shall share equally in the costs of the Escrow Agent for escrow
fees. BBB. Items To Be Delivered Prior To Or At Closing.
CCC. Seller. At Closing, Seller shall deliver to the Escrow Agent for
disbursement to Purchaser upon Closing, each of the following items, which have
been fully executed and/or as required, acknowledged by Seller: DDD. Special
Warranty Deed (the "Deed") in the form attached as Exhibit 7.2.1.1 and, if
applicable a quitclaim deed as set forth in Section 6.7 hereof, to Purchaser.
The acceptance of such deed at Closing, shall be deemed to be full performance
of, and discharge of, every agreement and obligation on Seller's part to be
performed under this Purchase Contract, except for those that this Purchase
Contract specifically provides shall survive Closing.
EEE. A Bill of Sale in the form attached as Exhibit 7.2.1.2 covering all
Property Contracts, 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 of, among other things, Seller's obligations
thereunder. FFF. An Assignment (to the extent assignable and in force and
effect) in the form attached as Exhibit 7.2.1.3 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.
GGG. A closing statement executed by Seller.
HHH. A title 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 to the title insurance policy set forth in this Purchase
Contract (other than matters constituting any Permitted Exceptions to be issued
pursuant to the Title Commitment.
III. A certification of Seller's non-foreign status pursuant to Section 1445 of
the Internal Revenue Code of 1986, as amended. JJJ. Except for the items
expressly listed herein 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.
KKK. Intentionally Omitted.
LLL. A list certified by Seller, disclosing any current litigation affecting the
Property, and, to the best of Seller's knowledge, any known threatened
litigation.
MMM. Evidence that the management agreement for Seller's manager has been
terminated.
NNN. A rent roll for the Property certified by Seller, listing the monthly base
rent payable, lease expiration date and unapplied security deposit as of the
Closing Date.
OOO. Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Seller's
authority to consummate this transaction (copies of which shall be provided to
Purchaser for Purchaser's review, but shall not require Purchaser's approval
thereof).
PPP. To the extent in Seller's possession or control, originals or copies of the
Leases and Property Contracts, lease files, warranties, guaranties, operating
manuals, keys to the property, Seller's books and records (other than
proprietary information) regarding the Property.
Notices to tenants (the "Notice Letters") in the form attached as Exhibit
7.2.1.14.
QQQ. Purchaser. At Closing, Purchaser shall deliver to the Title Company (for
disbursement to Seller upon the Closing) the following items with respect to the
Property being conveyed at such Closing:
RRR. The full Purchase Price as required by ARTICLE 3 hereof plus or minus the
adjustments or prorations required by this Purchase Contract. If at Closing
there are any liens or encumbrances on the Property that Seller is obligated or
elects to pay and discharge, Title Insurer shall use any portion of the Purchase
Price to satisfy the same, provided that Seller shall have delivered to Title
Company, on such Closing instruments in recordable form sufficient to satisfy
such liens and encumbrances of record (or, as to any mortgages or deeds of
trust, appropriate payoff letters, acceptable to the Title Insurer), together
with the cost of recording or filing such instruments. The existence of any such
liens or encumbrances shall not be deemed objections to title if Seller shall
comply with the foregoing requirements.
SSS. A closing statement executed by Purchaser.
TTT. A countersigned counterpart of the Bill of Sale in the form attached as
Exhibit 7.2.1.2.
UUU. A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
VVV. 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.
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF SELLER AND PURCHASER
WWW. Representations, Warranties and Covenants Of Seller.
XXX. 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 and covenants to Purchaser the following as of
the Effective Date and as of the Closing Date:
YYY. Seller is lawfully and duly organized, and in good standing under the laws
of the state of its formation set forth in the initial paragraph of this
Purchase Contract; and has or at the Closing shall have the power and authority
to sell and convey the Property and to execute the documents to be executed by
Seller and prior to the Closing will have taken as applicable, all corporate,
partnership, limited liability company or equivalent entity actions required for
the execution and delivery of this Purchase Contract, and the consummation of
the transactions contemplated by this Purchase Contract. The compliance with or
fulfillment of the terms and conditions hereof will not conflict with, or result
in a breach of, the terms, conditions or provisions of, or constitute a default
under, any purchase contract to which Seller is a party or by which Seller is
otherwise bound. Seller has not made any other purchase contract for the sale
of, or given any other person the right to purchase, all or any part of any of
the Property;
ZZZ. 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 (provided, however, that if this representation is or
becomes untrue, Purchaser's remedies shall be limited to the remedies set forth
in Section 6.2 hereof and Seller shall have no other liability as a result
thereof, either before or after Closing);
AAAA. There are no adverse or other parties in possession of the Property,
except for occupants, guests and tenants under the Leases (provided, however,
that if this representation is or becomes untrue, Purchaser's remedies shall be
limited to the remedies set forth in Section 6.2 hereof).
BBBB. The joinder of no person or entity other than Seller is necessary to
convey the Property, fully and completely, to Purchaser at Closing, or to
fulfill Seller's obligations and Seller has all necessary right and authority to
convey and assign to Purchaser all contract rights and warranties required to be
conveyed and assigned to Purchaser hereunder;
CCCC. Purchaser has no duty to collect withholding taxes for Seller pursuant to
the Foreign Investors Real Property Tax Act of 1980, as amended.
DDDD. Seller has not received any written notice of any actions, proceedings,
litigation or governmental investigations or condemnation actions against the
Property, and, to the best of Seller's knowledge, there are no actions,
proceedings, litigation or governmental investigations or condemnation actions
either pending or threatened against the property;
EEEE. Seller has no knowledge of any claims for labor performed, materials
furnished or services rendered in connection with constructing, improving or
repairing any of the Property, as applicable, caused by Seller and which remain
unpaid beyond the date for which payment was due and in respect of which liens
may or could be filed against any of the Property, as applicable;
FFFF. Seller has not received any written notice of any proposed taking,
condemnation or special assessment with respect to the Property;
GGGG. Seller has not received any written notice of any uncured violations of
any federal, state, county or municipal law, ordinance, order, regulation or
requirement affecting the Property;
HHHH. Seller has not received any written notice of any default by Seller under
any of the Property Contracts that will not be terminated on the Closing Date;
IIII. Seller agrees to maintain its existing insurance policies covering the
Property in full force and effect through the Closing Date, to continue to
maintain the Property as Seller has been operating the Property immediately
prior to the Effective Date, and to cause any of the units on the Property that
are vacant as of three days prior to the Closing Date to be in "make ready"
condition on the Closing Date; and
JJJJ. To Seller's knowledge, all documents relating to the Property that were
delivered by Seller to Purchaser in connection with this Purchase Contract, are
true, correct and complete in all material respects, and none contain any untrue
statement of a material fact or omit to state a material fact.
