FORM 8-K.--CURRENT REPORT
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC
20549
FORM 8-K/A
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report: May 12, 1997
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS/2
(Exact name of registrant as specified in its charter)
CALIFORNIA 0-16682 94-3032501
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification
Number)
One Insignia Financial Plaza
Post Office Box 1089
Greenville, South Carolina 29602
(Address of Principal Executive Office)
Registrant's telephone number, including area code (864) 239-1000
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(c) EXHIBITS
See Exhibit Index.
SIGNATURES
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.
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS/2
By: CONCAP EQUITIES, INC.
General Partner
By: /s/ William H. Jarrard, Jr.
William H. Jarrard, Jr.
President
Date: August 5, 1997
EXHIBIT INDEX
EXHIBIT
10.17 Agreement for Purchase and Sale of Existing Facilities
dated March 19, 1997, executed by and between
Johnstown/Consolidated Income Partners and
Johnstown/Consolidated Income Partners/2, each a
California limited partnership and Shurgard Storage
Centers, Inc., a Delaware corporation, covering certain
real property situated in Broward County, Florida (the
"Property").
10.18 Special Warranty Deed dated May 8, 1997, executed by
Johnstown/Consolidated Income Partners and
Johnstown/Consolidated Income Partners/2, each a
California limited partnership in favor of Shurgard
Storage Center, Inc., a Delaware corporation.
10.19 Assignment of Rental Agreements dated May 8, 1997,
executed by Johnstown/Consolidated Income Partners and
Johnstown/Consolidated Income Partners/2, each a
California limited partnership and Shurgard Storage
Center, Inc., a Delaware corporation.
AGREEMENT FOR
PURCHASE AND SALE OF
EXISTING FACILITIES
Seattle, Washington March 19, 1997
THIS AGREEMENT FOR PURCHASE AND SALE OF EXISTING FACILITY, as above dated
for convenience and reference, is entered into by and between JOHNSTOWN
CONSOLIDATED INCOME PARTNERS, a California limited partnership, and JOHNSTOWN
CONSOLIDATED INCOME PARTNERS II, a California limited partnership, (hereinafter
jointly referred to as "Seller"), and SHURGARD STORAGE CENTERS, INC., a Delaware
corporation, (hereinafter referred to as "Purchaser").
ARTICLE I
PURCHASE AND SALE
1.01 Property. Subject to the terms and conditions set forth in this
Agreement, Seller agrees to sell and Purchaser agrees to purchase from Seller,
on the terms and conditions set forth in this Agreement, a fee simple interest
in that certain parcel of land legally described on Exhibit A attached hereto
and by this reference incorporated herein, and commonly known as Lauderhill Mini
Storage, containing approximately 61,127 square feet of net rentable area,
located in the City of Lauderhill, State of Florida, together with all rights,
easements and appurtenances pertaining to said real property, if any; and all
improvements, buildings and structures situated on said real property (the
"Improvements"); and all personal property (excluding computer software used in
connection with the property), furniture, fixtures, equipment, motor vehicles,
machinery, and signage; and warranties, guaranties, permits, architectural
drawings, and contract rights, including Seller's interest as lessor in tenant
leases, rental agreements and occupancy agreements covering the property; and
other tangible and intangible rights associated with any of the property being
sold and transferred hereunder. All of the foregoing items to be purchased
under this Agreement shall be collectively referred to as the "Property" or the
"Project."
ARTICLE II
PURCHASE PRICE
2.01 Purchase Price. The purchase price ("Purchase Price") for the
Property shall be THREE MILLION NINE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS (US
3,975,000.00) which shall be paid by Purchaser by wire transfer in immediately
available federal funds into escrow on or before the Closing Date identified in
Section 5.01. The Purchase Price contemplates that all costs and expenses of
closing are allocated in the manner set forth in Section 5.06.
2.02 Earnest Money. Within two (2) business days after the Execution Date
(defined below) Purchaser shall pay as earnest money FIFTY THOUSAND DOLLARS
($50,000.00) ("First Earnest Money Installment") in the form of a Note payable
to the Escrow Holder (defined below), which shall be reduced to cash and become
nonrefundable within two (2) business days after removal of the contingencies
set forth in Section 4.01. In addition, within fifteen (15) days after the
Execution Date, Purchaser shall pay FIFTEEN THOUSAND DOLLARS ($15,000.00)
("Second Earnest Money Installment") in cash to the Escrow Holder. The First
Earnest Money Installment and the Second Earnest Money Installment
(collectively, the "Earnest Money") shall be deposited into an interest-bearing
account with the Escrow Holder to be invested at the direction of Purchaser.
The Earnest Money, including interest, shall be applied toward the Purchase
Price. In the event this transaction does not close due to default by Seller,
the First Earnest Money Installment ($50,000), including interest, shall be
returned to Purchaser. The Second Earnest Money Installment ($15,000) shall be
nonrefundable and paid to Seller at Closing or, if earlier, upon termination of
this Agreement , except in the event this transaction does not close due to
default by Seller, or unless the Purchaser's review of the Seller's records for
the Property reveal a substantial discrepancy with respect to material facts
regarding the Property from the information provided by the Seller prior to
execution of this Agreement.
2.03 Consideration. The parties acknowledge and agree that in addition to
the Earnest Money, Purchaser, in reliance upon this Agreement, will expend its
funds and the time of its agents and employees, in review of documents and study
of the Property, as described in Articles III and IV hereof.
ARTICLE III
TITLE REVIEW, RECORDS AND ENVIRONMENTAL AUDIT
3.01 Books and Records. Within seven (7) days following the Execution
Date, Seller shall provide Purchaser with access to or furnish Purchaser with
complete and legible copies of the documents listed on Exhibit B (the "Books and
Records") for Lauderhill Mini Storage. To the extent Seller does not have any
of such documents, or such documents do not exist, Seller shall notify Purchaser
in writing to that effect.
3.02 Title, Survey, Environmental Audit. By executing this Agreement,
Seller authorizes:
(a) Purchaser to obtain from Transnation Title Company (the "Title
Company") a current title commitment (the "Preliminary Title Commitment") for
the owner's title policy referred to in Section 6.02, together with legible
copies of all documents referred to therein;
(b) Purchaser to conduct a UCC search and obtain a UCC search
certificate (the "UCC Search Certificate") identifying all security interests or
liens of any kind or nature against the Seller, together with legible copies of
all instruments referred to in the UCC Search Certificate; and
(c) Purchaser to request engineers, surveyors and environmental
consultants to survey, inspect and audit the Property, including a structural
inspection of any improvements, and Seller hereby grants to said professionals
and their agents full entry onto the Property and further hereby authorizes said
professionals to record the survey only if required by law or to report the
results of the environmental audit only if required by law.
3.03 Notices of Violation. In addition to the documents provided in
accordance with Section 3.01, Seller shall immediately notify Purchaser of its
receipt of, and provide Purchaser copies of any written notices of violations of
any federal, state, municipal or other health, building, zoning, safety,
environmental protection or other applicable code, law, ordinance rule or
regulation, and notify Purchaser of all violations Seller becomes aware of
relating or applying to the Property after the Execution Date due to inspections
by governmental officials after such date, if a written notice is pending but
not yet issued in respect of such violation.
ARTICLE IV
CONTINGENCIES
4.01 Contingencies/Contingency Period. Purchaser's obligation to purchase
the Property pursuant to this Agreement is subject to the following
contingencies which must be met to the sole satisfaction and discretion of
Purchaser, within the time provided for herein:
(a)(i) Matters affecting the title, condition and use of the
Property, as disclosed by the Preliminary Title Commitment, UCC search
certificate and the survey shall have been approved by Purchaser. This
contingency shall be waived or satisfied prior to the earlier of (A) 14
(fourteen) days after Purchaser's actual receipt of the Preliminary Title
Commitment, UCC search certificate and the ALTA survey, or (B) April 14, 1997.
All liens, encumbrances and exceptions not objected to in writing by Purchaser
during the contingency period in this Section 4.01 (a)(i) shall be deemed
approved by Purchaser.
