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) January 3, 2001
UNITED INVESTORS GROWTH PROPERTIES
(Exact name of registrant as specified in its charter)
Missouri 0-17645 43-1483928
(State or other (Commission (I.R.S. Employer
jurisdiction of File Number) Identification Number)
incorporation)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices)
(Registrant's telephone number)
(864) 239-1000
N/A
(Former name or former address, if changed since last report)
<PAGE>
Item 2. Acquisition or Disposition of Assets
Cheyenne Woods Apartments, located in Las Vegas, Nevada, was sold by the
Registrant on January 3, 2001. The property was sold to Cheyenne Woods
Apartments, LLC, a Nevada limited liability company, for $4,200,000.
Item 7. Financial Statements and Exhibits
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's annual report on Form 10-KSB for the year ended December 31, 2000.
(c) Exhibits
10.21 Purchase and Sale Contract between Registrant and Cheyenne Woods
Apartments, LLC, a Nevada limited liability company.
<PAGE>
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.
UNITED INVESTORS GROWTH PROPERTIES
By: United Investors Real Estate, Inc.
Its General Partner
By: /s/Patrick J. Foye
Patrick J. Foye
Executive Vice President
and Director
Date: January 12, 2001
<PAGE>
EXHIBIT 10.21
PURCHASE AND SALE CONTRACT
BETWEEN
CHEYENNE WOODS, L.L.C.,
a South Carolina limited liability company
AS SELLER
AND
CHEYENNE WOODS APARTMENTS, LLC,
a Nevada limited liability company
AS PURCHASER
<PAGE>
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract" or the "Agreement")
is entered into as of the _____day of October, 2000 (the "Effective Date") by
and between CHEYENNE WOODS, L.L.C., a South Carolina limited liability company,
having a principal address at 2000 South Colorado Boulevard, Tower Two, Suite
2-1000, Denver, Colorado 80222 ("Seller") and CHEYENNE WOODS APARTMENTS, LLC, a
Nevada limited liability company, having a principal address at 2083 Sutton,
Henderson, Nevada 89014 ("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 Clark County,
Nevada, 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 grant, bargain and sale 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
. Unless otherwise defined herein, terms with initial capital letters in this
Purchase Contract shall have the meanings set forth in this ARTICLE 1 below. .
"Business Day" means any day other than a Saturday or Sunday or Federal holiday
or legal holiday in the State of Nevada.
. "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.
. "Closing Date" means the date on which date the Closing of the conveyance of
the Property is required to be held under the terms and conditions of this
Purchase Contract and on which date full payment of the Purchase Price for the
Property shall have been paid to and received by Seller in immediately available
U.S. funds. . "Excluded Permits" means those Permits which, under applicable
law, are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.5, if any, attached hereto.
. Intentionally Omitted.
. "Fixtures and Tangible Personal Property" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, computers (to the extent located on
the Property and owned by Seller), fax machines (to the extent located on the
Property and owned by Seller), copiers (to the extent located on the Property
and owned by Seller), apparatus, appliances and other articles of tangible
personal property now located on the Land or in the Improvements as of the date
of this Purchase Contract and used or usable in connection with any present or
future occupation or operation of all or any part of the Property. 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 1.1.6.
. "Improvements" means all buildings and improvements, located on the Land taken
"as is". . "Land" means all of those certain tracts of land located in the State
of Nevada described on Exhibit "A" attached hereto, and all rights, privileges
and appurtenances pertaining thereto.
. "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. . "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: 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 "CHEYENNE WOODS".
. "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.
. "Permitted Exceptions" means those exceptions or conditions permitted to
encumber the title to the Property in accordance with the provisions of Section
6.2. . "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.
. "Property Contracts" means all purchase orders, maintenance, service, or
utility contracts and similar contracts, which relate to the ownership,
maintenance, construction or repair and/or operation of the Property and which
are not cancelable on 90 days' or shorter Notice, except Leases. A. "Purchase
Contract" means this Purchase and Sale Contract by and between Seller and
Purchaser.
B. "Purchase Price" means the total consideration to be paid by Purchaser
to Seller for the purchase of the Property.
C. "Survey" shall have the meaning ascribed thereto in Section 6.7.
D. "Tenant" means any person or entity entitled to occupy any portion of
the Property under a Lease.
E. "Title Commitment" or "Title Commitments" shall have the meaning
ascribed thereto in Section 6.1.
F. "Title Insurer" shall have the meaning set forth in Section 6.1.
PURCHASE AND SALE OF PROPERTY
G. 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
H. The total purchase price ("Purchase Price") for the Property shall be Four
Million Two Hundred Thousand and No/100 Dollars ($4,200,000.00), which shall be
paid by Purchaser, as follows:
I. On the date hereof, Purchaser shall deliver to Stewart Title Guaranty Company
("Escrow Agent" or the "Title Insurer") a deposit in the sum of Forty Two
Thousand and No/100 Dollars ($42,000.00), 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. J. At or before 5:00 p.m. Pacific Standard Time on the date of
expiration of the Feasibility Period (as hereinafter defined), provided
Purchaser has not terminated this Purchase Contract pursuant to Section ARTICLE
4, ARTICLE 6 or ARTICLE 9 below, Purchaser shall deliver to Escrow Agent an
additional deposit in the sum of Forty Two Thousand and no/100 Dollars
($42,000.00), in cash (such sum being hereinafter referred to as the "Additional
Deposit").