KKKK. Except for the representations and warranties expressly set forth above in
Subsection 8.1.1, the Property is expressly purchased and sold "AS IS," "WHERE
IS," and "WITH ALL FAULTS." The Purchase Price and the terms and conditions set
forth herein are the result of arm's-length bargaining between entities familiar
with transactions of this kind, and said price, terms and conditions reflect the
fact that Purchaser shall have the benefit of, and is not relying upon any
information provided by Seller or Broker or statements, representations or
warranties, express or implied, made by or enforceable directly against Seller
or Broker, including, without limitation, any relating to the value of the
Property, the physical or environmental condition of the Property, any state,
federal, county or local law, ordinance, order or permit; or the suitability,
compliance or lack of compliance of the Property with any regulation, or any
other attribute or matter of or relating to the Property (other than any
covenants of title contained in the deeds conveying the Property and the
representations set forth above). Purchaser represents and warrants that 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, summaries, opinions or work product of consultants, surveyors,
architects, engineers, title companies, governmental authorities or any other
person or entity with respect to the Property, including, without limitation,
the offering prepared by Broker, Purchaser and Seller agree that Seller has done
so or shall do so only for the convenience of both parties, Purchaser shall not
rely thereon and the reliance by Purchaser upon any such documents, summaries,
opinions or work product shall not create or give rise to any liability of or
against Seller, Seller's partners or affiliates or any of their respective
partners, officers, directors, participants, employees, contractors, attorneys,
consultants, representatives, agents, successors, assigns or
predecessors-in-interest. Purchaser 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 Leases or, without limiting any of the
foregoing, occupancy at Closing. Prior to Closing, Seller shall have the right,
but not the obligation, to enforce its rights against any and all Property
occupants, guests or tenants. Except as otherwise set forth herein, Purchaser
agrees that the departure or removal, prior to Closing, of any of such guests,
occupants or tenants shall not be the basis for, nor shall it give rise to, any
claim on the part of Purchaser, nor shall it affect the obligations of Purchaser
under this Purchase Contract in any manner whatsoever; and Purchaser shall close
title and accept delivery of the deed with or without such tenants in possession
and without any allowance or reduction in the Purchase Price under this Purchase
Contract. Purchaser hereby releases Seller from any and all claims and
liabilities relating to the foregoing matters, except as provided in Section
8.1.3 below.
LLLL. Seller agrees that Purchaser shall be entitled to rely on the foregoing
representations and warranties made by Seller herein and that Purchaser has so
relied. Seller and Purchaser agree that those representations and warranties
contained in Section 8.1 shall survive Closing for a period of one (1) year (the
"Survival Period") and during the Survival Period, Purchaser shall be entitled
to seek any available remedy for Seller's breach of the warranties and
representations, including damages, but not in an amount exceeding $100,000.
Seller shall have no liability after the Survival Period with respect to the
representations and warranties contained herein except to the extent that
Purchaser has filed a lawsuit against Seller during the Survival Period for
breach of any representation or warranty. In the event that Seller breaches any
representation contained in Section 8.1 and Purchaser had actual knowledge of
such breach prior to the Closing Date, Purchaser shall be deemed to have waived
any right of recovery, and Seller shall not have any liability in connection
therewith.
MMMM. Representations and warranties above made to the knowledge of Seller shall
not be deemed to imply any duty of inquiry. For purposes of this Purchase
Contract, the term Seller's "knowledge" shall mean and refer to only actual
knowledge of the Designated Representative (as hereinafter defined) of the
Seller and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Seller, or
any affiliate of the Seller, or to impose upon such Designated Representative
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term Designated
Representative shall refer to Sharon Severin, of Apartment Investment &
Management Company ("AIMCO"), as the on-site property manager (the "Property
Manager"), Jaime McDonald, the Regional Property Manager handling this Property
at AIMCO (the "Regional Property Manager"), Harry Alcock, Pat Stucker and Mark
Reoch of AIMCO.
NNNN. Representations And Warranties Of Purchaser
OOOO. 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:
PPPP. With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
QQQQ. Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of Nebraska.
RRRR. 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.
SSSS. 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.
TTTT. 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
articles 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.
UUUU. 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.
VVVV. Other than Broker (as hereinafter defined), Purchaser has not dealt with
any broker, finder or any other person, in connection with the purchase of or
the negotiation of the purchase of the Property that might give rise to any
claim for commission against Seller or lien or claim against the Property.
WWWW. Representations and warranties above made to the knowledge of Purchaser
shall not be deemed to imply any duty of inquiry. For purposes of this Purchase
Contract, the term Purchaser's "knowledge" shall mean and refer to only actual
knowledge of the Designated Representatives of Purchaser (defined below), and
shall not be construed to refer to the knowledge of any other partner, officer,
director, agent, employee or representative of Purchaser, or any affiliate of
Purchaser or to impose upon such Designated Representative any duty to
investigate the matter to which such actual knowledge or the absence thereof
pertains, or to impose upon such Designated Representative any individual
personal liability. As used herein, the term Designated Representative of
Purchaser shall refer to Stephen M. Mariucci and Todd Moffet.
CONDITIONS PRECEDENT TO CLOSING
XXXX. 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:
YYYY. All of the documents required to be delivered by Seller to Purchaser at
the Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
ZZZZ. Each of the representations, warranties and covenants of Seller contained
herein shall be true in all material respects as of the Closing Date (and
Purchaser shall be permitted to perform an inspection of the Property at any
time during the seven days immediately prior to the Closing Date to verify
same);
AAAAA. 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; BBBBB. Intentionally Omitted; CCCCC.
Intentionally Omitted; DDDDD. The actual occupancy level of the Property shall
not have decreased by more than fifteen percent (15%) from the actual occupancy
level on the Effective Date; EEEEE. Seller shall have terminated any Property
Contracts which are not being assumed by Purchaser as of the Closing Date (and
which are capable of being terminated by Seller without penalty or cost to
Seller). FFFFF. Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth in
this Purchase Contract. If any of the above conditions is not satisfied, then
notwithstanding anything to the contrary contained in this Purchase Contract,
Purchaser may, at its option (a) waive such condition and proceed to Closing and
accept title to the Property with an agreed upon offset or deduction from the
Purchase Price (assuming Seller and Purchaser can agree upon such offset or
deduction amount, and neither party has any obligation to come to an agreement),
(b) waive such condition and proceed to Closing and accept title to the Property
without any offset or deduction from the Purchase Price, or (iii) notify Seller
of Purchaser's election to terminate this Purchase Contract and receive a return
of the Deposit from the Escrow Agent. GGGGG. Without limiting any of the rights
of Seller elsewhere provided for in this Purchase Contract, Seller's obligation
to close with respect to conveyance of the Property under this Purchase Contract
shall be subject to and conditioned upon the fulfillment of each and all of the
following conditions precedent: HHHHH. Purchaser's representations and
warranties set forth in this Purchase Contract shall have been true and correct
in all material respects when made, and shall be true and correct in all
material respects on the Closing Date and as of the Effective Date as though
such representations and warranties were made at and as of such date and time.
IIIII. Purchaser shall have fully performed and complied with all covenants,
conditions, and other obligations in this Purchase Contract to be performed or
complied with by it at or prior to Closing including, without limitation,
payment in full of the Purchase Price. JJJJJ. 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. KKKKK. If applicable, Purchaser shall have produced evidence
reasonably satisfactory to Seller of Purchaser's compliance with
Hart-Scott-Rodino Act requirements or of the non-applicability thereof to the
transactions contemplated by this Purchase Contract. LLLLL. Seller shall have
obtained the approval and consent of its constituent partners to consummate the
sale of the Property. If said approvals are not obtained within ninety (90) days
after the Effective Date, this Agreement shall automatically terminate, in which
case (i) Escrow Agent shall return the Deposit to Buyer, (ii) Seller shall
reimburse Purchaser for Purchaser's actual out-of-pocket expenses incurred in
connection with Purchaser's due diligence investigations of the Property
provided that such reimbursement shall not exceed $30,000.00, (iii) Escrow Agent
shall forthwith deliver the Quitclaim Deed of all of Purchaser's right and
interest in the Property to Seller, (iv) the parties shall share equally the
cancellation charges of Escrow Agent and the Title Insurer, if any, and (v)
neither party shall thereafter have any rights or obligations to the other
hereunder, other than pursuant to any provision hereof which expressly survives
the termination of this Agreement.
BROKERAGE
MMMMM. Seller represents and warrants to Purchaser that it has dealt only with
CB Richard Ellis ("Broker") in connection with this Purchase Contract. Seller
and Purchaser each represents and warrants to the other that other than Broker,
it has not dealt with or utilized the services of any other real estate broker,
sales person or finder in connection with this Purchase Contract, and each party
agrees to indemnify the other party from and against all claims for brokerage
commissions and finder's fees arising from or attributable to the acts or
omissions of the indemnifying party.
NNNNN. Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
OOOOO. Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
POSSESSION
PPPPP. Possession of the Property subject to the Permitted Exceptions shall be
delivered to Purchaser at the Closing, subject to Purchaser's right of entry for
inspection as set forth in ARTICLE 5.