(a)(ii) Matters affecting the condition of the Property as disclosed
by the environmental audit shall have been approved by Purchaser. This
contingency shall be waived or satisfied prior to the earlier of (A) 7 (seven)
days of Purchaser's actual receipt of an environmental assessment report for the
Property or (B) April 10, 1997.
(a)(iii) Matters affecting the condition and use of the Property as
disclosed by a structural inspection and an inspection for Americans with
Disabilities Act ("ADA") compliance shall have been approved by Purchaser. This
contingency shall be waived or satisfied prior to the earlier of (A) 14
(fourteen) days after the Execution Date, or (B) April 14, 1997.
(a)(iv) Matters affecting the condition and use of the Property as
disclosed by the Books and Records, including an audit, and a review of all
applicable permitting requirements shall have been approved by Purchaser. This
contingency shall be waived or satisfied within prior to the earlier of (A) 14
(fourteen) days after Seller makes all of the Books and Records listed in
Exhibit B to the Agreement available to Purchaser for Purchaser's inspection, or
(B) April 14, 1997.
(b) Purchaser's acquisition of the Property shall have received final
approval in writing by Purchaser's Real Estate Investment Committee. This
contingency shall be waived or satisfied no later than April 14, 1997.
4.02 Additional Information. After Purchaser has waived the contingencies
provided for in Section 4.01, in the event an update to the Preliminary Title
Commitments adds an exception to title or materially changes the legal
description of the Property, or a notice relating to the Property is received
pursuant to Section 3.03 Purchaser shall have ten (10) days from receipt of said
update or notice to object in writing to the added exception or impact of the
notice on the conditions of the Property, and at Purchaser's option it may elect
to terminate this Agreement based on such additional information if a cure,
correction or other solution reasonably acceptable to the Purchaser to the
information objected to is not achieved or provided by the Seller by the Closing
Date and in such event Purchaser shall be entitled to payment of the First
Earnest Money Installment and interest thereon.
4.03 Satisfaction, Waiver of Contingencies. Seller acknowledges that the
contingencies are for the benefit of Purchaser and that it will be left to the
sole discretion of Purchaser to determine whether the contingencies have been
satisfied or whether Purchaser wishes to waive satisfaction of one or more of
the contingencies. On or prior to the expiration of the respective contingency
periods identified in Section 4.01 and 4.02 hereof, Purchaser may advise Seller
that the satisfaction of one or more of the contingencies is subject to specific
conditions (for example, the removal of certain title exceptions). In such
event, Purchaser's obligation to proceed with the acquisition will be subject to
the satisfaction of such conditions. In such event, Seller shall advise
Purchaser in writing within ten (10) days after receipt of such notice whether
Seller intends to satisfy such conditions or terminate this Agreement; provided,
however, that if Seller intends to terminate this Agreement, Purchaser shall be
entitled to waive the condition and keep the Agreement in full force and effect
by giving written notice of such waiver to Seller within five (5) business days
after such notice is received by Purchaser.
4.04 Expiration of Contingency Periods. In the event Purchaser fails to
advise Seller of the satisfaction or dissatisfaction of the contingencies in
Sections 4.01 and 4.02 hereofon or prior to April 14, 1997, the contingencies
shall be deemed to have NOT been satisfied or waived and Purchaser shall be
deemed to have exercised its option to terminate this Agreement. Upon such
termination, the First Earnest Money Installment and any interest accrued
thereon shall be returned to Purchaser, the Second Earnest Money Installment
shall be paid to Seller and the parties shall have no further obligations to one
another. NO OFFICER, EMPLOYEE OR AGENT OF PURCHASER SHALL HAVE ANY AUTHORITY TO
ALTER OR WAIVE THIS SECTION 4.04, AND ANY ATTEMPTED WAIVER OR ALTERATION SHALL
BE VOID AND OF NO EFFECT.
ARTICLE V
CLOSING / ESCROW
5.01 Closing Date. This transaction shall close on or before the date (the
"Closing Date") which is thirty (30) days after the date referred to in Section
4.01(b).
5.02 Certain Obligations of Purchaser and Seller. In addition to any
other obligations contained in this Agreement:
(a) On or before the Closing Date, Purchaser shall deposit into
escrow (with drafts of documents provided two (2) days prior to Closing:
(i) the Purchase Price, less Earnest Money previously paid;
(ii) the Certificate that Purchaser's representations and
warranties as set forth in Article VII hereof are true and correct as of the
Closing Date, attached hereto as Exhibit D, executed by Purchaser;
(iii) the Assignment of Rental Agreements attached hereto as
Exhibit E, executed by Purchaser;
(iv) all other documents required by this Agreement, the Title
Company or applicable law to be deposited by Purchaser to carry out this
Agreement.
(b) On or before the Closing Date, Seller shall deposit into escrow
(with drafts of such documents provided to Purchaser and the Escrow Holder two
(2) days prior to Closing):
(i) The deed required in Section 6.01 hereof, duly executed,
acknowledged and in recordable form, free and clear of all liens, encumbrances
and exceptions, except those approved by Purchaser;
(ii) A Bill of Sale conveying title to personal property, if any,
located at the Property and owned by Seller and used exclusively in the
operation of the Property, executed by Seller;
(iii) The Non-foreign Affidavit, attached hereto as Exhibit
F, executed by Seller;
(iv) The Certificate that Seller's representations and warranties
as set forth in Article VII hereof, are true and correct as of the Closing Date,
attached hereto as Exhibit G, executed by Seller;
(v) The Assignment of Rental Agreements attached hereto as
Exhibit E, executed by Seller;
(vi) All other documents required by this Agreement, the Title
Company or applicable law to be deposited by Seller to carry out this Agreement
and such other documents as may be reasonably required by Purchaser's title
insurance company to insure title to the Property consistent with the provisions
of this Agreement.
5.03 Conditions to Seller's Obligations to Sell. Seller's obligation to
sell the Property is expressly conditioned on (a) Purchaser having deposited
into escrow all sums and documents required of Purchaser in Section 5.02, (b)
Purchaser having performed each obligation and covenant of Purchaser hereunder
and (c) all representations and warranties of Purchaser hereunder being
materially true and correct as of the Closing Date.
5.04 Conditions to Purchaser's Obligations to Purchase. Purchaser's
obligation to purchase the Property is expressly conditioned on (a) Seller
having deposited with Escrow Holder all documents required in Section 5.02
hereof, (b) Seller having timely performed each obligation and covenant of
Seller hereunder, (c) the Title Company irrevocably committing to issuing a
title insurance policy to Purchaser meeting the requirements of Section 6.02
hereof, and (d) all representations and warranties of Seller hereunder being
materially true and correct as of the Closing Date.
5.05 Prorations. Except as otherwise provided herein, all prorations are
to be apportioned at 11:59 p.m. on the day immediately preceding the Closing
Date:
(a) Ad valorem taxes for the year of closing shall be prorated at
closing based upon November discount. If the closing occurs before the millage
rate is fixed for the year, the proration of taxes shall be based upon the
millage rate for the preceding year applied to the latest assessed valuation.
(b) Utilities, if any, shall be prorated as of 11:59 p.m. of the day
immediately preceding the Closing Date, but paid by the parties outside of this
escrow.
(c) Any rental or other income of the Property which is payable for
periods thirty (30) days or less prior to the Closing Date but which, as of the
Closing Date, has not been received by Seller, shall be credited to Seller
provided, however, that such rental or other income shall not be credited to
Seller if it is due from tenants or other parties who also owe Seller amounts
for periods more than thirty (30) days prior to the Closing Date and shall
become property of Purchaser if and when such funds are collected.
(d) Any rental or other income of the Property which is payable for
periods more than thirty (30) days prior to the Closing Date but which, as of
the Closing Date, has not been received by Seller, shall not be credited to
Seller but shall become the property of Purchaser if and when such is collected.
(e) Any rental or other income of the Property previously collected
by Seller which represents payments attributable to the use of part or all of
the Property on or after the Closing date shall be credited to Purchaser.