K. The Escrow Agent shall hold the Initial Deposit and the Additional Deposit
(collectively, the "Deposit") and make delivery of the Deposit to the party
entitled thereto under the terms hereof. Escrow Agent shall invest the Deposit
in such short-term, high-grade securities, interest-bearing bank accounts, money
market funds or accounts, bank certificates of deposit or bank repurchase
agreements as Escrow Agent, in its discretion, deems suitable, (provided that
Escrow Agent shall invest the Deposit as jointly directed by Seller and
Purchaser should Seller and Purchaser each in their respective sole discretion
determine to issue such joint investment instructions to the Escrow Agent) and
all interest and income thereon shall become part of the Deposit and shall be
remitted to the party entitled to the Deposit, as set forth below.
L. 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.
M. 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, the Deposit shall be forfeited by
Purchaser and the sum thereof shall go to Seller forthwith as liquidated damages
for the lost opportunity costs and transaction expenses incurred by Seller, as
more fully set forth in ARTICLE 12 below.
FINANCING
N. Purchaser shall have a period of forty-five calendar days (the "Financing
Contingency Period"), commencing on the Effective Date, to (i) obtain approval
from Lender (defined below) to assume that certain loan on the Property in the
original principal amount of $3,850,000.00 (the "Existing Loan") made by Green
Park Financial Limited Partnership, a District of Columbia limited partnership,
as original lender, and subsequently assigned to Federal National Mortgage
Association, a corporation organized and existing under the laws of the United
States of America ("Lender"), and (ii) obtain the remaining funds required for
settlement (that portion of the Purchase Price to be paid in cash to Seller in
excess of the outstanding principal balance of the Existing Loan as of the
Closing). Purchaser agrees to pay all assumption fees required by Lender for
Purchaser's assumption of the Existing Loan, and Seller agrees that Seller's
rights in and to all existing reserves held by Lender in connection with the
Loan shall be transferred to Purchaser upon the Closing; provided, however, that
Seller shall receive a credit for such reserves at Closing. It shall be a
condition of the assumption of the Existing Loan that upon the Closing Seller
shall be released from any and all liability under the Existing Loan. If
Purchaser has not received Lender's assumption approval at or before 5:00 p.m.
Pacific Standard Time on the last day of the Financing Contingency Period (the
"Financing Contingency Termination Date"), Purchaser shall terminate this
Agreement prior to the Financing Contingency Termination Date by delivering a
written notice of such termination to Seller and Escrow Agent. Upon such
termination (i) Escrow Agent shall return the Deposit to Purchaser and deliver
the Quitclaim Deed to Seller, (ii) the parties shall share equally the
cancellation charges of Escrow Agent and the Title Insurer, if any, and (iii)
neither party shall thereafter have any rights or obligations to the other party
hereunder other than pursuant to any provision hereof which expressly survives
the termination of this Agreement.
FEASIBILITY
O. Purchaser acknowledges that Purchaser and its agents, contractors,
engineers, surveyors, attorneys, and employees ("Consultants") have had the
opportunity to enter onto the Property:
P. To conduct and make any and all customary studies, tests, examinations and
inspections, or investigations of or concerning the Property (including without
limitation, engineering and feasibility studies, evaluation of drainage and
flood plain, soil tests for bearing capacity and percolation and surveys,
including topographical surveys).
Q. To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property.
R. To ascertain and confirm the suitability of the property for Purchaser's
intended use of the Property.
S. To review copies of leases, contracts, engineering studies, surveys and other
materials (the "Materials") in Seller's possession or control relating to the
Property (other than Seller's proprietary information).
T. Purchaser hereby approves of all matters reviewed and agrees that Purchaser's
obligation to purchase the Property shall be non-contingent and unconditional
except only for satisfaction of the conditions expressly stated in ARTICLE 4,
ARTICLE 6 and in ARTICLE 9.
U. 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.
V. Purchaser shall not permit any mechanic's or materialmen's liens or any other
liens to attach to the Property by reason of the performance of any work or the
purchase of any materials by Purchaser or any other party in connection with any
studies or tests conducted by or for Purchaser. Purchaser shall give notice to
Seller a reasonable time prior to entry onto the Property, shall deliver proof
of insurance coverage required above to Seller and shall permit Seller to have a
representative present during all investigations and inspections conducted with
respect to the Property. Purchaser shall take all reasonable actions and
implement all protections necessary to ensure that all actions taken in
connection with the investigations and inspections of the Property, and all
equipment, materials and substances generated, used or brought onto the Property
pose no material threat to the safety of persons or the environment and cause no
damage to the Property or other property of Seller or other persons. All
information made available by Seller to Purchaser in accordance with this
Purchase Contract or obtained by Purchaser in the course of its investigations
shall be treated as confidential information by Purchaser, and, prior to the
purchase of the Property by Purchaser, Purchaser shall use its best efforts to
prevent its Consultants, agents and employees from divulging such information to
any unrelated third parties except as reasonably necessary to third parties
engaged by Purchaser for the limited purpose of analyzing and investigating such
information for the purpose of consummating the transaction contemplated by this
Purchase Contract, including Purchaser's attorneys and representatives,
prospective lenders and engineers.
W. If the sale of the Property is not closed by the date fixed therefor,
Purchaser shall, within five (5) calendar days, return all Materials to Seller.
TITLE
X. 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. Notwithstanding the foregoing,
Purchaser shall be responsible for the cost of any additional premiums required
for ALTA extended coverage on the Title Policy. 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 thirty (30) calendar days following Purchaser's receipt of the
Title Commitment, but in no event later than November 3, 2000 (the "Feasibility
Period"), Purchaser shall give written notice (the "Objection Notice") to the
attorneys for Seller of any conditions of title which Purchaser is not obligated
to take the Property subject to pursuant to the provisions of this Agreement
(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 Objections. Y. If Seller gives Purchaser notice
(the "Response Notice") that Seller is unable or unwilling to convey title to
the Property as required by this Purchase Agreement, 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, 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 elected to terminate this Purchase Contract. Z. The existence of liens or
encumbrances other than the Permitted Exceptions or those which are permitted by
this Purchase Contract 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.