DEFAULTS AND REMEDIES
QQQQQ. In the event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's default hereunder on or
prior to the Closing Date and consummation of the Closing does not occur by
reason of such default by Purchaser, Seller and Purchaser agree that it would be
impractical and extremely difficult to estimate the damages which Seller may
suffer. Therefore, Seller and Purchaser hereby agree that, except for the
Purchaser's obligations to Seller under Section 5.3, the reasonable estimate of
the total net detriment that Seller would suffer in the event that Purchaser
terminates this Purchase Contract or defaults hereunder on or prior to the
Closing Date is and shall be, as Seller's sole remedy (whether at law or in
equity), the right to receive from the Escrow Agent and retain the full amount
of the Deposit. The payment and performance of the above as liquidated damages
is not intended as a forfeiture or penalty within the meaning of applicable law
and is intended to settle all issues and questions about the amount of damages
suffered by Seller in the applicable event, except only for damages under
Section 5.3 above, irrespective of the time when the inquiry about such damages
may take place. Upon any such failure by Purchaser hereunder, this Purchase
Contract shall be terminated, and neither party shall have any further rights or
obligations hereunder, each to the other, except for the Purchaser's obligations
to Seller under Section 5.3 above, and the right of Seller to collect such
liquidated damages to the extent not theretofore paid by Purchaser.
RRRRR. Provided that Purchaser has not terminated this Purchase Contract and is
not otherwise in default hereunder, if the Closing does not occur as a result of
Seller's default hereunder, Purchaser's sole remedy shall be to elect to either
(a) terminate this Purchase Contract and receive reimbursement of the Deposit or
(b) enforce specific performance of this Purchase Contract. In the event
Purchaser is unable to enforce the remedy of specific performance after using
commercially reasonable efforts to seek to enforce such remedy, then in lieu of
obtaining specific performance, Purchaser shall have the right to bring suit for
damages against Seller in an amount not to exceed $250,000.00 in addition to
receiving reimbursement of the Deposit.
RISK OF LOSS OR CASUALTY
SSSSS. In the event that the Property is damaged or destroyed by fire or other
casualty prior to Closing, and the cost of repair is more than $300,000, then
Seller will have no obligation to repair such damage or destruction and, at
Purchaser's option, this Agreement shall terminate. In the event Purchaser
elects not to terminate this Agreement, this transaction shall be closed in
accordance with the terms of this Agreement, notwithstanding any such damage or
destruction and Purchaser shall receive all insurance proceeds pertaining
thereto (plus a credit against the Purchase Price in the amount of any
deductible payable by Seller in connection therewith) at Closing.
TTTTT. In the event that the Property is damaged or destroyed by fire or other
casualty prior to the Closing, and the cost of repair is less than $300,000,
this transaction shall be closed in accordance with the terms of this Agreement,
notwithstanding the damage or destruction; provided, however, Seller shall make
such repairs if they can be reasonably effected before the Closing. If Seller is
unable to effect such repairs, then Purchaser shall receive all insurance
proceeds pertaining thereto (plus a credit against the Purchase Price in the
amount of any deductible payable by Seller in connection therewith) at Closing.
RATIFICATION
UUUUU. This Purchase Contract shall be null and void unless executed by
Purchaser and Seller on or before June 1, 2000.
EMINENT DOMAIN
VVVVV. In the event that at the time of Closing all or any part of the Property
is (or has previously been) acquired, or is about to be acquired, by authority
of any governmental agency in purchase in lieu thereof (or in the event that at
such time there is any notice of any such acquisition or intent to acquire by
any such governmental agency), Purchaser shall have the right, at Purchaser's
option, to terminate this Purchase Contract by giving written Notice within
Fifteen (15) days of Purchaser's receipt from Seller of the occurrence of such
event and recover the Deposit hereunder, or to settle in accordance with the
terms of this Purchase Contract for the full Purchase Price and receive the full
benefit of 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 Property.
MISCELLANEOUS
WWWWW. Exhibits And Schedules
All Exhibits and Schedules, whether or not annexed hereto, are a part of this
Purchase Contract for all purposes.
XXXXX. Assignability
Subject to Section 16.18, this Purchase Contract is not assignable
without first obtaining the prior written approval of the non-assigning party,
except that Purchaser may assign all or an undivided interest in this Purchaser
Contract to one or more entities so long as (i) Purchaser or its affiliate
remains a part of the purchasing entity(ies), (ii) Purchaser is not released
from its liability hereunder, and (iii) Seller receives prompt written notice of
such assignment.
YYYYY. 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.
ZZZZZ. 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.
AAAAAA. 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.
BBBBBB. Notices
All Notices, demands, requests and other communications required
pursuant to the provisions of this Purchase Contract ("Notice") shall be in
writing and shall be deemed to have been properly given or served for all
purposes (i) if sent by Federal Express or a nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, or (ii) if personally delivered, on
the actual date of delivery or (iii) if sent by certified mail, return receipt
requested postage prepaid, on the Fifth (5th) business day following the date of
mailing, or (iv) if sent by telecopier, then on the actual date of delivery (as
evidenced by a telecopier confirmation) provided that a copy of the telecopy and
confirmation is also sent by U.S. mail, addressed as follows:
If to Seller: If to Purchaser:
ASPEN ASSOCIATES, LTD. DIAL EQUITIES, INC.
2000 South Colorado Boulevard 1104 South 76th Avenue
Tower Two, Suite 2-1000 Omaha, Nebraska 68124
Denver, Colorado 80222 Attn: Mr. Stephen M. Mariucci
Attn: Mr. Harry Alcock Facsimile No. (402) 392-1213
Facsimile No. (303) 692-0786
And With a copy to
ASPEN RIDGE ASSOCIATES, LTD. MARKS, CLARE & RICHARDS
2000 South Colorado Boulevard 11605 Miracle Hills Drive, #300
Tower Two, Suite 2-1000 Omaha, Nebraska 68124
Denver, Colorado 80222 Attn: Carl Troia, Esq.
Attn: Mr. Pat Stucker and Facsimile No. (402) 492-9336
Mr. Mark Reoch
Facsimile No. (303) 692-0786
With a copy to
Loeb & Loeb, LLP
1000 Wilshire Boulevard, Suite
1600
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq. and
Karen N. Higgins, Esq.
Facsimile No. (213) 688-3460
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.
CCCCCC. Governing Law And Venue
The laws of the State of Illinois 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.
DDDDDD. 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.
EEEEEE. Severability
If any provision of this Purchase Contract is held to be illegal,
invalid, or unenforceable under present or future laws, such provision shall be
fully severable. The Purchase Contract shall be construed and enforced as if
such illegal, invalid, or unenforceable provision had never comprised a part of
this Purchase Contract; and the remaining provisions of this Purchase Contract
shall remain in full force and effect and shall not be affected by the illegal,
invalid, or unenforceable provision or by its severance from this Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
FFFFFF. 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. GGGGGG. 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.
HHHHHH. 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. IIIIII.
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, including such disclosure required by the Securities Act of
1933 and the Exchange Act of 1934, (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.
JJJJJJ. Time Of The Essence
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
KKKKKK. Cumulative Remedies And Waiver
No remedy herein conferred or reserved is intended to be exclusive
of any other available remedy or remedies herein conferred or referred, but each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given under this Purchase Contract. No delay or omission to
exercise any right or power accruing upon any default, omission, or failure of
performance hereunder shall impair any right or power or shall be construed to
be a waiver thereof, but any such right and power may be exercised from time to
time and as often as may be deemed expedient. No waiver, amendment, release, or
modification of this Purchase Contract shall be established by conduct, custom,
or course of dealing.
LLLLLL. 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.
MMMMMM. 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.
NNNNNN. 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.