(f) Seller acknowledges the responsibility to pay to the Title
Company in cash at the Closing all unpaid assessments against the Property, if
any, existing as of the Closing Date whether due and payable before or after
such date, so that the Title Company may remit such payments directly to the
assessing agency. (Ad valorem taxes on real and personnel property shall be
prorated in accordance with paragraph 5.05(a).)
5.06 Costs of Escrow. It is hereby acknowledged and understood by Seller
and Purchaser that:
(a) Seller shall pay one-half (1/2) of the escrow fees (and/or any
escrow cancellation charges); except as hereafter provided, the cost of any
transfer taxes, excise taxes, recording fees, deed or documentary stamps,
document taxes, intangible taxes and similar taxes and charges with respect to
the transaction contemplated herein; the cost of an ALTA survey to be prepared
by a company acceptable to Purchaser; real estate commissions; and the cost of
any of Seller's other obligations hereunder.
(b) Purchaser shall pay one-half (1/2) of the escrow fees (and/or any
escrow cancellation charges); the cost of the extended ALTA owner's policy of
title insurance and any endorsements thereto; the cost of an environmental
audit, if any; the costs and expenses arising with respect to any financing
obtained by Purchaser to purchaser the Property including, without limitation
mortgage taxes, intangible taxes and similar charges, recordation fees, and
lenders fees; and the cost of any of Purchaser's other obligations hereunder,
which obligations include, without limitation, the cost of (a) any due diligence
performed by or on behalf of Purchaser in connection with Purchaser's
investigation of the Property or (b) the satisfaction of contingencies described
in Article IV above.
5.07 Escrow. Escrow shall open on the date on which a copy of this Agreement,
properly executed, is delivered to the Escrow Holder. The Escrow Holder shall
be:
Transnation Title Insurance Company
National Title Services
1200 6th Avenue, Suite 1910
Seattle, WA 98101
Attn: Martin J. Strelecky
If required by Escrow Holder, Purchaser and Seller shall execute Escrow Holder's
usual form of supplemental escrow instructions for transactions of this type,
provided, however, that (a) in the event that any portion of such additional
escrow instructions shall be inconsistent with the provisions of this Agreement,
the provisions of this Agreement shall prevail to the extent of any such
inconsistency; (b) such escrow instructions shall specifically provide that no
provision thereof shall have the effect of modifying this Agreement unless it is
expressly so stated and such express statement is initialed by Purchaser and
Seller; and (c) Seller or Purchaser may supplement these escrow instructions
consistent with the terms and conditions hereof.
ARTICLE VI
TITLE/TITLE INSURANCE
6.01 Conveyance. Seller shall convey good, insurable and indefeasible fee
simple title to the Property to Purchaser by Special Warranty Deed (i.e.
warranting title only as to claims through Grantor) used in the situs state.
All personal property owned by Seller and used solely in connection with the
Property shall be conveyed to Purchaser at Closing by Bill of Sale.
6.02 Title Insurance. At the closing, Purchaser shall be furnished at its
expense an extended ALTA Form B-1970 owner's title insurance policy in
Purchaser's favor in the amount of the purchase price given in Section 2.01,
insuring Purchaser's indefeasible fee simple title to the real property, subject
only to those exceptions approved by Purchaser. The title policies shall also
include, if available in the state where the Property is located, an Owner's
Inflation Protection Endorsement and, if requested by Purchaser at its expense,
a Zoning Endorsement (to the effect that the Property is in compliance with all
applicable zoning ordinances). If title is not so insurable, Purchaser may
terminate this Agreement or waive one or more of the defects to title and
proceed with the acquisition of the Property.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01 Representations and Warranties of Seller. To induce Purchaser to
enter into and perform under this Agreement, Seller represents and warrants to
Purchaser, as of the date hereof and as of the Closing Date, that the following
representations and warranties are true and correct, except for those specific
exceptions, if any, identified by Seller on Exhibit C:
(a) Representations and Warranties regarding Seller's ability to sell
the Property:
(i)Seller is duly organized, validly existing and in good
standing under the laws of the state in which Seller was organized and if
applicable, is qualified to do business in the state where the Property is
located; has the full power, authority and legal right to execute, deliver and
perform under this Agreement; has obtained all necessary consents and approvals
of all requisite parties to execute and perform this Agreement; and the
person(s) executing this Agreement on behalf of Seller are duly authorized to do
so and certify that their signatures are sufficient to legally bind Seller to
the terms of this Agreement;
(ii) This Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its terms,
and the execution and performance of this Agreement does not and will not
conflict with, or cause a default under any agreement to which Seller is a party
or by which Seller or the Property is bound or under any statute, law, decree,
regulation or order of any governmental authority applicable to Seller or the
Property;
(iii) There are no actions, suits, proceedings, orders or
investigations pending or, to the best of Seller's knowledge, threatened against
or affecting Seller at law or in equity, or before or by any governmental body
which might adversely affect Seller's performance under this Agreement.
(b) Representations and Warranties regarding the suitability of the
Property for development:
(i) Seller has received no written notification of any existing,
pending or threatened (A) condemnation or similar proceedings with respect to
the Property, (B) public improvements in, about or outside the Property which
have resulted in or might result in the imposition of any assessment, lien or
charge against the Property, or (C) special assessments or similar charges
against the Property;
(ii) Seller has received no written notification that the use and
occupancy of the Property, and the business conducted thereon, is not permitted
under applicable land use and zoning laws, regulations and ordinances or that,
to the extent any special conditions have been imposed upon such use, occupancy
and business, the Property is not currently in accordance with such conditions
and Seller will furnish Purchaser with copies of all instruments, documents and
agreements setting forth any such conditions;
(iii) Except as may be indicated in the survey, Seller has
received no written notification that the Property is located in a flood plain,
wetlands, or special hazard area as designated by a federal, state or local
governmental body or agency, nor has Seller received from tenants any notice of
ground water flood damage to the storage units at the Property;
(iv) To the Seller's current actual knowledge there are no
underground storage tanks on the Property nor have underground storage tanks
been removed from the Property;
(v) Seller will deliver a certificate of occupancy for the
Property, if available, to Purchaser within fourteen (14) days after execution
of this Agreement, and Seller does not have and has received no written
notification of any certificates, permits, licenses, approvals, orders and
authorizations from any governmental agency or body (the "Necessary Approvals")
required by applicable law for the use and occupancy of the Property and the
business conducted on the Property other than those currently in Seller's
possession, if any, copies of which will be provided to Purchaser;
(vi) To Seller's current actual knowledge, without investigation,
the use and occupancy of the Property, and the business conducted thereon, do
not violate in any material respects (a) federal, state or local laws,
regulations and ordinances, (b) developmental agreements or other contracts
between private parties affecting the Property, (c) agreements between Seller or
Seller's predecessors in title and any federal, state or local agency or body
affecting the Property, (d) all judgments, orders or decrees of any court having
jurisdiction over Seller or the Property, and (e) any laws with respect to
health, safety or the environment;
(vii) Seller will provide within fourteen (14) days after the
Execution Date copies of repair work work orders regarding leaks;
(viii) To Seller's current actual knowledge, the financial
information regarding the Property furnished to Purchaser under this Agreement
fairly represents the income and expenses of the Property for the relevant
fiscal periods.
As used herein, the term "Seller's current actual knowledge" shall mean and
refer to only the current actual knowledge of the Designated Representatives (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 Representatives any duty to investigate the matter to which such
actual knowledge or the absence thereof pertains, or to impose u;ln such
Designated Representative any individual personal liability. As used herein,
the Term "Designated Representatives" shall refer to W. Bruce Stillwagon, Wayne
McDaniel, Michael Simons, and Steve Bartlett and Fred Ripley.