AA. Notwithstanding the foregoing, any deeds of trust and/or mortgages
(including any and all mortgages which secure that certain Existing Loan on the
Property in the original principal amount of $3,850,000 made by Lender), 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 or, in the
case of the lien securing the Existing Loan, assigned to and assumed by
Purchaser, the same being a material obligation of Seller under this Purchase
Contract.
BB. Intentionally Deleted.
CC. 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 $50,000
in connection with such satisfaction or discharge. If the amount required to
satisfy or discharge such lien or encumbrance exceeds $50,000, Purchaser shall
have the option of either (a) paying the excess amount over $50,000 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 $50,000 to
satisfy or discharge such lien or encumbrance. DD. Seller at Seller's sole cost
and expense, shall cause to be prepared a survey for the Property ("Survey") to
be delivered to Purchaser and Seller within the Feasibility Period. The Survey
(i) shall be prepared in accordance with and shall comply with the minimum
requirements of the ALTA; (ii) shall be in a form, and shall be certified as of
a date satisfactory to Title Insurer to enable Title Insurer to delete standard
survey exceptions from the title insurance policy to be issued pursuant to the
Title Commitments, except for any Permitted Exceptions; (iii) shall specifically
show all improvements, recorded easements to the extent locatable, set back
lines, and such other matters shown as exceptions by the Title Commitments; (iv)
shall specifically show the right of way for all adjacent public streets; (v)
shall specifically disclose whether (and, if so, what part of) any of the
Property is in an area designated as requiring flood insurance under applicable
federal laws regulating lenders; (vi) shall contain a perimeter legal
description of the Property which may be used in the grant, bargain and sale
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 grant, bargain and sale 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.
EE. 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 ARTICLE 5 above.
FF. Seller agrees to make payment in full of all costs of obtaining Surveys
required by this Purchase Contract on or before Closing or termination of this
Purchase Contract.
Purchaser, at Purchaser's sole cost and expense, may also
cause to be prepared an environmental report for the
Property ("Environmental Report"). Should such
Environmental Report disclose conditions that are
objectionable to Purchaser, Purchaser shall have the
right to terminate this Purchase Contract, by giving
written Notice to Seller and Escrow Agent on or before
5:00 p.m. Pacific Standard Time on the date of
expiration of the Feasibility Period. If Purchaser
exercises such right to terminate, this Purchase
Contract shall terminate and be of no further force and
effect, subject to and except for Purchaser's liability
under Section 5.3, and Escrow Agent shall 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, such failure shall be deemed a waiver
of its right to terminate the Purchase Contract with
respect to this Section 6.8 and 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 6 and in ARTICLE 9.
CLOSING
GG. Dates, Places Of Closing, Prorations, Delinquent Rent and Closing Costs. HH.
The Closing shall occur no later than forty-five (45) calendar days after the
Financing Contingency Termination Date, through an escrow with Escrow Agent,
whereby the Seller, Purchaser and their attorneys need not be physically present
at the Closing and may deliver documents by overnight air courier or other
means. II. The Closing Date may be extended without penalty at the option of
Seller to a date not later than thirty (30) days following the Closing Date
specified above to satisfy a condition to be satisfied by Seller, or such later
date as is mutually acceptable to Seller and Purchaser.
JJ. 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. KK. 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.
LL. If on the Closing Date any Tenant is in arrears in any Rent payment under
any Tenant lease (the "Delinquent Rent"), any Delinquent Rent received by
Purchaser and Seller from such Tenant after the Closing shall be applied to
amounts due and payable by such Tenant during the following periods in the
following order of priority: (i) first, to the period of time after the Closing
Date, and (ii) second, to the period of time before the Closing Date. If
Delinquent Rent or any portion thereof received by Seller or Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after closing
shall be forwarded to Purchaser for disbursement in accordance with the order of
payment provided herein above. After the Closing, Seller shall continue to have
the right, but not the obligation, in its own name, to demand payment of and to
collect Delinquent Rent owed to Seller by any Tenant, which right shall include,
without limitation, the right to continue or commence legal actions or
proceedings against any Tenant (provided, that Seller shall not commence any
legal actions or proceedings against any Tenant which continues as a Tenant at
the Property after Closing without the prior consent of Purchaser, which will
not be unreasonably withheld or delayed), and the delivery of the Assignment as
defined in Section 7.2.1.3 shall not constitute a waiver by Seller of such
right. Purchaser agrees to cooperate with Seller at no cost or liability to
Purchaser in connection with all efforts by Seller to collect such Delinquent
Rent and to take all steps, whether before or after the Closing Date, as may be
necessary to carry out the intention of the foregoing, including, without
limitation, the delivery to Seller, within seven (7) days after a written
request, of any relevant books and records (including, without limitation, rent
statements, receipted bills and copies of tenant checks used in payment of such
rent), the execution of any and all consents or other documents, and the
undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property. The provisions of this Section 7.1.5 shall apply during the
Proration Period.
MM. Seller shall pay the cost of all transfer taxes (e.g., excise stamp taxes)
in an amount not to exceed $11,000; provided, however, in the event the cost of
such transfer taxes exceeds $11,000, Purchaser shall pay any such amounts in
excess of $11,000. Purchaser shall pay the cost of all recording costs with
respect to the Closing. Seller and Purchaser shall share equally in the costs of
the Escrow Agent for escrow fees.
NN. Items To Be Delivered Prior To Or At Closing.
OO. Seller. At Closing, Seller shall deliver to the Escrow Agent, each of the
following items, as applicable: PP. Grant, Bargain and Sale 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.
QQ. A Bill of Sale without recourse or warranty 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.