At Purchaser's sole cost and expense, Purchaser may structure the
purchase of the Property from Seller as a Like Kind Exchange under Internal
Revenue Code Section 1031. Seller shall cooperate fully and promptly with
Purchaser's conduct of the Like Kind Exchange, provided that all costs and
expenses generated in connection with Purchaser's Like Kind Exchange shall be
borne solely by Purchaser, and Seller shall not be required to take title to or
contract for the purchase of any other property. If Purchaser uses a qualified
intermediary to effectuate the exchange, any assignment of the rights or
obligations of Purchaser shall not relieve, release or absolve Purchaser of its
obligations to Seller. In no event shall the Closing Date by delayed by the Like
Kind Exchange. Purchaser shall indemnify and hold harmless Seller from and
against any and all liability arising out of the Like Kind Exchange.
OOOOOO. No Personal Liability of Officers, Trustees or directors of Seller's
Partners
Purchaser acknowledges that this Agreement is entered into by Seller
which is a Texas limited partnership, and Purchaser agrees that no individual
officer, trustee, director or representative of the partners of Seller shall
have any personal liability under this Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
PPPPPP. No Exclusive Negotiations
Seller shall have the right, at all times prior to the expiration of
the Feasibility Period, to solicit backup offers and enter into discussions,
negotiations, or any other communications concerning or related to the sale of
the Property with any third-party; provided, however, that such communications
are subject to the terms of this Agreement, and that Seller shall not enter into
any contract or binding agreement with a third-party for the sale of the
Property unless such agreement is contingent on the termination of this
Agreement without the Property having been conveyed to Purchaser.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as
of the date first set forth above.
Seller:
ASPEN RIDGE ASSOCIATES, LTD., a Texas limited
partnership
By: CCP V/Aspen Ridge GP, LLC, a South
Carolina limited liability company,
its general partner
By: Consolidated Capital Properties
V, a California limited partnership,
its managing member
By: ConCap Equities, Inc., a
Delaware corporation,
its general partner
By:
Name:
Title:
Purchaser:
DIAL EQUITIES, INC.
a Nebraska corporation
By:
Name: Stephen M. Mariucci
Title:President
ACKNOWLEDGEMENTS
STATE OF__________ )
)
COUNTY OF ________________ )
On _____________________, before me, _____________________________________, a
Notary Public, personally appeared _________________________________________,
personally known to me (or proved to me on the basis of satisfactory evidence)
to be the person(s) whose name(s) is/are subscribed to the within instrument and
acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity (ies), and that by his/her/their signature(s) on the
instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
STATE OF__________ )
)
COUNTY OF ________________ )
On _____________________, before me, _____________________________________, a
Notary Public, personally appeared STEPHEN M. MARIUCCI, personally known to me
(or proved to me on the basis of satisfactory evidence) to be the person whose
name is subscribed to the within instrument and acknowledged to me that he
executed the same in his authorized capacity, and that by his signature on the
instrument the person, or the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
-----------------------------------
Notary Public
EXHIBIT A
LEGAL DESCRIPTION FOR THE ASPEN RIDGE
DuPage County, Illinois
THE FOLLOWING DESCRIBED REAL ESTATE SITUATED IN THE COUNTY OF DU PAGE, STATE OF
ILLINOIS:
THE SOUTH 545.45 FEET AS MEASURED AT RIGHT ANGLES TO THE SOUTH LINE THEREOF OF
THE FOLLOWING DESCRIBED PROPERTY: THAT PART OF THE NORTHEAST 1/4 OF THE
SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 39 NORTH, RANGE 9, EAST OF THE THIRD
PRINCIPAL MERIDIAN, LYING SOUTH OF THE FOLLOWING DESCRIBED BOUNDARY: COMMENCING
AT THE CENTER OF SAID SECTION 15 AND RUNNING THENCE SOUTH ALONG THE EAST LINE OF
SAID NORTHEAST 1/4 OF THE SOUTHWEST 1/4, 612 FEET TO THE CENTER LINE TO STATE
BOND ISSUE ROUTE 6, AND KNOWN AS ROOSEVELT ROAD; THENCE CONTINUING SOUTH ALONG
SAID EAST LINE OF THE NORTHEAST 1/4 OF THE SOUTHWEST 1/4 OF SECTION, 265.1 FEET
TO THE CENTER LINE OF THE SOUTHWEST RAMP CONNECTING SAID STATE BOND ISSUE ROUTE
6 WITH STATE BOND ISSUE ROUTE 59, FOR A POINT OF BEGINNING OF SAID BOUNDARY;
THENCE WESTERLY ALONG THE CENTER LINE OF SAID RAMP, BEING PARALLEL WITH THE
CENTER LINE OF SAID STATE BOND ISSUE ROUTE 6, FOR A DISTANCE OF 300.42 FEET TO
THE POINT BEGINNING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 225.42 FEET;
THENCE NORTHWESTERLY ALONG SAID CURVE TO THE RIGHT, BEING ALSO ALONG THE CENTER
LINE OF SAID RAMP FOR A DISTANCE OF 255.21 FEET TO THE POINT OF TANGENCY OF SAID
CURVE; THENCE NORTHERLY ALONG THE CENTER LINE OF SAID RAMP, BEING TANGENT TO THE
LAST DESCRIBED CURVE AND PARALLEL WITH THE CENTER LINE OF SAID STATE BOND ISSUE
ROUTE 59; FOR A DISTANCE OF 121.86 FEET TO THE CENTER LINE OF SAID STATE BOND
ISSUE ROUTE 6; THENCE NORTHWESTERLY ALONG THE CENTER LINE OF SAID STATE BOND
ISSUE ROUTE 6 TO ITS INTERSECTION WITH THE NORTH LINE OF SAID NORTHEAST 1/4 OF
THE SOUTHWEST 1/4 OF SECTION 15, BEING THE TERMINUS OF THE HEREIN DESCRIBED
BOUNDARY (EXCEPT THEREFROM THE WEST 347.0 FEET AS MEASURED ON THE SOUTH LINE OF
SAID NORTHEAST 1/4 OF THE SOUTHWEST 1/4 IN DU PAGE COUNTY, ILLINOIS.
EXHIBIT 1.1.4
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
EXHIBIT 1.1.6
LIST OF PERSONAL PROPERTY
[See Attached]
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
To Be Inserted, If Any
EXHIBIT 3.1.1
FORM OF QUITCLAIM DEED
QUITCLAIM DEED
(Illinois)
DIAL EQUITIES, INC., a Nebraska
corporation,
("Grantor"), for and in consideration
of TEN AND 00/100 DOLLARS ($10.00),
and other good and valuable
consideration in hand paid, the
receipt whereof is hereby
acknowledged, and pursuant to the
authority of the undersigned,
CONVEYS AND QUITCLAIMS to ASPEN RIDGE ASSOCIATES, a Texas, limited partnership
("Grantee"), all rights, title and interest of Grantor, if any, in and to the
following described Real Estate situated in the
County of DuPage, in the State of Above Space for Recorder's Use Only Illinois,
to wit:
See Exhibit A attached hereto and made a part hereof for legal description.
Permanent Real Estate Index Numbers: _________________________
Address of Real Estate: ______________________________________
[Signature Page to Follow]
This instrument was prepared by: Mark Jacobs, Esq.
Barack, Ferrazano, Kirschbaum, Perlman & Nagelberg
333 W. Wacker Drive, Suite 2700
Chicago, Illinois 60606
After Recording, Please Return To: Send Subsequent Tax Bills To:
Loeb & Loeb LLP Aspen Ridge Associates, Ltd.
1000 Wilshire Blvd., Suite 1800 2000 S. Colorado Boulevard, Tower
Two, Suite 2-1000
Los Angeles, CA 90017 Denver, Colorado 80222
Attn: Karen N. Higgins, Esq. Attn: Mr. Harry Alcock
IN WITNESS WHEREOF, said Grantor has executed the foregoing instrument the _____
day of _______________, 2000.