PURCHASER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY SPECIFIED IN THIS
AGREEMENT OR THE DEED TO BE DELIVERED AT CLOSING, SELLER HAS NOT MADE, AND
SELLER HEREBY SPECIFICALLY DISCLAIMS, ANY WARRANTY, GUARANTY OR REPRESENTATION,
ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, OF, AS TO, OR CONCERNING, (a) THE
NATURE AND CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER,
SOIL AND GEOLOGY, AND THE SUITABILITY THEREOF AND OF THE PROPERTY FOR ANY AND
ALL ACTIVITIES AND USES WHICH PURCHASER MAY ELECT TO CONDUCT THEREON; (b) THE
EXISTENCE, NATURE AND EXTENT OF ANY RIGHT-OF WAY, LEASE, RIGHT TO POSSESSION OR
USE, LIEN, ENCUMBRANCE, LICENSE, RESERVATION, CONDITION OR OTHER MATTER
AFFECTING TITLE TO THE PROPERTY; OR (c) WHETHER THE USE OR OPERATION OF THE
PROPERTY COMPLIES WITH ANY AND ALL LAWS, ORDINANCES OR REGULATIONS OF ANY
GOVERNMENT OR OTHER REGULATORY BODY. PURCHASER AGREES TO ACCEPT THE PROPERTY
AND ACKNOWLEDGES THAT THE SALE OF THE PROPERTY AS PROVIDED FOR HEREIN IS MADE BY
SELLER, ON AN "AS IS, WHERE IS, AND WITH ALL FAULTS" BASIS. PURCHASER EXPRESSLY
ACKNOWLEDGES THAT EXCEPT AS OTHERWISE EXPRESSLY SPECIFIED HEREIN AND EXCEPT FOR
ANY WARRANTY OF TITLE CONTAINED IN THE DEED TO BE DELIVERED BY SELLER TO
PURCHASER AT CLOSING, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND,
ORAL OR WRITTEN, EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW WITH RESPECT
TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR
REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE TO BE SET FORTH IN THE
DEED) ZONING, TAX CONSEQUENCES, PHYSICAL OR ENVIRONMENTAL CONDITION, UTILITIES,
OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS, THE
COMPLIANCE OF THE PREMISES WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR
COMPLETENESS OF ANY INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION
MATTERS) PROVIDED BY OR ON BEHALF OF SELLER TO PURCHASER, OR ANY OTHER MATTER OR
THING REGARDING THE PROPERTY. PURCHASER ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY
SPECIFIED IN ANY WRITTEN INSTRUMENT DELIVERED BY SELLER TO PURCHASER, SELLER
MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN, EXPRESS OR
IMPLIED OR ARISING BY OPERATION OF LAW REGARDING OR WITH RESPECT TO ANY SUCH
INFORMATION (INCLUDING, WITHOUT LIMITATION, THE SUBMISSION MATTERS) PROVIDED OR
TO BE PROVIDED BY SELLER REGARDING THE PROPERTY.
FURTHER, AND WITHOUT IN ANY WAY LIMITING ANY OTHER PROVISION OF THIS AGREEMENT,
SELLER HAS MADE AND MAKES NO REPRESENTATION WARRANTY OR GUARANTY, AND HEREBY
SPECIFICALLY DISCLAIMS ANY WARRANTY, GUARANTY OR REPRESENTATION ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, WITH RESPECT TO THE PRESENCE OR DISPOSAL ON OR BENEATH
THE PROPERTY (OR ANY PARCEL IN PROXIMITY THERETO) OF HAZARDOUS SUBSTANCES OR
MATERIALS WHICH ARE CATEGORIZED AS HAZARDOUS OR TOXIC UNDER ANY LOCAL, STATE OR
FEDERAL LAW, STATUTE, ORDINANCE, RULE OR REGULATION PERTAINING TO ENVIRONMENTAL
OR SUBSTANCE REGULATION, CONTAMINATION, CLEANUP OR DISCLOSURE (INCLUDING,
WITHOUT LIMITATION, ASBESTOS) AND SHALL HAVE NO LIABILITY TO PURCHASER THEREFOR.
WITHOUT LIMITATION OF THE PRECEDING SENTENCE, SELLER SPECIFICALLY DISCLAIMS ANY
REPRESENTATION, WARRANTY OR GUARANTY REGARDING THE ACCURACY OF ANY ENVIRONMENTAL
REPORTS WHICH MAY BE INCLUDED WITHIN THE SUBMISSION MATTERS. BY ACCEPTANCE OF
THIS AGREEMENT AND THE DEED TO BE DELIVERED BY SELLER AT THE CLOSING, PURCHASER
ACKNOWLEDGES THAT PURCHASER'S OPPORTUNITY FOR INSPECTION AND INVESTIGATION OF
THE PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) WILL BE ADEQUATE TO ENABLE
PURCHASER TO MAKE PURCHASER'S OWN DETERMINATION WITH RESPECT TO THE PRESENCE OR
DISPOSAL ON OR BENEATH THE PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) OF
SUCH HAZARDOUS SUBSTANCES OR MATERIALS, AND PURCHASER ACCEPTS THE RISK OF THE
PRESENCE OR DISPOSAL OF ANY SUCH SUBSTANCES OR MATERIALS.
PURCHASER, AND ANYONE CLAIMING, BY, THROUGH OR UNDER PURCHASER, HEREBY FULLY
RELEASES, DISCHARGES, AND HOLDS HARMLESS SELLER, ITS EMPLOYEES , OFFICERS,
DIRECTORS, PARTNERS, REPRESENTATIVES AND AGENTS AND THEIR RESPECTIVE PERSONAL
REPRESENTATIVES, HEIRS, SUCCESSORS AND ASSIGNS FROM ANY COST, LOSS, LIABILITY,
DAMAGE, EXPENSE, DEMAND, ACTION OR CAUSE OF ACTION ARISING FROM OR RELATED TO
ANY CONSTRUCTION DEFECTS, ERRORS, OMISSION, OR OTHER CONDITIONS AFFECTING THE
PROPERTY; PROVIDED, THAT THIS SHALL NOT RELEASE SELLER FROM CLAIMS ARISING, IF
ANY, AS A RESULT OF ANY WRITTEN REPRESENTATION OR WARRANTY OF SELLER BEING FALSE
WHEN MADE. PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THIS RELEASE SHALL BE
GIVEN FULL FORCE AND EFFECT ACCORDING TO EACH OF ITS EXPRESSED TERMS AND
PROVISIONS, INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO UNKNOWN AND
SUSPECTED CLAIMS, DAMAGES AND CAUSES OF ACTION. THIS COVENANT RELEASING SELLER
SHALL BE BINDING UPON PURCHASER, ITS PERSONAL REPRESENTATIVES, HEIRS, SUCCESSORS
AND ASSIGNS.
7.02 Representations and Warranties of Purchaser. To induce Seller to
enter into and perform this Agreement, Purchaser represents and warrants to
Seller, as of the date hereof and as of the Closing Date, as follows:
(a) Purchaser (i) is duly organized, validly existing and in good
standing under the laws of the state in which Purchaser was organized, (ii) has
full power, authority and legal right to execute, deliver and perform this
Agreement, and (iii) has obtained all necessary consents and approvals of all
requisite parties to execute this Agreement;
(b) This Agreement constitutes the legal, valid and binding
obligation of Purchaser, enforceable against Purchaser in accordance with its
terms; and
(c) The execution and performance of this Agreement does not and will
not conflict with, or cause a default under, (i) any agreement to which
Purchaser is a party or by which Purchaser or the Property is bound or (ii) any
statute, law, decree, regulation or order of any governmental authority
applicable to Purchaser or to the best of Purchaser's knowledge the Property.
7.03 Survival of Representations and Warranties. All of the
representations and warranties set forth in this Article VII shall remain in
full force and effect as of the Closing Date and shall survive the Closing until
the later of (a) six months after the Closing Date, or (b) December 31, 1997,
and any claim arising from a breach of any representations or warranties must be
brought within such time period or forever be barred.