RR. An Assignment (to the extent assignable and in force and effect) without
recourse or warranty 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.
SS. A closing statement executed by Seller.
TT. 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 and matters
which are to be completed or performed post-Closing) to be issued pursuant to
the Title Commitment; provided that such affidavit does not subject Seller to
any greater liability, or impose any additional obligations, other than as set
forth in this Purchase Contract; and UU. A certification of Seller's non-foreign
status pursuant to Section 1445 of the Internal Revenue Code of 1986, as
amended.
VV. Except for the items expressly listed above to be delivered at Closing,
delivery of any other required items shall be deemed made by Seller to
Purchaser, if Seller leaves such documents at the Property in their customary
place of storage or in the custody of Purchaser's representatives.
WW. Intentionally Deleted
XX. A list certified to the best of Seller's knowledge, disclosing any
known current pending and/or threatened litigation affecting the Property.
YY. Evidence that the management agreement for Seller's manager has been
terminated.
ZZ. A rent roll for the Property certified by Seller, but limited to Seller's
knowledge, listing the monthly base rent payable, lease expiration date and
unapplied security deposit as of the Closing Date.
AAA. Resolutions, certificates of good standing, and such other organizational
documents as Title Insurer shall reasonably require evidencing Seller's
authority to consummate this transaction.
BBB. 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.
CCC. 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:
DDD. The full Purchase Price as required by ARTICLE 3 hereof plus or minus the
adjustments or prorations required by this Purchase Contract. If at Closing
there are any liens or encumbrances on the Property that Seller is obligated or
elects to pay and discharge, Seller may use any portion of the Purchase Price
for the Property(s) to satisfy the same, provided that Seller shall have
delivered to Title Company, on such Closing instruments in recordable form
sufficient to satisfy such liens and encumbrances of record (or, as to any
mortgages or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such instruments.
Purchaser, if request is made within a reasonable time prior to Closing, agrees
to provide at Closing separate certified or cashier's checks as requested,
aggregating not more than the amount of the balance of the portion of Purchase
Price, to facilitate the satisfaction of any such liens or encumbrances. The
existence of any such liens or encumbrances shall not be deemed objections to
title if Seller shall comply with the foregoing requirements.
EEE. A closing statement executed by Purchaser.
FFF. A countersigned counterpart of the Bill of Sale in the form attached as
Exhibit 7.2.1.2.
GGG. A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
HHH. 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
III. Representations, Warranties and Covenants Of Seller.
JJJ. For the purpose of inducing Purchaser to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance herewith,
Seller represents and warrants to Purchaser the following as of the Effective
Date and as of the Closing Date:
KKK. 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; LLL. 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); MMM. 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). NNN. 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; OOO.
Purchaser has no duty to collect withholding taxes for Seller pursuant to the
Foreign Investors Real Property Tax Act of 1980, as amended; PPP. To Seller's
knowledge, there are no actions, proceedings, litigation or governmental
investigations or condemnation actions either pending or threatened against the
Property, as applicable; QQQ. 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; RRR. To Seller's knowledge, Seller has not received any written
notice of any proposed taking, condemnation or special assessment with respect
to the Property; SSS. To Seller's knowledge, Seller has not received any written
notice of any uncured violations of any federal, state, county or municipal law,
ordinance, order, regulation or requirement affecting the Property; TTT. To
Seller's knowledge, Seller has not received any written notice of any default by
Seller under any of the Property Contracts that will not be terminated on the
Closing Date; UUU. 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 VVV. 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. WWW. 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 date hereof and as of the
Closing Date, it has and shall have reviewed and conducted such independent
analyses, studies, reports, investigations and inspections as it deems
appropriate in connection with the Property. If Seller provides or has provided
any documents, 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. XXX. Seller agrees that Purchaser shall be entitled to rely on the
foregoing representations and warranties made by Seller herein and that
Purchaser has so relied. Seller and Purchaser agree that those representations
and warranties contained in Section 8.1 shall survive Closing for a period of
one (1) year (the "Survival Period"). Seller shall have no liability after the
Survival Period with respect to the representations and warranties contained
herein except to the extent that Purchaser has filed a lawsuit against Seller
during the Survival Period for breach of any representation or warranty. In the
event that Seller breaches any representation contained in Section 8.1 and
Purchaser had knowledge of such breach prior to the Closing Date, Purchaser
shall be deemed to have waived any right of recovery, and Seller shall not have
any liability in connection therewith. YYY. 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 Julie Miles of Apartment
Investment & Management Company ("AIMCO"), as the on-site property manager (the
"Property Manager"), and Dana Murrah, the Regional Property Manager handling
this Property at AIMCO (the "Regional Property Manager"). ZZZ. Representations
And Warranties Of Purchaser AAAA. 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: BBBB. With
respect to Purchaser and its business, Purchaser represents and warrants, in
particular, that: CCCC. Purchaser is a limited liability company duly organized,
validly existing and in good standing under the laws of Nevada. DDDD. 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. EEEE. 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. FFFF. Purchaser is duly
authorized to execute and deliver, acting through its duly empowered and
authorized officers and members, respectively, and perform this Purchase
Contract and all documents and instruments and transactions contemplated hereby
or incidental hereto, and such execution, delivery and performance by Purchaser
does not (i) violate any of the provisions of their respective articles of
organization or operating agreement, (ii) violate any provision of any law,
governmental rule or regulation currently in effect, (iii) violate any judgment,
decree, writ, injunction, award, determination or order currently in effect that
names or is specifically directed at Purchaser or its property, and (iv) require
the consent, approval, order or authorization of, or any filing with or notice
to, any court or other governmental authority. GGGG. 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.
HHHH. 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.