DIAL EQUITIES, a Nebraska corporation
By:
Stephen M. Mariucci
Its President
State of ____________, )
) ss.
County of ________ )
I, the undersigned, a Notary Public for and for in said County, in the State
aforesaid, DO HEREBY CERTIFY that Stephen M. Mariucci, personally known to me to
be the President of Dial Equities, a Nebraska Corporation, appeared before me
this day in person, and acknowledged that he/she signed, sealed and delivered
the said instrument as his/her free and voluntary act and as the free and
voluntary act of said entity, for the uses and purposes therein set forth.
Given under my hand and official seal, this ____ day of ________________,
-------.
My Commission expires:
Notary Public
EXHIBIT A
EXHIBIT "A"
LEGAL DESCRIPTION
DuPage County, Illinois
THE FOLLOWING DESCRIBED REAL ESTATE SITUATED IN THE COUNTY OF DU PAGE, STATE OF
ILLINOIS:
THE SOUTH 545.45 FEET AS MEASURED AT RIGHT ANGLES TO THE SOUTH LINE THEREOF OF
THE FOLLOWING DESCRIBED PROPERTY: THAT PART OF THE NORTHEAST 1/4 OF THE
SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 39 NORTH, RANGE 9, EAST OF THE THIRD
PRINCIPAL MERIDIAN, LYING SOUTH OF THE FOLLOWING DESCRIBED BOUNDARY: COMMENCING
AT THE CENTER OF SAID SECTION 15 AND RUNNING THENCE SOUTH ALONG THE EAST LINE OF
SAID NORTHEAST 1/4 OF THE SOUTHWEST 1/4, 612 FEET TO THE CENTER LINE TO STATE
BOND ISSUE ROUTE 6, AND KNOWN AS ROOSEVELT ROAD; THENCE CONTINUING SOUTH ALONG
SAID EAST LINE OF THE NORTHEAST 1/4 OF THE SOUTHWEST 1/4 OF SECTION, 265.1 FEET
TO THE CENTER LINE OF THE SOUTHWEST RAMP CONNECTING SAID STATE BOND ISSUE ROUTE
6 WITH STATE BOND ISSUE ROUTE 59, FOR A POINT OF BEGINNING OF SAID BOUNDARY;
THENCE WESTERLY ALONG THE CENTER LINE OF SAID RAMP, BEING PARALLEL WITH THE
CENTER LINE OF SAID STATE BOND ISSUE ROUTE 6, FOR A DISTANCE OF 300.42 FEET TO
THE POINT BEGINNING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 225.42 FEET;
THENCE NORTHWESTERLY ALONG SAID CURVE TO THE RIGHT, BEING ALSO ALONG THE CENTER
LINE OF SAID RAMP FOR A DISTANCE OF 255.21 FEET TO THE POINT OF TANGENCY OF SAID
CURVE; THENCE NORTHERLY ALONG THE CENTER LINE OF SAID RAMP, BEING TANGENT TO THE
LAST DESCRIBED CURVE AND PARALLEL WITH THE CENTER LINE OF SAID STATE BOND ISSUE
ROUTE 59; FOR A DISTANCE OF 121.86 FEET TO THE CENTER LINE OF SAID STATE BOND
ISSUE ROUTE 6; THENCE NORTHWESTERLY ALONG THE CENTER LINE OF SAID STATE BOND
ISSUE ROUTE 6 TO ITS INTERSECTION WITH THE NORTH LINE OF SAID NORTHEAST 1/4 OF
THE SOUTHWEST 1/4 OF SECTION 15, BEING THE TERMINUS OF THE HEREIN DESCRIBED
BOUNDARY (EXCEPT THEREFROM THE WEST 347.0 FEET AS MEASURED ON THE SOUTH LINE OF
SAID NORTHEAST 1/4 OF THE SOUTHWEST 1/4 IN DU PAGE COUNTY, ILLINOIS.
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
[To Be Attached]
EXHIBIT 7.2.1.1
FORM OF SPECIAL WARRANTY DEED
SPECIAL WARRANTY DEED
(Illinois)
ASPEN RIDGE ASSOCIATES, a Texas limited partnership ("Grantor"), for and in
consideration of TEN AND 00/100 DOLLARS ($10.00), and other good and valuable
consideration in hand paid, the receipt whereof is hereby acknowledged, and
pursuant to the authority of the undersigned,
CONVEYS to DIAL EQUITIES, a Nebraska
corporation ("Grantee"), the
following described Real Estate Above Space for Recorder's Use Only situated in
the County of DuPage, in the State of Illinois, to wit:
See Exhibit A attached hereto and made a part hereof for legal description.
Together with all and singular the hereditaments and appurtenances thereunto
belonging, or in anywise appertaining, and the reversion and reversions,
remainder and remainders, rents, issues and profits thereof, and all the estate,
right, title, interest, claim or demand whatsoever, of the Grantor, either in
law or equity, of, in and to the above described premises, with the
hereditaments and appurtenances: TO HAVE AND TO HOLD the said premises as above
described, with the appurtenances, unto the Grantee, its successors and assigns
forever.
And the Grantor, for itself, and its successors, does covenant, promise and
agree, to and with Grantee, its successors and assigns, that it has not done or
suffered to be done, anything whereby the said premises hereby granted are, or
may be, in any manner encumbered or charged, except as herein recited; and that
the said premises, against all persons lawfully claiming, or to claim the same,
by, through or under it, it WILL WARRANT AND DEFEND, subject to:
See Exhibit B attached hereto and made a part hereof.
Permanent Real Estate Index Numbers: ________________________
Address of Real Estate: _____________________________________
[Signature Page to Follow]
This instrument was prepared by:Marc Jacobs, Esq.
Barack, Ferrazano, Kirschbaum, Perlman & Nagelberg
333 w. Wacker Drive, Suite 2700
Chicago, Illinois 60606
After Recording, Please Return To: Send Subsequent Tax Bills To:
IN WITNESS WHEREOF, said Grantor has executed the foregoing instrument the _____
day of _______________, 2000.
ASPEN RIDGE ASSOCIATES, a Texas limited
partnership
By: CCP V/Aspen Ridge GP, LLC, a South
Carolina limited liability company,
its general partner
By: Consolidated Capital
Properties V, a California limited
partnership,
its managing member
By: ConCap Equities, Inc., a
Delaware corporation,
its general partner
By:
Name:
Title:
State of _____________ )
)ss.
County of ___________ )
I, the undersigned, a Notary Public for and for in said County, in the State
aforesaid, DO HEREBY CERTIFY that ________________________________, personally
known to me to be the _________________ of ______________________, a
_______________________, appeared before me this day in person, and acknowledged
that he/she signed, sealed and delivered the said instrument as his/her free and
voluntary act and as the free and voluntary act of said entity, for the uses and
purposes therein set forth.
Given under my hand and official seal, this ____ day of ________________,
-------.