ARTICLE VIII
COVENANTS OF PURCHASER AND SELLER
8.01 Confidentiality. Seller and Purchaser shall maintain the
confidentiality of this sale and purchase, including the Purchase Price, and
shall not disclose the form of this Agreement or of such sale and purchase to
any third parties whomsoever other than the Escrow Holder, the Title Insurer,
and other persons whose assistance is required in carrying out the terms of this
Agreement and except to the extent disclosure is required by law or is necessary
to the parties' fulfillment of their obligations under the Agreement or other
agreements. Neither Seller nor Purchaser shall, at any time, issue a press
release or other communication regarding this sale and purchase or other
communication regarding this sale and purchase unless such release or
communication has received the prior written approval of the other party
hereto; provided, however, that subsequent to Closing Purchaser may issue press
releases or other communications without obtaining the consent of Seller. This
paragraph shall not be applicable to the Seller or Purchaser to the extent
either of them, or an affiliate thereof, is obligated to disclose information
regarding this sale and purchase agreement pursuant to federal or state
securities law, state partnership laws or a partnership agreement of an
affiliate. Notwithstanding the foregoing, Seller may disclose this Agreement
and matters related to the transaction contemplated hereby to Insignia
Financial Group, Inc., its affiliates, contractors, agents and representatives,
and to attorneys and lenders of Seller.
8.02 Insurance. Seller shall maintain fire and extended coverage insurance
on the Property and public liability insurance in the amounts and with such
carriers as are currently in effect.
8.03 Existing Indebtedness. Seller shall make all principal and interest
payments due on all indebtedness secured by the Property (the "Secured
Indebtedness"), if any, and take any and all action as may be necessary to avoid
any default under any such Secured Indebtedness.
8.04 Future Agreements. Without the prior written approval of Purchaser,
Seller shall not enter into any written or oral leases or contracts pertaining
to the Property other than such contracts and agreements which are entered into
in the ordinary course of business and are terminable upon written notice of not
more than thirty (30) days.
8.05 Operation of Property. Seller shall continue to operate the Property
in the ordinary course of business and in compliance with laws, regulations and
ordinances.
8.06 Existing Employment and Service Contracts. Seller has disclosed the
existence of a Southern Sanitation Service contract and a Bell South contract.
As of the Closing Date, Seller shall terminate all agreements affecting the
Property , but only to the extent the same are terminable, including, but not
limited to, maintenance, management, security and other similar agreements (but
excluding the Rental Agreements) and shall terminate all personnel employed in
connection with the Property, except to the extent that Purchaser has notified
Seller at least fifteen (15) days prior to the Closing Date of a desire to
continue the employment of specified employees or to assume Seller's obligations
under any agreement relating to the Property. Seller shall furnish Purchaser
with copies of such agreements and information regarding such employees so as to
permit Purchaser to determine whether it wishes to continue such contracts or
maintain such employees.
8.07 Noncompetition Covenant. Seller and its general partner, ConCap
Equities, Inc., covenant and agree that, if the Closing hereunder occurs, for a
three (3) year period from the Closing Date, it shall not directly or indirectly
construct, acquire, manage or own, or acquire an interest in an entity which
constructs, acquires, manages or owns, a self-service storage facility within
five (5) miles of the Property. The terms and provisions of this Section shall
survive the Closing and shall remain in full force and effect as of the Closing
Date.
ARTICLE IX
REMEDIES FOR BREACH, INDEMNIFICATION
9.01 Seller Remedies. If Purchaser is in default of any obligation
hereunder, Sellers' sole and exclusive remedy for such default is to terminate
this Agreement and retain in full the Earnest Money deposit paid pursuant to
Section 2.02 hereof, together with all interest accrued on such deposit. It is
agreed between Purchaser and Seller that such sum shall be liquidated damages
for a default of Purchaser hereunder because of the difficulty, inconvenience
and uncertainty of ascertaining damages for such default. Seller hereby
specifically waives any right to pursue any other remedy at law or at equity for
such default by Purchaser.
9.02 Purchaser Remedies. If Seller is in default of any obligation
hereunder, Purchaser may, as its sole and exclusive remedies, either pursue an
action for specific performance of this Agreement against Seller or terminate
this Agreement and be entitled to return of any Earnest Money previously paid.
Purchaser hereby specifically waives any right to pursue any other remedy at law
or at equity for such default by Seller.
9.03 Real Estate Commission. Neither Seller nor Purchaser is
represented by or has worked with a real estate broker, except that Insignia
Mortgage & Investment Company, Inc., has represented Seller, and Seller shall be
responsible for any commissions or fees payable to them.. In the event of any
claim for a broker's, agent's or finder's fee or commission in connection with
the negotiation, execution or consummation of this transaction, the party upon
whose alleged statement, representation or agreement such claim or liability
arises shall indemnify, hold harmless and defend the other party from and
against such claim and liability, including without limitation, reasonable
attorney's fees and court costs, and title cancellation charges. The terms and
provisions of this Section shall survive the Closing and shall remain in full
force and effect as of the Closing Date.
ARTICLE X
(INTENTIONALLY OMITTED)
ARTICLE XI
MISCELLANEOUS PROVISIONS
11.01 Incorporation of Exhibits. All exhibits attached hereto and
referred to herein are incorporated into this Agreement as though fully set
forth herein.
11.02 Arbitration/Attorneys' Fees. Any claim, controversy or dispute
arising out of this Agreement shall be settled by arbitration in accordance with
the applicable rules of the American Arbitration Association (Commercial
Arbitration Rules), and judgment upon any award rendered by the arbitrator may
be entered in any court having jurisdiction thereof. The arbitration shall be
conducted in Lauderhill, Florida unless otherwise agreed by the parties. Should
either party employ an attorney or attorneys to enforce any of the provisions
hereof or to protect its interest in any manner arising under this Agreement, or
to recover damages for the breach hereof, the nonprevailing party in any
arbitration or in any action pursued in courts of competent jurisdiction
including appellate and bankruptcy courts (the finality of which action is not
legally contested) agrees to pay to the prevailing party all reasonable costs,
damages and expenses, including attorneys' fees, expended or incurred in
connection therewith; provided, however, that if more than one item is disputed
and the final decision is against each party as to one or more of the disputed
items, then such costs, expenses and attorneys' fees shall be apportioned in
accordance with the monetary values of the items decided against each party. The
terms and provisions of this Section shall survive the Closing and shall remain
in full force and effect as of the Closing Date.
11.03 Notices. All notices, requests, demands and other communications
given or required to be given hereunder shall be in writing, and either hand-
delivered, delivered by facsimile, or mailed in the U.S. Mail, duly addressed to
the parties as set forth below. Hand delivered and faxed notices shall be
deemed received on the day of delivery, and mailed notices on the third business
day after postmark.
To Seller: Johnstown Consolidated Income Partners
Johnstown Consolidated Income Partners II
One Insignia Financial Plaza
P.O. Box 1089
Greenville, South Carolina 29602
(864) 239-1078
(864) 239-1066 FAX
with a copy to:
Liechty & McGinnis, P.C.
10440 North Central Expressway, Suite 1100
Dallas, Texas 75231
Attention: Lorne O. Liechty, Esq.
(214) 265-0008
(214) 265-0615 FAX
To Purchaser:
Robert Dedon
Shurgard Storage Centers, Inc.
1201 Third Ave., Ste. 2200
Seattle, WA 82101
(206) 382-2362
(206) 583-4435 FAX
with a copy to:
Nancy Miller
Shurgard Storage Centers, Inc.
1201 Third Avenue, Suite 2200
Seattle, Washington 98101
206-624-8100
206-624-1645 FAX
11.04 Assignment. This agreement shall be binding upon the parties
hereto and their respective heirs, successors or representatives, and this
Agreement may not be assigned by either party without the express written
consent of the other party first having obtained. Notwithstanding the
foregoing, however, it is expressly agreed that Purchaser may assign its rights
in, to and under all or any portion of this Agreement to any entity controlling,
controlled by or under common control with Purchaser.
11.05 Governing Law. This Agreement shall be construed in accordance
with the laws of the state in which the Property is located.
11.06 Entire Agreement / Severability. This Agreement contains all of
the agreements of the parties hereto with respect to the matters contained
herein and no prior or contemporaneous agreement or understanding, oral or
written, pertaining to any such matters shall be effective for any purpose. No
provision of this Agreement may be modified, waived, amended or added to except
by an instrument in writing signed by the party against which the enforcement of
such modification, waiver, amendment or addition is or may be sought. If any
paragraph, section, sentence, clause or phrase contained in this Agreement shall
become illegal, null or void against public policy, or otherwise unenforceable,
for any reason, or shall be otherwise unenforceable, the remaining paragraphs,
sections, sentences, clauses or phrases contained in this Agreement shall not be
affected thereby.
11.07 Waiver / Time of Essence. The waiver of any breach of any
provision hereunder by Purchaser or Seller shall not be deemed to be a waiver of
any preceding or subsequent breach hereunder. No failure or delay of any party
in the exercise of any right given hereunder shall constitute a waiver thereof
nor shall any partial exercise of any right preclude further exercise thereof.
Time is of the essence in this Agreement as to all dates and time periods set
forth herein.
11.08 Risk of Loss. Risk of loss or damage to the Property by
condemnation, eminent domain or similar proceedings (or deed in lieu thereof),
or by fire or any other casualty, from the date hereof through the Closing Date
will be on Seller and thereafter will be on Purchaser. In the event of loss or
damage to the Property which occurs prior to the Closing Date or if any of the
Property has been taken by condemnation or eminent domain proceedings (or deed
in lieu thereof) or if any means of access to the Property has been locked or
substantially impaired by any such taking, Purchaser may, at its option, elect
to terminate this Agreement or consummate the transaction and receive an
assignment of all proceeds of insurance or condemnation awards attributable to
such damage or taking.
11.09 Possession. Purchaser shall be vested with possession of the
Property on the Closing Date. Until the Closing Date, Seller authorizes
Purchaser and its agents access to and on the Property for all purposes relating
to this Agreement.
11.10 Representation by Counsel. Purchaser is represented in this
transaction by counsel. This is a legally binding contract and Seller is
advised to seek counsel before executing the Agreement.
11.11 Further Action. Seller and Purchaser each agree to do such
further acts and things and to execute and deliver such additional agreements
and instruments as the other may reasonably require consistent with this
Agreement to consummate, evidence or confirm the sale contemplated hereby. The
provisions of this Section 11.11 shall survive the Closing.
11.12 Counterparts. This agreement may be executed in any number of
counterparts, each of which shall be an original but all of which shall
constitute one and the same instrument.
IN WITNESS WHEREOF, this Agreement has been executed by the parties on the
date set forth next to their respective signatures below, notwithstanding that
this Agreement is dated for convenience and reference as of the date and year
first written above. The Execution Date shall be the latter of the dates below.
Seller:
JOHNSTOWN CONSOLIDATED INCOME PARTNERS,
A CALIFORNIA LIMITED PARTNERSHIP.
By ConCap Equities, Inc.
Its General Partner
By /s/ William H. Jarrard, Jr.
Its President
Date: March 25, 1997
JOHNSTOWN CONSOLIDATED INCOME PARTNERS/II,
A CALIFORNIA LIMITED PARTNERSHIP
By ConCap Equities, Inc.
Its General Partner
By /s/ William H. Jarrard, Jr.
Its President
Date: March 25, 1997
Purchaser:
SHURGARD STORAGE CENTERS, INC.,
A DELAWARE CORPORATION
By /s/ Mark Hall
Its President
Date: March 28, 1997
EXHIBIT A
(LEGAL DESCRIPTION OF PROPERTY)
EXHIBIT B
(BOOKS AND RECORDS REQUIRED BY ARTICLE 3.01)
(a)* The standard form tenant lease in use at the Property;
(b)* All maintenance, management, security, service, supply, snow removal
and similar contracts and agreements affecting the Property;
(c)* Certificates of insurance evidencing insurance policies (including
hazard insurance) covering Seller's interest in the Property or any part
thereof;
(d)* All utility bills for the past twelve (12) months for the Property;
(e)* Statements of all real estate and personal property taxes with respect
to the Property or any portion thereof for the two (2) most recent tax years;
(f) Operating statements of the Property which itemize income and expense
items for the past two (2) years and the current year to date and copies of
general ledgers for the same period (such general ledgers to be available for
inspection at the Property);
(g)* Any and all organizational documents pursuant to which Seller is
organized and is authorized to execute and deliver this Agreement and to
consummate the transactions contemplated hereby (such as articles of
incorporation, bylaws, corporate resolutions, partnership agreements, limited
partnership agreements, trust instruments or documents of similar import) (to be
provided at or prior to closing;)
(h)* A list of all Personal Property to be conveyed to Purchaser;
(i)* A statement as to any of the Personal Property subject to any lease,
rental or other similar arrangement (not to be discharged as of the Closing) or
any other financing arrangement;
(j)* Copies of results of any environmental audits, testing of wastes
generated, or any environmental monitoring performed by Seller; and
(k)* Copies of information concerning any notices of violation, compliance
schedules, administrative orders or any other enforcement action or lawsuit
taken against Seller and concerning constituting the Property.
Except as provided below, Seller shall have properly discharged its
obligation to provide the Books and Records referenced above by making such
Books and Records available for Purchaser's inspection at the place or places
where such Books and Records are normally maintained by Seller. Seller shall,
however, make copies of the items identified with an asterisk and such items
shall be sent directly to Purchaser at the address set forth in Section 11.03.
Seller hereby certifies that it does not possess the following types of records
unless included in books and records at the Property:
Operating statistics (other than a rent roll) regarding the Property with
respect to monthly rent-up reports, number of commercial or business rentals,
number of non-business rentals, tenant turnover rates and tenant delinquency
status;
Employment contracts;
1. Certificates of occupancy and other permits and licenses for the
Property or any part thereof;
Architectural, mechanical, electrical, plumbing, drainage, construction and
similar plans, specifications and blueprints relating to the Property;
2. Warranties and guarantees covering any of the Personal Property or
Improvements (including, but not limited to, the furniture, equipment,
fixtures and machinery);
Reports of security problems relating to the Property;
Environmental Reports from any predecessor in title or any governmental
agency and any inspection reports from governmental or in-house environmental
inspections concerning the Property;
3. Copies of any and all permit applications, permits received and
documents prepared pursuant to federal, state and local environmental
legislation;
Copies of records or reports concerning spills or releases of any hazardous
substance on the Property;
Copies of information concerning any notices of violation, compliance
schedules, administrative orders; or any other enforcement action or lawsuit
taken against Seller and concerning constituting the Property;
4. Copies of records concerning the location and existence of PCBs,
asbestos and any other suspected or known carcinogens on the Property;
Copies of records of or information concerning any enforcement actions pursuant
to federal, state and/or local environmental legislation against neighboring
property owners for each of the owners of which Seller has knowledge.
EXHIBIT C
(LIMITATIONS, IF ANY, TO REPRESENTATIONS AND
WARRANTIES CONTAINED IN ARTICLE VII)
EXHIBIT D
PURCHASER'S CERTIFICATE OF COMPLIANCE
Pursuant to the provisions of the Agreement for Purchase and Sale dated
_____________, 1997 (the "Agreement") between Johnstown Consolidated Income
Partners and Johnstown Consolidated Income Partners II ("Seller") and Shurgard
Storage Centers, Inc. ("Shurgard"), with respect to the property commonly known
as Lauderhill Mini Storage, Shurgard hereby certifies as follows:
(1) The representations set forth in Article VII of the Agreement required
to be made as of the date of closing are true and correct; and
(2) All necessary action on the part of Shurgard has been taken with
respect to the consummation of purchase by Shurgard and all of the closing
documents executed and delivered by Shurgard to Seller at the closing will be
binding on Shurgard.
Executed this _____ day of , 1997 .
BY: SHURGARD STORAGE CENTERS, INC.
By ________________________________________________
Its Authorized Representative
EXHIBIT E
ASSIGNMENT OF RENTAL AGREEMENTS
THIS ASSIGNMENT OF RENTAL AGREEMENTS ("Assignment") is made and entered
into this day of , by and between Johnstown Consolidated Income Partners and
Johnstown Consolidated Income Partners II. ("Assignor") and SHURGARD STORAGE
CENTERS, INC. "(Assignee").
RECITALS
WHEREAS, Assignor and Shurgard Storage Centers, Inc. have entered into an
Agreement of Purchase and Sale dated ________________, 1997 (the "Agreement"),
for the sale of that certain real property known as Lauderhill Mini Storage, the
legal description of which is attached as Exhibit A hereto ("the Property" or
the "Projects");
WHEREAS, Assignor has rented various parts of the each of the three
Projects to certain tenants under the terms and conditions of certain rental
agreements (the "Rental Agreements") delivered to Assignee concurrently
herewith; and
WHEREAS, Assignor desires to assign to Assignee, and Assignee desires to
accept from Assignor, all of the Rental Agreements associated with the Property.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual terms and conditions herein
set forth and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Assignment and Acceptance. Assignor hereby sells, assigns, conveys,
grants and sets over unto Assignee all of Assignor's right, title and interest
in and to, and all of Assignor's obligations under, all of the Rental Agreements
and all tenant security, advance rental and similar deposits held by Assignor
with regard to or concerning the Property. Assignee hereby accepts the
foregoing assignment and agrees from the date hereof to be bound by and perform
each and every obligation of the Assignor, as landlord, under each of the Rental
Agreements and all tenant security, advance rental and similar deposits held by
Assignor with regard to or concerning the Property.
2. Representations. Assignor represents and warrants to Assignee the
following:
2.1 The Rental Agreements are in full force and effect and are
assignable to Assignee;
2.2 Assignor has not received notice that it is in default under any
of its obligations as the landlord, lessor or sublessor, as the case may
be, with respect to the Rental Agreements;
2.3 None of the Rental Agreements and none of the rents or other
amounts payable thereunder have been assigned, pledged, or encumbered; and
2.4 There are no leases or rental agreements affecting all or any
part of the Property other than those assigned hereby and delivered to
Assignee concurrently herewith and there are no written or oral promises,
understandings, agreements or commitments between Assignor (or any
predecessor of Assignor) and any tenant or any other person that have a
material adverse effect on the Property.
3. Indemnification. Assignor shall indemnify, defend and hold Assignee
harmless from any loss, expense or liability resulting from Assignor's breach
prior to the date hereof of any obligation of the landlord under any of the
Rental Agreements. Assignee shall indemnify, defend and hold Assignor harmless
from any loss, expense or liability resulting from any breach of any obligation
on or after the date hereof of the landlord under any of the Rental Agreements.
4. General.
4.1 This Assignment shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns.
4.2 This Assignment shall be governed by and construed under the laws
of the State of (Property State).
4.3 The heading and captions hereof are for convenience purposes
only.
Assignor:
JOHNSTOWN CONSOLIDATED INCOME PARTNERS .
By ______________________________________________________
Its ____________________________________________________
JOHNSTOWN CONSOLIDATED INCOME PARTNERS II.
By ______________________________________________________
Its ____________________________________________________
Assignee:
SHURGARD STORAGE CENTERS, INC.
By ______________________________________________________
Its_____________________________________________________
EXHIBIT F
NON-FOREIGN AFFIDAVIT
STATE OF )
) ss.
COUNTY OF )
1. Section 1445 of the Internal Revenue Code provides that a transferee
of a U.S. real property interest must withhold tax if the transferor is a
foreign person.
2. In order to inform Shurgard Storage Centers, Inc. ("Purchaser") that
withholding of a tax is not required upon disposition of a U.S. real property
interest by the undersigned seller ("Seller"), Seller, being first duly sworn,
on oath deposes and says, under penalty of perjury:
a. Seller has sold to Purchaser the real estate situated in the
County of [county of prop], State of [state of prop] and legally described
on Exhibit A hereto;
b. Seller is not a foreign person, foreign corporation, foreign
partnership, foreign trust or foreign estate (as these terms are defined in
the Internal Revenue Code and Income Tax Regulations);
c. Seller's taxpayer identification number is
______________________; and
d. Seller's business address is
______________________________________.
3. Seller understands that this affidavit may be disclosed to the
Internal Revenue Service by Purchaser and that any false statement contained in
this affidavit may be punished by fine, imprisonment, or both.
4. Seller understands that Purchaser is relying on this affidavit in
determining whether withholding is required and Purchaser may face liabilities
if any statement in this affidavit is false.
Johnstown Consolidated Income Partners
By: _____________________________________________________
Its: ___________________________________________________
Subscribed and sworn to before me this_____day of___________________, 19____.
________________________________________
Notary Public in and for the State of
_______________________, residing at
______________________________________________
My commission expires: ___________________________________
Johnstown Consolidated Income Partners II
By: _____________________________________________________
Its: ___________________________________________________
Subscribed and sworn to before me this_____day of___________________, 19____.
________________________________________
Notary Public in and for the State of
_______________________, residing at
______________________________________________
My commission expires: ___________________________________
EXHIBIT G
SELLER'S CERTIFICATE OF COMPLIANCE
Pursuant to the provisions of the Agreement for Purchaser and Sale dated
____________________, 1997 (the "Agreement") between Johnstown Consolidated
Income Partners and Johnstown Consolidated Income Partners II ("Seller") and
Shurgard Storage Centers, Inc. ("Shurgard") with respect to the property
commonly known as Lauderhill Mini Storage certifies as follows:
(1) The representations set forth in Article IX of the Agreement required
to be made as of the date of closing are true and correct; provided, that
nothing contained herein shall cause such representations and warranties to
survive closing beyond the period expressly stated in the Agreement; and
(2) All necessary action on the part of Seller has been taken with respect
to the consummation of the sale by Seller to Shurgard and all of the closing
documents executed and delivered by Seller to Shurgard at the closing will be
binding on Seller.
Executed this ________ day of [month/year].
Johnstown Consolidated Income Partners
By: _______________________________________________
Its: _____________________________________________
Johnstown Consolidated Income Partners II
By: _______________________________________________
Its: _____________________________________________
SPECIAL WARRANTY DEED
STATE OF FLORIDA '
' KNOW ALL MEN BY THESE PRESENTS:
COUNTY OF BROWARD '
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS, a California limited partnership,
and JOHNSTOWN/CONSOLIDATED INCOME PARTNERS/2, a California limited partnership
(hereinafter collectively called AGrantor@), for and in consideration of the sum
of TEN AND No/100 ($10.00) and other good and valuable consideration in hand
paid by SHURGARD STORAGE CENTERS, INC., a Delaware corporation (hereinafter
called AGrantee@), whose mailing address is 1201 Third Avenue, Suite 2200,
Seattle Washington 98101, the receipt and sufficiency of which are hereby
acknowledged, have GRANTED, SOLD AND CONVEYED and by these presents do GRANT,
SELL AND CONVEY unto Grantee that certain tract or parcel of land situated in
Broward County, Florida, and more particularly described on Exhibit A attached
hereto and made a part hereof for all purposes, together with Grantor's rights
and interests in all improvements, structures and fixtures located thereon and
all rights, titles and interests of Grantor appurtenant thereto (all of the
above-described properties being hereinafter collectively referred to as the
AProperty@). This conveyance is made and accepted subject to (a) general real
estate taxes on the Property for the current year which Grantee assumes and
agrees to pay, (b) zoning laws and regulations and ordinances of municipal and
other governmental authorities, if any, affecting the Property, and (c) the
matters set forth on Exhibit B attached hereto and made a part hereof for all
purposes (all of the foregoing being hereinafter collectively referred to as the
APermitted Exceptions@).
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances thereto in anywise belonging unto Grantee, its successors and
assigns forever, and Grantor does hereby bind itself, its successors and
assigns, to WARRANT AND FOREVER DEFEND all and singular the Property unto
Grantee, its successors and assigns, against every person whomsoever lawfully
claiming or to claim the same or any part thereof, by, through or under Grantor,
but not otherwise, subject, however, to the Permitted Exceptions.
GRANTEE ACKNOWLEDGES AND AGREES THAT GRANTEE ACCEPTS THE PROPERTY, AND
ACKNOWLEDGES THAT THE CONVEYANCE OF THE PROPERTY TO GRANTEE IS MADE BY GRANTOR,
ON AN AAS IS, WHERE IS, AND WITH ALL FAULTS@ BASIS. GRANTEE EXPRESSLY
ACKNOWLEDGES THAT EXCEPT AS OTHERWISE PROVIDED IN THAT CERTAIN AGREEMENT FOR
PURCHASE AND SALE OF EXISTING FACILITIES, BETWEEN GRANTOR AND GRANTEE, AND
EXCEPT FOR ANY WARRANTY OF TITLE CONTAINED IN THIS SPECIAL WARRANTY DEED,
GRANTOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, ORAL OR WRITTEN,
EXPRESS OR IMPLIED, OR ARISING BY OPERATION OF LAW WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER
MATTER OR THING REGARDING THE PROPERTY.
Current ad valorem taxes on the Property having been prorated, Grantee
hereby assumes the payment thereof.
IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor to be
effective for all purposes as of the 8th day of May, 1997.
GRANTOR:
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS,
a California limited partnership
By: ConCap Equities, Inc., its General Partner
By: /s/ William H. Jarrard, Jr.
Its: President
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS/2,
a California limited partnership
By: ConCap Equities, Inc., its General Partner
By: /s/ William H. Jarrard, Jr.
Its: President
STATE OF SOUTH CAROLINA '
'
COUNTY OF Greenville '
BEFORE ME the undersigned authority on this 8th day of May, 1997,
personally appeared William H. Jarrard, Jr., President of CONCAP EQUITIES, INC.,
a Delaware corporation, acting for and on behalf of said corporation in its
capacities as General Partner of JOHNSTOWN/CONSOLIDATED INCOME PARTNERS, a
California limited partnership, and JOHNSTOWN/CONSOLIDATED INCOME PARTNERS/2, a
California limited partnership, as the act and deed of said partnerships.
Antoinette M. Wolf
Notary Public, State of South Carolina
My Commission Expires:
2/25/04 Antoinette M. Wolf
Printed Name of Notary Public
GRANTEES ADDRESS:
1201 Third Avenue, Suite 2200
Seattle, Washington 98101
EXHIBIT A
PROPERTY DESCRIPTION
[Attach legal description of the Property]
EXHIBIT B
PERMITTED EXCEPTIONS
1. Taxes for the current year and taxes or assessments which are not shown as
existing liens by the public records or which may be levied or assessed
subsequent to the date hereof.
2. Restrictions, covenants, conditions and easements as contained on the Plat
of City of Lauderhill Section One, recorded in Plat Book 81, page 4, of the
Public Records of Broward County, Florida.
3. Reservations of an undivided three-fourth (3/4ths) interest in phosphate,
minerals and metals together with an undivided one-half (1/2) interest in
petroleum as contained in that certain Deed from the State Board of
Education of the State of Florida, recorded September 28, 1944, in Deed
Book 457, page 216; as affected by the terms contained in that certain
Corrective Quit-Claim Deed recorded December 30, 1974 in O.R. Book 6059,
page 441, and in those certain Quit-Claim Deeds recorded December 13, 1985,
in O.R. Book 13037, page 653, and O.R. Book 13037, page 654.
4. Restrictions, covenants and conditions as contained in the instrument
recorded October 1, 1969, in O.R. Book 4037, page 435, together with the
Modifications, as recorded in O.R. Book 5138, page 525 and O.R. Book 5245,
page 94, all of the Public Records of Broward County, Florida.
5. Developer's Agreement recorded in O.R. Book 6980, page 215, as affected by
that certain instrument recorded in O.R. Book 7152, page 682, of the Public
Records of Broward County, Florida.
6. Restrictions, covenants and conditions as contained in the Declaration of
Protective Covenants recorded February 21, 1986 in O.R. Book 13200, page
651, of the Public Records of Broward County, Florida.
7. The nature, extent, or existence of riparian rights.
8. Rights of tenants occupying all or part of the premises under unrecorded
leases or rental agreements.
ASSIGNMENT OF RENTAL AGREEMENTS
THIS ASSIGNMENT OF RENTAL AGREEMENTS ("Assignment") is made and entered
into this ____ day of May, 1997, by and between JOHNSTOWN/CONSOLIDATED INCOME
PARTNERS and JOHNSTOWN/CONSOLIDATED INCOME PARTNERS/2 (collectively,
"Assignor"), and SHURGARD STORAGE CENTERS, INC. ("Assignee").
R E C I T A L S:
WHEREAS, Assignor and Shurgard Storage Centers, Inc. have entered into an
Agreement of Purchase and Sale dated as of March 19, 1997 (the "Agreement"), for
the sale of that certain real property known as Lauderhill Mini Storage, the
legal description of which is attached as Exhibit A hereto (the "Property" or
the "Projects");
WHEREAS, Assignor has rented various parts of each of the three Projects to
certain tenants under the terms and conditions of that certain rental agreements
(the "Rental Agreements") delivered to Assignee concurrently herewith; and
WHEREAS, Assignor desires to assign to Assignee, and Assignee desires to
accept from Assignor, all of the Rental Agreements associated with the Property.
A G R E E M E N T
NOW, THEREFORE, in consideration of the mutual terms and conditions herein
set forth and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto hereby agree as
follows:
1. Assignment and Acceptance. Assignor hereby sells, assigns, conveys,
grants and sets over unto Assignee all of Assignor's right, title and interest
in and to, and all of Assignor's obligations under, all of the Rental Agreements
and all tenant security, advance rental and similar deposits held by Assignor
with regard to or concerning the Property. Assignee hereby accepts the
foregoing assignment and agrees from the date hereof to be bound by and perform
each and every obligation of the Assignor, as landlord, under each of the Rental
Agreements and all tenant security, advance rental and similar deposits held by
Assignor with regard to or concerning the Property.
2. Representations. Assignor represents and warrants to Assignee the
following:
2.1 The Rental Agreements are in full force and effect and are
assignable to Assignee;
2.2 Assignor has not received notice that it is in default under any
of its obligations as the landlord, lessor or sublessor, as the case may
be, with respect to the Rental Agreements;
2.3 None of the Rental Agreements and none of the rents or other
amounts payable thereunder have been assigned, pledged or encumbered; and
2.4 There are no leases or rental agreements affecting all or any part of the
Property other than those assigned hereby and delivered to Assignee concurrently
herewith and there are no written or oral promises, understandings, agreements
or commitments between Assignor (or any predecessor of Assignor) and any tenant
or any other person that have a material adverse effect on the Property.
3. Indemnification. Assignor shall indemnify, defend and hold Assignee
harmless from any loss, expense or liability resulting from Assignor's breach
prior to the date hereof of any obligation of the landlord under any of the
Rental Agreements. Assignee shall indemnify, defend and hold Assignor harmless
from any loss, expense or liability resulting from any breach of any obligation
on or after the date hereof of the landlord under any of the Rental Agreements.
4. General.
4.1 This Assignment shall inure to the benefit of and be binding upon
the parties hereto and their respective successors and assigns.
4.2 This Assignment shall be governed by and construed under the laws
of the State of Florida.
4.3 The heading and captions hereof are for convenience purposes
only.
4.4 This Assignment may be executed in any 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 agreement, but in making proof of this Assignment, it shall
not be necessary to produce or account for more than one such counterpart.
ASSIGNOR:
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS,
a California limited partnership
By: ConCap Equities, Inc., a Delaware corporation, its
General Partner
By: /s/ William H. Jarrard, Jr.
Its: President
JOHNSTOWN/CONSOLIDATED INCOME PARTNERS/2,
a California limited partnership
By: Concap Equities, Inc., a Delaware corporation, its
General Partner
By: /s/ William H. Jarrard, Jr.
Its: President
ASSIGNEE:
SHURGARD STORAGE CENTERS, INC.
By: /s/ Kristen H. Stred
Its: ____________________
EXHIBIT A
PROPERTY DESCRIPTION