CONDITIONS PRECEDENT TO CLOSING
IIII. 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:
JJJJ. 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; KKKK. Each of the representations, warranties and covenants of Seller
contained herein shall be true in all material respects as of the Closing Date
(and Purchaser shall be permitted to perform an inspection of the Property
immediately prior to the Closing Date to verify same); LLLL. 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; MMMM. Neither Seller nor Seller's general partner shall be a
debtor in any bankruptcy proceeding or shall have been in the last 6 months a
debtor in any bankruptcy proceeding; NNNN. A taking of all or any part of the
Property must not have been commenced or threatened in writing; OOOO. 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; PPPP.
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). QQQQ. Notwithstanding anything to
the contrary, there are no other conditions on Purchaser's obligation to Close
except as expressly set forth above. If any of the above conditions is not
satisfied, then notwithstanding anything to the contrary contained in this
Purchase Contract, Purchaser may, at its option (a) 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. RRRR.
Without limiting any of the rights of Seller elsewhere provided for in this
Purchase Contract, Seller's obligation to close with respect to conveyance of a
particular Property under this Purchase Contract shall be subject to and
conditioned upon the fulfillment of each and all of the following conditions
precedent: SSSS. 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. TTTT. 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. UUUU.
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. VVVV. 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. WWWW. 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 on or before the
Closing Date, this Agreement shall automatically terminate, in which case (i)
Escrow Agent shall return the Deposit to Purchaser, (ii) Seller shall reimburse
Purchaser for Purchaser's actual out-of-pocket expenses incurred in connection
herewith 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
XXXX. 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.
YYYY. 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.
ZZZZ. 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
AAAAA. 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
BBBBB. In the event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's inability to convey title
as required by this Purchase Contract, or defaults hereunder on or prior to the
Closing Date and consummation of the Closing does not occur by reason of such
termination or default by Purchaser, Seller and Purchaser agree that it would be
impractical and extremely difficult to estimate the damages which Seller may
suffer. Therefore, Seller and Purchaser hereby agree that, except for the
Purchaser's obligations to Seller under Section 5.3, the reasonable estimate of
the total net detriment that Seller would suffer in the event that Purchaser
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.
CCCCC. 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
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
DDDDD. 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 $300,000.00, 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 of Seller's 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.
EEEEE. 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 $300,000.00,
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 of Seller's
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
FFFFF. This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before October 5, 2000.
EMINENT DOMAIN
GGGGG. 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.
<PAGE>
MISCELLANEOUS
HHHHH. Exhibits And Schedules
All Exhibits and Schedules, whether or not annexed hereto, are a part of
this Purchase Contract for all purposes.
IIIII. 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 consents thereto (which consent
shall not be unreasonably withheld or delayed).
JJJJJ. 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.
KKKKK. 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.
LLLLL. 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.
MMMMM. 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:
Cheyenne Woods, L.L.C. Cheyenne Woods Apartments, LLC
2000 South Colorado Boulevard 2083 Sutton
Tower Two, Suite 2-1000 Henderson, Nevada 89014
Denver, Colorado 80222 Attn: Mr. Douglas C. Swinger
Attn: Mr. Harry Alcock Facsimile No. (660) 886-9667
Facsimile No. (303) 692-0786
And
Cheyenne Woods, L.L.C.
2000 South Colorado Boulevard
Tower Two, Suite 2-1000
Denver, Colorado 80222
Attn: Mr. Pat Stucker and
Mr. Mark Reoch
Facsimile No. (303) 692-0786
With a copy to
Loeb & Loeb, LLP
1000 Wilshire Boulevard, Suite
1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq. and
Karen 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.
NNNNN. Governing Law And Venue
The laws of the State of Nevada 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.
OOOOO. 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.
PPPPP. 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.
QQQQQ. 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.
RRRRR. 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.
SSSSS. 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.
TTTTT. Confidentiality
Purchaser shall not disclose the terms and conditions contained in
this Purchase Contract, shall keep the same confidential, provided that
Purchaser may disclose the terms and conditions of this Purchase Contract (i) as
required by law, (ii) to consummate the terms of this Purchase Contract, or any
financing relating thereto, or (iii) to Purchaser's or Seller's lenders,
attorneys and accountants,. Any information provided by Seller to Purchaser
under the terms of this Purchase Contract is for informational purposes only. In
providing such information to Purchaser, Seller makes no representation or
warranty, express, written, oral, statutory, or implied, and all such
representations and warranties are hereby expressly excluded. Purchaser shall
not in any way be entitled to rely upon the accuracy of such information. Such
information is also confidential and Purchaser shall be prohibited from making
such information public to any other person or entity other than its agents and
legal representatives, without Seller's prior written authorization, which may
be granted or denied in Seller's sole discretion. UUUUU. Time Of The Essence
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
VVVVV. 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.
WWWWW. 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.
XXXXX. 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.
YYYYY. Exchange
At Seller's or Purchaser's sole cost and expense, as applicable,
Seller or Purchaser 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 in conjunction with the sale of the Property or
Purchaser shall sell certain property in conjunction with the purchase of the
Property (each a "Like Kind Exchange"). Each party shall cooperate fully and
promptly with the other party's conduct of a Like Kind Exchange, provided that
all costs and expenses generated in connection with the Like Kind Exchange shall
be borne solely by the party for which it is intended, and the other party shall
not be required to take title to or contract for the purchase of any other
property. If either party uses a qualified intermediary to effectuate the
exchange, any assignment of the rights or obligations of such party hereunder
shall not relieve, release or absolve such party of its obligations to the
other. In no event shall the Closing Date be delayed by a Like Kind Exchange.
Each of Seller and Purchaser shall indemnify and hold harmless the other party
from and against any and all liability arising from and out of its Like Kind
Exchange.