My Commission expires:
Notary Public
EXHIBIT A
Legal Description
DuPage County, Illinois
THE FOLLOWING DESCRIBED REAL ESTATE SITUATED IN THE COUNTY OF DU PAGE, STATE OF
ILLINOIS:
THE SOUTH 545.45 FEET AS MEASURED AT RIGHT ANGLES TO THE SOUTH LINE THEREOF OF
THE FOLLOWING DESCRIBED PROPERTY: THAT PART OF THE NORTHEAST 1/4 OF THE
SOUTHWEST 1/4 OF SECTION 15, TOWNSHIP 39 NORTH, RANGE 9, EAST OF THE THIRD
PRINCIPAL MERIDIAN, LYING SOUTH OF THE FOLLOWING DESCRIBED BOUNDARY: COMMENCING
AT THE CENTER OF SAID SECTION 15 AND RUNNING THENCE SOUTH ALONG THE EAST LINE OF
SAID NORTHEAST 1/4 OF THE SOUTHWEST 1/4, 612 FEET TO THE CENTER LINE TO STATE
BOND ISSUE ROUTE 6, AND KNOWN AS ROOSEVELT ROAD; THENCE CONTINUING SOUTH ALONG
SAID EAST LINE OF THE NORTHEAST 1/4 OF THE SOUTHWEST 1/4 OF SECTION, 265.1 FEET
TO THE CENTER LINE OF THE SOUTHWEST RAMP CONNECTING SAID STATE BOND ISSUE ROUTE
6 WITH STATE BOND ISSUE ROUTE 59, FOR A POINT OF BEGINNING OF SAID BOUNDARY;
THENCE WESTERLY ALONG THE CENTER LINE OF SAID RAMP, BEING PARALLEL WITH THE
CENTER LINE OF SAID STATE BOND ISSUE ROUTE 6, FOR A DISTANCE OF 300.42 FEET TO
THE POINT BEGINNING OF A CURVE TO THE RIGHT HAVING A RADIUS OF 225.42 FEET;
THENCE NORTHWESTERLY ALONG SAID CURVE TO THE RIGHT, BEING ALSO ALONG THE CENTER
LINE OF SAID RAMP FOR A DISTANCE OF 255.21 FEET TO THE POINT OF TANGENCY OF SAID
CURVE; THENCE NORTHERLY ALONG THE CENTER LINE OF SAID RAMP, BEING TANGENT TO THE
LAST DESCRIBED CURVE AND PARALLEL WITH THE CENTER LINE OF SAID STATE BOND ISSUE
ROUTE 59; FOR A DISTANCE OF 121.86 FEET TO THE CENTER LINE OF SAID STATE BOND
ISSUE ROUTE 6; THENCE NORTHWESTERLY ALONG THE CENTER LINE OF SAID STATE BOND
ISSUE ROUTE 6 TO ITS INTERSECTION WITH THE NORTH LINE OF SAID NORTHEAST 1/4 OF
THE SOUTHWEST 1/4 OF SECTION 15, BEING THE TERMINUS OF THE HEREIN DESCRIBED
BOUNDARY (EXCEPT THEREFROM THE WEST 347.0 FEET AS MEASURED ON THE SOUTH LINE OF
SAID NORTHEAST 1/4 OF THE SOUTHWEST 1/4 IN DU PAGE COUNTY, ILLINOIS.
EXHIBIT B
[TO BE ATTACHED]
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale ("Assignment") is executed by ASPEN RIDGE ASSOCIATES,
LTD., a Texas limited partnership ("Seller"), in favor of DIAL EQUITIES, INC., a
Nebraska corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of May 23, 2000 ("Purchase Contract"), in which Seller has
agreed to sell and Purchaser has agreed to purchase the real property described
in Exhibit A attached thereto and the improvements located thereon
(collectively, the "Project").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows: 1. As used herein, the term "Property" shall mean the following
property to the extent said property is owned by Seller and used in, held for
use in connection with, or necessary for the operation of the Project:
a. Property Contracts. All of Seller's rights and interests in and to
purchase orders, maintenance, service or utility contracts or similar contracts
which relate to the ownership, maintenance, construction or repair or operation
of the Project.
b. Leases. All of Seller's rights and interests in and to leases,
subleases, and other occupancy agreements, whether or not of record, which
provide for use or occupancy of space or facilities on or relating to the
Project.
c. Licenses and Permits. All of Seller's rights and interests in and to all
licenses or permits granted by governmental authorities having jurisdiction over
the Project and utilized with respect to the Project.
d. Fixtures and Tangible Personal Property. All of Sellers rights and
interests in and to all fixtures, furniture, furnishings, fittings, equipment,
machinery, computers (to the extent located on the Property and owned by Seller
but specifically excluding any Buyer's Access computers, if any), fax machines
(to the extent located on the Property and owned by Seller), copiers (to the
extent located on the Property and owned by Seller), apparatus, appliances and
other articles of tangible personal property now located on the Project or in
the improvements thereon and used in connection with any present or future
occupation or operation of all or any part of the Project, including, without
limitation, the tangible personal property identified on Exhibit "A" hereto.
2. The term "Property" shall not include any of the foregoing: (i) to the extent
the same are excluded or reserved to Seller pursuant to the Purchase Contract to
which Seller and Purchaser are parties; and (ii) to the extent that the sale or
transfer thereof requires consent or approval of any third party, which consent
or approval is not obtained by Seller. Nothing herein shall create a transfer or
assignment of intellectual property or similar assets of Seller. 3. Assignment.
Seller hereby assigns, sells and transfers to Purchaser, without recourse or
warranty except as set forth in this Paragraph 3 below, all of Seller's right,
title and interest, if any, in and to the Property, subject to any rights of
consent as provided therein. To Seller's knowledge (as defined in Section 8.1.4
of the Purchase Contract), Seller owns the Property free and clear of any liens
and encumbrances.
4. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Property and
agrees to perform all of the covenants and obligations of Seller thereunder
after the date hereof. Purchaser further agrees to indemnify, defend and hold
Seller harmless from and against any and all cost, loss, harm or damage which
may arise in connection with the Property after the date hereof. Seller agrees
to indemnify, defend and hold Purchaser harmless from and against any and all
cost, loss, harm or damage which arose in connection with the Property prior to
the date hereof. 5. Counterparts. This Assignment may be executed in
counterparts, each of which shall be deemed an original, and both of which
together shall constitute one and the same instrument.
6. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Assignment, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of Illinois.
8. Titles and Section Headings. Titles of sections and subsections contained in
this Assignment are inserted for convenience of reference only, and neither form
a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures of the undersigned.
Dated: , 2000
Seller:
ASPEN RIDGE ASSOCIATES, LTD., a Texas limited
partnership
By: CCP V/Aspen Ridge GP, LLC, a South
Carolina limited liability company,
its general partner
By: Consolidated Capital Properties
V, a California limited partnership,
its managing member
By: ConCap Equities, Inc., a
Delaware corporation,
its general partner
By:
Name:
Title:
Purchaser:
DIAL EQUITIES, INC.
a Nebraska corporation
By:
Name: Stephen M. Mariucci
Title:President
EXHIBIT "A"
LIST OF PERSONAL PROPERTY
[To Be Attached]
EXHIBIT 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by ASPEN RIDGE
ASSOCIATES, LTD., a Texas limited partnership ("Seller"), in favor of DIAL
EQUITIES, INC., a Nebraska corporation ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of May 23, 2000 ("Purchase Contract"), in which Seller has
agreed to sell and Purchaser has agreed to purchase the real property described
in Exhibit "A" attached thereto and the improvements located thereon
collectively, the "Project"). Capitalized terms not otherwise defined herein
shall have the meaning ascribed to them in the Purchase Contract.
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows: 1. As used herein, the term "Miscellaneous Property Assets" shall mean
all contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property to the extent said property is owned by
Seller and used in, held for use in connection with, or necessary for the
operation of the Project. The term "Miscellaneous Assets" shall also include the
following, but only to the extent owned by Seller and in Seller's possession:
site plans, surveys, soil and substrata studies, architectural renderings, plans
and specifications, engineering plans and studies, floor plans, tenant data
sheets, landscape plans and other plans or studies of any kind, if any, which
relate to the Land and or the Improvements or the Fixtures and Tangible Personal
Property. The term "Miscellaneous Property Assets" shall also include all of
Seller's rights, if any, in and to the name "Aspen Ridge".
2. The term "Miscellaneous Property Assets" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
3. Assignment. Seller hereby assigns, sells and transfers to Purchaser, without
recourse or warranty except as set forth in this Paragraph 3 below, all of
Seller's right, title and interest, if any, in and to the Miscellaneous Property
Assets, subject to any rights of consent as provided therein. To Seller's
knowledge (as defined in Section 8.1.4 of the Purchase Contract). Seller owns
the Miscellaneous Property Assets free and clear of any liens or encumbrances.
4. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Miscellaneous
Property Assets and agrees to perform all of the covenants and obligations of
Seller thereunder arising after the date hereof. Purchaser further agrees to
indemnify, defend and hold Seller harmless from and against any and all cost,
loss, harm or damage which may arise in connection with the Miscellaneous
Property Assets, pertaining to acts arising on and after the date hereof. Seller
further agrees to indemnify, defend and hold Purchaser harmless from and against
any and all cost, loss, harm or damage which may arise in connection with the
Miscellaneous Property Assets pertaining to acts arising prior to the date
hereof. 5. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
6. Attorneys' Fees. If any action or proceeding is commenced by either party to
enforce its rights under this Assignment, the prevailing party in such action or
proceeding shall be entitled to recover all reasonable costs and expenses
incurred in such action or proceeding, including reasonable attorneys' fees and
costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted in
accordance with the laws of the State of Illinois.
8. Titles and Section Headings. Titles of sections and subsections contained in
this Assignment are inserted for convenience of reference only, and neither form
a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
[Remainder of Page Intentionally Left Blank]
WITNESS the signatures of the undersigned.
Dated: ___________, 2000
Seller:
ASPEN RIDGE ASSOCIATES, LTD., a Texas limited
partnership
By: CCP V/Aspen Ridge GP, LLC, a South
Carolina limited liability company,
its general partner
By: Consolidated Capital Properties
V, a California limited partnership,
its managing member
By: ConCap Equities, Inc., a
Delaware corporation,
its general partner
By:
Name:
Title:
Purchaser:
DIAL EQUITIES, INC.
a Nebraska corporation
By:
Name: Stephen M. Mariucci
Title:President
EXHIBIT 7.2.1.4
FORM OF TENANT NOTICE LETTER
______ __, 2000
Re: Notice of Change of Ownership of Aspen Ridge Apartments
Dear Tenant:
Please be advised that effective as of the date hereof, Aspen Ridge
Associates, Ltd., a Texas limited parneship, has transferred, sold, assigned and
conveyed all of its interest in and to the above-described property (the
"Property") to Dial Equities, Inc., a Nebraska corporation (the "New Owner").
Future rental payments with respect to your leased premises at the
Property should be made to in accordance with your lease terms. You will be
notified shortly with instructions regarding where to forward rent payments.
The Property will be managed by . Future notices to the landlord under
your lease should be sent to the New Owner, c/o , Attention: , who may also be
reached by phone at , ext. . If you have questions or need any additional
information, please feel free to contact your property manager, of , who can be
reached by telephone at , ext. .
<PAGE>
ASPEN RIDGE ASSOCIATES, LTD., a Texas limited
partnership
By: CCP V/Aspen Ridge GP, LLC, a South
Carolina limited liability company,
its general partner
By: Consolidated Capital Properties
V, a California limited partnership,
its managing member
By: ConCap Equities, Inc., a
Delaware corporation,
its general partner
By:
Name:
Title:
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this 23rd day of May, 2000
by and among ASPEN RIDGE ASSOCIATES, LTD., a Texas limited partnership
("Seller"), and DIAL EQUITIES, INC., a Nebraska corporation ("Purchaser"); and
STEWART TITLE GUARANTY COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the 23rd day of May,
2000; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) in cash
(the "Initial Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Whereas, the Purchase Contract requires that on or before 5:00 p.m.
Central time on the date of expiration of the Feasibility Period, Purchaser
shall provide to Escrow Agent an additional deposit in the amount of One Hundred
Thousand and no/100 Dollars ($100,000.00), in cash (the "Additional Deposit").
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of the sum
of One Hundred Thousand and No/100 Dollars ($100,000.00) in cash (constituting
the Initial Deposit), to be deposited, held, invested, and disbursed for the
benefit of Seller and Purchaser and their respective successors and assigns, as
provided herein and as provided in the Purchase Contract. Escrow Agent also
hereby acknowledges receipt of a quitclaim deed executed by Purchaser a copy of
which is attached (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, including the
Deposit, the Additional Deposit (to the extend paid), and the Extension Deposit
(as defined in the Purchase Contract, and if paid) (collectively, the "Escrow
Fund"), 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 directed by Purchaser should Purchaser in its sole
discretion determine to issue such joint investment instructions to the Escrow
Agent) and all interest and income thereon shall become part of the Escrow Fund
and shall be remitted to the party entitled to the Escrow Fund, as set forth
below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall 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 and
interest of the Escrow Fund AND Quitclaim Deed in accordance with the joint
written instructions signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, or sent by facsimile transmission (with a copy of the
facsimile confirmation and the facsimile transmission also sent by U.S. Mail)
and addressed as set forth below:
If to Seller: If to Purchaser:
ASPEN RIDGE ASSOCIATES, LTD. DIAL EQUITIES, INC.
2000 South Colorado Boulevard 1104 S. 76th Avenue
Tower Two, Suite 2-1000 Omaha, Nebraska 68124
Denver, Colorado 80222 Attn: Stephen M. Mariucci
Attn: Mr. Harry Alcock Facsimile No. (402) 392-1213
Facsimile No. (303) 692-0786
And With a copy to
ASPEN RIDGE ASSOCIATES, LTD. MARKS CLARE & RICHARDS
2000 South Colorado Boulevard 11605 Miracle Hills Drive, #300
Tower Two, Suite 2-1000 Omaha, Nebraska 68154
Denver, Colorado 80222 Attn: Carl Troia, Esq.
Attn: Mr. Pat Stucker and Facsimile No. (402) 492-9336
Mr. Mark Reoch
Facsimile No. (303) 692-0786
With a copy to If to Escrow Agent:
Loeb & Loeb LLP Stewart Title Guaranty Company
1000 Wilshire Boulevard, Suite 1980 Post Oak Boulevard, Suite
1800 610
Los Angeles, California 90017 Houston, Texas 77056
Attn: Andrew S. Clare, Esq. and Attn: Ms. Wendy Howell
Karen N. Higgins, Esq. Facsimile No. (713) 552-1703
Facsimile No. (213) 688-3460
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 $500.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorneys' fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Purchaser shall not entitle Escrow Agent to refuse or
fail to act as required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained in
this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or condition
of this Escrow Agreement shall operate as a waiver of any other breach of such
term or condition or of any other term or condition. No failure to enforce such
provision shall operate as a waiver of such provision or of any other provision
hereof, or constitute or be deemed a waiver or release of any other party for
anything arising out of, connected with, or based upon this Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way limit
the liabilities, obligations and remedies of Seller and Purchaser as set forth
in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller:
ASPEN RIDGE ASSOCIATES, LTD., a Texas limited
partnership
By: CCP V/Aspen Ridge GP, LLC, a South
Carolina limited liability company,
its general partner
By: Consolidated Capital Properties
V, a California limited partnership,
its managing member
By: ConCap Equities, Inc., a
Delaware corporation,
its general partner
By:
Name:
Title:
Purchaser:
DIAL EQUITIES, INC.
a Nebraska corporation
By:
Name: Stephen M. Mariucci
Title:President
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By:
Name:
Title:
<PAGE>
ARTICLE 1 DEFINED TERMS...................................................2
ARTICLE 2 PURCHASE AND SALE OF PROPERTY...................................5
ARTICLE 3 PURCHASE PRICE & DEPOSIT........................................5
ARTICLE 4 FINANCING.......................................................6
ARTICLE 5 FEASIBILITY PERIOD..............................................6
ARTICLE 6 TITLE...........................................................8
ARTICLE 7 CLOSING........................................................10
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND
PURCHASER......................................................14
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING................................18
ARTICLE 10 BROKERAGE......................................................20
ARTICLE 11 POSSESSION.....................................................20
ARTICLE 12 DEFAULTS AND REMEDIES..........................................20
ARTICLE 13 RISK OF LOSS OR CASUALTY.......................................21
ARTICLE 14 RATIFICATION...................................................21
ARTICLE 15 EMINENT DOMAIN.................................................21
ARTICLE 16 MISCELLANEOUS..................................................22
EXHIBIT 10.28
AMENDMENT TO PURCHASE AND SALE CONTRACT
(Aspen Ridge)
This Amendment To Purchase and Sale Contract (this "Amendment") is entered
into as of the 11th day of August, 2000, by and between ASPEN RIDGE ASSOCIATES,
LTD., a Texas limited partnership ("Seller"), DIAL EQUITIES, INC., a Nebraska
corporation ("Purchaser"), and MARINA PARTNERS LIMITED PARTNERSHIP, a Nebraska
limited liability ("Assignee"), with respect to an escrow established with
Stewart Title Guaranty Company.