ZZZZZ. No Personal Liability of Officers, Trustees or directors of Seller's
Partners
Purchaser acknowledges that this Agreement is entered into by Seller which
is a South Carolina limited partnership, and Purchaser agrees that no individual
officer, trustee, director or representative of the partners of Seller shall
have any personal liability under this Agreement or any document executed in
connection with the transactions contemplated by this Agreement. AAAAAA. 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.
[ Remainder of Page Intentionally Left Blank ]
<PAGE>
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as of the
date first set forth above.
Seller:
CHEYENNE WOODS, L.L.C.,
a South Carolina limited liability company
By:____United Investors Real Estate, Inc.
a Delaware corporation,
its managing member
By:
Name:
Title:
Purchaser:
CHEYENNE WOODS APARTMENTS, LLC,
a Nevada limited liability company
By:
Name: Douglas C. Swinger
Title: Managing Member
<PAGE>
ACKNOWLEDGEMENTS
STATE OF )
)ss.
COUNTY OF )
On this _____ day of _____________, 2000, personally appeared before me, a
notary public, ______________________________, personally known (or proved) to
me to be the person whose name is subscribed to the foregoing instrument and who
acknowledged that she/he executed the same.
Notary Public
STATE OF )
)ss.
COUNTY OF )
On this _____ day of _____________, 2000, personally appeared before me, a
notary public, ______________________________, personally known (or proved) to
me to be the person whose name is subscribed to the foregoing instrument and who
acknowledged that she/he executed the same.
Notary Public
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION FOR CHEYENNE WOODS
All that real property located in Clark County, Nevada, and being more
particularly described as follows:
The Northwest Quarter (NW 1/4) of the Northeast Quarter (NE 1/4) of the
Northeast Quarter (NE 1/4) of Section 13, Township 20 South, Range 61 East,
M.D.B & M., City of North Las Vegas, State of Nevada, excepting therefrom those
parcels I, III and IV, as described in that Deed recorded July 25, 1983 in Book
1776 as Document No. 1735381, the herein parcel of land being described as
follows:
BEGINNING at the Northeast (NE) corner of the CHEYENNE PARK VILLAS CONDOMINIUM
SUBDIVISION, recorded in Book 31, Page 42 of Plats, said corner being 50.00 feet
Southerly of and measured at right angles to the centerline of Cheyenne Avenue
(100.00 feet wide); thence North 89(degree)56'59" East, parallel to said
centerline of Cheyenne Avenue, 669.86 feet to the Northwest (NW) corner of the
LIOUBAS SUBDIVISION, recorded in Book 29, Page 42 of Plats; thence South
0(degree)30'19" West, along the West line of said LIOUBAS SUBDIVISION and the
West line of the B & G ONE SUBDIVISION, recorded in Book 30, Page 58 of Plats,
606.77 feet to the Southwest (SW) corner of said B & G ONE SUBDIVISION, thence
South 89(degree)53'55" West, along the North line of the DIANA TERRACE NO. 1
SUBDIVISION, recorded in Book 7, Page 31 of Plats, 338.64 feet; thence North
0(degree)37'09" West, 360.00 feet, thence South 89(degree)53'55" West, 330.00
feet to a point on the West line of said CHEYENNE PARK VILLAS SUBDIVISION;
thence North 0(degree)37'09" West 247.37 feet to the POINT OF BEGINNING.
<PAGE>
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
[To Be Inserted, If Any]
<PAGE>
EXHIBIT 1.1.6
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
[To Be Inserted, If Any]
<PAGE>
EXHIBIT 3.1.1
FORM OF QUITCLAIM DEED
APN:
When recorded return to:
Loeb & Loeb LLP
1000 Wilshire Boulevard, Suite 1800
Los Angeles, California 90017
Attn: Karen N. Higgins, Esq.
QUITCLAIM DEED
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, CHEYENNE WOODS APARTMENTS, LLC, a Nevada limited liability
company, as Grantor, whose address is 2083 Sutton, Henderson, Nevada 89014, does
hereby quitclaim to CHEYENNE WOODS, L.L.C., a South Carolina limited liability
company, as Grantee, whose address is 2000 South Colorado Boulevard, Tower Two,
Suite 2-1000, Denver, Colorado 80222, all of Grantor's right, title, and
interest in and to that real property described on Exhibit "A," attached hereto
and by this reference made a part hereof, together with all tenements,
hereditaments, and appurtenances thereunto belonging or in anywise appertaining.
DATED this ____ day of _______________, 2000.
CHEYENNE WOODS APARTMENTS, LLC,
a Nevada limited liability company
By:
Name: Douglas C. Swinger
Title: Managing Member
<PAGE>
STATE OF )
)ss.
COUNTY OF )
On this _____ day of _____________, 2000, personally appeared before me, a
notary public, ______________________________, personally known (or proved) to
me to be the person whose name is subscribed to the foregoing instrument and who
acknowledged that she/he executed the same.
Notary Public
<PAGE>
Exhibit "A"
Legal Description of the Real Property
The Northwest Quarter (NW 1/4) of the Northeast Quarter (NE 1/4) of the
Northeast Quarter (NE 1/4) of Section 13, Township 20 South, Range 61 East,
M.D.B & M., City of North Las Vegas, State of Nevada, excepting therefrom those
parcels I, III and IV, as described in that Deed recorded July 25, 1983 in Book
1776 as Document No. 1735381, the herein parcel of land being described as
follows:
BEGINNING at the Northeast (NE) corner of the CHEYENNE PARK VILLAS CONDOMINIUM
SUBDIVISION, recorded in Book 31, Page 42 of Plats, said corner being 50.00 feet
Southerly of and measured at right angles to the centerline of Cheyenne Avenue
(100.00 feet wide); thence North 89(degree)56'59" East, parallel to said
centerline of Cheyenne Avenue, 669.86 feet to the Northwest (NW) corner of the
LIOUBAS SUBDIVISION, recorded in Book 29, Page 42 of Plats; thence South
0(degree)30'19" West, along the West line of said LIOUBAS SUBDIVISION and the
West line of the B & G ONE SUBDIVISION, recorded in Book 30, Page 58 of Plats,
606.77 feet to the Southwest (SW) corner of said B & G ONE SUBDIVISION, thence
South 89(degree)53'55" West, along the North line of the DIANA TERRACE NO. 1
SUBDIVISION, recorded in Book 7, Page 31 of Plats, 338.64 feet; thence North
0(degree)37'09" West, 360.00 feet, thence South 89(degree)53'55" West, 330.00
feet to a point on the West line of said CHEYENNE PARK VILLAS SUBDIVISION;
thence North 0(degree)37'09" West 247.37 feet to the POINT OF BEGINNING.
<PAGE>
EXHIBIT 7.2.1.1
FORM OF GRANT, BARGAIN AND SALE DEED
APN:
When recorded return to:
Cheyenne Woods Apartments, LLC
2083 Sutton
Henderson, Nevada 89014
Attn: Mr. Douglas C. Swinger
GRANT, BARGAIN AND SALE DEED
For valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, CHEYENNE WOODS, L.L.C., a South Carolina limited liability
company, as Grantor, whose address is 2000 South Colorado Boulevard, Tower Two,
Suite 2-1000, Denver, Colorado 80222, does hereby grant, bargain, and sell to
CHEYENNE WOODS APARTMENTS, LLC, a Nevada limited liability company, as Grantee,
whose address is 2083 Sutton, Henderson Nevada 89014, all right, title, and
interest in the real property described on Exhibit "A," attached hereto and by
this reference made a part hereof, together with the tenements, hereditaments,
and appurtenances thereunto belonging or in anywise appertaining, subject only
to existing taxes and other assessments, reservations in patents, and all
easements, rights-of-way, encumbrances, liens, covenants, conditions,
restrictions, obligations, and liabilities as may appear of record.
DATED this ____ day of _______________, 2000.
CHEYENNE WOODS, L.L.C.,
a South Carolina limited liability company
By:____United Investors Real Estate, Inc.
a Delaware corporation,
its managing member
By:
Name:
Title:
<PAGE>
STATE OF )
)ss.
COUNTY OF )
On this _____ day of _____________, 2000, personally appeared before me, a
notary public, ______________________________, personally known (or proved) to
me to be the person whose name is subscribed to the foregoing instrument and who
acknowledged that she/he executed the same.
Notary Public
<PAGE>
Exhibit "A"
Legal Description of the Real Property
The Northwest Quarter (NW 1/4) of the Northeast Quarter (NE 1/4) of the
Northeast Quarter (NE 1/4) of Section 13, Township 20 South, Range 61 East,
M.D.B & M., City of North Las Vegas, State of Nevada, excepting therefrom those
parcels I, III and IV, as described in that Deed recorded July 25, 1983 in Book
1776 as Document No. 1735381, the herein parcel of land being described as
follows:
BEGINNING at the Northeast (NE) corner of the CHEYENNE PARK VILLAS CONDOMINIUM
SUBDIVISION, recorded in Book 31, Page 42 of Plats, said corner being 50.00 feet
Southerly of and measured at right angles to the centerline of Cheyenne Avenue
(100.00 feet wide); thence North 89(degree)56'59" East, parallel to said
centerline of Cheyenne Avenue, 669.86 feet to the Northwest (NW) corner of the
LIOUBAS SUBDIVISION, recorded in Book 29, Page 42 of Plats; thence South
0(degree)30'19" West, along the West line of said LIOUBAS SUBDIVISION and the
West line of the B & G ONE SUBDIVISION, recorded in Book 30, Page 58 of Plats,
606.77 feet to the Southwest (SW) corner of said B & G ONE SUBDIVISION, thence
South 89(degree)53'55" West, along the North line of the DIANA TERRACE NO. 1
SUBDIVISION, recorded in Book 7, Page 31 of Plats, 338.64 feet; thence North
0(degree)37'09" West, 360.00 feet, thence South 89(degree)53'55" West, 330.00
feet to a point on the West line of said CHEYENNE PARK VILLAS SUBDIVISION;
thence North 0(degree)37'09" West 247.37 feet to the POINT OF BEGINNING.
<PAGE>
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale ("Assignment") is executed by CHEYENNE WOODS, L.L.C., a
South Carolina limited liability company ("Seller"), in favor of CHEYENNE WOODS
APARTMENTS, LLC, a Nevada limited liability company ("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of October ___, 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:
o 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.
o 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.
o 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.
o Fixtures and Tangible Personal Property. All of Sellers rights and
interests in and to all fixtures, furniture, furnishings, fittings,
equipment, machinery, computers (to the extent located on the Property
and owned by Seller), fax machines (to the extent located on the
Property and owned by Seller), copiers (to the extent located on the
Property and owned by Seller), apparatus, appliances and other
articles of tangible personal property now located on the Project or
in the improvements thereon and used in connection with any present or
future occupation or operation of all or any part of the Project.
The term "Property" shall not include any of the foregoing: (i) to the extent
the same are excluded or reserved to Seller pursuant to the Purchase Contract to
which Seller and Purchaser are parties; and (ii) to the extent that the sale or
transfer thereof requires consent or approval of any third party, which consent
or approval is not obtained by Seller. Nothing herein shall create a transfer or
assignment of intellectual property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and
interest, if any, in and to the Property, subject to any rights of
consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the
Property and agrees to perform all of the covenants and obligations of
Seller thereunder. Purchaser further agrees to indemnify, defend and
hold Seller harmless from and against any and all cost, loss, harm or
damage which may arise in connection with the Property.
4. Counterparts. This Assignment may be executed in counterparts, each of
which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing
party in such action or proceeding shall be entitled to recover all
reasonable costs and expenses incurred in such action or proceeding,
including reasonable attorneys' fees and costs, in addition to any
other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of Nevada.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference
only, and neither form a part of this Assignment or are to be used in
its construction or interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to the
benefit of the parties hereto and their respective transferees,
successors, and assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the
subject matter hereof. It may not be altered or modified without the
written consent of all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR INTANGIBLE,
PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF MERCHANTABILITY AND
WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER WARRANTY EXPRESSED OR
IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE
FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
<PAGE>
WITNESS the signatures of the undersigned.
Dated: , 2000
Seller:
CHEYENNE WOODS, L.L.C.,
a South Carolina limited liability company
By:____United Investors Real Estate, Inc.
a Delaware corporation,
its managing member
By:
Name:
Title:
Purchaser:
CHEYENNE WOODS APARTMENTS, LLC,
a Nevada limited liability company
By:
Name: Douglas C. Swinger
Title: Managing Member
<PAGE>
EXHIBIT 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("Assignment") is executed by CHEYENNE WOODS,
L.L.C., a South Carolina limited liability company ("Seller"), in favor of
CHEYENNE WOODS APARTMENTS, LLC, a Nevada limited liability company
("Purchaser").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract and dated as of October __, 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 "CHEYENNE WOODS".
2. The term "Miscellaneous Property Assets" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
3. Assignment. Seller hereby assigns, sells and transfers, without recourse or
warranty, to Purchaser all of Seller's right, title and interest, if any, in and
to the Miscellaneous Property Assets, subject to any rights of consent as
provided therein.
4. Assumption. Purchaser expressly agrees to assume and hereby assumes all
liabilities and obligations of the Seller in connection with the Miscellaneous
Property Assets and agrees to perform all of the covenants and obligations of
Seller thereunder. Purchaser further agrees to indemnify, defend and hold Seller
harmless from and against any and all cost, loss, harm or damage which may arise
in connection with the Miscellaneous Property Assets, pertaining to acts arising
on and after the date hereof. Seller further agrees to indemnify, defend and
hold Purchaser harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Miscellaneous Property Assets. 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 Nevada.
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]
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WITNESS the signatures of the undersigned.
Dated: ___________, 2000
Seller:
CHEYENNE WOODS, L.L.C.,
a South Carolina limited liability company
By:____United Investors Real Estate, Inc.
a Delaware corporation,
its managing member
By:
Name:
Title:
Purchaser:
CHEYENNE WOODS APARTMENTS, LLC,
a Nevada limited liability company
By:
Name: Douglas C. Swinger
Title: Managing Member
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EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this _____day of October,
2000 by and among CHEYENNE WOODS, L.L.C., a South Carolina limited liability
company ("Seller"), CHEYENNE WOODS APARTMENTS, LLC, a Nevada limited liability
company ("Purchaser"), and STEWART TITLE GUARANTY COMPANY ("Escrow Agent");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the _____day of October,
2000; and
Whereas, the Purchase Contract requires that Purchaser provide a deposit
in the amount of Forty-Two Thousand and No/100 Dollars ($42,000.00) in cash (the
"Deposit"), to be held pursuant to an escrow agreement approved by Purchaser and
Seller.
Whereas, the Purchase Contract requires that, on or before 5:00 p.m.
Pacific Standard Time on the date of expiration of the Feasibility Period,
Purchaser shall provide an additional deposit in the sum of Forty Two Thousand
and No/100 Dollars ($42,000.00) in cash (the "Additional Deposit"), to be held
by Escrow Agent.
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of
Forty-Two Thousand and No/100 Dollars ($42,000.00) 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 and the Additional Deposit (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 jointly directed by Seller and Purchaser should Seller and Purchaser
each in their respective sole discretion determine to issue such joint
investment instructions to the Escrow Agent) and all interest and income thereon
shall become part of the Escrow Fund and shall be remitted to the party entitled
to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall 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 (i) the expiration of the Feasibility Period (as defined in the Purchase
Contract) with respect to any contingency other than the financing contingency
described in Section 4.1 of the Purchase Contract, or (ii) the expiration of the
Financing Contingency Period with respect to the financing contingency described
in Section 4.1 of 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:
Cheyenne Woods, L.L.C. Cheyenne Woods Apartments, LLC
2000 South Colorado Boulevard 2083 Sutton
Tower Two, Suite 2-1000 Henderson, Nevada 89014
Denver, Colorado 80222 Attn: Mr. Douglas C. Swinger
Attn: Mr. Harry Alcock Facsimile No. (660) 886-9667
Facsimile No. (303) 692-0786
And
Cheyenne Woods, L.L.C.
2000 South Colorado Boulevard
Tower Two, Suite 2-1000
Denver, Colorado 80222
Attn: Mr. Pat Stucker
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. Tammy Wagner
Karen 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 Nevada.
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:
CHEYENNE WOODS, L.L.C.,
a South Carolina limited liability company
By:____United Investors Real Estate, Inc.
a Delaware corporation,
its managing member
By:
Name:
Title:
Purchaser:
CHEYENNE WOODS APARTMENTS, LLC,
a Nevada limited liability company
By:
Name: Douglas C. Swinger
Title: Managing Member
Escrow Agent:
STEWART TITLE GUARANTY COMPANY
By:
Name:
Title:
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Page(s)
TABLE OF CONTENTS
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.....................................................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......................................................19
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
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