Reference is made to that certain Purchase and Sale Contract dated as of
May 23, 2000, between Purchaser and Seller (as amended, the "Contract").
Capitalized terms not otherwise defined herein shall have the meanings ascribed
to them in the Contract.
Purchaser, Assignee and Seller desire to further amend the Contract
pursuant to the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Contract is hereby amended as
follows:
Assignment by Purchaser. Purchaser hereby nominates Assignee as Purchaser under
the Contract. Purchaser hereby assigns to Assignee its interests under the
Contract, and Assignee hereby agrees to assume all of Purchaser's obligations
and liabilities under the Contract. Seller hereby agrees to the foregoing
nomination, assignment and assumption on the condition that Purchaser shall not
be released from its liability and obligations under the Contract in the event
of a breach of the Contract by Assignee.
Counterparts. This Amendment may be executed in counterparts, each of which when
compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in full
force and effect.
[Remainder of page intentionally left blank]
IN WITNESS WHEREOF, Seller, Assignee and Purchaser have entered into this
Amendment as of the date written above.
Seller:
ASPEN RIDGE ASSOCIATES, LTD.,
a Texas limited partnership
By: CCP/V Aspen Ridge GP, LLC,
a South Carolina limited liability company,
its general partner
By: Consolidated Capital Properties V, a
California limited partnership,
its managing member
By: ConCap Equities, Inc., a Delaware
corporation,
its general partner
By:
Name:
Title:
Purchaser:
DIAL EQUITIES, INC.
a Nebraska corporation
By:
Name: Stephen M. Mariucci
Title:President
Assignee:
MARINA PARTNERS LIMITED PARTNERSHIP, a Nebraska
limited partnership
By: DIAL EQUITIES, INC.,
a Nebraska corporation, a general partner
By:
Stephen M. Mariucci, President
<PAGE>
EXHIBIT 10.29
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this 23rd day of May, 2000
by and among ASPEN RIDGE ASSOCIATES, LTD., a Texas limited partnership
("Seller"), and DIAL EQUITIES, INC., a Nebraska corporation ("Purchaser"); and
STEWART TITLE GUARANTY COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the 23rd day of May,
2000; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of One Hundred Thousand and No/100 Dollars ($100,000.00) in cash
(the "Initial Deposit"), to be held pursuant to an escrow agreement approved by
Purchaser and Seller; and
Whereas, the Purchase Contract requires that on or before 5:00 p.m.
Central time on the date of expiration of the Feasibility Period, Purchaser
shall provide to Escrow Agent an additional deposit in the amount of One Hundred
Thousand and no/100 Dollars ($100,000.00), in cash (the "Additional Deposit").
Now, therefore, the parties agree to the following:
18. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of the sum
of One Hundred Thousand and No/100 Dollars ($100,000.00) in cash (constituting
the Initial Deposit), to be deposited, held, invested, and disbursed for the
benefit of Seller and Purchaser and their respective successors and assigns, as
provided herein and as provided in the Purchase Contract. Escrow Agent also
hereby acknowledges receipt of a quitclaim deed executed by Purchaser a copy of
which is attached (the "Quitclaim Deed") and agrees to hold and release the
Quitclaim Deed in accordance with the terms of this Escrow Agreement.
19. Investment of Escrow Fund. All funds received by Escrow Agent, including the
Deposit, the Additional Deposit (to the extend paid), and the Extension Deposit
(as defined in the Purchase Contract, and if paid) (collectively, the "Escrow
Fund"), 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 directed by Purchaser should Purchaser in its 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.
20. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall 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. 21. 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.
22. 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.
23. 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.
24. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund AND Quitclaim Deed in accordance with the joint
written instructions signed by Seller and Purchaser.
25. Notices. Any required or permitted Notice or other communication under this
Escrow Agreement ("Notice") shall be given as follows. All Notices, requests,
demands and other communications hereunder shall be deemed to have been duly
given if the same shall be in writing and shall be delivered personally or sent
by federal express or other recognized national overnight courier service
maintaining records of delivery, or sent by registered or certified mail,
postage pre-paid, or sent by facsimile transmission (with a copy of the
facsimile confirmation and the facsimile transmission also sent by U.S. Mail)
and addressed as set forth below:
If to Seller: If to Purchaser:
ASPEN RIDGE ASSOCIATES, LTD. DIAL EQUITIES, INC.
2000 South Colorado Boulevard 1104 S. 76th Avenue
Tower Two, Suite 2-1000 Omaha, Nebraska 68124
Denver, Colorado 80222 Attn: Stephen M. Mariucci
Attn: Mr. Harry Alcock Facsimile No. (402) 392-1213
Facsimile No. (303) 692-0786
And With a copy to
ASPEN RIDGE ASSOCIATES, LTD. MARKS CLARE & RICHARDS
2000 South Colorado Boulevard 11605 Miracle Hills Drive, #300
Tower Two, Suite 2-1000 Omaha, Nebraska 68154
Denver, Colorado 80222 Attn: Carl Troia, Esq.
Attn: Mr. Pat Stucker and Facsimile No. (402) 492-9336
Mr. Mark Reoch
Facsimile No. (303) 692-0786
<PAGE>
With a copy to If to Escrow Agent:
Loeb & Loeb LLP Stewart Title Guaranty Company
1000 Wilshire Boulevard, Suite 1980 Post Oak Boulevard, Suite
1800 610
Los Angeles, California 90017 Houston, Texas 77056
Attn: Andrew S. Clare, Esq. and Attn: Ms. Wendy Howell
Karen N. Higgins, Esq. Facsimile No. (713) 552-1703
Facsimile No. (213) 688-3460
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.
26. Fee. Escrow Agent shall receive a fee of $500.00 for its services hereunder,
and be paid or reimbursed for all expenses, disbursements and advances,
including reasonable attorneys' fees, incurred or paid in connection with
carrying out its duties hereunder, the payment of all amounts to be shared
equally by Purchaser and Seller equally, and not out of the Escrow Fund.
Non-payment of such fee by Purchaser shall not entitle Escrow Agent to refuse or
fail to act as required by this Escrow Agreement.
27. 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.
28. 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.
29. 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.
30. Binding Effect. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees, successors, and
assigns. The parties recognize and acknowledge that the powers and authority
granted Escrow Agent herein are each irrevocable and coupled with an interest.
Escrow Agent shall have no liability to Seller or Purchaser for any mistakes in
judgment in the performance of any function hereunder, except for failure to
exercise due care, willful breach and willful misconduct.
31. 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.
32. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of Illinois.
33. Time of Essence. Time is of the essence of this Escrow Agreement.
34. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
Seller:
ASPEN RIDGE ASSOCIATES, LTD., a Texas limited
partnership
By: CCP V/Aspen Ridge GP, LLC, a South
Carolina limited liability company,
its general partner
By: Consolidated Capital Properties
V, a California limited partnership,
its managing member
By: ConCap Equities, Inc., a
Delaware corporation,
its general partner
By:
Name:
Title:
Purchaser:
DIAL EQUITIES, INC.
a Nebraska corporation
By:
Name: Stephen M. Mariucci
Title:President
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By:
Name:
Title:
