UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 10-K
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
FOR FISCAL YEAR ENDED DECEMBER 31, 1998
OR
|_| TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934 (NO FEE REQUIRED)
For the transition period from ______ to _______ .
Commission File Number: 3331778
Historic Preservation Properties 1990 L.P. Tax Credit Fund
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(Exact name of registrant as specified in its charter)
Delaware 04-3066191
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
45 Broad Street, Boston, Massachusetts 02109
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (617) 338-6900
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Securities registered pursuant to Section 12(b) of the Act:
(Title of class) None
Securities registered pursuant to Section 12(g) of the Act:
(Title of class) None
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. Yes |X| No |_|.
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes |X| No |_|.
<PAGE>
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
1998 FORM 10-K ANNUAL REPORT
TABLE OF CONTENTS
Sequential
Page Page No.
PART I
Item 1 Business K-3 4
Item 2 Properties K-7 8
Item 3 Legal Proceedings K-7 8
Item 4 Submission of Matters to a Vote of Unit Holders K-7 8
Part II
Item 5 Market for Registrant's Units and Related Unit
Holder Matters K-8 9
Item 6 Selected Financial Data K-9 10
Item 7 Management's Discussion and Analysis of Financial
Condition and Results of Operations K-10 11
Item 8 Financial Statements and Supplementary Data K-13 14
Item 9 Changes in and Disagreements with Accountants on
Accounting and Financial Disclosure K-13 14
Part III
Item 10 Directors and Executive Officers of the Registrant K-14 15
Item 11 Executive Compensation K-15 16
Item 12 Unit Ownership of Certain Beneficial Owners
and Management K-15 16
Item 13 Certain Relationships and Related Transactions K-16 17
Part IV
Item 14 Exhibits, Financial Statement Schedules and
Reports on Form 8-K K-17 18
Signatures K-25 26
Supplemental Information K-26 27
<PAGE>
K-2
DOCUMENTS INCORPORATED BY REFERENCE
Part of the Form 10-K Document
into which Incorporated Incorporated by Reference
I Prospectus of the Registrant
dated March 30, 1990 (the
"Prospectus").
Supplement No. 1 to the
Prospectus dated August 1,
1990.
Supplement No. 2 to the
Prospectus dated December 3,
1990.
III The Prospectus.
<PAGE>
PART I
Item 1. Business.
Historic Preservation Properties 1990 L.P. Tax Credit Fund (the
Partnership or HPP'90), a Delaware limited partnership, was organized under the
Delaware Revised Uniform Limited Partnership Act on October 4, 1989 for the
purpose of investing in a portfolio of real properties for which the cost of
rehabilitating acquired properties qualified for rehabilitation tax credits
(Rehabilitation Tax Credits) afforded by Section 47 of the Internal Revenue Code
of 1986, as amended (the Code), and rehabilitating such properties (or acquiring
such properties in the process of rehabilitation and completing such
rehabilitation) in a manner intended to render the cost of such rehabilitation
eligible for classification as "Qualified Rehabilitation Expenditures", as such
term is defined in the Code, and thus eligible for Rehabilitation Tax Credits.
The Partnership was initially capitalized with contributions of $100 from its
general partner and $100 from each of three initial limited partners. On October
26, 1989, the Partnership filed a Registration Statement on Form S-11, File
Number 33-31778 (the Registration Statement), with the Securities and Exchange
Commission (the Commission) with respect to the public offering of units of
limited partnership interest (Units) in the Partnership. The Registration
Statement, covering the offering of up to 50,000 Units at a purchase price of
$1,000 per Unit (an aggregate of $50,000,000), was declared effective on March
30, 1990. The offering of Units terminated on December 31, 1990, at which time
the Partnership had received gross offering proceeds of $16,361,000 from 1,391
investors.
The general partner of the Partnership is Boston Historic Partners
II Limited Partnership (the General Partner), a Massachusetts limited
partnership. The general partner of the General Partner is BHP II Advisors
Limited Partnership (BHP II Advisors). The general partners of BHP II Advisors
are Terrence P. Sullivan (Sullivan) and Portfolio Advisory Services II, Inc.
(PAS II) a corporation whose controlling shareholder, director and president is
Sullivan.
The Partnership does not have any employees.
Effective October 1, 1995, the Partnership engaged Claremont
Management Corporation (CMC), an unaffiliated Massachusetts corporation, to
perform accounting, asset management and investor services for an annual fee of
$38,400 and reimbursement of all operating expenses of providing such services.
The agreement expired on June 30, 1998.
Effective July 1, 1998, HPP'90 engaged Gunn Financial, Incorporated
(GFI) an unaffiliated Massachusetts corporation, to provide accounting, asset
management and investor services. GFI provides such services for an annual
management fee of $36,000, plus reimbursement of all its costs of providing
these services. The agreement expires the earlier of June 30, 2006 or upon the
disposition of the Ventures' properties, as defined.
The Partnership's only business is investing in real properties for
which the cost of rehabilitating acquired properties qualified for
Rehabilitation Tax Credits and operating such properties. A presentation of
information about industry segments is not applicable and would not be helpful
in understanding the Partnership's business taken as a whole. The Partnership's
investment objectives and policies are described in pages 28-36 of its
prospectus dated March 30, 1990 (the Prospectus) under the caption "Investment
Objectives and Policies," which description is incorporated herein by this
reference. The Prospectus was filed with the Commission pursuant to Rule 424(b)
on April 6, 1990.
During 1990, the Partnership acquired interests in the following
real estate, collectively referred to as the "Ventures". The Partnership's
purchase of the Ventures was made on substantially the same terms described
in Supplement No. 1 to the Prospectus dated August 1, 1990 (Supplement No. 1)
and Supplement No. 2 to the Prospectus dated December 3, 1990 (Supplement No.
2). Both Supplement No. 1 and Supplement No. 2 are incorporated herein by
this reference. Supplement No. 1 and Supplement No. 2 were filed pursuant to
Rule 424(b) on August 14, 1990 and December 4, 1990, respectively. As of
December 31, 1998 100% of the limited partners' capital contributions (net of
selling commissions, organizational and sales costs, acquisition fees and
reserves) had been invested in real property investments:
Henderson's Wharf Baltimore, L.P. (the Building Venture) is a
Delaware limited partnership which was formed on July 20, 1990 to acquire a fee
interest in a seven-story building on 1.5 acres of land located at 1000 Fell
Street, Baltimore, Maryland and to rehabilitate the building into residential
units, 153 indoor parking spaces and a 38 room inn. The building contains 137
residential units, 129 of which are owned by the Building Venture and 8 of which
are owned by unrelated parties as of December 31, 1998.
The building has been renovated and certain of the related
renovation costs have qualified for Rehabilitation Tax Credits. The Building
Venture purchased the building for $6,812,500 which included seller financing of
$6,350,000. Lease-up of the residential units commenced in January 1991 and the
inn opened in May 1991.
Under the Second Amended and Restated Agreement of Limited
Partnership of Henderson's Wharf Baltimore, L.P. dated February 1, 1991,
Henderson's Wharf Development Corporation (HWDC), a Delaware corporation that is
wholly-owned by the Partnership, was admitted as a general partner of the
Building Venture (the Partnership and HWDC are collectively referred to as
"Henderson's General Partners"). Hillcrest Management, Inc. (HMI), a
Massachusetts corporation, was admitted as the limited partner of the Building
Venture. The overall management and control of the business and affairs of the
Building Venture are solely vested in Henderson's General Partners.
On February 1, 1991, the Building Venture and the Marina Venture
(discussed below) entered into long-term management agreements and an inn lease
(Contracts) which were scheduled to expire on December 31, 1993, as well as a
consulting agreement (Consulting Agreement) with HMI. The Consulting Agreement,
which, expired on December 31, 1991, required the Building Venture to pay HMI
certain fees, the commitment for which survived the December 31, 1991 expiration
date of the Consulting Agreement and the termination of all other agreements
with HMI.
In 1993, the Ventures terminated the Contracts with, and commitments
under the Consulting Agreement to HMI. In January 1995, HPP'90 entered into an
agreement on behalf of the Ventures to pay HMI contract termination settlement
payments (Settlement Payments) totaling $271,108. The Settlement Payments
required an initial payment of $36,000 due on January 27, 1995 and requires
monthly payments of $3,221 which commenced September 1995 and are payable
through the earlier of September 2001 or the occurrence of certain events as
defined in the agreement. The Settlement Payments are secured by 100% of
HPP'90's economic interest as a partner, as defined in the agreements, in the
Ventures; net sales and refinancing proceeds; cash flow; return of capital
contributions; all of HPP'90's cash and marketable equity securities in excess
of $150,000; and all of the Venture's cash in excess of the greater of $200,000
or reserves required by lenders. No distributions to the partners of HPP'90 are
permitted until all Settlement Payments are paid in full. The Settlement
Payments may be prepaid, as defined in the agreement, without penalty. As of
December 31, 1998 and 1997, unpaid settlement payments included in accrued
expenses and other liabilities totaled $106,280 and $144,928, respectively.
In accordance with the termination of all HMI contracts, effective
January 1, 1995 HMI withdrew from the Building Venture as a limited partner and
was replaced by HWDC.
On February 27, 1996, HPP'90 issued a $6,000,000 deed of trust note
to a third party lender which provided funds for the Building Venture to
refinance the then outstanding balance of the seller financed purchase money
note totaling $5,590,418, to pay $109,582 to the seller in release of a
contingent purchase price promissory note, and to purchase in part three
condominium units and parking spaces owned by unrelated parties for an aggregate
purchase price of $332,682. The deed of trust note bears interest at 7.85% and
requires monthly principal and interest payments in the amount of $49,628. The
deed of trust note amortizes over a 20 year schedule and all remaining unpaid
principal and interest is due in March 2016. Under the deed of trust note, the
lender has the option with six months written notice to call amounts outstanding
under the deed of trust note at the end of ten years (February 2006) or anytime
thereafter. The deed of trust note is secured by the Building Venture's
property, rents and assignment of leases and is guaranteed by the Building
Venture.
This refinancing transaction released approximately $1,057,000 of
suspended Rehabilitation Tax Credits to the Partnership from the Building
Venture in 1996. These credits had been suspended due to the fact that original
financing was seller provided. Rehabilitation Tax Credits generated by the
Building Venture and previously allocated to HPP'90's Limited Partners totaled
$3,174,059 since inception. As of December 31, 1996, 100% of all Rehabilitation
Tax Credits were fully vested.
On March 17, 1998, the Building Venture exchanged a condominium unit
and parking spaces with an unrelated party in return for that unrelated party's
condominium unit, parking spaces and $135,000. The transaction resulted in net
cash proceeds of $122,843 after closing costs. On November 3, 1998, the Building
Venture purchased a condominium unit and parking space owned by an unrelated
party for a purchase price of $110,000.
The Building Venture's investment property competes in the
residential rental real estate and hotel markets. The Building Venture's
apartment units generally compete on the basis of location, price, square
footage and amenities with approximately six other similar complexes in the
Fells Point area. The Building Venture's apartment units also compete with the
local single family home market, which in recent years has become more
competitive due to the increased availability of low mortgage rates. The
Building Venture's inn generally competes with the smaller hotels and bed and
breakfast establishments on the basis of room rates, location and amenities.
There are approximately three other competitors for the inn in the Fells Point
area, with the number of available rooms for each competitor ranging from four
(4) to eighty-eight (88).
As of December 31, 1998 and 1997, the apartment units had an
economic occupancy rate of approximately 96% and 97%, respectively. The average
occupancy for the inn for the years ended December 31, 1998 and 1997 was 73% and
71%, respectively.
The Partnership may invest in other real estate ventures as set
forth on pages 28-36 of the Prospectus (which pages are hereby incorporated by
this reference).
Henderson's Wharf Marina, L.P. (the Marina Venture) is a Delaware
limited partnership which was formed on July 20, 1990 to acquire a 1.92 acre
parcel of land together with a 256-slip marina which is adjacent to the Building
Venture's property. The Marina Venture owns the fee interest in the property.
The Marina Venture purchased the property for $1,266,363 which included seller
financing of $1,187,500.
The Second Amended and Restated Agreement of Limited Partnership of
Henderson's Wharf Marina, L.P. dated February 1, 1991 provided ownership and
management identical to that of the Building Venture described above. On August
1, 1991, Amendment No. 1 to the Second Amended and Restated Agreement of Limited
Partnership was executed. HWDC became the sole general partner of the Marina
Venture and HMI and the Partnership became limited partners. The overall
management and control of the business and affairs of the Marina Venture is
solely vested with the general partner of the Marina Venture.
After evaluating the marina property over the initial years
following acquisition, the Marina Venture had determined that it was in its best
interest to either renegotiate the debt or restructure the Marina Venture before
proceeding with the development of the marina.
On December 31, 1992, the seller (HWFP, Inc.) agreed to reduce the
original principal amount of the purchase money note from $1,187,500 to $350,000
and forgave $237,500 of accrued interest. Also on December 31, 1992, the Third
Amended and Restated Agreement of Limited Partnership of Henderson's Wharf
Marina L.P. was executed. HWFP, Inc., a Maryland corporation, received a 50%
limited partnership interest in the Marina Venture. Concurrently, HMI withdrew
as a limited partner in the Marina Venture, HPP'90's limited partnership
interest in the Marina Venture was reduced to 49% and HWDC retained a 1% general
partnership interest in the Marina Venture.
Based on the fair market value of marina land and improvements
determined by independent appraisal and the priority distribution of proceeds
from capital transactions as provided for in the Marina Venture's Third Amended
and Restated Agreement of Limited Partnership, the Partnership had reserved
$845,672 against its investment in the marina land and improvements at December
31, 1992. The property is carried at the lower of cost or net realizable value.
On February 27, 1996, HPP'90, HWDC and HWFP, Inc. executed the First
Amendment to the Third Amended and Restated Agreement of Limited Partnership of
Henderson's Wharf Marina L.P. The Partnership redeemed HWFP's 50% limited
partnership interest in the Marina Venture by issuing a $225,000 promissory note
secured by the marina property. The note bore interest at 7.50%, was scheduled
to mature in March 2006, and required monthly principal and interest payments in
the amount of $2,086. As a result of this transaction, HPP'90's limited
partnership interest in the Marina Venture increased to 98%, and HWDC's general
partnership interest increased to 2%. On September 30, 1997, the Building
Venture advanced $200,000 to the Marina Venture. The Marina Venture then settled
in full the promissory note payable to HWFP.
The Marina Venture had operated a minimal number of its 256 slips
from 1991 to 1995 due to significant repairs necessary to be fully operational.
During 1998, 1997 and 1996, the Marina Venture added $282,791, $33,727 and
$23,049, respectively, of utility, safety and other improvements increasing the
number of fully operational slips to 256. Substantial repairs are still needed
to maintain the Marina Venture's land which provides parking to the Marina and
Inn. The Marina Venture estimates the cost of replacing the bulkhead to retain
the land to be in excess of $2,300,000. The Partnership anticipates that capital
resources to fund the repairs are likely to be provided by additional
contributions to the Partnership. Included in escrow deposits as of December 31,
1998, is $404,681 that the Partnership has reserved for future capital
improvements.
The Marina Venture competes with approximately seven other marinas
located in the inner harbor of Fells Point. The marinas generally compete on the
basis of slip fee rates (seasonal and year round), marina services and
amenities. The Marina Venture has no marina services and offers minimum boating
amenities.
Item 2. Properties.
See Item 1 above.
Item 3. Legal Proceedings.
At December 31, 1998, the Partnership and the Ventures are not party
to, to the best knowledge of the General Partner, any material pending legal
proceedings.
In 1997, the Building Venture and the condominium association to
which it belongs had filed suit against one unit owner for failure to pay
condominium assessments and nuisance and the unit owner had filed a counterclaim
against the Building Venture, the condominium association, and other third
parties for alleged breach of contract and related counts. On November 3, 1998,
the Building Venture, the condominium association and other third parties
settled the lawsuits with the unit owner. As part of the settlement, the
Building Venture paid $110,000 to purchase the condominium unit and parking
space, as well as a $65,000 additional payment.
Item 4. Submission of Matters to a Vote of Unit Holders.
No matters were submitted to a vote of Unit holders.
<PAGE>
PART II
Item 5. Market For Registrant's Units and Related Unit Holder Matters.
(a) There is no established public trading market for the Units
and no such market is expected to develop. Trading in the
Units is limited and sporadic and occurs solely through
private transactions.
(b) As of March 18, 1999, there were 1,392 holders of Units.
The Amended and Restated Agreement of Limited Partnership (Partnership
Agreement) requires that any Cash Flow (as defined therein) be distributed
quarterly to the investor limited partners (Limited Partners) in specified
proportions and priorities and that Sale or Refinancing Proceeds (as defined
therein) be distributed as and when available. As discussed in Item 1, there are
certain restrictions on the Partnership's present and future ability to make
distributions of Cash Flow or Sale or Refinancing Proceeds. For the periods
ended December 31, 1998, 1997 and 1996, no distributions of Cash Flow or Sale or
Refinancing Proceeds were paid or accrued to the Limited Partners.
<PAGE>
Item 6. Selected Financial Data.
<TABLE>
<CAPTION>
1998 1997 1996 1995 1994
------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
Revenues $ 3,656,389 $ 3,261,261 $2,909,744 $2,769,347 $2,501,562
Net Income (Loss) $ 344,889 $ 211,825 $ (258,989)$ (359,021) $ (667,504)
Net Income (Loss) per unit
of Investor Limited
Partnership Interest based
on Units outstanding $ 20.87 $ 12.82 $ (15.67) $ (21.72) $ (40.39)
Total Assets as of
December 31, $ 15,469,324 $15,224,121 $15,392,204 $15,483,025 $15,849,184
Long Term Debt as of
December 31, $ 5,619,134 $ 5,767,197 $ 6,123,084 $ 5,590,418 $5,590,418
Cash Distributions Per
weighted average Unit
outstanding $ 0 $ 0 $ 0 $ 0 $ 0
Rehabilitation Tax Credit
per Unit $ 0 $ 0 $ 63.94 $ 0 $ 0
</TABLE>
See Item 7 for a discussion of the factors that may materially affect the
foregoing information in future years.
<PAGE>
Item 7. Management's Discussion and Analysis of Financial Condition and
Results of Operations.
Liquidity and Capital Resources. The Partnership terminated its
offering of Units on December 31, 1990, at which time Limited Partners had
purchased 16,361 Units, representing gross capital contributions of $16,361,000.
As of December 31, 1998 the Partnership had invested an aggregate of $12,461,719
in the Building and Marina Ventures.
Such amount contributed in the Building and Marina Ventures
represents approximately 100% of the Limited Partners' capital contribution
after deducting selling commissions, organizational and sales costs, acquisition
fees and reserves. The Partnership does not anticipate making any additional
investments in new real estate.
As of December 31, 1998, the Ventures and HPP'90 had cash and cash
equivalents, excluding security deposit cash, of $400,555 and $139,743,
respectively. HPP'90's cash and cash equivalents are used primarily to fund
general and administrative expenses of running the public fund. The Venturers'
cash and cash equivalents are used to fund operating expenses and debt service
of the properties. In addition, to the extent available, the Building Venture
distributes cash to HPP'90 to fund general and administrative expenses of
managing the public fund and to fund reserves for the capital needs of the
Ventures. For the years ended December 31, 1998, 1997 and 1996, the Building
Venture distributed $1,159,000, $501,000, and $203,000, respectively, to HPP'90.
Within the next several years, significant repairs are needed to
maintain the Marina Venture's land which provides parking to the marina and inn.
The Marina Venture estimates the cost of repairs to maintain the land to be in
excess of $2,300,000. The Partnership anticipates that capital resources to fund
the repairs are likely to be provided by additional contributions to the
Partnership. Included in the escrow deposits as of December 31, 1998, is
$404,681 that the Partnership has reserved for future capital improvements.
At December 31, 1998, the Ventures have entered into contracts for
various building improvements and furniture and equipment purchases totaling
approximately $382,300 and has made deposits on such contracts of approximately
$141,200.
Settlement Payments due HMI, that were negotiated as part of the
contract termination (See Item 1), are secured by 100% of HPP'90's economic
interest as a partner, as defined in the agreements, in the Ventures; net sales
and refinancing proceeds; cash flow; return of capital contributions; all of
HPP'90's cash and marketable equity securities in excess of $150,000; and all of
the Ventures' cash in excess of the greater of $200,000 or reserves required by
potential lenders. No distributions to the partners of HPP'90 are permitted
until all settlement payments are paid in full. The Settlement Payments may be
prepaid, as defined in the agreement, without penalty. As of December 31, 1998
and 1997, unpaid Settlement Payments included in accrued expenses and other
liabilities totaled $106,280 and $144,928, respectively.
On March 17, 1998, the Building Venture exchanged a condominium unit
and parking spaces with an unrelated party in return for that unrelated party's
condominium unit, parking spaces and $135,000. The transaction resulted in net
cash proceeds of $122,843 after closing costs. On November 3, 1998, the Building
Venture purchased a condominium unit and parking space owned by an unrelated
party for a purchase price of $110,000.
As mentioned in Item 1, on February 27, 1996, the Building Venture
obtained financing of $6,000,000 at 7.85% which requires monthly principal and
interest payments totaling $49,628 based on a 20 year amortization. The deed of
trust note matures in March 2016, however, under the deed of trust note, the
lender has the option with six months written notice to call amounts outstanding
under the deed of trust note at the end of ten years (February 2006) or anytime
thereafter. The deed of trust note is secured by the Building Venture's
property, rents and assignment of leases and is guaranteed by the Building
Venture.
Also as mentioned in Item 1, on February 27, 1996, HPP'90, HWDC and
HWFP, Inc. entered into the First Amendment to the Third Amended and Restated
Agreement of Limited Partnership of Henderson's Wharf Marina, L.P. by which the
Partnership redeemed HWFP's 50% limited partnership interest in the Marina
Venture by issuing a $225,000 promissory note secured by the marina property.
The note bore interest at 7.50%, originally matured on March 15, 2006, and
required monthly principal and interest payments in the amount of $2,086. On
September 30, 1997, the Building Venture loaned the Marina Venture $200,000 and
the Marina Venture settled in full the remaining outstanding principal balance
of $212,532 and all accrued interest due under the promissory note payable to
HWFP.
HPP'90's short-term liquidity depends upon its ability to receive
distributions from the Building Venture the need to and make contributions to
the Marina Venture to maintain the land which provides parking to the marina and
inn. The short-term liquidity of the Building Venture depends on its ability to
generate sufficient rental income to fund operating expenses and debt service
requirements and have sufficient cash to distribute to HPP'90. The short-term
liquidity of the Marina Venture depends on its ability to generate sufficient
rental income to fund operating expenses. HPP'90 has advanced approximately
$918,000 to the Marina through December 31, 1998 to fund operations. It is not
expected that the Marina Venture will generate sufficient short-term liquidity
to repay advances made by HPP'90.
Cash flow generated from the Partnership's present investment
properties and the Partnership's share of the proceeds from the sale of such
properties is expected to be the source of future long-term liquidity.
Results of Operations. The Partnership generated net income under
generally accepted accounting principles of $344,889 in 1998 which includes
depreciation and amortization of $475,872.
The Building Venture was fully operational during the entire year.
The Marina Venture had operated a minimal number of its 256 slips from 1991 to
1995 due to significant repairs necessary to be fully operational. During 1998,
1997 and 1996, the Marina Venture added $282,791, $33,727 and $23,049,
respectively, of utility, safety and other improvements increasing the number of
fully operational slips to 256. However, other substantial repairs are still
needed to maintain the marina land that provides parking to the marina and inn.
The results of the Partnership's operations in future years should
be comparable to 1998 numbers provided the Building Venture is able to maintain
greater than 90% economic occupancy in the Apartments and greater than 65%
occupancy in the Inn. Expense levels are expected to increase with the rate of
inflation but, it is anticipated that the monthly rents and the average daily
room rate revenues should increase accordingly.
The Apartments have achieved stabilized occupancy with economic
occupancy rates of 96%, 97% and 95% for the years 1998, 1997 and 1996,
respectively. Management is projecting economic occupancy for the Apartments to
be approximately 95% as well as an approximately 3% increase in rental rates for
calendar year 1999. Management expects economic occupancy to remain around 95%
and rental rates to increase between 3% to 5% in future years after 1999.
The average occupancy of the Inn for the years 1998, 1997 and 1996
was 73%, 71%, and 71%, respectively. Management is projecting Inn occupancy of
73%, as well as a 5% increase in the average daily room rate for calendar year
1999. The Inn occupancy in future years is expected to stay at the same level,
absent any significant adverse market conditions or increase in existing market
competition. Management expects the Inn's average daily room rate to increase
between 3% to 5% in future years after 1999.
The Partnership recorded net income of approximately $345,000 for
the year ended December 31, 1998, as compared to net income of approximately
$212,000 for the year ended December 31, 1997. This favorable increase in net
income is primarily due to an increase in revenue of approximately $395,000 and
a decrease in interest expense of approximately $24,000, offset by an increase
in expenses of approximately $286,000. The increase in revenue is due to
increases of approximately 13% in average daily room rates at the Inn,
approximately 6% in rental rates at the Apartments and a slight increase in
occupancy at the Inn. The decrease in interest expense in 1998, compared to
1997, is due to the settlement of the Marina promissory note payable, which was
paid in full in September of 1997, and also the amortization of the Building
Venture's mortgage note payable. Expenses increased in 1998, compared to 1997,
due to increases in other operating expenses, payroll services and management
fees, offset by a decrease in depreciation and amortization. Other operating
expenses increased mainly due to increased food and beverage activity at the
Inn, the settlement payment of $65,000 to settle a lawsuit (see Item 3), and
repair and maintenance expenditures at the Inn, Apartments and Marina. Payroll
services increased due to additional staffing at the Ventures' and management
fees, which are based on gross receipts, increased as a result of the increased
revenues. Depreciation and amortization decreased because the Building Venture
had fully depreciated its furniture and fixtures in the second quarter of 1998.
The Partnership recorded net income of approximately $212,000 for
the year ended December 31, 1997, an increase of approximately $471,000,
compared to a net loss of approximately $259,000 for the year ended December 31,
1996. The increase in net income in 1997, compared to 1996, is attributed to an
increase in income of approximately $350,000 and decreases in expenses of
approximately $52,000 and interest expense of approximately $71,000. The
increases in income in 1997, compared to 1996, are primarily due to the
increased room, rental and parking rates at both the Inn and Apartments and a
slight increase in occupancy at the apartments and Marina. Both the average
daily rate for inn rooms and apartment rental income rates increased
approximately 7% in 1997, compared to 1996. Management fees, which were based on
gross receipts, increased in 1997 compared to 1996 due to the increase in
revenue. Interest expense decreased in 1997, compared to 1996, due to the
amortization of the loan balances and the settlement of the marina debt in
September 1997.
As of February 27, 1996, the Partnership no longer records minority
interest due to the redemption of HWFP's 50% limited partnership interest in the
Marina Venture.
Inflation and Other Economic Factors
Recent economic trends have kept inflation relatively low although
the Partnership cannot make any predictions as to whether recent trends will
continue. The assets of the Partnership are highly leveraged in view of the fact
that the Building Venture is subject to a substantial mortgage debt as of
December 31, 1998. Operating expenses and rental revenues of each property are
subject to inflationary factors. Low rates of inflation could result in slower
rental rate increases, and to the extent that these factors are not offset by
similar increases in property operating expenses (which could arise as a result
of general economic circumstances such as an increase in the cost of energy or
fuel, or from local economic circumstances), the operations of the Partnership
could be adversely affected. Actual deflation in prices generally would, in
effect, increase the economic burden of the mortgage debt service with a
corresponding adverse effect. High rates of inflation, on the other hand, raise
the operating expenses for projects and to the extent they cannot be passed on
to tenants through higher rents, such increases could also adversely affect
Partnership operations. Although, to the extent rent increases are
commensurable, the burden imposed by the mortgage leverage is reduced with a
favorable effect. Low levels of new construction of similar projects and high
levels of interest rates may foster demand for existing properties through
increasing rental income and appreciation in value.
Year 2000 Issues
The Partnership and the Ventures have analyzed the effect of the
Year 2000 on their respective financial and computer systems and have
incorporated and/or expect to have incorporated the necessary modifications to
avert any negative consequences. The Partnership does not anticipate Year 2000
issues to have any material effect on its operations or the operations of the
Ventures, or incur substantial costs to address Year 2000 issues.
Item 8. Financial Statements and Supplementary Data.
See the Financial Statements of the Partnership included as part of
this Annual Report on Form 10-K.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure.
None
PART III
Item 10. Directors and Executive Officers of the Registrant.
(a) and (b) Identification of Directors and Executive Officers.
The following table sets forth the name and age of the director and
executive officer of BHP II Advisors and the offices held by such person.
Name Office Age
Terrence P. Sullivan President and Director 52
Mr. Sullivan has served as a director and executive officer of BHP
II Advisors since the organization of PAS II in June 1989. Since that time he
has also been a general partner of BHP II Advisors. He will continue to serve in
the capacity indicated above until his successor is elected and qualified. Mr.
Sullivan is also an executive officer of Boston Capital Planning.
(c) Family Relationships.
None.
(e) Business Experience.
The background and experience of the executive officer and director
of BHP II Advisors and Boston Capital Planning identified above in Items 10(a)
and 10(b) are as follows:
Terrence P. Sullivan, 52, is the founder and sole shareholder of
Boston Capital Planning, a financial consulting and real estate syndication
firm, and its wholly-owned subsidiary, Boston Bay Capital, Inc. (Boston Bay
Capital). Founded in 1979, Boston Bay Capital was an NASD-Registered
broker/dealer specializing in placement of interests in real estate limited
partnerships which own historic and restoration properties. From 1986 through
December 31, 1989, Boston Bay Capital participated in the placement of limited
partnership interest in 98 real estate programs, over 60 of which were historic
rehabilitation or restoration partnerships, placing a total of approximately
$140,000,000 in equity. In addition, from 1987 to 1990, Boston Bay Capital
served as dealer manager in connection with the sale of units of limited
partnership interest in Historic Preservation Properties Limited Partnership,
Historic Preservation Properties 1988 Limited Partnership, Historic Preservation
Properties 1989 Limited Partnership and the Partnership, the first four public
programs sponsored by Affiliates of the General Partner. Such public programs
sold an aggregate of approximately $82 million of Units of limited partnership
interest. From 1972 to 1978, Mr. Sullivan was the Tax Shelter coordinator for
the Boston office of White, Weld & Co., Inc., an investment banking firm. Mr.
Sullivan graduated from Worcester Polytechnic Institute in 1968 with a Bachelor
of Science degree in
mechanical engineering. He received a Masters in Business Administration degree
from the University of Massachusetts (Amherst) in 1971. Mr. Sullivan serves as a
general partner of BBC Restoration Properties II Limited Partnership. In
addition, an entity controlled by Mr. Sullivan serves as the general partner of
Institutional Credit Partners Limited Partnership (ICP), a partnership organized
to invest in a diversified portfolio of properties which qualify for low income
housing tax credits, Rehabilitation Tax Credits, or both. In 1989, ICP completed
a private placement of $5,790,000 of limited partnership interest to
corporations and other institutional investors.
(f)-(g) Involvement in Certain Legal Proceedings.
None
Item 11. Executive Compensation.
The director and executive officer of PAS II and Boston Capital
Planning received no remuneration from the Partnership.
Under the Partnership Agreement, the General Partner and its
affiliates are entitled to receive various fees, expense reimbursements,
commissions, cash distributions, allocations of taxable income or loss and tax
credits from the Partnership. The amounts of these items and the times at which
they are payable to the General Partner or its affiliates are described at pages
14-16 and 36-39 of the Prospectus under the captions "Management Compensation"
and "Cash Distributions and Net Profits and Net Losses", respectively, which
descriptions are incorporated herein by this reference.
No commissions, fees, or cash distributions were paid by the
Partnership to the General Partner or its affiliates for the years ended
December 31, 1998, 1997 and 1996. No reimbursements were made for the years
ended December 31, 1998, 1997 or 1996.
For the year ended December 31, 1998, the Partnership allocated
approximately $676 of taxable income to the General Partner. See Note 5 to
Financial Statements for additional information about transactions between the
Partnership and the General Partner and its affiliates.
Item 12. Unit Ownership of Certain Beneficial Owners and Management.
(a) Unit Ownership of Certain Beneficial Owners.
The Spiegel Corporation, 1515 West 22nd Street, Oak Brook,
Illinois 60522, is known by the Partnership to be the beneficial owner of more
than 5% of the outstanding Units at March 15, 1999 (2,000 units; 12.22%). Under
the Partnership Agreement, the voting rights of the Limited Partners are limited
and, in some circumstances, are subject to the prior receipt of certain opinions
of counsel or judicial decisions.
Under the Partnership Agreement, the right to manage the
business of the Partnership is vested solely in the General Partner, although
the consent of a majority in interest of the Limited Partners is required for
the sale at one time of all or substantially all of the Partnership's assets and
with respect to certain other matters. See Item 1 above for a description of the
General Partner and its general partners.
(b) Unit Ownership of Management.
No director or executive officer of BHP II Advisors, Boston
Capital Planning or their affiliates had any beneficial ownership of Units as of
March 15, 1999. No officer or director of BHP II Advisors or Boston Capital
Planning, nor any general partner of the General Partner, nor any of their
respective affiliates, possesses the right to acquire Units.
(c) Change in Control.
There exists no arrangement known to the Partnership which may
at a subsequent date result in a change in control of the Partnership.
Item 13. Certain Relationships and Related Transactions.
See Note 5 of Notes to Financial Statements for information about
transactions between the Partnership and the General Partner and its affiliates.
See Item 11 above for information concerning the fees, commissions,
reimbursements and cash distributions which the Partnership paid to or accrued
for the account of the General Partner and its affiliates for the years ended
December 31, 1998, 1997 and 1996.
<PAGE>
PART IV
Item 14. Exhibits, Financial Statement Schedules, and Reports on Form 8-K.
(a) The following documents are filed as part of this report:
1. Financial Statements - The Financial Statements listed on the
accompanying Index to Financial Statements and Schedule are
filed as a part of this Annual Report.
2. Financial Statement Schedules - The Financial Statement
Schedules listed on the accompanying Index to Financial
Statements and Schedules are filed as a part of this Annual
Report.
3. Exhibits
3(a) Certificate of Limited Partnership of Historic
Preservation Properties 1990 L.P. Tax Credit Fund dated
as of September 29, 1989, (filed as exhibit 3A to the
Partnership's Registration Statement on Form S-11, File
No. 33-31778, and incorporated herein by
this reference).
3(b) Certificate of Amendment of Historic Preservation
Properties 1990 L.P. Tax Credit Fund dated as of October
23, 1989, (filed as exhibit 3C to the Partnership's
Registration Statement on Form S-11, File No. 33-31778,
and incorporated herein by this reference).
3(c) Amended and Restated Agreement of Limited Partnership
of Historic Preservation Properties 1990 L.P. Tax
Credit Fund dated as of March 30, 1990, as currently
in effect, other than amendments thereto which
provide solely for the admission or withdrawal of
investors as limited partners of the Partnership
(attached as Exhibit A to Prospectus of the
Partnership included as part of its Registration
Statement on Form S-11, File No. 33-31778, and
incorporated herein by reference).
4. See Exhibits 3(a), 3(b) and 3(c).
10(a) Escrow Deposit Agreement between Historic Preservation
Properties 1990 L.P. Tax Credit Fund and Wainwright Bank and
Trust Company, (filed as exhibit 10A to the Partnership's
Registration Statement of Form S-11, File No. 33-31778, and
incorporated herein by this reference).
<PAGE>
10(b) Documents relating to the acquisition of partnership
interests in Henderson's Wharf Baltimore, L.P. and
Henderson's Wharf Marina, L.P. and material contracts of
these partnerships:
I. Certificate of Limited Partnership of Henderson's
Wharf Baltimore, L.P. dated as of July 12, 1990 and
filed in the Office of the Secretary of State of
Delaware on July 20, 1990. (1)
II. Certificate of Limited Partnership of Henderson's
Wharf Marina, L.P. dated as of July 12, 1990 and
filed in the Office of the Secretary of State of
Delaware on July 20, 1990. (1)
III. Agreement of Limited Partnership of Henderson's Wharf
Baltimore, L.P. dated as of July 18, 1990. (1)
IV. Agreement of Limited Partnership of Henderson's Wharf
Marina, L.P. dated as of July 18, 1990. (1)
V. Certificate of Amendment of Certificate of Limited
Partnership of Henderson's Wharf Baltimore, L.P.
dated as of February 14, 1991 and filed in the Office
of the Secretary of State of Delaware on March 5,
1991. (2)
VI. Certificate of Amendment of Certificate of Limited
Partnership of Henderson's Wharf Marina, L.P. dated as
of February 14, 1991 and filed in the Office of the
Secretary of State of Delaware on March 5, 1991.
(2)
VII. Amended and Restated Agreement of Limited Partnership
of Henderson's Wharf Baltimore, L.P. dated as of July
31, 1990. (1)
VIII. Second Amended and Restated Agreement of Limited
Partnership of Henderson's Wharf Baltimore, L.P.
dated February 1, 1991. (2)
IX. Amended and Restated Agreement of Limited Partnership
of Henderson's Wharf Marina, L.P. dated as of July
31, 1990. (1)
X. Second Amended and Restated Agreement of Limited
Partnership of Henderson's Wharf Marina, L.P. dated
February 1, 1991. (2)
(1) Previously filed as part of exhibit 10B to the Partnership's
Registration Statement on Form S-11, File No. 33-31778, and incorporated herein
by this reference.
(2) Previously filed as part of exhibit 10(b) to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 1990 and incorporated
herein by this reference.
<PAGE>
XI. Agreement for Sale of Henderson's Wharf, the Fastlands
and Marina among HWFP, Inc., Kenneth M. Stein, J.E.
Robert, the United Brotherhood of Carpenters and Joiners
of America and Historic Preservation Properties 1990
L.P. Tax Credit Fund dated June 19, 1990. (1)
XII. Assignment and Assumption Agreement Regarding
Contract Rights between Historic Preservation
Properties 1990 L.P. Tax Credit Fund and Henderson's
Wharf Baltimore, L.P. dated July 31, 1990. (1)
XIII. Assignment and Assumption Agreement Regarding
Contract Rights between Historic Preservation
Properties 1990 L.P. Tax Credit Fund and Henderson's
Wharf Marina, L.P. dated July 31, 1990. (1)
XIV. Deed dated July 31, 1990 from Joseph E. Robert, Jr.,
Kenneth M. Stein and HWFP, Inc. to Henderson's Wharf
Baltimore, L.P. (1)
XV. Deed dated July 31, 1990 from Joseph E. Robert, Jr.,
Kenneth M. Stein and HWFP, Inc. to Henderson's Wharf
Marina, L.P. (1)
XVI. Assignment and Blanket Transfer from HWFP, Inc. and
the United Brotherhood of Carpenters and Joiners of
America to Henderson's Wharf Baltimore, L.P. dated
July 31, 1990. (1)
XVII. Assignment and Blanket Transfer from HWFP, Inc. and
the United Brotherhood of Carpenters and Joiners of
America to Henderson's Wharf Marina, L.P. dated
July 31, 1990. (1)
XVIII. Purchase Money Promissory Note of Henderson's Wharf
Baltimore, L.P. to HWFP, Inc. dated July 31, 1990 in
the principal amount of $6,350,000. (1)
XIX. Purchase Money Promissory Note of Henderson's Wharf
Marina, L.P. to HWFP, Inc. dated July 31, 1990 in the
principal amount of $1,187,500. (1)
XX. Contingent Purchase Price Promissory Note of Henderson's
Wharf Baltimore, L.P. to HWFP, Inc. dated July 31, 1990
in the principal amount of $1,150,000.
(1)
XXI. Purchase Money Deed of Trust between Henderson's Wharf
Baltimore, L.P. and Kenneth M. Stein and Joseph E.
Robert, Jr., Trustees, dated July 31, 1990. (1)
(1) Previously filed as part of exhibit 10B to the Partnership's
Registration Statement on Form S-11, File No. 33-31778, and incorporated herein
by this reference.
XXII. Purchase Money Deed of Trust between Henderson's Wharf
Marina, L.P. and Kenneth M. Stein and Joseph E. Robert,
Jr., Trustees, dated July 31, 1990. (1)
XXIII. First Amendment to Amended and Restated Henderson's
Wharf Disposition Agreement among Henderson's Wharf
Baltimore, L.P., Henderson's Wharf Marina, L.P. and
the Mayor and City Council of Baltimore, Maryland
dated July 31, 1990. (1)
XXIV. Second Amendment to Pedestrian Promenade Easement
Agreement among Henderson's Wharf Baltimore, L.P.
Henderson's Wharf Marina, L.P. and the Mayor and City
Council of Baltimore, Maryland dated July 31, 1990.
(1)
XXV. Property Management and Brokerage Agreement between
Henderson's Wharf Baltimore, L.P. and Richland
Management, Inc. dated as of July 31, 1990. (1)
XXVI. Development Agreement between Henderson's Wharf
Baltimore, L.P. and Richland #1, L.P. dated as of
July 31, 1990. (1)
XXVII. Inn Lease between Henderson's Wharf Baltimore, L.P.
and Hillcrest Management, Inc. dated as of July 31,
1990. (1)
XXVIII. Property Management and Brokerage Agreement between
Henderson's Wharf Baltimore, L.P. and Hillcrest
Management, Inc. dated as of February 1, 1991. (2)
XXIX. Consulting Agreement between Henderson's Wharf
Baltimore, L.P. and Hillcrest Management, Inc. dated
as of February 1, 1991. (2)
XXX. Settlement Agreement between Historic Preservation
Properties 1990 L.P. Tax Credit Fund, Henderson's Wharf
Baltimore, L.P. Henderson's Wharf Marina, L.P. and
Richard F. Holland, Richland #1 L.P., Richland
Management, Inc., Richland Partners, Inc., Richland
Construction, Inc., Richland Historic Properties, Inc.
and Richland #2 L.P. dated February 1, 1991. (2)
(1) Previously filed as part of exhibit 10B to the Partnership's
Registration Statement on Form S-11, File No. 33-31778, and incorporated herein
by this reference.
(2) Previously filed as part of exhibit 10(b) to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 1990 and incorporated
herein by this reference.
XXXI. Amendment No. 1 to the Second Amended and Restated
Agreement of Limited Partnership between Henderson's
Wharf Development Corporation, Historic Preservation
Properties 1990 L.P. Tax Credit Fund and Hillcrest
Management, Inc. dated August 1, 1991. (3)
XXXII. Settlement Agreement between Historic Preservation
Properties 1990 L.P. Tax Credit Fund, Boston Historic
Partners II Limited Partnership, BHP II Advisors Limited
Partnership, Terrence P. Sullivan, Portfolio Advisory
Services II, Inc., Boston Capital Planning Group, Inc.,
Boston Bay Capital, Inc. and Daniels Printing Company
dated July 6, 1992. (4)
XXXIII. Second Amendment to Note 1, the Purchase Money
Promissory Note, between Henderson's Wharf Baltimore,
L.P. and HWFP, Inc. dated December 7, 1992. (4)
XXXIV. Release of Deed of Trust securing $1,187,500 Purchase
money Promissory Note between HWFP, Inc. Joseph E.
Robert, Jr., S. Herbert Tinley, III and Henderson's
Wharf Marina L.P. dated December 31, 1992. (4)
XXXV. Third Amended and Restated Agreement of Limited
Partnership of Henderson's Wharf Marina, L.P. dated
December 31, 1992. (4)
XXXVI. Agreement regarding refund of real estate taxes
pertaining to Henderson's Wharf Baltimore L.P. and HWFP,
Inc. dated December 31, 1992. (4)
XXXVII. Property Management Agreement between Henderson's
Wharf Marina, L.P. and Hillcrest Management, Inc.
dated January 1, 1992. (4)
(3) Previously filed as part of exhibit 10(b) to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 1991 and incorporated
herein by this reference.
(4) Previously filed as part of exhibit 10(b) to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 1992 and incorporated
herein by this reference.
<PAGE>
XXXVIII. Property Management Agreement between Henderson's
Wharf Marina L.P., Henderson's Wharf Baltimore, L.P.
and the Residences and Inn at Henderson's Wharf,
collectively referred to as "Henderson's Wharf" and
McKenna Management Associates, Inc., dated August 23,
1993. (5)
XXXIX. Third Amendment to Note 1, the Purchase Money
Promissory Note, Between Henderson's Wharf Baltimore,
L.P. and HWFP, Inc. dated December 31, 1993. (5)
XL. Fourth Amendment to Note 1, the Purchase Money
Promissory Note, between Henderson's Baltimore, L.P.
and HWFP, Inc. dated February 22, 1994. (5)
XLI. Promissory Note between Historic Preservation
Properties 1990 L.P. Tax Credit Fund and Lew Cohen
dated July 1, 1993. (6)
XLII. Settlement documents which include the Settlement
Agreement and Mutual Release, Agreement of Purchase
and Sale, Deed, Escrow Agreement, Special Power of
Attorney, Option Agreement, Maryland Residential
Property Disclaimer Statement with Joseph and Eileen
Mason for Unit # 433, dated June 1, 1994. (6)
XLIII. Settlement documents which include the Settlement
Agreement and Mutual Release, Agreement of Purchase
and Sale, Deed, Escrow Agreement, Special Power of
Attorney, Option Agreement, Maryland Residential
Property Disclaimer Statement and Lease with Colvin
Ryan for Unit # 510, dated June 1, 1994. (6)
XLIV. Settlement documents which include the Agreement of
Purchase and Sale, Deed, Escrow Agreement, Special
Power of Attorney and Option Agreement with Anne B.
Cook for Unit # 409, dated October 24, 1994. (6)
XLV. Promissory Note between Historic Preservation
Properties 1990 L.P. Tax Credit Fund and Hillcrest
Asset Management, Inc. dated December 30, 1994. (6)
XLVI. Pledge Agreement between Historic Preservation
Properties, Henderson's Wharf Baltimore, L.P.,
Henderson's Wharf Marina, L.P. and Hillcrest Asset
Management, Inc., dated December 30, 1994. (6)
(5) Previously filed as part of exhibit 10(b) to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 1993 and incorporated
herein by this reference.
(6) Previously filed as part of exhibit 10(b) to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 1994 and incorporated
herein by this reference.
XLVII. Property Management Agreement between Henderson's
Wharf Marina L.P., Henderson's Wharf Baltimore, L.P.
and the Residences and Inn at Henderson's Wharf,
collectively referred to as "Henderson's Wharf" and
Claremont Management Corporation, dated November 1,
1995. (7)
XLVIII. Asset Management Agreement between Historic
Preservation Properties 1990 L.P. Tax Credit Fund and
Claremont Management Corporation dated October 1,
1995. (7)
XLIX. Deed of Trust Note between Historic Preservation
Properties 1990 L.P. Tax Credit Fund and Aid
Association for Lutherans, dated February 27, 1996.(8)
L. Guaranty among Historic Preservation Properties 1990
L.P. Tax Credit Fund, Henderson's Wharf Baltimore
L.P. and Aid Association for Lutherans, dated
February 27, 1996. (8)
LI. Indemnity Deed of Trust and Security Agreement
between Henderson's Wharf Baltimore L.P. and Aid
Association for Lutherans, dated February 27, 1996.
(8)
LII. Assignment of Rents and Leases between Henderson's
Wharf Baltimore L.P. and Aid Association for
Lutherans, dated February 27, 1996. (8)
LIII. Escrow Agreement among Henderson's Wharf Baltimore
L.P., Calvin Gregg Ryan and Douglas G. Worrall, dated
February 27, 1996. (8)
LIV. Attorney's letter concerning purchase of condominium
and parking units sold by Joseph and Eileen Mason to
Henderson's Wharf Baltimore L.P., dated February 27,
1996. (8)
LV. Attorney's letter concerning purchase of condo
condominium and parking units sold by Anne B. Cook to
Henderson's Wharf Baltimore L.P., dated February
27, 1996. (8)
(7) Previously filed as part of exhibit 10(b) to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 1995 and incorporated
herein by this reference.
(8) Previously filed as part of exhibit 10(b) to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 1996 and incorporated
herein by this reference.
LVI. Partnership Interest Redemption Agreement among Henderson's
Wharf Marina L.P., HWFP, Inc., Henderson's Wharf Development
Corporation, and Historic Preservation Properties 1990 L.P.
Tax Credit Fund, dated February 27, 1996.(8)
LVII. Promissory Note between Henderson's Wharf Marina L.P.
and HWFP, Inc., dated February 27, 1996. (8)
LIX. Assignment of Leases and Rents between Henderson's Wharf
Marina L.P. and HWFP, Inc., dated February 27, 1996. (8)
LX. Settlement letter on prepayment of Promissory Note between
Henderson's Wharf Marina L.P. and HWFP, Inc., dated
September 30, 1997. (9)
LXI. Closing documents which include Purchase and Sale Agreement
and Deed of Exchange with Joseph V. Brady for the exchange
of Unit 610 for Unit 422, date March 17, 1998.
LXII.Primary Property and Marina Management Agreements between
Henderson's Wharf Baltimore, L.P., Henderson's Wharf
Marina, L.P. Gunn Financial Incorporated, dated May 18,
1998.
LXIII.Asset Management Agreement between Historic Preservation
Properties 1990 L.P. Tax Credit Fund and Gunn
Financial Incorporated dated July 1, 1998.
LXIV. Closing documents which include Settlement Agreement,
Mutual Release, and Agreement of Sale and Purchase, and
Deed between Henderson's Wharf Baltimore L.P. and Richard
Sassi for Unit 406, dated November 3, 1998.
- --------------------
(8) Previously filed as part of exhibit 10(b) to the Partnership's
Annual Report on Form 10-K for year ended December 31, 1996 and incorporated
herein by this reference.
(9) Previously filed as part of exhibit 10 (b) to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 1997 and incorporated
herein by this reference.
10 (c) Asset Management Agreement between Historic
Preservation Properties 1990 L.P. Tax Credit Fund and
Hillcrest Asset Management, Inc. dated January 1,
1992. (4)
22 List of Ventures. (2)
28 (ii) (a) Supplement No. 1 to the Partnership's Prospectus
dated August 1, 1990. (10)
(b) Supplement No. 2 to the Partnership's Prospectus
dated December 3, 1990. (10)
(c) Pages 14-16, 28-36 and 36-39 of the Partnership's
Prospectus dated March 30, 1990 and filed with the
Commission pursuant to Rule 424(b) on April 6, 1990.
(10)
(2) Previously filed as part of exhibit 22 to the Partnership's Annual
Report on Form 10-K for the year ended December 31, 1990 and incorporated herein
by this reference.
(4) Previously filed as part of exhibit 10(b) to the Partnership's
Annual Report on Form 10-K for the year ended December 31, 1992 and incorporated
herein by this reference.
(10) Previously filed as part of exhibit 28(ii) (a) to the
Partnership's Annual Partnership Report on Form 10-K for the year ended December
31, 1990 and incorporated herein by this reference.
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d)
of the Securities Exchange Act of 1934, the Registrant has duly caused this
report to be signed on its behalf by the undersigned, thereunto duly authorized.
HISTORIC PRESERVATION PROPERTIES 1990 L.P.
TAX CREDIT FUND
By: BOSTON HISTORIC PARTNERS II LIMITED
PARTNERSHIP, GENERAL PARTNER
By: BHP II ADVISORS LIMITED PARTNERSHIP
By: PORTFOLIO ADVISORY SERVICES II,
INC.
Date: March 18, 1999 By: /s/ Terrence P. Sullivan
Terrence P. Sullivan,
President
and
Date: March 18, 1999 By: /s/ Terrence P. Sullivan
Terrence P. Sullivan,
General Partner
Pursuant to the requirements of the Securities
Exchange Act of 1934, this report has been signed by the following persons on
behalf of the Registrant and in the capacities and on the dates indicated.
Signature Title
/s/ Terrence P. Sullivan Individual General Partner of
Terrence P. Sullivan BHP II Advisors Limited Partnership
and as President and Principal
Date: March 18, 1999 Executive Officer of Portfolio
Advisory Services II, Inc.,
General Partner of BHP II
Advisors Limited Partnership
/s/ Terrence P. Sullivan Principal Financial and
Terrence P. Sullivan Principal Accounting Officer
of Portfolio Advisory Services II,
Date: March 18, 1999 Inc., General Partner of BHP II
Advisors Limited Partnership
<PAGE>
Supplemental Information to be Furnished with Reports Filed Pursuant to
Section 15(d) of the Act by Registrants Which Have Not Registered Securities
Pursuant to Section 12 of the Act.
An annual report will be furnished to Unit holders
subsequent to filing of this Form 10-K.
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
CONSOLIDATED FINANCIAL STATEMENTS FOR THE YEARS ENDED
DECEMBER 31, 1998, 1997 AND 1996
TOGETHER WITH INDEPENDENT AUDITORS' REPORTS
ANNUAL REPORT ON FORM 10-K
ITEMS 14 (A) (1) AND (2)
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page
Independent Auditors' Report F-3
Consolidated Balance Sheets as of December 31,
1998 and 1997 F-4
Consolidated Statements of Operations for the
Years Ended December 31, 1998, 1997 and 1996 F-5
Consolidated Statements of Partners' Equity (Deficit)
for the Years Ended December 31, 1998, 1997 and 1996 F-6
Consolidated Statements of Cash Flows for the Years Ended
December 31, 1998, 1997 and 1996 F-7
Notes to Consolidated Financial Statements F-8
Independent Auditors' Report on Accompanying Information F-14
Consolidated Financial Statement Schedule:
Schedule III - Real Estate and Accumulated Depreciation F-15
F-2
Independent Auditors' Report
The Partners
Historic Preservation Properties 1990
L.P. Tax Credit Fund
Boston, Massachusetts
We have audited the accompanying consolidated balance sheets of Historic
Preservation Properties 1990 L.P. Tax Credit Fund, a Delaware limited
partnership (the "Partnership"), as of December 31, 1998 and 1997, and the
related consolidated statements of operations, partners' equity (deficit) and
cash flows for each of the years in the three-year period ended December 31,
1998. These financial statements are the responsibility of the Partnership's
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly,
in all material respects, the consolidated financial position of Historic
Preservation Properties 1990 L.P. Tax Credit Fund as of December 31, 1998 and
1997, and the results of its operations and cash flows for each of the years in
the three-year period ended December 31, 1998, in conformity with generally
accepted accounting principles.
Lefkowitz, Garfinkel, Champi & DeRienzo P.C.
Providence, Rhode Island
March 18, 1999
F-3
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
CONSOLIDATED BALANCE SHEETS
DECEMBER 31, 1998 AND 1997
ASSETS
1998 1997
----------------- ----------------
INVESTMENT IN REAL ESTATE
Building and building improvements $ 15,145,302 $ 15,178,365
Land 97,034 97,034
Furniture and equipment 980,447 970,736
Marina - land and improvements 1,659,050 1,376,259
Deferred evaluation and acquisition
costs 1,102,600 1,102,600
----------------- ----------------
18,984,433 18,724,994
Less accumulated depreciation and
amortization 4,242,639 3,830,865
----------------- ----------------
14,741,794 14,894,129
Reserve for realization of Marina land
and improvements (845,672) (845,672)
----------------- ----------------
13,896,122 14,048,457
CASH AND CASH EQUIVALENTS 540,298 670,811
CASH EQUIVALENT, SECURITY DEPOSITS 85,958 86,641
ESCROW DEPOSITS 546,834 152,212
DEFERRED COSTS, net of accumulated
amortization (1998, $51,761;
1997, $33,492) 130,924 149,193
OTHER ASSETS 269,188 116,807
----------------- ----------------
$ 15,469,324 $ 15,224,121
================= ================
LIABILITIES AND PARTNERS' EQUITY
LIABILITIES:
Note payable $ 5,619,134 $ 5,767,197
Accrued expenses and other liabilities 338,908 286,315
Security deposits 78,055 82,271
----------------- -----------------
Total liabilities 6,036,097 6,135,783
----------------- -----------------
COMMITMENTS (Note 5)
PARTNERS' EQUITY
Limited Partners' equity-Units of
Investor Limited Partnership Interest,
$1,000 stated value per Unit-16,361
issued and outstanding units 9,481,256 9,139,816
General Partner's deficit (48,029) (51,478)
----------------- ----------------
Total partners' equity 9,433,227 9,088,338
----------------- -----------------
$ 15,469,324 $ 15,224,121
================= =================
The accompanying notes are an integral part of these financial
statements.
F-4
HISTORIC PRESERVATION PROPERTIES 1990 L. P. TAX CREDIT FUND
CONSOLIDATED STATEMENTS OF OPERATIONS
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
1998 1997 1996
---------- ---------- -----------
REVENUE:
Rental and related income $3,611,487 $3,230,009 $ 2,894,221
Interest and other income 44,902 31,252 15,523
---------- ---------- -----------
3,656,389 3,261,261 2,909,744
---------- ---------- -----------
EXPENSES:
Operating and administrative 245,565 245,895 244,415
Property operating expenses:
Payroll services 584,655 510,085 505,988
Condominium assessments 379,894 382,632 366,156
Real estate taxes 256,005 258,426 264,104
Management fees 152,980 142,088 124,438
Other operating expenses 769,540 457,067 533,582
Depreciation and amortization 475,872 582,710 591,751
---------- ---------- -----------
2,864,511 2,578,903 2,630,434
---------- ---------- -----------
INCOME FROM OPERATIONS 791,878 682,358 279,310
INTEREST EXPENSE 446,989 470,533 541,643
MINORITY INTEREST IN LOSS
ON MARINA VENTURE - - 3,344
---------- ---------- -----------
NET INCOME (LOSS) $ 344,889 $ 211,825 $ (258,989)
========== ========== ===========
NET INCOME (LOSS) ALLOCATED TO
GENERAL PARTNER $ 3,449 $ 2,118 $ (2,590)
========== ========== ===========
NET INCOME (LOSS) ALLOCATED TO
LIMITED PARTNERS $ 341,440 $ 209,707 $ (256,399)
========== ========== ===========
NET INCOME (LOSS) PER UNIT OF
LIMITED PARTNERSHIP INTEREST,
BASED ON 16,361 UNITS
OUTSTANDING $ 20.87 $ 12.82 $ (15.67)
========== ========== ===========
The accompanying notes are an integral part of these financial statements.
F-5
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
CONSOLIDATED STATEMENTS OF PARTNERS' EQUITY (DEFICIT)
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
Units of
Investor Investor
Limited Limited General
Partnership Partners' Partner's
Interest Equity Deficit Total
----------- ------------ ------------ -----------
BALANCE, December 31, 1995 16,361 $ 9,186,508 $ (51,006) $ 9,135,502
Net loss - (256,399) (2,590) (258,989)
----------- ------------ ----------- -----------
BALANCE, December 31, 1996 16,361 8,930,109 (53,596) 8,876,513
Net income - 209,707 2,118 211,825
----------- ------------ ------------ ----------
BALANCE, December 31, 1997 16,361 9,139,816 (51,478) 9,088,338
Net income - 341,440 3,449 344,889
----------- ------------ ------------ ----------
BALANCE, December 31, 1998 16,361 $ 9,481,256 $ (48,029) $ 9,433,227
========== ============ ============ ==========
The accompanying notes are an integral part of these financial
statements.
F-6
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
CONSOLIDATED STATEMENTS OF CASH FLOWS
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
1998 1997 1996
--------- --------- -----------
CASH FLOWS FROM OPERATING ACTIVITIES:
Net income (loss) $ 344,889 $ 211,825 $ (258,989)
Adjustments to reconcile net income
(loss) to net cash provided by
operating activities:
Depreciation and amortization 475,872 582,710 591,751
Gain on sale of asset -- -- (7,000)
Minority interest in loss on Marina -- -- (3,344)
Venture
Decrease (increase) in security (3,533) 1,227 (5,597)
deposits, net
Decrease in accrued expenses
and other liabilities (3,692) (24,199) (98,224)
Increase in escrow deposits (394,622) (52,008) (45,934)
Decrease (increase) in other assets (152,381) (34,164) 134,224
--------- --------- -----------
Net cash provided by operating
activities 266,533 685,391 306,887
--------- --------- -----------
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to building and improvements (114,346) -- (442,264)
Proceeds from exchange of building and
building Improvements 122,843 -- --
Purchase of furniture & equipment (9,711) (9,500) (16,658)
Additions to Marina (247,769) (33,727) (23,049)
Proceeds from sale of asset -- -- 7,000
--------- --------- -----------
Net cash used in investing activities (248,983) (43,227) (474,971)
--------- --------- -----------
CASH FLOWS FROM FINANCING ACTIVITIES:
Proceeds from refinancing of mortgage
note payable -- -- 6,000,000
Payment of mortgage note payable -- -- (5,590,418)
Principal payments of mortgage note
payable (148,063) (355,887) (101,916)
Payment of deferred costs -- -- (143,167)
--------- --------- -----------
Net cash provided by (used in)
financing activities (148,063) (355,887) 164,499
--------- --------- -----------
NET INCREASE (DECREASE) IN CASH AND
CASH EQUIVALENTS (130,513) 286,277 (3,585)
CASH AND CASH EQUIVALENTS,
BEGINNING OF YEAR 670,811 384,534 388,119
--------- --------- -----------
CASH AND CASH EQUIVALENTS,
END OF YEAR $ 540,298 $ 670,811 $ 384,534
========= ========= ===========
SUPPLEMENTAL CASH FLOW INFORMATION:
Cash paid for interest $ 447,473 $ 471,665 $ 522,522
========= ========= ===========
NON-CASH FINANCING ACTIVITY:
On February 27, 1996, the Partnership redeemed the minority interest in the
Marina Venture by issuing a $225,000 note payable. The transaction resulted in a
$39,981 reduction of basis in the marina property.
The accompanying notes are an integral part of these financial statements.
F-7
<PAGE>
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
(1) Organization and General Partner - BHPII
Historic Preservation Properties 1990 L.P. Tax Credit Fund (HPP'90) was
formed on October 4, 1989 under the Delaware Revised Uniform Limited
Partnership Act. The purpose of HPP'90 is to invest in a portfolio of real
properties which are intended to qualify for rehabilitation tax credits
(Rehabilitation Tax Credits) afforded by Section 47 of the Internal
Revenue Code of 1986, as amended, to rehabilitate such properties (or
acquire such properties in the process of rehabilitation and complete such
rehabilitation) in a manner intended to render a portion of the costs
thereof eligible for Rehabilitation Tax Credits, and to operate such
properties.
Boston Historic Partners II Limited Partnership (BHP II), a Delaware
limited partnership, is the general partner of HPP'90. BHP II was formed
in June 1989 for the purpose of organizing, syndicating, and managing
publicly offered real estate limited partnerships (Public Rehabilitation
Partnerships). Officers of Boston Capital Planning Group, Inc. (BCPG), an
affiliate of BHP II, were the initial limited partners of HPP'90. The
initial limited partners withdrew as limited partners upon the first
admission of Investor Limited Partners (Limited Partners). Prior to
admission of the Limited Partners, all costs incurred by HPP'90 were paid
by BHP II. On June 29, 1990, the first Limited Partners were admitted to
HPP'90 and operations commenced.
The Amended and Restated Agreement of Limited Partnership (Partnership
Agreement) of HPP'90 generally provides that all net profits, net losses,
tax credits and cash distributions of HPP'90 from normal operations
subsequent to admissions of Limited Partners shall be allocated 99% to the
Limited Partners and 1% to BHP II. Proceeds from sales or refinancing
generally will be distributed 100% to the Limited Partners until they have
received an amount equal to their Adjusted Capital Contributions (as
defined in the Partnership Agreement) plus priority returns and additional
incentive priority returns for certain Limited Partners admitted to HPP'90
on or prior to certain specified dates.
(2) Summary of Significant Accounting Policies
Principles of Consolidation
HPP'90 holds a 99% general partner interest and Henderson's Wharf
Development Corp. (HWDC), a wholly owned subsidiary of HPP'90, holds a
total general and limited partner interest of 1% in Henderson's Wharf
Baltimore Limited Partnership (HWB). At December 31, 1998, HPP'90 holds a
98% limited partner interest and HWDC holds a 2% general partner interest
in Henderson's Wharf Marina Limited Partnership (HWM). All operating and
financial policy decisions of HWB and HWM are controlled by HPP'90 and
HWDC.
The consolidated financial statements include the accounts of HPP'90,
Henderson's Wharf Baltimore, L.P. and Henderson's Wharf Marina, L.P.
after elimination of all intercompany transactions and accounts.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the
financial statements and the reported amounts of revenue and expenses
during the reporting period. Actual results could differ from those
estimates.
Real Estate and Depreciation
Real estate is held for lease and stated at the lower of cost or net
realizable value. Depreciation is provided over the estimated economic
useful lives of the assets using the straight-line method. Depreciation
expense for the years ended December 31, 1998, 1997 and 1996 totaled
$430,039, $536,007 and $547,996, respectively.
Deferred Evaluation and Acquisition Costs
Expenditures related to the purchase of real estate have been capitalized
and are being amortized on a straight-line basis over the estimated
economic useful life of real property (40 years). Amortization expense
relating to deferred evaluation and acquisition costs totaled $27,564 in
each of the years ended December 31, 1998, 1997 and 1996.
F-8
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
(2) Summary of Significant Accounting Policies (Continued)
Cash, Cash Equivalents, and Concentration of Credit Risk
HPP'90 considers all highly liquid investments with a maturity of three
months or less when purchased to be cash equivalents. Cash equivalents at
December 31, 1998 and 1997 totaled $449,934 and $654,677, respectively.
At December 31, 1998 and 1997, HPP'90 had $823,168 and $615,312 of cash
and cash equivalents and escrow deposits, respectively, on deposit in
banks in excess of amounts insured by the Federal Deposit Insurance
Corporation or otherwise not insured.
Deferred Costs
Deferred costs relating to HPP'90's note payable are being amortized on a
straight-line basis over the term of the note. Amortization expense
relating to deferred costs for the years ended December 31, 1998, 1997 and
1996 totaled $18,269, $19,139 and $16,191, respectively.
Revenue Recognition
Revenue from residential units, principally under annual operating leases,
is recorded when due. Revenue from rental of inn units is recognized when
earned.
Income Taxes
No provision (benefit) for income taxes is reflected in the accompanying
consolidated financial statements of HPP'90. All partners are required to
report on their tax returns their allocable share of income, gains,
losses, deductions and credits determined on a tax basis.
Reclassifications
Certain amounts in the 1996 and 1997 financial statements have been
reclassified to conform to the 1998 presentation.
(3) Investment in Real Estate
HPP'90 has an interest in the following entities:
Henderson's Wharf Baltimore, L.P. (the Building Venture) is a Delaware
limited partnership formed on July 20, 1990 to acquire and retain a fee
interest in a seven-story building on 1.5 acres of land and to
rehabilitate the building into residential apartment units with 153 indoor
parking spaces (the Apartments) and a 38 room inn (the Inn) located at
1000 Fell Street, Baltimore, Maryland. In addition to the inn, the
building contains a total of 137 residential units, 8 of which are owned
by unrelated parties. The building has been substantially renovated and
certain renovation costs qualify for Rehabilitation Tax Credits. The
Building Venture purchased its interest for $6,812,500, which included
seller financing of $6,350,000, and a contingent purchase price promissory
note (see Note 4). Contributions by HPP'90 to the Building Venture totaled
$12,214,500 as of December 31, 1998.
HPP'90 has made all required capital contributions to the Building Venture
in accordance with the Building Venture's partnership agreement, and is
not required to make additional contributions, although at its sole
discretion, may do so.
The economic occupancy for the year ended December 31, 1998 for the
residential units was 96% (unaudited) and the average occupancy for the
inn was 73% (unaudited).
On February 27, 1996, the Building Venture purchased three condominium
units and parking spaces owned by unrelated parties, in conjunction with
the refinancing of its note payable (see Note 4). On March 17, 1998, the
Building Venture exchanged a condominium unit and parking spaces with an
unrelated party in return for that unrelated party's condominium unit,
parking spaces and $135,000. The transaction resulted in net cash proceeds
of $122,843, after closing costs. On November 3, 1998, as part of a
negotiated settlement as discussed in Note 4, the
F-9
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
(3) Investment in Real Estate (Continued)
Building Venture purchased a condominium unit and parking space owned by
an unrelated party, with whom the Building Venture was engaged in a
lawsuit and countersuit, for a purchase price of $110,000.
HPP'90's operations, principally consisting of accounting, investor
services and other general and administrative costs, are funded from
distributions by the Building Venture. Also, distributions from the
Building Venture are used to fund reserves for the capital needs of
HPP'90's real property entities. For the years ended December 31, 1998,
1997, and 1996, the Building Venture distributed to HPP'90 $1,159,000,
$501,000, and $203,000, respectively.
Rehabilitation Tax Credits generated by the Building Venture and
previously allocated to HPP'90's Limited Partners totaled $3,174,059 since
inception. As of December 31, 1996, 100% of the credits were fully vested.
Henderson's Wharf Marina, L.P. (the Marina Venture) is a Delaware limited
partnership formed on July 20, 1990 to acquire and retain a fee interest
in a 1.92 acre parcel of land together with a 256-slip marina located in
Baltimore, Maryland. HPP'90 purchased the Marina Venture for $1,266,363,
which included seller financing of $1,187,500. Contributions to the Marina
Venture by HPP'90 totaled $728,544 as of December 31, 1998.
HPP'90 may make additional capital contributions to the Marina Venture as
provided in the Marina Venture's partnership agreement, but is not
required to do so.
The Marina Venture had operated a minimal number of slips from 1991
through 1995 due to the significant repairs necessary to be fully
operational. During the years ended December 31, 1998, 1997 and 1996, the
Marina Venture added $282,791, $33,727 and $23,049, respectively, of
utility, safety and other improvements, increasing the number of fully
operational slips to 256. Substantial repairs are still needed to maintain
the Marina Venture's land which provides parking to the Marina and Inn
(see Note 5).
On December 31, 1992, the Third Amended and Restated Agreement of Limited
Partnership of Henderson's Wharf Marina L.P. was executed. HWFP, Inc.
(HWFP), a Maryland corporation and the original holder of the purchase
money note relating to the purchase of the marina property, received a 50%
limited partnership interest in the Marina Venture and became the holder
of a minority interest (see Note 4).
On February 27, 1996, the Partnership redeemed HWFP's 50% limited
partnership interest in the Marina Venture by issuing a $225,000
promissory note payable secured by the marina property. As a result of
this redemption, HPP'90's limited partnership interest in the Marina
Venture increased to 98% and HWDC's general partnership interest in the
Marina Venture increased to 2% as of the date of redemption. On September
30, 1997, the Building Venture advanced the Marina Venture $200,000, and
the Marina Venture then settled in full the promissory note payable to
HWFP (see Note 4).
The Building Venture and the Marina Venture are collectively referred to
as "the Ventures".
Generally, allocations of net profits and losses as well as cash flow of
the Building Venture and Marina Venture are allocated in accordance with
the Ventures' respective amended partnership agreements.
(4) Note Payable
The Building Venture originally financed $6,350,000 of the purchase price
of the property by issuing a purchase money note to the seller, HWFP. In
conjunction with issuing a purchase money note to the seller, the Building
Venture entered into a contingent purchase price promissory note with the
seller for $1,250,000. Payment on the note was contingent upon the cash
flow (as defined) generated from the future sale of apartment units in the
Building Venture. The note was unsecured, bore no interest, and had no
maturity date.
On February 27, 1996, HPP'90 issued a $6,000,000 deed of trust note to a
third party lender which provided funds for the Building Venture to
refinance the then outstanding balance of the seller financed purchase
money note totaling $5,590,418, to pay $109,582 to the seller in release
of the contingent purchase price promissory note, and to purchase in part
three condominium units and parking spaces owned by unrelated parties for
an aggregate purchase price of
F-10
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
(4) Note Payable (Continued)
$332,682. The deed of trust note bears interest at 7.85%, amortizes over a
20-year schedule and requires monthly principal and interest payments in
the amount of $49,628, which commenced April 1996 with the remaining
unpaid principal and interest due in March 2016. Under the deed of trust
note, the lender has the option with six months written notice to call
amounts outstanding under the deed of trust note at the end of ten years
(February 2006) or anytime thereafter. The deed of trust note is secured
by the Building Venture's property, rents and assignment of leases and is
guaranteed by the Building Venture.
As mentioned in Note 3, on February 27, 1996, HPP'90, HWDC and HWFP
entered into the First Amendment to the Third Amended and Restated
Agreement of Limited Partnership of Henderson's Wharf Marina, L.P. by
which the Partnership redeemed HWFP's 50% limited partnership interest in
the Marina Venture by issuing a $225,000 promissory note payable secured
by the marina property. The note bore interest at 7.50%, matured in March
2006, and required monthly principal and interest payments in the amount
of $2,086 which commenced April 1996. The transaction resulted in a
$39,981 reduction of basis in the marina property during the year ended
December 31, 1996. HPP'90's limited partnership interest in the Marina
Venture increased to 98% and HWDC's general partnership interest in the
Marina Venture increased to 2% as of the date of the redemption. On
September 30, 1997, the Building Venture advanced the Marina Venture
$200,000, and the Marina Venture settled in full the remaining outstanding
principal balance of $212,532 and all accrued interest due under the
promissory note to HWFP.
As of December 31 1998, aggregate annual maturities under the deed of
trust note for each of the next five years are as follows:
Year Ending December 31 Amount
1999 $ 160,113
2000 173,145
2001 187,236
2002 202,475
2003 218,954
(5) Transactions With Related Parties, Commitments and Contingencies
The Building Venture entered into a consulting agreement (Consulting
Agreement), which expired on December 31, 1991, that required the Building
Venture to pay Hillcrest Management Inc., (HMI) a Massachusetts
corporation and former limited partner of the Ventures with whom the
Ventures had several contracts, a $15,000 refinancing fee upon the closing
of any refinancing of the existing Building Venture's financing. The
Consulting Agreement also required the Building Venture to pay HMI an
incentive fee equal to 1% of the gross sales proceeds resulting from the
sale of the building property to an unaffiliated third party buyer. The
Building Venture paid the $15,000 refinancing fee to HMI in March 1996 as
a result of refinancing its purchase price promissory note as discussed in
Note 4. The incentive fee commitment survives the December 31,1991
expiration date of the Consulting Agreement and the termination of all
other agreements with HMI (see below).
HPP'90 entered into an agreement on behalf of the Ventures to pay contract
termination settlement payments (Settlement Payments) totaling $271,108 to
HMI. The Settlement Payments required an initial payment of $36,000 on
January 27, 1995 and require monthly payments of $3,221 through the
earlier of September 2001 or the occurrence of certain events as defined
in the agreement. The Settlement Payments are secured by 100% of HPP'90's
economic interest as a partner in the Ventures, as defined in the
agreements; net sales and refinancing proceeds; cash flow; return of
capital contributions; all of HPP'90's cash and marketable securities in
excess of $150,000; and all of the Ventures' cash in excess of the greater
of $200,000 or reserves required by lenders. No distributions to the
partners of HPP'90 are permitted until all Settlement Payments are paid in
full. The Settlement Payments may be prepaid, as defined in the agreement,
without penalty. As of December 31, 1998 and 1997, unpaid Settlement
Payments included in accrued expenses and other liabilities totaled
$106,280 and $144,928, respectively.
F-11
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
(5) Transactions With Related Parties, Commitments and Contingencies
(Continued)
On November 1, 1995, the Building Venture and Marina Venture entered into
property management contracts with Claremont Management Corporation (CMC),
an unaffiliated Massachusetts corporation, to manage the apartment, inn
and marina operations. The property management contracts provided for
payment of management fees to CMC equal to 4% and 4.5% of apartment and
inn gross receipts, as defined, respectively, and 9% of marina gross
receipts, as defined. The agreements expired on June 30, 1998. For the
period January 1, 1998 through June 30, 1998 and for the years ended
December 31, 1997 and 1996, management fees paid to CMC by the Ventures
totaled $74,668, $142,088 and $124,438, respectively.
Effective July 1, 1998, the Building Venture and Marina Venture entered
into property management contracts with Gunn Financial, Incorporated
(GFI), an unaffiliated Massachusetts corporation, to oversee the property
management of the apartment, inn and marina operations. The property
management contracts will provide for the payment of management fees to
GFI equal to 4% of apartment gross receipts, 4% of inn gross receipts, and
4% of marina gross receipts, as defined, respectively. The agreements
expires the earlier of June 30, 2006 or upon the disposition of the
Ventures' properties, as defined. Also, effective July 1, 1998, GFI
subcontracted Winn Management Company, an unaffiliated Massachusetts
corporation who manages numerous properties throughout the East Coast, to
provide certain on site property management services to the apartment, inn
and marina operations. Management fees paid to GFI by the Ventures totaled
$78,312 for the period July 1, 1998 through December 31, 1998.
On October 1, 1995, HPP'90 engaged CMC to provide accounting, asset
management and investor services. CMC provided such services for an annual
management fee of $38,400, plus reimbursement of all its costs of
providing these services. The agreement expired on June 30, 1998. For the
period January 1, 1998 through June 30, 1998 and for the years ended
December 31, 1997 and 1996, expense reimbursements paid to CMC totaled
$83,080, $127,075 and $136,654, respectively.
Effective July 1, 1998, HPP'90 engaged GFI to provide accounting, asset
management and investor services. GFI provides such services for an annual
management fee of $36,000, plus reimbursement of all its costs of
providing these services. The agreement expires the earlier of June 30,
2006 or upon the disposition of the Ventures' properties, as defined.
Expense reimbursements to GFI for the period July 1, 1998 through December
31, 1998 totaled $96,162.
According to a provision in one purchase and sale contract of one of three
condominiums purchased on February 27, 1996, the purchase price for that
condominium is the greater of the seller's outstanding mortgage balance as
of the date of purchase or the fair market value of the property
determined by independent appraisal through a period extending through
June 1, 1999. At the February 27, 1996 closing, the purchase price paid
was the then outstanding balance of the seller's mortgage. If, through
June 1, 1999, the fair market value is determined to be greater than the
amount paid at the closing, HWB will be required to pay the excess of the
determined fair market value over the purchase price paid at the closing
to the seller. As a part of the purchase agreement, HWB has established a
$25,000 collateral escrow in the event that an additional payment has to
be made to the seller.
On November 3, 1998, the Building Venture and the condominium association
to which it belongs settled a lawsuit against one unit owner for failure
to pay condominium assessments and nuisance, and a counterclaim filed by
that unit owner against the Building Venture, the condominium association,
and other third parties for alleged breach of contract and related counts.
As part of the settlement, the Building Venture paid $110,000 to purchase
the condominium unit and parking space, as well as an additional $65,000
which has been included in other operating expenses for the year ended
December 31, 1998.
In late 1998, the condominium association to which the Building Venture
belongs engaged an engineering firm to conduct a capital needs assessment
of its property. Based on that study, the condominium association assessed
its owners in 1999 a special assessment totaling $160,000 to provide
reserves for certain replacement items. The Building Venture's share of
the special assessment payable in 1999 is approximately $152,000.
F-12
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (CONTINUED)
FOR THE YEARS ENDED DECEMBER 31, 1998, 1997 AND 1996
(5) Transactions With Related Parties, Commitments and Contingencies
(Continued)
Within the next several years, significant repairs are needed to maintain
the Marina Venture's land which provides parking to the marina and inn.
HPP'90 now anticipates that capital resources to fund the repairs are
likely to be provided by additional contributions to the Partnership. The
Marina Venture estimates the cost of replacing the bulkhead to retain the
land to be in excess of $2,300,000. Also, the Partnership is investigating
other potential sources of available parking for the Marina and Inn. It is
reasonably possible that the outcome of this uncertainty might be
determined in the near term. Included in escrow deposits as of December
31, 1998 is $404,681 that the Partnership has reserved for future capital
improvements.
At December 31, 1998, the Building Venture and Marina Venture have entered
into contracts for various building improvements and furniture and
equipment purchases totaling $369,586 and $12,691, respectively. Included
in other assets at December 31, 1998 are deposits made on such contracts
totaling $141,230.
(6) Fair Value of Financial Instruments
The carrying amounts of cash and cash equivalents, cash equivalent
security deposits, escrow deposits, accrued expenses and other
liabilities, and security deposits at December 31, 1998 and 1997
approximate their fair values due to their short maturities. The fair
value of the note payable at December 31, 1998 and 1997 approximates its
carrying amount based on the interest rates currently available to HPP'90
for similar financing arrangements. All financial instruments are held for
non-trading purposes.
F-13
Independent Auditors' Report on Accompanying Information
The Partners
Historic Preservation Properties 1990
L.P. Tax Credit Fund
Boston, Massachusetts
We have audited, in accordance with generally accepted auditing standards,
the consolidated financial statements of Historic Preservation Properties 1990
L.P. Tax Credit Fund as of December 31, 1998 and 1997, and for each of the years
in the three-year period ended December 31, 1998 included in this Form 10-K and
have issued our report thereon dated March 18, 1999. Our audits were made for
the purpose of forming an opinion on the 1998 and 1997 basic consolidated
financial statements taken as a whole. The supplemental schedule is the
responsibility of the Partnership's management and is presented for the purpose
of complying with the Securities and Exchange Commission's rules and is not part
of the basic consolidated financial statements. The information included in this
schedule has been subjected to the auditing procedures applied in the audit of
the basic consolidated financial statements, and in our opinion fairly states in
all material respects the financial data required to be set forth therein in
relation to the basic consolidated financial statements as a whole.
Lefkowitz, Garfinkel, Champi & DeRienzo P.C.
Providence, Rhode Island
March 18, 1999
F-14
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
SCHEDULE
REAL ESTATE & ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
IN THOUSANDS
Cost Capitalized
Initial Costs Subsequent to Acquisition
-------------------- -------------------------
Description and Building and Carrying
Ownership Percentage Encumbrance Land Improvement Improvements Costs
- ------------------ -------- -------- ---------- ------------ --------
Residential/Building/Inn
Henderson's Wharf
Baltimore L.P.
Baltimore, Maryland
99.9% $ 5,619 $ 97 $ 6,715 $ 8,080 $ 350
Marina
Henderson's Wharf
Marina L.P.
Baltimore, Maryland
98% (Notes 5 and 6) 0 1,187 0 433 79
-------- ------- -------- -------- --------
$ 5,619 $1,284 $ 6,715 $ 8,513 $ 429
======== ======= ======== ======== ========
F-15
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
SCHEDULE
REAL ESTATE & ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
IN THOUSANDS
Gross Amounts At Which Carried at Close of Period
-----------------------------------------------------
Accumulated
Description and Building and Total Depreciation
Ownership Percentage Land Improvements (Note 2) (Note 3)
- ------------------------- ---------- ---------- ---------- ----------
Residential/Building/Inn
Henderson's Wharf
Baltimore L.P.
Baltimore, Maryland
99.9% $ 97 $ 15,145 $ 15,242 $ 2,905
Marina
Henderson's Wharf
Marina L.P.
Baltimore, Maryland
98% (Notes 5 and 6) 301 512 813 215
---------- ---------- ---------- ----------
$ 398 $ 15,657 $ 16,055 $ 3,120
========== ========== ========== ==========
F-16
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
SCHEDULE
REAL ESTATE & ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
IN THOUSANDS
Date of Depreciable
Description and Construction Date Life
Partnership Percentage Rehabilitation Acquired (Years)
- ----------------------------------- ------------------- ------- --------
Residential/Building/Inn
Henderson's Wharf
Baltimore L.P.
Baltimore, Maryland
99.9% 9/90 7/20/90 40
Marina
Henderson's Wharf
Marina L.P.
Baltimore, Maryland
98% (Notes 5 and 6) N/A 7/20/90 34
Note 1: The aggregate cost of each property on a tax basis net of the
reduction due to rehabilitation tax credits.
1998 1997 1996
--------- --------- ------------
Henderson's Wharf Baltimore $ 14,016 $ 14,075 $ 14,075
Henderson's Wharf Marina
837 589 549
--------- --------- ------------
Total $ 14,853 $ 14,664 $ 14,624
========= ========= ============
Note 2: The changes in total costs of land, building and improvements at
December 31 are as follows:
1998 1997 1996
--------- --------- ------------
Balance at the beginning of $ 15,806 $ 15,766 $ 15,311
period
Additions:
Land, building & improvements
purchased 418 40 455
Building & improvements acquired
through exchange 89 - -
Disposals:
Building and improvements,
cost of unit exchanged (258) - -
--------- --------- ------------
Total $ 16,055 $ 15,806 $ 15,766
========= ========= ============
F-17
HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX CREDIT FUND
SCHEDULE
REAL ESTATE & ACCUMULATED DEPRECIATION
DECEMBER 31, 1998
IN THOUSANDS
Note 3: The changes in accumulated depreciation for the years ended
1998 1997 1996
--------- --------- ------------
Balance at the beginning of $ 2,761 $ 2,396 $ 1,987
period
Depreciation during the year:
Buildings & improvements 405 365 409
Disposals:
Buildings & improvements
relating to
unit exchanged (46) - -
--------- --------- ------------
$ 3,120 $ 2,761 $ 2,396
========= ========= ============
Note 4: This schedule excludes furniture and equipment with a cost of
approximately $980,000 and $971,000 and accumulated depreciation of
approximately $902,000 and $876,000 at December 31, 1998 and 1997,
respectively.
Note 5: In 1996, the minority interest holder in the Henderson's Wharf
Marina property redeemed its interest for a $225,000 mortgage on
the property. The transaction resulted in a reduction of basis of
approximately $40,000. For additional information see the footnotes
to the financial statements.
Note 6: The Partnership has provided for a reserve for realization of
Marina Land and Improvements of approximately $846,000 net of
accumulated depreciation, based on fair market determined by
independent appraisal and priority distribution of proceeds from
capital transactions as provided for in The Third Amended and
Restated Agreement of Limited Partnership.
F-18
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 12-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> DEC-31-1998
<CASH> 540,298
<SECURITIES> 0
<RECEIVABLES> 0
<ALLOWANCES> 0
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 18,984,433
<DEPRECIATION> 4,242,639
<TOTAL-ASSETS> 15,469,324
<CURRENT-LIABILITIES> 0
<BONDS> 5,619,134
0
0
<COMMON> 0
<OTHER-SE> 0
<TOTAL-LIABILITY-AND-EQUITY> 15,469,324
<SALES> 0
<TOTAL-REVENUES> 3,656,389
<CGS> 0
<TOTAL-COSTS> 2,864,511
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 446,989
<INCOME-PRETAX> 344,889
<INCOME-TAX> 0
<INCOME-CONTINUING> 0
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 344,889
<EPS-PRIMARY> 20.87
<EPS-DILUTED> 20.87
</TABLE>
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT OF PURCHASE AND SALE (this
"Agreement") is made on this 17 day of March 1998 (the "Execution
Date"), by and between HENDERSON'S WHARF BALTIMORE L.P., a Delaware
limited partnership ("Seller") and JOSEPH V. BRADY, a Maryland resident
("Buyer"),.
Background
Seller is the owner of Condominium Unit No. 610 (the
"Unit") in The Residences and Inn at Henderson's Wharf, a
Condominium (the "Condominium"), together with all
appurtenances and advantages thereunto pertaining, and
Parking Unit No. P-70 and Parking Unit No. P-71 and an
undivided percentage interest in the common elements, common
expenses and common profits in the condominium regime, and
together with all appliances, fixtures, equipment and
personalty located in the Unit (collectively, the
"Property").
Buyer is the owner of Condominium Unit No. 422 (the
"Exchange Unit") in the Condominium, together with all
appurtenances and advantages thereunto pertaining, and
Parking Unit No. P-45 and Parking Unit No. P-46 and an
undivided percentage interest in the common elements, common
expenses and common profits in the condominium regime, and
together with all appliances, fixtures, equipment and
personalty located in the Exchange Unit (collectively, the
"Exchange Property").
Seller desires to sell and convey to Buyer, and Buyer
desires to purchase from Seller, the Property upon the terms
and conditions set forth in this Agreement.
Agreements
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer agree as follows:
1. PURCHASE AND SALE. On the Closing Date (as hereinafter
defined), Seller shall sell and convey to Buyer, and Buyer shall
purchase from Seller, the Property.
2. PURCHASE PRICE AND PAYMENT.
(a) The purchase price for the Property (the "Purchase
Price") shall be the payment from Buyer to Seller of One Hundred Thirty Five
Thousand Dollars ($135,000.00) and the conveyance from Buyer to Seller of the
Exchange Unit.
(b) The Purchase Price shall be paid at Closing (as
hereinafter defined)
as
follows:
(i) the payment from Buyer to Seller of One Hundred
Thirty Five Thousand Dollars ($135,000.00) by bank wire, title company or
cashier's check; and
(ii) the conveyance by Buyer to Seller of the
Exchange Unit, in accordance with the terms and conditions of this Agreement.
3. POSSESSION; RISK OF LOSS.
(a) At Closing, Seller shall deliver to Buyer possession of
the Property in "AS IS" condition, free of any and all tenancies created by
Seller.
(b) The risk of loss and damage to the Property shall pass
to Buyer at
Closing.
(c) At Closing, Buyer shall deliver to Seller possession of
the Exchange Property in "AS IS" condition, free of any and all tenancies
created by Buyer.
(d) The risk of loss and damage to the Exchange Property
shall pass to
Seller at
Closing.
4. TITLE.
(a) Fee simple title in and to the Property shall be
marketable, insurable at standard rates on an ALTA Form B policy of owner's
title insurance, and free and clear of all liens, encumbrances, leases,
easements, covenants, conditions and restrictions, except for those matters
shown on the title report attached hereto as Exhibit A and incorporated herein
by reference (collectively, the "Permitted Property Exceptions"). From and
after the Execution Date Seller shall not do or cause to be done anything
which will affect the status of title of the Property.
(b) Fee simple title in and to the Exchange Property shall
be marketable, insurable at standard rates on an ALTA Form B policy of owner's
title insurance, and free and clear of all liens, encumbrances, leases,
easements, covenants, conditions and restrictions, except for those matters
shown on the title report attached hereto as Exhibit B and incorporated herein
by reference (collectively, the "Permitted Exchange Property Exceptions").
From and after the Execution Date Buyer shall not do or cause to be done
anything which will affect the status of title of the Exchange Property.
5. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller makes the
following representations and warranties to Buyer, each of which shall be true
and correct on the Execution Date and on the Closing Date and shall survive
the Closing:
(a) The execution and delivery of this Agreement by Seller,
and the performance by Seller of all terms and conditions contained herein, do
not violate the ten-ns of, are not in conflict with, and will not result in the
breach of or default under (i) any agreement, commitment, obligation, contract
or instrument under which Seller or the Property is bound or affected or (ii)
any law, rule, regulation or court order by which the Property or Seller is
affected.
(b) As of the Execution Date, all taxes, assessments,
condominium fees or other charges affecting or pertaining to the Unit have been
paid in full.
<PAGE>
6. BUYER'S REPRESENTATIONS AND WARRANTIES. Buyer makes the
following representations and warranties to Seller, each of which shall be
true and correct on the Execution Date and on the Closing Date and shall
survive the Closing:
(a) The execution and delivery of this Agreement by Buyer,
and the performance by Buyer of all terns and conditions contained herein, do
not violate the terms of, are not in conflict with, and will not result in the
breach of or default under (i) any agreement, commitment, obligation, contract
or instrument under which Buyer or the Exchange Property is bound or affected
or (ii) any law, rule, regulation or court order by which the Exchange Property
or Buyer is affected.
(b) As of the Execution Date, all taxes, assessments,
condominium fees or other charges affecting or pertaining to the Exchange Unit
have been paid in full.
7. CONDITIONS PRECEDENT TO CLOSING.
(a) The obligation of Buyer to purchase the Property pursuant
to this Agreement shall be expressly conditioned upon and subject to the
satisfaction (or written waiver by Buyer) of each of the following conditions:
(i) Each of the representations and warranties of
Seller contained in section 5 shall be true as of the Closing Date;
(ii) Seller shall not be in default of any of its
obligations under
this Agreement;
and
(iii) The current tenant (as of the Execution Date)
of the Exchange Unit elects not to exercise its right to purchase the Exchange
Unit pursuant to the provisions of Article 13, Sections 46-55 of the Baltimore
City Code (1976 Edition, as amended).
If any one or more of such conditions precedent are not
satisfied (or the satisfaction thereof is not waived in writing by Buyer) as of
the Closing Date, then Buyer shall have the right, at its option, to terminate
this Agreement by written notice thereof to Seller, and thereafter neither
party shall have any further liability or obligation hereunder.
(b) The obligation of Seller to sell the Property pursuant to
this Agreement shall be expressly conditioned upon and subject to the
satisfaction (or written waiver by Seller) of each of the following conditions:
(i) Each of the representations and warranties
contained in section 6 shall be true as of the Closing Date;
(ii) Buyer shall not be in default of any of its
obligations under this Agreement; and
(iii) The current tenant (as of the Execution Date)
of the Exchange Unit elects not to exercise its right to purchase the Exchange
Unit pursuant to the provisions of Article 13, Sections 46-5 5 of the Baltimore
City Code (1976 Edition, as amended).
If any one or more of such conditions precedent are not
satisfied (or the satisfaction thereof is not waived in writing by Seller) as
of the Closing Date, then Seller shall have the right, at its option, to
terminate this Agreement by written notice thereof to Buyer, and thereafter
neither party shall have any further liability or obligation hereunder.
<PAGE>
8. CLOSING; CLOSING COSTS; ADJUSTMENTS.
(a) The consummation of the transactions contemplated by this Agreement (the
"Closing") shall take place at the offices of Neuberger, Quinn, Gielen, Rubin
& Gibber, P.A., 27th Floor, One South Street, Baltimore, Maryland 21202, or at
such other location in Baltimore City designated by Buyer, on March 17, 1998
at a time designated by Buyer ("Closing Date"). If the Closing Date as
provided herein falls on a Saturday, Sunday or legal holiday, then the Closing
Date shall be extended to the next day which is a business day.
(b) Buyer shall pay the costs of examination of title and
title insurance premiums for the Property. Seller shall pay the costs of
examination of title and title insurance premiums for the Exchange Property.
Each party shall pay its own attorneys' fees.
(c) All condominium fees, all taxes, general or special, and
all other public and governmental charges or assessments against the Property
which are or may be payable on an annual or semi-annual basis (including
metropolitan and other benefit charges, assessments, liens or encumbrances)
shall be adjusted and apportioned as of the Closing and are to be assumed and
paid thereafter by Buyer, whether or not the assessments have been levied as of
the Closing.
(d) All condominium fees, all taxes, general or special, and
all other public and governmental charges or assessments against the Exchange
Property which are or may be payable on an annual or semi-annual basis
(including metropolitan and other benefit charges, assessments, liens or
encumbrances) shall be adjusted and apportioned as of the Closing and are to be
assumed and paid thereafter by Seller, whether or not the assessments have been
levied as of the Closing.
(e) All water and sewer bills for the Property shall be
adjusted as of the Closing based on prior bills and all gas and/or electric
bills shall be adjusted as of the Closing based on meter reading or prior
bills.
(f) All water and sewer bills for the Exchange Property
shall be adjusted as of the Closing based on prior bills and all gas and/or
electric bills shall be adjusted as of the Closing based on meter reading or
prior bills.
9. RECORDATION AND TRANSFER TAXES, OTHER COSTS.
(a) SECTION 14-104 OF THE REAL PROPERTY ARTICLE OF THE
ANNOTATED CODE OF MARYLAND PROVIDES THAT, UNLESS OTHERWISE NEGOTIATED IN THE
CONTRACT OR PROVIDED BY STATE OR LOCAL LAW, THE COST OF ANY RECORDATION TAX OR
STATE OR LOCAL TRANSFER TAX SHALL BE SHARED EQUALLY BY BUYER AND SELLER. This
statement is provided for informational purposes only. Except as provided in
subsection (b) below, Seller shall pay the total cost of all documentary
stamps, recordation taxes and transfer taxes imposed upon the transfer of the
Property and the Exchange Property.
(b) This subsection applies if Buyer is a first-time
Maryland home buyer who will reside in the Property. If there are two or more
Buyers, then each Buyer must be someone who is a first-time Maryland home
buyer, or someone who will not occupy the house as a principal residence and
who is a co-maker or guarantor of a purchase money deed of trust or mortgage
for the benefit of the first-time Maryland home buyer. A "first-time Maryland
home buyer" means an individual who has never owned in the State of Maryland
residential real property that has been his or her principal residence. Section
14-104 of the Real Property Article of the Annotated Code of Maryland provides
that:
<PAGE>
(i) Buyer's portion of the State transfer tax is waived;
(ii) State transfer tax will be reduced to 0.25% of the
sales price of the
property;
(iii) the entire amount of the State transfer tax shall be
paid by Seller; and
(iv) the entire amount of recordation tax and local transfer
tax shall be paid by Seller unless there is an express agreement between Buyer
and Seller that the recordation tax and local transfer tax will not be paid
entirely by Seller. In this Agreement, the parties agree that the costs of
transfer tax and recordation tax shall be paid by Seller.
check if first-time Maryland Home
Buyer.
10. DEFAULT.
(a) If Buyer shall have fully performed its obligations
hereunder and Seller breaches this Agreement or otherwise fails to perform or
observe any of the covenants or obligations to be performed or observed by
Seller hereunder, or if any of Seller's representations or warranties hereunder
is incorrect or untrue as of the Closing Date, Buyer shall have the right to
(i) enforce Buyer's right of specific performance, (ii) bring suit for all
damages suffered by reason of Seller's action or inaction, and/or (iii) enforce
any and all other remedies available to Buyer at law or in equity.
(b) If Seller shall have fully performed its obligations
hereunder and Buyer breaches this Agreement or otherwise fails to perform or
observe any of the covenants or obligations to be perforined or observed by
Buyer hereunder, Seller shall have the right to (i) enforce Seller's right of
specific performance, (ii) bring suit for all damages suffered by reason of
Buyer's action or inaction, and/or (iii) enforce any and all other remedies
available to Seller at law or in equity.
11. CLOSING DOCUMENTS.
(a) At Closing, Seller and Buyer shall execute and deliver to
the closing officer or title company representative a special warranty deed,
with covenants of further assurances, in the form attached hereto as Exhibit C
and incorporated herein by reference, conveying fee simple title to the
Property to Buyer free and clear of all liens, encumbrances, leases, easements,
covenants, conditions, restrictions and other title exceptions other than the
Permitted Property Exceptions, and conveying fee simple title to the Exchange
Property to Seller free and clear of all liens, encumbrances, leases,
easements, covenants, conditions, restrictions and other title exceptions other
than the Permitted Exchange Property Exceptions.
(b) On the Closing Date, Seller and Buyer shall execute,
acknowledge and deliver, as appropriate, all additional documents that may
reasonably be necessary or appropriate to carry out the provisions hereof.
(c) On the Closing Date, Buyer shall pay the monetary
portion of the Purchase Price.
<PAGE>
12. OPERATIONS PENDING CLOSING. From and after the dates listed
below, the parties shall perform as follows:
(a) From and after the Execution Date, Seller shall promptly
furnish to Buyer copies of any and all notices or communications that Seller
receives from (1) any governmental or quasi-governmental entities, (ii) any
other body having jurisdiction with respect to the use and occupancy or
physical condition of the Property, and/or (iii) any other notice or
communication relating to the Property.
(b) From and after the Execution Date, Seller shall promptly
furnish to Buyer written notice of any event or condition that causes or may
tend to cause a change in the facts relating to, or the accuracy, completeness
or truth of, any of the representations, warranties, covenants, or any of the
information provided herein.
(c) From and after the Execution Date, neither Seller nor
Seller's agents, affiliates or employees shall sell, offer for sale, permit the
use of, negotiate with respect to, or otherwise deal in the sale, lease or
other transfer of the Property or any interest therein.
(d) From and after the Execution Date, Buyer shall promptly
furnish to Seller copies of any and all notices or communications that Buyer
receives from (i) any governmental or quasi-governmental entities, (ii) any
other body having jurisdiction with respect to the use and occupancy or
physical condition of the Exchange Property, and/or (iii) any other notice or
communication relating to the Exchange Property.
(e) From and after the Execution Date, Buyer shall promptly
furnish to Seller written notice of any event or condition that causes or may
tend to cause a change in the facts relating to, or the accuracy, completeness
or truth of, any of the representations, warranties, covenants, or any of the
information provided herein.
(f) From and after the Execution Date, neither Buyer nor
Buyer's agents, affiliates or employees shall sell, offer for sale, permit the
use of, negotiate with respect to, or otherwise deal in the sale, lease or
other transfer of the Exchange Property or any interest therein.
13. BROKERAGE. Each party represents and warrants to the other
that it has dealt with no agent, broker or finder in connection with this
Agreement, and each party shall indemnify, defend and save harmless the other
from and against any loss, cost, damage or expense (including reasonable
attorneys' fees) arising from a breach of such representation or warranty.
14. NOTICES. All notices hereunder shall be in writing and shall
be (i) delivered via commercial messenger delivery service with same day or
overnight receipted delivery, or (ii) mailed, registered or certified U.S.
mail, return receipt requested, first class postage prepaid, and shall be
addressed as follows:
If to Seller: Henderson's Wharf Baltimore L.P.
c/o Claremont Management Corp.
Batterymarch Park II
Quincy, MA 02169
ATTN: Charles Intravaia
Telecopy No. (617) 472-3670
<PAGE>
With a copy to: Richard Rubin, Esquire
Neuberger, Quinn, Gielen,Rubin & Gibber, P.A.
Commerce Place, 27th Floor
One South Street
Baltimore, Maryland 21202-3201
Telecopy No. (410) 332-8594
If to Buyer: Dr. and Mrs. Joseph Brady
Unit 610
The Residences and Inn at Henderson's Wharf
1000 Fell Street
Baltimore, Maryland 21231
Notices that are delivered by commercial messenger shall be deemed effective
upon delivery to the commercial messenger. Notices that are sent by registered
or certified mail shall be deemed delivered and effective the day the same is
deposited in the U.S. mails. Each party may change its address or telecopy
number by giving written notice as provided above. All notices shall also be
sent via telecopy to the number set forth above on the same day as such notice
is deposited with the messenger or U.S. Post Office.
15. RESALE NOTICE. SELLER IS REQUIRED BY LAW TO FURNISH TO BUYER
NOT LATER THAN FIFTEEN (15) DAYS PRIOR TO THE CLOSING CERTAIN INFORMATION
CONCERNING THE CONDOMINIUM WHICH IS DESCRIBED IN ss.11-135 OF THE MARYLAND
CONDOMINIUM ACT. THIS INFORMATION MUST INCLUDE AT LEAST THE FOLLOWING:
(I) A COPY OF THE DECLARATION (OTHER THAN THE
PLATS);
(II) A COPY OF THE BYLAWS;
(III) A COPY OF THE RULES AND REGULATIONS OF THE
CONDOMINIUM;
(IV) A CERTIFICATE CONTAINING:
(1) A STATEMENT DISCLOSING THE EFFECT ON THE
PROPOSED CONVEYANCE OF ANY RIGHT OF FIRST REFUSAL OR OTHER RESTRAINT ON THE
FREE ALIENABILITY OF THE UNIT, OTHER THAN ANY RESTRAINT CREATED BY THE UNIT
OWNER;
(2) A STATEMENT OF THE AMOUNT OF THE MONTHLY COMMON
EXPENSE ASSESSMENT AND ANY UNPAID COMMON EXPENSE OR SPECIAL ASSESSMENT
CURRENTLY DUE AND PAYABLE FROM THE SELLING UNIT OWNER;
(3) A STATEMENT OF ANY OTHER FEES PAYABLE BY THE
UNIT OWNERS TO THE COUNCIL OF UNIT OWNERS;
(4) A STATEMENT OF ANY CAPITAL EXPENDITURES APPROVED
BY THE COUNCIL OF UNIT OWNERS OR ITS AUTHORIZED DESIGNEE PLANNED AT THE TIME
<PAGE>
OF THE CONVEYANCE WHICH ARE NOT REFLECTED IN THE CURRENT OPERATING BUDGET
INCLUDED IN THE CERTIFICATE;
(5) THE MOST RECENTLY PREPARED BALANCE SHEET AND
INCOME AND EXPENSE STATEMENT, IF ANY, OF THE CONDOMINIUM;
(6) THE CURRENT OPERATING BUDGET OF THE
CONDOMINIUM, INCLUDING DETAILS CONCERNING THE AMOUNT OF THE RESERVE FUND FOR
REPAIR AND REPLACEMENT OF ITS INTENDED USE, OR A STATEMENT THAT THERE IS NO
RESERVE FUND;
(7) A STATEMENT OF ANY JUDGMENTS AGAINST THE
CONDOMINIUM AND THE EXISTENCE OF ANY PENDING SUITS TO WHICH THE COUNCIL OF
UNIT OWNERS IS A PARTY;
(8) A STATEMENT GENERALLY DESCRIBING ANY INSURANCE
POLICIES PROVIDED FOR THE BENEFIT OF THE UNIT OWNERS, A NOTICE THAT THE
POLICIES ARE AVAILABLE FOR INSPECTION STATING THE LOCATION AT WHICH THEY ARE
AVAILABLE, AND A NOTICE THAT THE TERMS OF THE POLICY PREVAIL OVER THE GENERAL
DESCRIPTION;
(9) A STATEMENT AS TO WHETHER THE COUNCIL OF UNIT
OWNERS HAS KNOWLEDGE THAT ANY ALTERATION OR IMPROVEMENT TO THE UNIT OR TO THE
LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT VIOLATES ANY PROVISION OF THE
DECLARATION, BYLAWS, OR RULES OR REGULATIONS;
(10) A STATEMENT AS TO WHETHER THE COUNCIL OF UNIT
OWNERS HAS KNOWLEDGE OF ANY VIOLATION OF THE HEALTH OR BUILDING CODES WITH
RESPECT TO THE UNIT, THE LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT, OR ANY
OTHER PORTION OF THE CONDOMINIUM;
(11) A STATEMENT OF THE REMAINING TERM OF ANY
LEASEHOLD ESTATE AFFECTING THE CONDOMINIUM AND THE PROVISIONS GOVERNING ANY
EXTENSION OR RENEWAL OF IT; AND
(12) A DESCRIPTION OF ANY RECREATIONAL OR OTHER
FACILITIES WHICH ARE TO BE USED BY THE UNIT OWNERS OR MAINTAINED BY THEM OR THE
COUNCIL OF UNIT OWNERS, AND A STATEMENT AS TO WHETHER OR NOT THEY ARE TO BE A
PART OF THE COMMON ELEMENTS; AND
(V) A STATEMENT BY THE UNIT OWNER AS TO WHETHER THE UNIT
OWNER HAS KNOWLEDGE:
(1) THAT ANY ALTERATION TO THE UNIT OR TO THE LIMITED
COMMON ELEMENTS ASSIGNED TO THE UNIT VIOLATES ANY PROVISION OF THE
DECLARATION, BYLAWS, OR RULES AND REGULATIONS;
<PAGE>
(2) OF ANY VIOLATION OF THE HEALTH OR BUILDING CODES
WITH RESPECT TO THE UNIT OR THE LIMITED COMMON ELEMENTS ASSIGNED TO THE
UNIT; AND
(3) THAT THE UNIT IS SUBJECT TO AN EXTENDED LEASE
UNDER ss.11-137 OF THE MARYLAND CONDOMINIUM ACT OR UNDER LOCAL LAW, AND IF SO,
A COPY OF THE LEASE MUST BE PROVIDED.
BUYER WILL HAVE THE RIGHT TO CANCEL THIS AGREEMENT WITHOUT
PENALTY, AT ANY TIME WITHIN SEVEN (7) DAYS FOLLOWING DELIVERY TO BUYER OF ALL
OF THIS INFORMATION. HOWEVER, AFTER THE CLOSING, BUYER'S RIGHT TO CANCEL THIS
AGREEMENT IS TERMINATED.
16. RESALE NOTICE. BUYER IS REQUIRED BY LAW TO FURNISH TO SELLER
NOT LATER THAN FIFTEEN (15) DAYS PRIOR TO THE CLOSING CERTAIN INFORMATION
CONCERNING THE CONDOMINIUM WHICH IS DESCRIBED IN ss.11-135 OF THE MARYLAND
CONDOMINIUM ACT. THIS INFORMATION MUST INCLUDE AT LEAST THE FOLLOWING:
(I) A COPY OF THE DECLARATION (OTHER THAN THE
PLATS);
(II) A COPY OF THE BYLAWS;
(III) A COPY OF THE RULES AND REGULATIONS OF THE
CONDOMINIUM;
(IV) A CERTIFICATE CONTAINING:
(1) A STATEMENT DISCLOSING THE EFFECT ON THE
PROPOSED CONVEYANCE OF ANY RIGHT OF FIRST REFUSAL OR OTHER RESTRAINT ON THE
FREE ALIENABILITY OF THE UNIT, OTHER THAN ANY RESTRAINT CREATED BY THE UNIT
OWNER;
(2) A STATEMENT OF THE AMOUNT OF THE MONTHLY COMMON
EXPENSE ASSESSMENT AND ANY UNPAID COMMON EXPENSE OR SPECIAL ASSESSMENT
CURRENTLY DUE AND PAYABLE FROM THE SELLING UNIT OWNER;
(3) A STATEMENT OF ANY OTHER FEES PAYABLE BY THE
UNIT OWNERS TO THE COUNCIL OF UNIT OWNERS;
<PAGE>
(4) A STATEMENT OF ANY CAPITAL EXPENDITURES APPROVED
BY THE COUNCIL OF UNIT OWNERS OR ITS AUTHORIZED DESIGNEE PLANNED AT THE TIME
OF THE CONVEYANCE WHICH ARE NOT REFLECTED IN THE CURRENT OPERATING BUDGET
INCLUDED IN THE CERTIFICATE;
(5) THE MOST RECENTLY PREPARED BALANCE SHEET AND
INCOME AND EXPENSE STATEMENT, IF ANY, OF THE CONDOMINIUM;
(6) THE CURRENT OPERATING BUDGET OF THE CONDOMINIUM,
INCLUDING DETAILS CONCERNING THE AMOUNT OF THE RESERVE FUND FOR REPAIR AND
REPLACEMENT OF ITS INTENDED USE, OR A STATEMENT THAT THERE IS NO RESERVE FUND;
(7) A STATEMENT OF ANY JUDGMENTS AGAINST THE
CONDOMINIUM AND THE EXISTENCE OF ANY PENDING SUITS TO WHICH THE COUNCIL OF
UNIT OWNERS IS A PARTY;
(8) A STATEMENT GENERALLY DESCRIBING ANY INSURANCE
POLICIES PROVIDED FOR THE BENEFIT OF THE UNIT OWNERS, A NOTICE THAT THE
POLICIES ARE AVAILABLE FOR INSPECTION STATING THE LOCATION AT WHICH THEY ARE
AVAILABLE, AND A NOTICE THAT THE TERMS OF THE POLICY PREVAIL OVER THE GENERAL
DESCRIPTION;
(9) A STATEMENT AS TO WHETHER THE COUNCIL OF UNIT
OWNERS HAS KNOWLEDGE THAT ANY ALTERATION OR IMPROVEMENT TO THE UNIT OR TO THE
LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT VIOLATES ANY PROVISION OF THE
DECLARATION, BYLAWS, OR RULES OR REGULATIONS;
(10) A STATEMENT AS TO WHETHER THE COUNCIL OF UNIT
OWNERS HAS KNOWLEDGE OF ANY VIOLATION OF THE HEALTH OR BUILDING CODES WITH
RESPECT TO THE UNIT, THE LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT, OR ANY
OTHER PORTION OF THE CONDOMINIUM;
(11) A STATEMENT OF THE REMAINING TERM OF ANY
LEASEHOLD ESTATE AFFECTING THE CONDOMINIUM AND THE PROVISIONS GOVERNING ANY
EXTENSION OR RENEWAL OF IT; AND
(12) A DESCRIPTION OF ANY RECREATIONAL OR OTHER
FACILITIES WHICH ARE TO BE USED BY THE UNIT OWNERS OR MAINTAINED BY THEM OR
THE COUNCIL OF UNIT OWNERS, AND A STATEMENT AS TO WHETHER OR NOT THEY ARE TO
BE A PART OF THE COMMON ELEMENTS; AND
(V) A STATEMENT BY THE UNIT OWNER AS TO WHETHER THE UNIT
OWNER HAS KNOWLEDGE:
<PAGE>
(1) THAT ANY ALTERATION TO THE UNIT OR TO THE
LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT VIOLATES ANY PROVISION OF THE
DECLARATION, BYLAWS, OR RULES AND REGULATIONS;
(2) OF ANY VIOLATION OF THE HEALTH OR BUILDING CODES
WITH RESPECT TO THE UNIT OR THE LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT;
AND
(3) THAT THE UNIT IS SUBJECT TO AN EXTENDED LEASE
UNDER ss.11-137 OF THE MARYLAND CONDOMINIUM ACT OR UNDER LOCAL LAW, AND IF SO,
A COPY OF THE LEASE MUST BE PROVIDED.
SELLER WILL HAVE THE RIGHT TO CANCEL THIS AGREEMENT WITHOUT
PENALTY, AT ANY TIME WITHIN SEVEN (7) DAYS FOLLOWING DELIVERY TO SELLER OF ALL
OF THIS INFORMATION. HOWEVER, AFTER THE CLOSING, SELLER'S RIGHT TO CANCEL THIS
AGREEMENT IS TERMINATED.
17. DISCLOSURE/DISCLAIMER STATEMENT.
(a) Attached hereto as Exhibit D and incorporated herein by
reference is a notice to Buyer advising Buyer of Buyer's rights under ss.10-702
of the Real Property Article of the Annotated Code of Maryland. Buyer
acknowledges receipt of, and has executed, a copy of such notice. Pursuant to
the provisions of ss.10-702 of the Real Property Article of the Annotated Code
of Maryland, Seller has delivered to Buyer the written residential property
disclaimer statement on the form attached hereto as Exhibit E and incorporated
herein by reference.
(b) Attached hereto as Exhibit D and incorporated herein by
reference is a notice to Seller advising Seller of Seller's rights under ss.
10-702 of the Real Property Article of the Annotated Code of Maryland. Seller
acknowledges receipt of, and has executed, a copy of such notice. Pursuant to
the provisions of ss. 10-702 of the Real Property Article of the Annotated Code
of Maryland, Buyer has delivered to Seller the written residential property
disclaimer statement on the form attached hereto as Exhibit E and incorporated
herein by reference.
18. FIRPTA WITHHOLDING.
(a) At Closing, Seller shall provide Buyer with either (i) an
affidavit in substantially the form attached hereto as Exhibit F, stating that
Seller is not a foreign person (as that term is defined in Section 1445 of the
Internal Revenue Code) and providing Seller's tax identification number; or
(ii) a "Qualifying Statement" as such term is defined by Section 1445 of the
Internal Revenue Code.
(b) At Closing, Buyer shall provide Seller with either (i) an
affidavit in substantially the form attached hereto as Exhibit F, stating that
Buyer is not a foreign person (as that term is defined in Section 1445 of the
Internal Revenue Code) and providing Buyer's tax identification number; or (ii)
a "Qualifying Statement" as such term is defined by Section 1445 of the
Internal Revenue Code.
<PAGE>
19. BALTIMORE CITY - TENANT'S RIGHT OF FIRST REFUSAL. If the
Property or Exchange Property is or has been, within six (6) months of the date
hereof, a single family residential rental dwelling in Baltimore City,
Maryland, the validity of this Agreement of Purchase and Sale is contingent
upon compliance with the provisions of Article 13, Sections 46-55 of the
Baltimore City Code (1976 Edition, as amended).
20. MISCELLANEOUS PROVISIONS.
(a) This Agreement contains the sole, final and entire
agreement between the parties and is intended to be an integration of all prior
and contemporaneous agreements, conditions and undertakings between the
parties. There are no promises, agreements, conditions, undertakings,
warranties or representations, oral or written, express or implied, between the
parties other than as herein set forth.
(b) This Agreement may be amended by and only by an
instrument executed and delivered by Seller and Buyer.
(c) This Agreement and all of the provisions hereof shall be
binding upon and shall inure to the benefit of the parties and their respective
heirs, devisees, legatees, legal representatives, successors and assigns.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland.
(e) All provisions hereof shall survive the Closing Date,
unless otherwise provided herein.
(f) Each of the parties agrees to execute and deliver upon
reasonable demand of the other any document or instrument that such other party
reasonably deems necessary or desirable to evidence or accomplish the rights
herein conferred or to implement or consummate the purposes and intent hereof
(g) No determination by any court, governmental or
administrative entity or otherwise that any provision of this Agreement or any
amendment hereof is invalid or unenforceable in any instance shall affect the
validity or enforceability of (a) any other such provision, or (b) such
provision in any circumstance not controlled by such determination. Each such
provision shall be valid and enforceable to the fullest extent allowed by, and
shall be construed wherever possible as being consistent with, applicable law.
(h) The following exhibits are attached to, and made a part
of, this
Agreement:
A - Title
Report-Property
B - Title Report- Exchange
Property
C - Form of
Deed
D - Notice to Purchaser - Property
Disclosure
E - Property Disclaimer
Statement
F - FIRPTA
Affidavit
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement under seal on the date first above written.
WITNESS: SELLER:
HENDERSON'S WHARF BALTIMORE L.P.
By: Henderson's Wharf Development
Corporation, General Partner
By: (SEAL)
Terrence P. Sullivan, President
WITNESS: BUYER:
(SEAL)
JOSEPH V. BRADY
<PAGE>
Exhibit A
I . Declaration of The Residences and Inn at Henderson's Wharf, a condominium,
by Carley Capital Group dated August 30, 1988 and recorded among the Land
Records of Baltimore City in Liber SEB no. 1821, folio 20, as amended by the
following:
a) Amendment to Declaration dated April 3, 1989 and recorded among
the aforesaid Land Records in Liber SEB No. 2081, folio 329;
b) Second Amendment to Declaration dated July 31, 1990 and recorded
among the aforesaid Land Records in Liber SEB No. 2563, folio 230;
and
c) Third Amendment to Declaration dated December 14, 1992 and
recorded among the aforesaid Land Records in Liber SEB No. 3578,
folio
030.
2. Amended and Restated Henderson's Wharf Disposition Agreement dated October
10, 1984 and recorded among the Land Records of Baltimore City in Liber SEB
No. 335, folio 062, as amended by First Amendment to Amended and Restated
Henderson's Wharf Disposition Agreement dated July 31, 1990 and recorded among
the aforesaid Land Records in Liber SEB No. 2563, folio 264.
3. Building Perimeter Easement and Connecting Easement established by
Pedestrian Promenade Easement Agreement dated October 19, 1984 and recorded
among the Land Records of Baltimore City in Liber SEB no. 335, folio 204, by
and between Carley Capital Group and Mayor and City Council of Baltimore, as
amended by the following:
a) Amendment of Pedestrian Promenade Easement Agreement dated April
6, 1987 and recorded among the aforesaid Land Records in Liber SEB
No. 1308, folio 589; and
b) Second Amendment to Pedestrian Promenade Easement Agreement dated
July 31, 1990 and recorded among the aforesaid Land Records in
Liber SEB No. 2563, folio 241;
Said easements being shown on "ALTA/ACSM Land Title Survey Henderson's Wharf
Baltimore, L.P." by Beavin Company dated December 20, 1995 and last revised
February 9, 1996. Company insures that the Fast Land Easement, Alternate Fast
Land Easement and Fell Street Easement described is said Pedestrian Promenade
Easement Agreement, as amended, do not affect the Land described in Schedule A
hereof.
<PAGE>
4. Easement to the benefit of the Marina Owner over the Building Perimeter
Easement and Commercial Courtyard Area as shown on "ALTA/ACSM Land Title Survey
Henderson's Wharf Baltimore, L.P." by Beavin Company dated December 20, 1995
and last revised February 9, 1996, as established by Reciprocal Easement
Agreement dated August 31, 1988 and recorded among the Land Records of
Baltimore City in Liber SEB No. 1824, folio 162, by and between Carley Capital
Group and The Council of Unit owners of The Residences and Inn at Henderson's
Wharf, a Condominium, Incorporated, as amended by:
(a) Amendment to Reciprocal Easement Agreement dated July 31, 199C, and
recorded among the aforesaid Land Records in Liber SEB No. 2822,
folio 477; and
(b) Second Amendment to Reciprocal Easement Agreement dated and
recorded among the aforesaid Land Records in Liber
SEB folio .
5. Terms, conditions, easements, restrictions and other criteria as shown on
the Plats entitled "The Residences at Henderson's Wharf, a Condominium", as
follows:
(a) Sheets 1 of 11 through 11 of 11 dated August, 1988 and recorded
as Condominium Plat SEB No. 232; and
(b) Sheets 1 of 11 through 11 of 11 dated September, 1988 and revised
December 14, 1992 and recorded as Condominium Plat SEB No. 298.
6. The portion of the Land included within the description of the Land
insured hereunder which comprises filled land shown on the plat of survey
entitled "ALTA/ACSM Land Title Survey Henderson's Wharf Baltimore, L.P."
dated December 20, 1995, and last revised February 9, 1996, prepared by
Beavin Company, as follows:
(a) "area shown as 'Condominium Common Element (fast land not deeded
as fast land in Liber SEB 1795, folio 449) part of commercial
courtyard area limited element class El on survey entitled
'Property Survey Henderson's Wharf' dated July 30, 1990 by Beavin
Company";
(b) "Inn Promenade Deck limited common element"; and (c) "12' Building
Perimeter Easement"
is subject to the navigation servitude and regulatory power of the Federal
Government including the power to cause removal of said filled land without
payment of compensation and is also subject to the regulatory power of the
State of Maryland over wetlands including the power, in event of failure to
comply with state law, to require restoration of said land to its former
condition.
7. Rights or claims of parties other than the insured in actual possession of
any or all of the property.
<PAGE>
Exhibit B
I. Declaration of The Residences and Inn at Henderson's Wharf, a condominium,
by Carley Capital Group dated August 30, 1988 and recorded among the Land
Records of Baltimore City in Liber SEB no. 1821, folio 20, as amended by the
following:
a) Amendment to Declaration dated April 3, 1989 and recorded among
the aforesaid Land Records in Liber SEB No. 2081, folio 329;
b) Second Amendment to Declaration dated July 31, 1990 and recorded
among the aforesaid Land Records in Liber SEB No. 2563, folio 230;
and
c) Third Amendment to Declaration dated December 14, 1992 and
recorded among the aforesaid Land Records in Liber SEB No. 3578,
folio
030.
2. Amended and Restated Henderson's Wharf Disposition Agreement dated October
10, 1984 and recorded among the Land Records of Baltimore City in Liber SEB
No. 335, folio 062, as amended by First Amendment to Amended and Restated
Henderson's Wharf Disposition Agreement dated July 31, 1990 and recorded among
the aforesaid Land Records in Liber SEB No. 2563, folio 264.
3. Building Perimeter Easement and Connecting Easement established by
Pedestrian Promenade Easement Agreement dated October 19, 1984 and recorded
among the Land Records of Baltimore City in Liber SEB no. 335, folio 204, by
and between Carley Capital Group and Mayor' and City Council of Baltimore, as
amended by the following:
a) Amendment of Pedestrian Promenade Easement Agreement dated April
6, 1987 and recorded among the aforesaid Land Records in Liber SEB
No. 1308, folio 589; and
b) Second Amendment to Pedestrian Promenade Easement Agreement dated
July 31, 1990 and recorded among the aforesaid Land Records in
Liber SEB No. 2563, folio 241;
Said easements being shown on "ALTA/ACSM Land Title Survey Henderson's Wharf
Baltimore, L.P." by Beavin Company dated December 20, 1995 and last revised
February 9, 1996. Company insures that the Fast Land Easement, Alternate Fast
Land Easement and Fell Street Easement described is said Pedestrian Promenade
Easement Agreement, as amended, do not affect the Land described in Schedule A
hereof.
4. Easement to the benefit of the Marina Owner over the Building Perimeter
Easement and Commercial Courtyard Area as shown on "ALTA/ACSM Land Title Survey
Henderson's Wharf Baltimore, L.P." by Beavin Company dated December 20, 1995
and last revised February 9, 1996, as established by Reciprocal Easement
Agreement dated August 31, 1988 and recorded among the Land Records of
Baltimore City in Liber SEB No. 1824, folio 162, by and between Carley Capital
Group and The Council of Unit owners of The Residences and Inn at Henderson's
Wharf, a Condominium, Incorporated, as amended by:
(a) Amendment to Reciprocal Easement Agreement dated July 31, 199C and
recorded among the aforesaid Land Records in Liber SEB No. 2822,
folio 477; and
(b) Second Amendment to Reciprocal Easement Agreement dated and
recorded among the aforesaid Land Records in Liber
SEB folio
5. Terms, conditions, easements, restrictions and other criteria as shown on
the Plats entitled "The Residences at Henderson's Wharf, a Condominium", as
follows:
(a) Sheets 1 of 11 through 11 of 11 dated August, 1988 and
recorded as Condominium Plat SEB No. 232; and
(b) Sheets 1 of 11 through 11 of 11 dated September, 1988 and revised
December 14, 1992 and recorded as Condominium Plat SEB No. 298.
6. The portion of the Land included within the description of the Land
insured hereunder which comprises filled land shown on the plat of survey
entitled "ALTA/ACSM Land Title Survey Henderson's Wharf Baltimore, L.P."
dated December 20, 1995, and last revised February 9, 1996, prepared by
Beavin Company, as follows:
(a) "area shown as 'Condominium Common Element (fast land not deeded as
fast land in Liber SEB 1795, folio 449) part of commercial
courtyard area limited element class El on survey entitled
'Property Survey Henderson's Wharf' dated July 30, 1990 by Beavin
Company";
(b) "Inn Promenade Deck limited common element"; and (c) "12' Building
Perimeter Easement"
is subject to the navigation servitude and regulatory power of the Federal
Government including the power to cause removal of said filled land without
payment of compensation and is also subject to the regulatory power of the
State of Maryland over wetlands including the power, in event of failure to
comply with state law, to require restoration of said land to its former
condition.
7. Rights or claims of parties other than the insured in actual possession of
any or all of the property.
EXHIBIT C
DEED OF EXCHANGE
THIS DEED OF EXCHANGE ("Deed of Exchange") is made on this day of
, 1998, by and between HENDERSON'S WHARF BALTIMORE L.P., a
Delaware limited partnership ("Henderson's Wharf') and JOSEPH BRADY ("Brady").
WHEREAS, Henderson's Wharf is the owner of a condominium unit and
parking units situate in Baltimore City, Maryland, being known and designated
as Condominium Unit No. 610 and Parking Unit No. P-70 and Parking Unit No. P-71
in THE RESIDENCES AND INN AT HENDERSON'S WHARF, A CONDOMINIUM, as established
pursuant to a Declaration dated August 30, 1988, and recorded among the Land
Records of Baltimore City (the "Land Records") at Liber S.E.B. No. 1821, page
20, as amended by Amendment to Declaration dated April 3, 1989 and recorded
among the Land Records at Liber S.E.B. No. 2081, folio 329, and as further
amended by Second Amendment to Declaration dated July 31, 1990, and recorded
among the Land Records at Liber S.E.B. No. 2563, folio 230, and as further
amended by Third Amendment to Declaration dated as of December 14, 1992, and
recorded among the Land Records at Liber S.E.B. No. 3578, folio 30 (as amended,
the "Declaration"), and the Bylaws attached thereto (the "Bylaws"), and as
shown on those certain plats entitled "Condominium Plat, The Residences and Inn
at Henderson's Wharf, a Condominium," dated August, 1988, and recorded among
the Plat Records of Baltimore City at Condominium Plat Record Book S.E.B. No.
232, Sheets I through 11, as amended by condominium plats dated December 14,
1992, and recorded among the Plat Records of Baltimore City at Condominium Plat
Record Book S.E.B. 298, Sheets I through 11 (as amended, the "Condominium
Plats"). The improvements thereon being known as 1000 Fell Street, Unit No.
610, along with Parking Unit No. P-70 and Parking Unit No. P-71 are hereinafter
referred to as the "Henderson Unit"; and
WHEREAS, Brady is the owner of a condominium unit and parking
units situate in Baltimore City, Maryland, being known and designated as
Condominium Unit No. 422 and Parking Unit No. P-45 and Parking Unit No. P-46
in THE RESIDENCES AND INN AT HENDERSON'S WHARF, A CONDOMINIUM, as established
pursuant to the Declaration and the Bylaws, and as shown on the Condominium
Plats. The improvements thereon being known as 1000 Fell Street, Unit No.
422, along with Parking Unit No. P-45 and Parking Unit No. P-46 are
hereinafter referred to as the "Brady Unit"; and
WHEREAS, Henderson's Wharf and Brady wish to exchange between each
other the Henderson Unit and the Brady Unit.
NOW, THEREFORE, WITNESSETH:
That for and in
consideration of:
(i) the sum of One Hundred Thirty Five Thousand Dollars
($135,000.00), and
(ii) the conveyance by Brady to Henderson's Wharf of the
Brady Unit,
the receipt and sufficiency of which are hereby acknowledged, Henderson's Wharf
does hereby grant, convey and assign unto Brady, his personal representatives,
heirs and assigns, in fee simple, the Henderson Unit.
BEING a portion of the property which by Deed dated July 31,
1990, and recorded among the Land Records of Baltimore City at Liber SEB
2563, folio 119, was granted and conveyed by Joseph E. Robert, Jr. and
Kenneth M. Stein, Trustees and HWFP, Inc., a Maryland corporation, to
Henderson's Wharf.
TOGETHER WITH all improvements contained in the Henderson Unit, and
all appurtenances and advantages thereunto pertaining, including an undivided
percentage interest in the common elements, common expenses and common profits
in the condominium regime as set forth in the Declaration, the Bylaws and the
Condominium Plats.
TO HAVE AND TO HOLD the Henderson Unit to Brady, his personal
representatives, heirs and assigns, in fee simple, but subject to the operation
and effect of all matters of record.
AND Henderson's Wharf hereby covenants that it has not done or
suffered to be done any act, matter or thing whatsoever to encumber the
property hereby granted and conveyed by Henderson's Wharf; that it will warrant
specially the property hereby granted and conveyed by Henderson's Wharf, and
that it will execute such further assurances of the same as may be requisite.
AND FURTHER WITNESSETH:
That for and in consideration of:
(i) the sum of zero dollars ($0.00); and
(ii) in partial consideration of the conveyance of the Henderson
Unit to Brady, Brady does hereby grant, convey and assign unto
Henderson's Wharf, its successors and assigns, in fee simple,
the Brady Unit.
BEING the same property which by Deed dated August 4, 1989 and
recorded among the Land Records of Baltimore City at Liber S.E.B. 2193, folio
355, was granted and conveyed by Joseph E. Robert, Jr. and Kenneth M. Stein,
Trustees and HWFP, Inc., a Maryland corporation, to Brady.
TOGETHER WITH all improvements contained in the Brady Unit, and all
appurtenances and advantages thereunto pertaining, including an undivided
percentage interest in the common elements, common expenses and common profits
in the condominium regime as set forth in the Declaration, the Bylaws and the
Condominium Plats.
TO HAVE AND TO HOLD the Brady Unit to Henderson's Wharf, its
successors and assigns, in fee simple, but subject to the operation and effect
of all matters of record.
AND Brady hereby covenants that he has not done or suffered to be
done any act, matter or thing whatsoever to encumber the property hereby
granted and conveyed by Brady; that he will warrant specially the property
hereby granted and conveyed by Brady; and that he will execute such further
assurances of the same as may be requisite.
IN WITNESS WHEREOF, Henderson's Wharf and Brady have executed this
Deed of Exchange under seal on the date first above written.
WITNESS: HENDERSON'S WHARF:
HENDERSON'S WHARF BALTIMORE L.P.
By: Henderson's Wharf Development
Corporation, General Partner
By: (SEAL)
WITNESS: BRADY:
(SEAL)
Joseph Brady
STATE OF MARYLAND )
)to wit:
COUNTY OF )
I HEREBY CERTIFY that on this day of 1998, before
me,
the subscriber, a Notary Public of the State of Maryland, personally appeared
of Henderson's Wharf Development Corporation, General Partner
of Henderson's Wharf Baltimore L.P., and that he/she as such officer, being
authorized so to do, executed the foregoing instrument for the purposes therein
contained, by signing in my presence the name of the corporation by himself as
such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
STATE OF MARYLAND )
)to wit:
COUNTY OF )
I HEREBY CERTIFY that on this _ day of 1998,
before me,
the subscriber, a Notary Public of the State of Maryland, personally appeared
JOSEPH BRADY, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and he acknowledged that he
executed the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
CERTIFICATE
THE UNDERSIGNED, AN ATTORNEY ADMITTED TO PRACTICE BEFORE THE
COURT OF APPEALS OF MARYLAND, HEREBY CERTIFIES THAT THE ABOVE INSTRUMENT
WAS PREPARED BY ME OR UNDER MY SUPERVISION.
Richard Rubin, Attorney
MR./MS. CLERK: AFTER THIS DEED OF EXCHANGE HAS BEEN RECORDED, PLEASE RETURN
TO:
Richard Rubin, Esq.
Neuberger, Quinn, Gielen, Rubin & Gibber, P.A.
Commerce Place, 27th Floor
One South Street
Baltimore, Maryland 21202-3201
EXHIBIT D
NOTICE TO BUYER OF BUYER'S RIGHT
UNDER MARYLAND'S PROPERTY DISCLOSURE LAW
NOTE: This Notice does not apply to: (1) The initial sale of single family
residential real property; (2) a transfer that is exempt from the transfer tax
under ss.13-207 of the Tax-Property Article, except land installment contracts
of sale under ss.13-207(11) of the Tax-Property Article and options to purchase
real property under ss.13-207(12) of the Tax-Property Article; (3) a sale by a
lender acquiring the real property by foreclosure or deed in lieu of
foreclosure; (4) a sheriff's sale, tax sale, or sale by foreclosure, partition
or by court appointed trustee; (5) a transfer by a fiduciary in the course of
the administration of a decedent's estate, guardianship, conservatorship, or
trust; or (6) a transfer of single family residential real property to be
converted by the buyer into a use other than residential use or to be
demolished.
SECTION 10-702 OF THE REAL PROPERTY ARTICLE OF THE ANNOTATED CODE OF
MARYLAND ("SECTION 10-702") REQUIRES THAT SELLERS OF SINGLE FAMILY RESIDENTIAL
PROPERTY PROVIDE YOU, THE BUYER, ON OR BEFORE ENTERING INTO A CONTRACT OF SALE,
EITHER:
(A) A WRITTEN PROPERTY CONDITION DISCLOSURE STATEMENT LISTING ALL
DEFECTS OR INFORMATION OF WHICH THE SELLER HAS ACTUAL KNOWLEDGE IN RELATION
TO THE FOLLOWING:
(I) WATER AND SEWER SYSTEMS, INCLUDING THE SOURCE
OF HOUSEHOLD WATER, WATER TREATMENT SYSTEMS, AND
SPRINKLER SYSTEMS;
(II) INSULATION;
(III) STRUCTURAL SYSTEMS, INCLUDING THE ROOF, WALLS,
FLOORS, FOUNDATION, AND ANY BASEMENT;
(IV) PLUMBING, ELECTRICAL, HEATING, AND AIR
CONDITIONING SYSTEMS;
(V) INFESTATION OF WOOD-DESTROYING INSECTS;
(VI) LAND USE MATTERS;
(VII) HAZARDOUS OR REGULATED MATERIALS, INCLUDING
ASBESTOS, LEAD-BASED PAINT, RADON, UNDERGROUND STORAGE
TANKS, AND LICENSED LANDFILLS; AND
(VIII) ANY OTHER MATERIAL DEFECTS KNOWN TO THE
SELLER; OR
<PAGE>
(B) A WRITTEN DISCLAIMER STATEMENT PROVIDING THAT:
(I) THE SELLER MAKES NO REPRESENTATIONS OR
WARRANTIES AS TO THE CONDITION OF THE REAL PROPERTY OR
ANY IMPROVEMENTS ON THE REAL PROPERTY; AND
(II) THE BUYER WILL BE RECEIVING THE REAL PROPERTY "AS IS", WITH
ALL DEFECTS THAT MAY EXIST, EXCEPT AS OTHERWISE PROVIDED IN THE
CONTRACT OF SALE.
AT THE TIME THE DISCLOSURE OR DISCLAIMER STATEMENT IS DELIVERED TO YOU,
YOU ARE REQUIRED TO DATE AND SIGN A WRITTEN ACKNOWLEDGEMENT OF RECEIPT, WHICH
SHALL BE INCLUDED IN OR ATTACHED TO THE CONTRACT OF SALE.
YOU ARE HEREBY NOTIFIED THAT, IN CERTAIN CIRCUMSTANCES, YOU HAVE THE
RIGHT TO RESCIND YOUR CONTRACT OF SALE WITH THE SELLER IF THE SELLER FAILS TO
DELIVER TO YOU THE WRITTEN PROPERTY CONDITION DISCLOSURE STATEMENT. SECTION
10-702 PROVIDES THAT A BUYER WHO DOES NOT RECEIVE THE DISCLOSURE STATEMENT ON
OR BEFORE ENTERING INTO THE CONTRACT OF SALE HAS THE UNCONDITIONAL RIGHT, UPON
WRITTEN NOTICE TO THE SELLER OR SELLER'S AGENT:
(I) TO RESCIND THE CONTRACT OF SALE AT ANY TIME BEFORE THE RECEIPT
OF THE DISCLOSURE STATEMENT OR WITHIN 5 DAYS FOLLOWING RECEIPT OF
THE DISCLOSURE STATEMENT; AND
(II) TO THE IMMEDIATE RETURN OF ANY DEPOSITS MADE ON ACCOUNT OF
THE CONTRACT.
IF THE DISCLOSURE STATEMENT IS DELIVERED TO YOU LATER THAN 3 DAYS AFTER THE
SELLER ENTERS INTO A CONTRACT OF SALE WITH YOU, THE CONTRACT IS VOID. YOUR
RIGHT TO RESCIND THE CONTRACT OF SALE UNDER SECTION 10-702 TERMINATES IF NOT
EXERCISED BEFORE MAKING A WRITTEN APPLICATION TO A LENDER FOR A MORTGAGE LOAN,
IF THE LENDER DISCLOSES IN WRITING AT OR BEFORE THE TIME APPLICATION IS MADE
THAT THE RIGHT TO RESCIND TERMINATES ON SUBMISSION OF THE APPLICATION.
YOUR RIGHTS AS A BUYER UNDER SECTION 10-702 MAY NOT BE WAIVED IN THE
CONTRACT OF SALE AND ANY ATTEMPTED WAIVER IS VOID. YOUR RIGHTS AS THE BUYER TO
TERMINATE THE CONTRACT UNDER SECTION 10-702 ARE WAIVED CONCLUSIVELY IF NOT
EXERCISED BEFORE:
(I) CLOSING OR OCCUPANCY BY YOU, WHICHEVER
OCCURS FIRST, IN THE EVENT OF A SALE; OR
(II) OCCUPANCY, IN THE EVENT OF A LEASE WITH OPTION
TO PURCHASE.
<PAGE>
THE INFORMATION CONTAINED IN THE PROPERTY CONDITION DISCLOSURE STATEMENT IS
THE REPRESENTATION OF THE SELLER AND NOT THE REPRESENTATION OF THE REAL
ESTATE BROKER OR SALESPERSON, IF ANY.
THE SELLER IS NOT REQUIRED TO UNDERTAKE OR PROVIDE AN INDEPENDENT INVESTIGATION
OR INSPECTION OF THE PROPERTY IN ORDER TO MAKE THE DISCLOSURES REQUIRED BY
SECTION 10-702. THE SELLER IS NOT LIABLE FOR AN ERROR, INACCURACY OR OMISSION
IN THE DISCLOSURE STATEMENT IF THE ERROR, INACCURACY, OR OMISSION WAS BASED
UPON INFORMATION THAT WAS NOT WITHIN THE ACTUAL KNOWLEDGE OF THE SELLER; OR WAS
PROVIDED TO THE SELLER BY A THIRD PARTY.
YOU HAVE THE RIGHT TO OBTAIN PROFESSIONAL ADVICE ABOUT THE PROPERTY OR
OBTAIN AN INSPECTION OF THE PROPERTY.
THE UNDERSIGNED BUYER(S) ACKNOWLEDGES RECEIPT OF THIS NOTICE
ON THE DATE INDICATED BELOW.
WITNESS:
BUYER DATE
BUYER DATE
<PAGE>
EXHIBIT E
MARYLAND RESIDENTIAL PROPERTY DISCLAIMER STATEMENT
NOTICE TO SELLER AND BUYER
Section ss. 10-702 of the Real Property Article, Annotated Code of Maryland,
requires the owner of certain residential real property to furnish to the
BUYER either (a) a RESIDENTIAL PROPERTY DISCLAIMER STATEMIENT stating that the
owner is selling the property "as is" and makes no representations or
warranties as to the condition of the property or any improvements on the real
property, except as otherwise provided in the contract of sale, or (b) a
RESIDENTIAL PROPERTY DISCLOSURE STATENIENT disclosing defects or other
information about the condition of the real property actually known by the
owner. Certain transfers of residential property are excluded from this
requirement (see the exemptions listed below).
MARYLAND RESIDENTIAL PROPERTY DISCLAIMER STATEMENT
NOTICE TO OWNER(S): Sign this statement only if you elect to sell the property
without representations and warranties as to its condition, except as
otherwise provided in the contract of sale; otherwise, complete and sign the
RESIDENTIAL PROPERTY DISCLOSURE STATEMENT.
Property Address:
Legal Description:
The undersigned owner(s) of the real property described above make no
representations or warranties as to the condition of the real property or any
improvements thereon, and the BUYER will be receiving the real property "as
is", with all defects which may exist, except as otherwise provided in the
real estate contract of sale. The owner(s) acknowledge having carefully
examined this statement and further acknowledge that they have been informed
of their rights and obligations under Section ss.10-702 of the Maryland Real
Property Article.
Owner:
Date:
Owner:
Date:
The BUYER(s) acknowledge receipt of a copy of this disclaimer statement and
further acknowledge that they have been informed of their rights and
obligations under Section ss.10-702 of the Maryland Real Property Article.
BUYER:
Date:
BUYER:
Date:
<PAGE>
MARYLAND RESIDENTIAL PROPERTY DISCLOSURE ACT
10-702. Exeptions. - The following are specifically excluded from the
provisions of Section 10-702:
1. The initial sale of single family Residential Real Property; 2. A transfer
that is exempt from the transfer tax under ss.13-207 of the Tax-Property
Article, except land
installment contracts of sale under ss.13-207(11) of the Tax-Property
Article except hand installment Contracts of Sale under ss. 13-207(l 1)
of the Tax Property Article and options to purchase real property under
ss.13-207(12) of the Tax-Property Article;
3. A sale by a lender acquiring the Real Property by foreclosure or deed in
lieu of foreclosure; 4. A sheriff's sale, tax sale, or sale by foreclosure,
partition, or by court appointed trustee; 5. A transfer by a fiduciary in the
course of the administration of a decedent's estate, guardianship,
conservatorship,
or trust; or
6. A transfer of single family Residential Real Property to be converted
by the Buyer into a use other
than residential use or
to be demolished.
<PAGE>
EXHIBIT F
CERTIFICATION OF NON-FOREIGN STATUS REGARDING WITHHOLDING OF
TAX ON DISPOSITION OF UNITED STATES REAL PROPERTY INTERESTS
Section 1445 of the Internal Revenue Code provides that a transferee of
a U.S. real property interest must withhold tax if the transferor is a
foreign person. To inform
("Transferee") that withholding of tax is not required upon my disposition of
a U.S. real property interest, I hereby certify the following to Transferee:
1. I am not a nonresident alien for purposes of U.S. income
taxation;
2. My U.S. taxpayer identifying number is ;and
3. My home address is
I understand that this certificate may be disclosed to the Internal
Revenue Service by Transferee and that any false statement I have made here
could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this
certification and to the best of my knowledge and belief it is true, correct
and complete.
<PAGE>
DEED OF EXCHANGE
THIS DEED OF EXCHANGE ("Deed of Exchange") is made on this 17 day of March,
1998, by and between HENDERSON'S WHARF BALTIMORE L.P., a Delaware limited
partnership ("Henderson's Wharf') and JOSEPH BRADY ("Brady").
WHEREAS, Henderson's Wharf is the owner of a condominium unit and parking
units situate in Baltimore City, Maryland, being known and designated as
Condominium Unit No. 610 and Parking Unit No. P-70 and Parking Unit No. P-71 in
THE RESIDENCES AND INN AT HENDERSON'S WHARF, A CONDOMINIUM, as established
pursuant to a Declaration dated August 30, 1988, and recorded among the Land
Records of Baltimore City (the "Land Records") at Liber S.E.B. No. 1821, page
20, as amended by Amendment to Declaration dated April 3, 1989 and recorded
among the Land Records at Liber S.E.B. No. 2081, folio 329, and as further
amended by Second Amendment to Declaration dated July 31, 1990, and recorded
among the Land Records at Liber S.E.B. No. 2563, folio 230, and as further
amended by Third Amendment to Declaration dated as of December 14, 1992, and
recorded among the Land Records at Liber S.E.B. No. 3578, folio 30 (as amended,
the "Declaration"), and the Bylaws attached thereto (the "Bylaws"), and as shown
on those certain plats entitled "Condominium Plat, The Residences and Inn at
Henderson's Wharf, a Condominium," dated August, 1988, and recorded among the
Plat Records of Baltimore City at Condominium Plat Record Book S.E.B. No. 232,
Sheets I through 11, as amended by condominium plats dated December 14, 1992,
and recorded among the Plat Records of Baltimore City at Condominium Plat Record
Book S.E.B. 298, Sheets 1 through I I (as amended, the "Condominium Plats"). The
improvements thereon being known as 1000 Fell Street, Unit No. 610, along with
Parking Unit No. P-70 and Parking Unit No. P-71 are hereinafter referred to as
the "Henderson Unit"; and
WHEREAS, Brady is the owner of a condominium unit and parking units situate
in Baltimore City, Maryland, being known and designated as Condominium Unit No.
422 and Parking Unit No. P-45 and Parking Unit No. P-46 in THE RESIDENCES AND
INN AT HENDERSON'S WHARF, A CONDOMINIUM, as established pursuant to the
Declaration and the Bylaws, and as shown on the Condominium Plats. The
improvements thereon being known as 1000 Fell Street, Unit No. 422, along with
Parking Unit No. P-45 and Parking Unit No. P-46 are hereinafter referred to as
the "Brady Unit"; and
WHEREAS, Henderson's Wharf and Brady wish to exchange between each other
the Henderson Unit and the Brady Unit.
NOW, THEREFORE, WITNESSETH:
That for and in consideration of:
(i) the sum of One Hundred Thirty Five Thousand Dollars ($135,000.00), and
(ii) the conveyance by Brady to Henderson's Wharf of the Brady Unit,
the receipt and sufficiency of which are hereby acknowledged, Henderson's Wharf
does hereby grant, convey and assign unto Brady, his personal representatives,
heirs and assigns, in fee simple, the Henderson Unit.
<PAGE>
BEING a portion of the property which by Deed dated July 31, 1990, and
recorded among the Land Records of Baltimore City at Liber SEB 2563, folio 119,
was granted and conveyed by Joseph E. Robert, Jr. and Kenneth M. Stein, Trustees
and HWFP, Inc., a Maryland corporation, to Henderson's Wharf
TOGETHER WITH all improvements contained in the Henderson Unit, and
all appurtenances and advantages thereunto pertaining, including an undivided
percentage interest in the common elements, common expenses and common profits
in the condominium regime as set forth in the Declaration, the Bylaws and the
Condominium Plats.
TO HAVE AND TO HOLD the Henderson Unit to Brady, his personal
representatives, heirs and assigns, in fee simple, but subject to the operation
and effect of all matters of record.
AND Henderson's Wharf hereby covenants that it has not done or
suffered to be done any act, matter or thing whatsoever to encumber the
property hereby granted and conveyed by Henderson's Wharf-, that it will
warrant specially the property hereby granted and conveyed by Henderson's
Wharf, and that it will execute such further assurances of the same as may be
requisite.
AND FURTHER WITNESSETH:
That for and in consideration of:
(i) the sum of zero dollars ($0.00); and
(ii) in partial consideration of the conveyance of the Henderson Unit to
Brady, Brady does hereby grant, convey and assign unto Henderson's
Wharf, its successors and assigns, in fee simple, the Brady Unit.
BEING the same property which by Deed dated August 4, 1989 and recorded
among the Land Records of Baltimore City at Liber S.E.B. 2193, folio 355, was
granted and conveyed by Joseph E. Robert, Jr. and Kenneth M. Stein, Trustees and
HWFP, Inc., a Maryland corporation, to Brady.
TOGETHER WITH all improvements contained in the Brady Unit, and all
appurtenances and advantages thereunto pertaining, including an undivided
percentage interest in the common elements, common expenses and common profits
in the condominium regime as set forth in the Declaration, the Bylaws and the
Condominium Plats.
TO HAVE AND TO HOLD the Brady Unit to Henderson's Wharf, its
successors and assigns, in fee simple, but subject to the operation and effect
of all matters of record.
AND Brady hereby covenants that he has not done or suffered to be
done any act, matter or thing whatsoever to encumber the property hereby
granted and conveyed by Brady; that he will warrant specially the property
hereby granted and conveyed by Brady; and that he will execute such further
assurances of the same as may be requisite.
<PAGE>
IN WITNESS WHEREOF, Henderson's Wharf and Brady have executed this
Deed of Exchange under seal on the date first above written.
WITNESS: HENDERSON'S WHARF:
HENDERSON'S WHARF BALTIMORE L.P.
By: Henderson's Wharf Development
Corporation, General Partner
By: (SEAL)
Terrence P. Sullivan, President
BRADY:
(SEAL)
Joseph Brady
STATE OF MASSACHUSETTS )
)to wit
CITY/COUNTY OF )
I HEREBY CERTIFY that on this 17 day of March 1998, before me the
subscriber, a Notary Public of the State of Massachusetts, personally appeared
Terrence P Sullivan, President of Henderson's Wharf Development Corporation,
General Partner o Henderson's Wharf Baltimore L.P., and that he as such
officer, being authorized so to do executed the foregoing instrument for the
purposes therein contained, by signing in my presence the name of the
corporation by himself as such officer.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
STATE OF MARYLAND )
) to wit:
CITY OF BALTIMORE )
I HEREBY CERTIFY that on this 17 day of
March 1998, before me,
the subscriber, a Notary Public of the State of Maryland, personally appeared
JOSEPH BRADY, known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and he acknowledged that he
executed the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereup4,y set my hand and Notarial Seal.
Notary Public
My Commission Expires:
<PAGE>
CERTIFICATE
THE UNDERSIGNED, AN ATTORNEY ADMITTED TO PRACTICE BEFORE THE COURT OF
APPEALS OF MARYLAND, HEREBY CERTIFIES THAT THE ABOVE INSTRUMENT WAS PREPARED BY
ME OR UNDER MY SUPERVISION.
Richard Rubin, Attorney
MR./MS. CLERK: AFTER THIS DEED OF EXCHANGE HAS BEEN RECORDED, PLEASE RETURN TO:
Richard Rubin, Esq.
Neuberger, Quinn, Gielen, Rubin
& Gibber, P.A.
Commerce Place, 27th Floor
One South Street
Baltimore, Maryland 21202-3201
PRIMARY PROPERTY
MANAGEMENT AGREEMENT
This Agreement is made this 18th day of May, 1998 between Henderson's Wharf
Baltimore L.P. ("Owner") and Gunn Financial Incorporated ("Agent").
1. Appointment and Acceptance. The Owner appoints the Agent as exclusive agent
for the property described in Section 2 of this Agreement, and the Agent accepts
the appointment subject to the terms and conditions set forth in this Agreement.
2. Description of Project. The property to be managed by the Agent under this
Agreement (the "Project") is a housing development consisting of the land,
buildings and other improvements.
The Project is further described as follows:
NAME: Henderson's Wharf
LOCATION: 1000 Fell St., Baltimore, MD
NO. OF DWELLINGS: 128 Apartment Units
38 Room Inn
152 Space Parking Garage
3. Marketing. The Agent will carry out marketing in accordance with the approved
marketing plan.
4. Rentals. The Agent will offer for rent and will rent the dwelling units.
Incident thereto, the following provisions will apply:
A. The Agent will set up and maintain a Management Office to service
the Project, or make other arrangements acceptable to the Owner.
B. The Agent will follow an approved marketing plan as agreed to by the
Owner and the Agent.
C. The Agent will show the premises to prospective tenants.
D. The Agent will take and process applications for rentals during
normal business hours and at other times as may be required by the
Owner. The Agent agrees to review each prospective applicant and
related applicant data prior to the acceptance or rejection of said
applicant.
E. The Agent will prepare all dwelling leases and will execute the same
in its name, identifying itself thereon as Agent for the Owner.
(Dwelling leases will be in a form approved by the Owner, but
individual dwelling leases need not be submitted for the approval of
the Owner).
F. The Owner will furnish the Agent with any approved rent schedule and
any other charges for facilities and services.
G. The Agent will maintain and submit financial records and accounts of
the operation of the property.
H. The Agent will maintain a current list of acceptable prospective
tenants in accordance with the provisions of any approved marketing
plan and will handle all arrangements necessary to assure full
occupancy.
5. Collection of rents and Other Receipts. The Agent will collect and deposit
rents in accordance with the terms of each tenants lease. All funds collected by
the Agent shall be deposited promptly by the Agent in a bank account in an
institution whose deposits are insured by an agency of the United States of
America; this account shall be used exclusively by the Agent for funds of this
project and be known as the Rental Agency account.
All security deposit funds received by the Agent shall be deposited in a
separate interest bearing escrow account insured by an agency of the United
States of America in accordance with the Laws of the State of Maryland.
6. Enforcement of Leases. The Agent will secure full compliance of each tenant
with the terms of his lease.
The Agent will lawfully terminate any tenancy when, in the Agents
judgment, sufficient cause (including, but not limited to, non payment of rent)
for such termination occurs under the term of the tenant's lease. For this
purpose, the Agent is authorized to consult with legal counsel of its choice to
bring actions for evictions, and to execute notices to vacate and judicial
pleadings incident to such actions. Attorneys fees other necessary costs
incurred in connection with such actions will be paid from the Rental Agency
Account as project expenses. Notwithstanding anything herein to the contrary,
the Agent agrees to review each prospective termination with the Owner prior to
commencement of the termination process. In the event of a dispute between the
Agent and the Owner with respect to enforcement of lessee (Paragraph 6), the
Agent and Owner agree to mediation.
7. Maintenance and Repair. The Agent will cause the Project to be maintained and
repaired, in accordance with state and local codes, in a condition at all times
acceptable to the Owner, including but not limited to cleaning, painting,
decorating, plumbing, carpentry, grounds care and such other maintenance and
repair work as may be necessary. Incident thereto the following provisions will
apply:
A. Special attention will be given to preventative maintenance.
B. The Agent is authorized to purchase all materials, equipment, tools,
appliances, supplies, and services necessary for proper maintenance
and repair in accordance with the budget established with the Owner.
C. Notwithstanding any of the foregoing provisions, the prior approval of
the Owner for any expenditure which exceeds $1,500 in any one instance for
labor, materials and otherwise for maintenance in connection within the
maintenance and repair of the Project; except for recurring expenses within the
limits of and already included in the operating budget or for emergency repairs
involving manifest danger to persons or property, or required to avoid
suspension of any necessary service to the Project. In the latter event, the
Agent will inform the Owner of the facts as promptly as possible.
D. The Agent shall take such action as may be necessary to comply with any
and all orders or requirements affecting the premises, municipal authority
having jurisdiction thereof, as well as authorities of the Board of Fire
Underwriters or other similar bodies; the Agent is nonetheless subject to the
same limitation contained in Paragraph C. of this section in connection with the
making of repairs and alterations. The Agent shall not take any action under
this Paragraph D so long as the Primary Manager is contesting, or has affirmed
his intention to contest, any such order or requirement.
8. Utilities & Services. The Primary Manager, unless the Agent is authorized in
writing, will make arrangements for water , electricity, gas fuel, oil, sewage
and trash disposal, pest extermination, decorating and laundry facilities. The
Primary Manager, unless the Agent is authorized in writing, will make such
contracts as may be necessary to secure utilities and services.
9. Disbursements from Rental Agency Account.
A. From the funds collected and deposited by the Agent in the Rental
Agency Account, pursuant to Section 5. above, the Agent will make
the following disbursements promptly when payable:
(1) Compensation payable to the Agent pursuant to Section 18.
below for its service hereunder and reimbursement to the
Agent for compensation payable to the employees, specified in
Section 18. below, and for the taxes and assessments payable
to local, state and federal governments in connection with
the employment of such personnel.
(2) The single aggregate payment required to be made monthly by
the Owner to the Mortgagee, including the amounts due under
the mortgage for principal amortization, interest, mortgage
insurance
premiums, ground rents, taxes and assessments, fire and
other hazards, and insurance premiums and the amount
specified (or an amount agreed upon) for allocation to the
Reserve for Replacement escrow.
(3) All sums otherwise due and payable by the Owner as expenses
of the Project, authorized to be incurred by the Agent under
the terms of this Agreement.
B. Except for the disbursements mentioned in Section 9.A(1)-(3) above,
funds will be disbursed or transferred from the Rental Agency
Account only as the Owner may from time to time direct in writing.
C. In the event that the balance in the Rental Agency Account is at any
time insufficient to pay disbursements due, the Agent will within
thirty days inform the Owner of the fact, and the Owner will then
remit to the Agent sufficient funds to cover the deficiency. In no
event will the Agent be required to use its funds to pay such
disbursements.
10. Budgets. Annual operating budgets for the project will exist, as approved by
the Owner; the Agent will use best efforts to see that each type of operating
expense itemized in the budget will not exceed the annual amount authorized by
the approved budget. In addition to preparation and submission of a recommended
operating budget for the initial fiscal year, the Agent will prepare a
recommended operating budget for each subsequent fiscal year and will submit the
same to the Owner at least sixty (60) days before the beginning of each new
fiscal year. The Owner will promptly inform the Agent, of changes, if any,
incorporated in the annual budget, and the Agent will keep the Owner informed of
any anticipated deviation from the receipts or disbursements stated in the
approved budget.
11. Records and Reports. In addition to any other requirements specified in this
Agreement, the Agent will have the following responsibilities with respect to
records and reports:
A. The Agent will establish and maintain a comprehensive system of records,
books and accounts.
B. Within twenty (20) days following the end of each fiscal year of the
project, the Owner shall be furnished with all information necessary to
prepare for an audit of the financial statements of the project including
an examination of the books, records and detailed itemized statement of
all income and expenditures. Owner and/or its designated certified public
accounts shall have access to accounting records at the Agent's home
office to perform the annual audit.
C. By the fifteenth (15) day of each month, the Agent will furnish the Owner
with a balance sheet, statement of receipts and disbursements for the
previous month, schedules of accounts receivable and payables, and
reconciled bank statements for the Rental Agency Account and Deposit
Account as of the end of the previous month, and any other documentation
reasonably requested by the Owner.
12. Bids, Discounts, Rebates, etc. The Agent will obtain contracts, materials,
supplies, utilities, and services on the most advantageous terms to the Project.
It is required to solicit bids in writing for all costs greater than $2,000 for
those items that can be obtained from more than one source. The Agent will
secure and credit to the Owner, and not receive or retain for itself, all
discounts, rebates, or commissions obtainable with respect to purchases, service
contracts, and or all other transactions regarding the Project.
13. Emergency Answering Services. The Agent will provide emergency telephone and
repair capability on a twenty-four (24) hour basis.
14. Insurance. The Owner shall direct the Agent top purchase insurance coverage
for the premises and the operations thereof, then, within ten (10) days of such
direction, the Owner shall provide written notice to the Agent as to the
company, coverage, policy limits, and the named insured that are to be included
in such insurance. The Agent will pay all insurance premiums from the Operating
Account, which premiums will be treated as operating expenses. The Owner agrees
that such coverage shall include, as a minimum, Commercial General Liability
coverage written on an assurance form, having limits of liability of not less
than $1,000,000 each occurrence and $2,000,000 general aggregate. The Agent
shall be designated on any and all such policies as an additional insured. In
addition, Agent shall purchase fidelity insurance in the amount of $1,000,000
with a comp[any satisfactory to it with respect to all such employees of Agent
who are responsible for or are involved in the collection of safekeeping of
receipts or other funds hereunder received by Agent; the cost of such coverage
shall not be included as an operating expense.
15. Compliance with Government Orders. The Agent will take such action as may be
necessary to comply promptly with any and all government orders or other
requirements affecting the Project, whether imposed by federal, state, county or
municipal authority, subject, however, to the limitation stated in Section 7.D.
with respect to repairs. The Agent shall, however, take no such action so long
as the Owner is contesting, or has affirmed his intentions to contest, any such
order or requirement. The Agent will notify the Owner, in writing, of all
notices of such governmental orders or other requirements within seventy-two
(72) hours of the time of their receipt.
16. Nondiscrimination. In the performance of its obligations under this
Agreement, the Agent will comply with the provisions of any federal, state or
local law prohibiting the discrimination in housing on the grounds of race,
color, creed, sex, familial status, handicap or national origin.
17. Employees. The number, qualifications, and duties of personnel to be
employed in the management of the Project, including an on-site General Manager,
an Assistant Property Manager/Leasing Agent, Resident Superintendent, or their
maintenance, bookkeeping, management and clerical employees will be determined
by the Owner and the Agent in accordance with the approved budget. All such
employees will be deemed employees of the Agent, not the Owner (unless they are
the same), and will be hired, paid, supervised and discharged by the Agent,
subject to the following conditions:
A. The compensation, including payroll taxes and fringe benefits, of all
employees will be within the Agent's sole discretion, provided that
minimum wage standards are met.
B. The Owner will reimburse the Agent for compensation, including fringe
benefits, Payable to all full and part time on-site personnel and for all local,
state and federal taxes and assessments (including but not limited to Social
Security taxes, unemployment insurance, and workmen's compensation insurance)
incident to the employment of such personnel. Such reimbursement will be paid
from the Rental Agency Account and will be treated as a Project expense.
Part-time maintenance and administrative employee compensation properly
attributable to the Project shall be paid from the Rental Account.
18. Agent's Compensation. The annual compensation which the Agent shall be
entitled to receive for management services performed under this Agreement shall
be a fee in the amount equivalent to 4% percent of total rent collections. Such
fees shall be paid by the Owner to the Agent monthly, no later than the
fifteenth (15) day of each month, unless otherwise agreed by the parties hereto.
If any apartment is unrentable due to lead paint, casualty loss or requires
rehabilitation resulting in failure to pass required inspections, Agent will be
allowed to include the apartments approved monthly rent as collected income.
This is for the purpose of calculating the management fee only.
19. Indemnity. The Owner will indemnify, defend and hold the Agent harmless from
all liabilities, including all loss,, costs, and expenses, arising from the
premises, including the Owner's acts or omissions, and including all acts or
omissions of the Agent in the performance of his duties as described in this
Agreement.
20. Terms of Agreement. This Agreement shall be in force beginning on the 1st
day of July, 1998 and will expire on the earlier of June 30, 2006 or the date of
the disposition of the property. Owner may terminate this Agreement for cause
immediately upon written notice to Agent. Cause is defined as fraud, negligence,
or misconduct or breach of an expressed provision of this Agreement. This
Agreement shall be terminable by the Lender as noted in the Indemnity Deed of
Trust dated February 27, 1996. This Agreement shall also be subject to
termination upon any of the following conditions: A. In the event a petition in
bankruptcy is filed by or against the Agent or Owner, or
in the event that either of the aforementioned makes an assignment for the
benefit of creditors or takes advantage of any solvency act, the other
party may terminate this Agreement provided that prompt written notice of
such termination is given.
B. Upon the termination, the Agent will submit to the Owner any financial
statements requested by the Owner. After the Agent and the Owner have
accounted to each other, with respect to all matters outstanding as of the
termination date, the Owner will furnish the Agent security, in the form
and principal amount satisfactory to the Agent, against any obligations or
liabilities which the Agent may properly have incurred on behalf of the
Owner hereunder.
C. The Agent is prohibited from making a tender offer to the limited partners
of Historic Preservation Properties 1990 L.P. Tax Credit Fund or any of
its affiliated entities without prior written permission.
D. If this Agreement is terminated during any of the first twenty four (24)
months, the Agent is entitled to an amount equal to the fee that would be
collected in one year (12 mos.) as liquidated damages. Said damages are
payable at termination provided that the Agent is not retained by the new
owner in the case of a sale.
21. Sub Agent. The Agent has the right, with the prior written consent of the
Owner, to engage a sub agent to perform its duties and responsibilities under
this Agreement.
22. Interpretive Provision. This Agreement constitutes the entire Agreement
between the Owner and the Agent with respect to the management and operation of
the Project, and no change will be valid unless made by supplemental written
agreement, executed and approved in the same manner as this Agreement.
23. Notices. Any notice under this Agreement shall be given by mailing such
notice to the address(es) indicated below, by certified mail return receipt
requested or by hand delivery, or to such other address as the parties shall
specify in writing provided in the manner described in this paragraph.
If to Owner:
Henderson's Wharf Baltimore L.P.
c/o Gunn Financial Incorporated
45 Broad Street
Boston, MA 02109 If to Agent:
Gunn Financial Incorporated
45 Broad Street
Boston, MA 02109
IN WITNESS WHEREOF, their principal parties have, by their duly authorized
officers, executed this Agreement on the date first above written.
OWNER: AGENT:
By: _______________________ By: ______________________
Title: _______________________ Title: ______________________
PRIMARY MARINA
MANAGEMENT AGREEMENT
This Agreement is made this 18th day of May, 1998 between Henderson's Wharf
Marina L.P. ("Owner") and Gunn Financial Incorporated ("Agent").
1. Appointment and Acceptance. The Owner appoints the Agent as exclusive agent
for the property described in Section 2 of this Agreement, and the Agent accepts
the appointment subject to the terms and conditions set forth in this Agreement.
2. Description of Project. The property to be managed by the Agent under this
Agreement (the "Project") is a housing development consisting of the land,
buildings and other improvements.
The Project is further described as follows:
NAME: Henderson's Wharf Marina
LOCATION: 1000 Fell St., Baltimore, MD
NO. OF DWELLINGS: 256 slip marina and Fastlands containing approx.
two acres providing parking for the Inn and Marina.
3. Marketing. The Agent will carry out marketing in accordance with the approved
marketing plan.
4. Rentals. The Agent will offer for rent and will rent the dwelling units.
Incident thereto, the following provisions will apply:
A. The Agent will set up and maintain a Management Office to service
the Project, or make other arrangements acceptable to the Owner.
B. The Agent will follow an approved marketing plan as agreed to by the
Owner and the Agent.
C. The Agent will show the premises to prospective tenants.
D. The Agent will take and process applications for rentals during
normal business hours and at other times as may be required by the
Owner. The Agent agrees to review each prospective applicant and
related applicant data prior to the acceptance or rejection of said
applicant.
E. The Agent will prepare all dwelling leases and will execute the same
in its name, identifying itself thereon as Agent for the Owner.
(Dwelling leases will be in a form approved by the Owner, but
individual dwelling leases need not be submitted for the approval of
the Owner).
F. The Owner will furnish the Agent with any approved rent schedule and
any other charges for facilities and services.
G. The Agent will maintain and submit financial records and accounts of
the operation of the property.
H. The Agent will maintain a current list of acceptable prospective
tenants in accordance with the provisions of any approved marketing
plan and will handle all arrangements necessary to assure full
occupancy.
5. Collection of rents and Other Receipts. The Agent will collect and deposit
rents in accordance with the terms of each tenants lease. All funds collected by
the Agent shall be deposited promptly by the Agent in a bank account in an
institution whose deposits are insured by an agency of the United States of
America; this account shall be used exclusively by the Agent for funds of this
project and be known as the Rental Agency account.
All security deposit funds received by the Agent shall be deposited in a
separate interest bearing escrow account insured by an agency of the United
States of America in accordance with the Laws of the State of Maryland.
6. Enforcement of Leases. The Agent will secure full compliance of each tenant
with the terms of his lease.
The Agent will lawfully terminate any tenancy when, in the Agents
judgment, sufficient cause (including, but not limited to, non payment of rent)
for such termination occurs under the term of the tenant's lease. For this
purpose, the Agent is authorized to consult with legal counsel of its choice to
bring actions for evictions, and to execute notices to vacate and judicial
pleadings incident to such actions. Attorneys fees other necessary costs
incurred in connection with such actions will be paid from the Rental Agency
Account as project expenses. Notwithstanding anything herein to the contrary,
the Agent agrees to review each prospective termination with the Owner prior to
commencement of the termination process. In the event of a dispute between the
Agent and the Owner with respect to enforcement of lessee (Paragraph 6), the
Agent and Owner agree to mediation.
7. Maintenance and Repair. The Agent will cause the Project to be maintained and
repaired, in accordance with state and local codes, in a condition at all times
acceptable to the Owner, including but not limited to cleaning, painting,
decorating, plumbing, carpentry, grounds care and such other maintenance and
repair work as may be necessary. Incident thereto the following provisions will
apply:
A. Special attention will be given to preventative maintenance.
B. The Agent is authorized to purchase all materials, equipment, tools,
appliances, supplies, and services necessary for proper maintenance
and repair in accordance with the budget established with the Owner.
C. Notwithstanding any of the foregoing provisions, the prior approval of
the Owner for any expenditure which exceeds $1,500 in any one instance for
labor, materials and otherwise for maintenance in connection within the
maintenance and repair of the Project; except for recurring expenses within the
limits of and already included in the operating budget or for emergency repairs
involving manifest danger to persons or property, or required to avoid
suspension of any necessary service to the Project. In the latter event, the
Agent will inform the Owner of the facts as promptly as possible.
D. The Agent shall take such action as may be necessary to comply with any
and all orders or requirements affecting the premises, municipal authority
having jurisdiction thereof, as well as authorities of the Board of Fire
Underwriters or other similar bodies; the Agent is nonetheless subject to the
same limitation contained in Paragraph C. of this section in connection with the
making of repairs and alterations. The Agent shall not take any action under
this Paragraph D so long as the Primary Manager is contesting, or has affirmed
his intention to contest, any such order or requirement.
8. Utilities & Services. The Primary Manager, unless the Agent is authorized in
writing, will make arrangements for water , electricity, gas fuel, oil, sewage
and trash disposal, pest extermination, decorating and laundry facilities. The
Primary Manager, unless the Agent is authorized in writing, will make such
contracts as may be necessary to secure utilities and services.
9. Disbursements from Rental Agency Account.
A. From the funds collected and deposited by the Agent in the Rental
Agency Account, pursuant to Section 5. above, the Agent will make
the following disbursements promptly when payable:
(1) Compensation payable to the Agent pursuant to Section 18.
below for its service hereunder and reimbursement to the
Agent for compensation payable to the employees, specified in
Section 18. below, and for the taxes and assessments payable
to local, state and federal governments in connection with
the employment of such personnel.
(2) The single aggregate payment required to be made monthly by
the Owner to the Mortgagee, including the amounts due under
the mortgage for principal amortization, interest, mortgage
insurance
premiums, ground rents, taxes and assessments, fire and
other hazards, and insurance premiums and the amount
specified (or an amount agreed upon) for allocation to the
Reserve for Replacement escrow.
(3) All sums otherwise due and payable by the Owner as expenses
of the Project, authorized to be incurred by the Agent under
the terms of this Agreement.
B. Except for the disbursements mentioned in Section 9.A(1)-(3) above,
funds will be disbursed or transferred from the Rental Agency
Account only as the Owner may from time to time direct in writing.
C. In the event that the balance in the Rental Agency Account is at any
time insufficient to pay disbursements due, the Agent will within
thirty days inform the Owner of the fact, and the Owner will then
remit to the Agent sufficient funds to cover the deficiency. In no
event will the Agent be required to use its funds to pay such
disbursements.
10. Budgets. Annual operating budgets for the project will exist, as approved by
the Owner; the Agent will use best efforts to see that each type of operating
expense itemized in the budget will not exceed the annual amount authorized by
the approved budget. In addition to preparation and submission of a recommended
operating budget for the initial fiscal year, the Agent will prepare a
recommended operating budget for each subsequent fiscal year and will submit the
same to the Owner at least sixty (60) days before the beginning of each new
fiscal year. The Owner will promptly inform the Agent, of changes, if any,
incorporated in the annual budget, and the Agent will keep the Owner informed of
any anticipated deviation from the receipts or disbursements stated in the
approved budget.
11. Records and Reports. In addition to any other requirements specified in this
Agreement, the Agent will have the following responsibilities with respect to
records and reports:
A. The Agent will establish and maintain a comprehensive system of records,
books and accounts.
B. Within twenty (20) days following the end of each fiscal year of the
project, the Owner shall be furnished with all information necessary to
prepare for an audit of the financial statements of the project including
an examination of the books, records and detailed itemized statement of
all income and expenditures. Owner and/or its designated certified public
accounts shall have access to accounting records at the Agent's home
office to perform the annual audit.
C. By the fifteenth (15) day of each month, the Agent will furnish the Owner
with a balance sheet, statement of receipts and disbursements for the
previous month, schedules of accounts receivable and payables, reconciled
bank statements for the Rental Agency Account and Deposit Account as of
the end of the previous month, and any other documentation reasonably
requested by the Owner.
12. Bids, Discounts, Rebates, etc. The Agent will obtain contracts, materials,
supplies, utilities, and services on the most advantageous terms to the Project.
It is required to solicit bids in writing for all costs greater than $2,000 for
those items that can be obtained from more than one source. The Agent will
secure and credit to the Owner, and not receive or retain for itself, all
discounts, rebates, or commissions obtainable with respect to purchases, service
contracts, and or all other transactions regarding the Project.
13. Emergency Answering Services. The Agent will provide emergency telephone and
repair capability on a twenty-four (24) hour basis.
14. Insurance. The Owner shall direct the Agent top purchase insurance coverage
for the premises and the operations thereof, then, within ten (10) days of such
direction, the Owner shall provide written notice to the Agent as to the
company, coverage, policy limits, and the named insured that are to be included
in such insurance. The Agent will pay all insurance premiums from the Operating
Account, which premiums will be treated as operating expenses. The Owner agrees
that such coverage shall include, as a minimum, Commercial General Liability
coverage written on an assurance form, having limits of liability of not less
than $1,000,000 each occurrence and $2,000,000 general aggregate. The Agent
shall be designated on any and all such policies as an additional insured. In
addition, Agent shall purchase fidelity insurance in the amount of $1,000,000
with a comp[any satisfactory to it with respect to all such employees of Agent
who are responsible for or are involved in the collection of safekeeping of
receipts or other funds hereunder received by Agent; the cost of such coverage
shall not be included as an operating expense.
15. Compliance with Government Orders. The Agent will take such action as may be
necessary to comply promptly with any and all government orders or other
requirements affecting the Project, whether imposed by federal, state, county or
municipal authority, subject, however, to the limitation stated in Section 7.D.
with respect to repairs. The Agent shall, however, take no such action so long
as the Owner is contesting, or has affirmed his intentions to contest, any such
order or requirement. The Agent will notify the Owner, in writing, of all
notices of such governmental orders or other requirements within seventy-two
(72) hours of the time of their receipt.
16. Nondiscrimination. In the performance of its obligations under this
Agreement, the Agent will comply with the provisions of any federal, state or
local law prohibiting the discrimination in housing on the grounds of race,
color, creed, sex, familial status, handicap or national origin.
17. Employees. The number, qualifications, and duties of personnel to be
employed in the management of the Project, including an on-site General Manager,
an Assistant Property Manager/Leasing Agent, Resident Superintendent, or their
maintenance, bookkeeping, management and clerical employees will be determined
by the Owner and the Agent in accordance with the approved budget. All such
employees will be deemed employees of the Agent, not the Owner (unless they are
the same), and will be hired, paid, supervised and discharged by the Agent,
subject to the following conditions:
A. The compensation, including payroll taxes and fringe benefits, of all
employees will be within the Agent's sole discretion, provided that
minimum wage standards are met.
B. The Owner will reimburse the Agent for compensation, including fringe
benefits, Payable to all full and part time on-site personnel and for all local,
state and federal taxes and assessments (including but not limited to Social
Security taxes, unemployment insurance, and workmen's compensation insurance)
incident to the employment of such personnel. Such reimbursement will be paid
from the Rental Agency Account and will be treated as a Project expense.
Part-time maintenance and administrative employee compensation properly
attributable to the Project shall be paid from the Rental Account.
18. Agent's Compensation. The annual compensation which the Agent shall be
entitled to receive for management services performed under this Agreement shall
be a fee in the amount equivalent to 4% percent of total rent collections. Such
fees shall be paid by the Owner to the Agent monthly, no later than the
fifteenth (15) day of each month, unless otherwise agreed by the parties hereto.
If any apartment is unrentable due to lead paint, casualty loss or requires
rehabilitation resulting in failure to pass required inspections, Agent will be
allowed to include the apartments approved monthly rent as collected income.
This is for the purpose of calculating the management fee only.
19. Indemnity. The Owner will indemnify, defend and hold the Agent harmless from
all liabilities, including all loss,, costs, and expenses, arising from the
premises, including the Owner's acts or omissions, and including all acts or
omissions of the Agent in the performance of his duties as described in this
Agreement.
20. Terms of Agreement. This Agreement shall be in force beginning on the 1st
day of July, 1998 and will expire on the earlier of June 30, 2006 or the date of
the disposition of the property. Owner may terminate this Agreement for cause
immediately upon written notice to Agent. Cause is defined as fraud, negligence,
or misconduct or breach of an expressed provision of this Agreement. This
Agreement shall also be subject to termination upon any of the following
conditions:
A. In the event a petition in bankruptcy is filed by or against the Agent
or Owner, or in the event that either of the aforementioned makes an assignment
for the benefit of creditors or takes advantage of any solvency act, the other
party may terminate this Agreement provided that prompt written notice of such
termination is given.
B. Upon the termination, the Agent will submit to the Owner any financial
statements requested by the Owner. After the Agent and the Owner have
accounted to each other, with respect to all matters outstanding as of the
termination date, the Owner will furnish the Agent security, in the form
and principal amount satisfactory to the Agent, against any obligations or
liabilities which the Agent may properly have incurred on behalf of the
Owner hereunder.
C. The Agent is prohibited from making a tender offer to the limited partners
of Historic Preservation Properties 1990 L.P. Tax Credit Fund or any of
its affiliated entities without prior written permission.
D. If this Agreement is terminated during any of the first twenty four (24)
months, the Agent is entitled to an amount equal to the fee that would be
collected in one year (12 mos.) as liquidated damages. Said damages are
payable at termination provided that the Agent is not retained by the new
owner in the case of a sale.
21. Sub Agent. The Agent has the right, with the prior written consent of the
Owner, to engage a sub agent to perform its duties and responsibilities under
this Agreement.
22. Interpretive Provision. This Agreement constitutes the entire Agreement
between the Owner and the Agent with respect to the management and operation of
the Project, and no change will be valid unless made by supplemental written
agreement, executed and approved in the same manner as this Agreement.
23. Notices. Any notice under this Agreement shall be given by mailing such
notice to the address(es) indicated below, by certified mail return receipt
requested or by hand delivery, or to such other address as the parties shall
specify in writing provided in the manner described in this paragraph:
If to Owner:
Henderson's Wharf Marina L.P.
c/o Gunn Financial Incorporated
45 Broad Street
Boston, MA 02109
If to Agent:
Gunn Financial Incorporated
45 Broad Street
Boston, MA 02109
IN WITNESS WHEREOF, their principal parties have, by their duly authorized
officers, executed this Agreement on the date first above written.
OWNER: AGENT:
By: _______________________ By: ______________________
Title: _______________________ Title: ______________________
ASSET MANAGEMENT AGREEMENT
THIS ASSET MANAGEMENT AGREEMENT ( the "Agreement") is made and entered
into as of July 1, 1998 by and among HISTORIC PRESERVATION PROPERTIES LIMITED
PARTNERSHIP, a Delaware limited partnership ("HPP 1987"), HISTORIC PRESERVATION
PROPERTIES 1988 LIMITED PARTNERSHIP, a Delaware limited partnership ("HPP
1988"), HISTORIC PRESERVATION PROPERTIES 1989 LIMITED PARTNERSHIP, a Delaware
limited partnership ("HPP 1989"), HISTORIC PRESERVATION PROPERTIES 1990 L.P. TAX
CREDIT Fund, a DELAWARE limited partnership ("HPP 1990") and Gunn Financial
Incorporated, a Massachusetts corporation ("Gunn").
RECITALS
A. HPP 1987, HPP 1988, HPP 1989 and HPP 1990 are sometimes individually
referred to herein as an "HPP Partnership" and collectively referred to as "HPP
Partnerships."
B. The HPP Partnerships were organized and formed to invest in certain
joint ventures ( the "project Partnerships") which own real properties (the
"Properties") which qualify for the rehabilitation tax credit under Section 48
of the Internal Revenue Code of 1986, as amended (the "Code").
C. The general partner of HPP 1987 is Boston Historic Partners Limited
Partnership, a Massachusetts limited partnership ("BHP"). The business of HPP
1987 is governed by its Amended and Restated Limited Partnership Agreement dated
as of May 15, 1987 (the "HPP 1987 Partnership Agreement"). HPP owns an interest
in each of the Project Partnerships listed on Exhibit A attached hereto.
D. The general partner of HPP 1988 is BHP. The business of HPP 1988 is
governed by its Amended and Restated Limited Partnership Agreement dated as of
February 24, 1988 (the "HPP 1988 Partnership Agreement"). HPP 1988 owns an
interest in each of the Project Partnerships listed on Exhibit B attached
hereto.
E. The general partner of HPP 1989 is BHP. The business of HPP 1989 is
governed by its Amended and Restated Limited Partnership Agreement dated as of
December 19, 1988 (the "HPP 1989 Partnership Agreement"). HPP 1989 owns an
interest in each of the Project Partnerships and the property listed on Exhibit
C attached hereto.
F. The general partner of HPP 1990 is Boston Historic Partners II Limited
Partnership, a Massachusetts limited partnership ("BHP II"). The business of HPP
1990 is governed by its Amended and Restated Limited Partnership Agreement dated
as of May 30, 1990 (the "HPP 1990 Partnership Agreement"). HPP 1990 owns an
interest in each of the Project Partnerships listed on Exhibit D attached
hereto.
G. The HPP 1987 Partnership Agreement, HPP 1988 Partnership Agreement, HPP
1989 Partnership Agreement and HPP 1990 Partnership Agreement are sometimes
individually referred to as an "HPP Partnership Agreement" and collectively
referred to as the "HPP Partnership Agreements."
H. Each of the HPP Partnerships desires to engage Gunn to manage certain
of the business affairs of the HPP Partnerships and provide the services set
forth in this Agreement on the terms and conditions hereinafter set forth.
I. Gunn desires to perform such services on the terms and conditions
hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Engagement of Gunn
Each HPP Partnership hereby engages and designates Gunn as the manager of
certain of the business affairs of the HPP Partnerships as more fully set forth
herein. Gunn hereby accepts such engagement and designation and hereby agrees to
perform its obligations under this agreement in a businesslike and professional
manner. Gunn shall at all times act only at the specific direction of BHP or BHP
II. Every act performed by Gunn or any agent or employee of Gunn pursuant to the
authority granted by this Agreement shall be done as an independent contractor
on behalf of the HPP Partnerships and all obligations or expenses incurred
hereunder shall be for the account of and at the expense of the HPP
Partnerships, except as otherwise specifically provided hereunder.
Section 2. Duties of Gunn
2.1 Duties. It shall be the obligation of Gunn to perform the following
duties on behalf of HPP Partnerships (the "Services"):
(a) Asset Management Services. Gunn Shall assist BHP and BHP II in
monitoring the operations of the Properties to the extent specifically
directed by BHP and BHP II from time to time and shall periodically meet
as reasonably requested with representatives of BHP and BHP II to discuss
current property operations. Unless otherwise specifically directed by BHP
or BHP II in writing, a representative of Gunn will visit and meet with
the independent third party property management company, where applicable,
for those properties (the "Properties") indicated on Exhibits A through D,
at least once a year so long as such Properties are owned by an HPP
Partnership a Project Partnership having an HPP Partnership as a partner.
A representative of Gunn will visit any other properties from time to time
owned by an HPP Partnership of a Project Partnership only on an as-needed
basis as specifically requested in writing by BHP or BHP II.
(b) Accounting Services. Gunn will assist BHP and BHP II in
Maintaining all accounting records for the HPP Partnerships and preparing
work paper packages and quarterly and annual financial statements for the
HPP Partnerships as applicable, assist BHP and BHP II in the preparation
of tax returns and other reports to investors as applicable. Gunn shall
assist BHP and BHP II in keeping books and records relating to the HPP
Partnerships in accordance with generally accepted accounting principles,
uniformly and consistently applied from year to year, take all reasonable
steps to assist the HPP Partnerships in keeping records of all
transactions, make available for inspection by BHP and BHP II, at all
reasonable times the books and records relating to the HPP Partnerships,
and furnish such information concerning the HPP Partnerships to such
persons as BHP and BHP II may, in writing, reasonably request. In
addition, Gunn will assist BHP and BHP II in preparing and filing all
reports required by the Securities and Exchange Commission, including
those items required by Section 8.4 of each of the HPP 89 and HPP 90
Partnership Agreements. HPP 87 and HPP 88 do not file with the SEC based
on a hardship exemption but they do provide investors with a complete
unaudited Annual Report.
(c) Investor Services. Gunn will assist BHP and BHP II in the
preparation and distribution of (I) quarterly and annual reports to the
investors in the HPP 90 Partnership, annual reports for HPP 87, HPP 88,
and HPP 89. (ii) the annual form K-1 that enables the investors to file
their respective tax returns, and (iii) responding to and serving
investors and their related broker/dealer and representatives as required.
HPP 89 will also provide copies of the quarterly 10-Q upon request. Copies
of the above correspondences shall be distributed to Brokers of Record and
the Due Diligence officers of selling broker dealer firms consistent with
prior levels of service.
(d) Personnel. In performing Services, Gunn will utilize its staff
and make available to the assignment, professional, competent individuals
who can effectively perform the Services at a level anticipated by both
Gunn and HPP. All employees be employees of Gunn, but are subject to
reimbursement pursuant to Section 3.2.
(e) Office Space. Gunn will provide allocable office space for its
personnel as may be necessary to perform the Services. The HPP
Partnerships hereby agree to pay the amount equal to allocable rent
charges as set forth in the operating budget.
(f) Support Staff. Gunn will provide or arrange for the provision of
appropriate office support to perform the Services, including secretarial
staff and office equipment, salaries of employees and other general
overhead of Gunn, costs of accounting, statistical or bookkeeping services
and computing or accounting equipment, travel, telephone communications
and other general and administrative expenses. All costs are to be
reimbursed pursuant to Section 3.2.
(g) Cooperation by HPP. The HPP Partnerships shall deliver to Gunn
copies of all documents in the possession of, or available to, the HPP
Partnerships which relate to the HPP Partnerships and/or the financing,
operation, management and leasing of each Property.
The HPP Partnerships acknowledge that the Services provided by Gunn will
be based in large part on information received from the HPP Partnerships. Gunn
shall be entitled to assume that all such information (including, without
limitation, financial statements and other financial data) received from the HPP
Partnerships shall be complete and accurate, and that such information will nit
contain, or omit to contain, any statement of material fact known by the HPP
Partnerships to be false or misleading. Gunn will not (and shall have no
obligation to the HPP Partnerships to) undertake to make an independent
verification of any such information unless specifically requested to do so by
the HPP Partnerships in writing. The HPP Partnerships hereby represent to Gunn
that no information furnished or to be furnished by the HPP Partnerships
hereunder or in connection with the consulting services to be provided by Gunn
hereunder, contains or will contain any untrue statement of material fact, or
omits or will omit to state a material fact necessary to make such information
not misleading. The HPP Partnerships hereby agree that they have an affirmative
obligation hereunder to disclose any material facts necessary to enable Gunn to
provide its Services hereunder.
2.2 Amount of Time, Etc., Required of the Designated Personnel. The
parties acknowledge that the officers, directors and employees of Gunn may
engage in significant real estate, financial and securities related businesses
during the term of this Agreement in addition to those contemplated by this
Agreement. Some of these activities may be competitive with the activities of
the HPP Partnerships. The HPP Partnerships hereby consent to the officers,
employees and directors of Gunn engaging in such competitive activities. Under
no circumstances will Gunn or any of its personnel or agents be required to
devote all of their time, resources or personnel to the performance of this
Agreement but only be required to devote such time . resources and personnel as
is necessary for them to fulfill their obligations hereunder.
Section 3. Compensation and Reimbursement.
3.1 Base Fee. The HPP Partnerships shall pay to Gunn a base monthly fee of
$1,500 per property (except as indicated on Exhibit C) for each Property owned
directly or indirectly by such HPP Partnership, as noted on Exhibits A, B, C or
D (the "Base Fee"). The Base Fee shall be due and payable in monthly
installments on the tenth business day of each month throughout the term of this
Agreement. The Base Fee shall be in the following amounts through June 30, 1999
and will be adjusted at that time to properly reflect the number of
properties/investee partnerships in place at that time for the next reporting
period, ending June 30, 2000:
HPP 1987 $36,000
HPP 1988 $72,000
HPP 1989 $63,000
HPP 1990 $36,000
3.2 Reimbursement. The HPP Partnerships shall pay the directly allocable
costs incurred by Gunn in providing the Services and the costs and expenses set
forth in the budget for the period July 1, 1998 through December 31, 1998
attached hereto as Exhibit E (the "Budget"). The Budget has been approved by the
HPP Partnerships. A new budget will be prepared for the period from January 1,
1999 through December 31, 2000. Total charges which are more than 10% in excess
of the Budget must be approved by the HPP Partnerships in advance. Payments to
Gunn under this Section 3.2 will be made monthly. All such costs shall be
allocated to and paid by the HPP Partnerships as follows for the period July 1,
1998 through December 31, 1998 fiscal year:
HPP 1987 4.80%
HPP 1988 26.65%
HPP 1989 24.28%
HPP 1990 44.27%
These allocations will be reviewed and reset, if appropriate in the following
fiscal year. Gunn shall provide a new annual budget by November 15, 1998 for
fiscal year January 1, 1999 through December 31, 1999. Expense allocations may
change from year to year based on various factors. The budget must be approved
in advance in advance by the HPP Partnerships by December 15th of each year.
3.3 Extra Services. If requested in writing by BHP or BHP II from time to
time, in addition to the Services, Gunn shall provide extra services. Gunn shall
bill the relevant HPP Partnership at the market rate for such services rendered.
Bills for such extra services will be rendered and paid monthly.
3.4 Miscellaneous. This Agreement shall in no way obligate Gunn or any
employee of Gunn to pay any costs or expenses of any HPP Partnership if moneys
are not available for the payment of such costs or expenses from the incomes or
reserves established by or on behalf of such HPP Partnership. In addition, in
the event that any of the fees or reimbursements described in this Section 3 are
nit paid when due, the accrued amount owed to Gunn shall bear interest at the
prime rate published in the Wall Street Journal until paid.
3.4 Allocation of Costs. In the event that any services are performed both
for HPP Partnership and for other entities, Gunn shall make such allocation of
the expense of such services among the HPP Partnership and such other entities
as Gunn shall determine is appropriate, any such allocation made in good faith
by Gunn shall be final and binding on the parties hereto.
Section 4. Indemnification.
4.1 Indemnification by Gunn. Gunn agrees to defend and hold the HPP
Partnerships harmless from and indemnify the HPP Partnerships against any and
all liability, loss, damages, court costs and reasonable expenses, including
reasonable attorneys fees (hereinafter collectively referred to as
"Liabilities") which the HPP Partnerships may incur or suffer, which Liabilities
result from the gross negligence, bad faith, fraud or willful misconduct on the
part of Gunn, its employees, agents or others under the direction or control of
Gunn in performing its obligations under this Agreement. For purposes of this
Section 4.1 only, the term "HPP Partnerships" shall also include any partner,
officer, director, employee or agent of the HPP Partnerships in the event any
such person incurs or suffers any such Liability as a result of such gross
negligence, bad faith, fraud or willful misconduct. This Section 4.1 shall
survive any termination of the Agreement.
4.2 Indemnification by HPP Partnerships. Gunn and the HPP Partnerships
hereby acknowledge that the acts of Gunn hereunder are solely as agent for HPP
Partnerships and Gunn shall not be liable to the HPP Partnerships or any other
person or entity for any of its actions or services provided hereunder in
relation to the management and operations of the Properties or otherwise. Each
HPP Partnership agrees to defend and hold Gunn harmless from and indemnify Gunn
against any and all liabilities which Gunn may incur or suffer as a result of
any claim against Gunn arising out of any action taken, omitted or suffered by
it in good faith and in accordance with general or specific instructions from
the HPP Partnerships or the General Partners, except where such liabilities
result from the negligence, bad faith, fraud or willful misconduct on the part
of Gunn, its employees, agents or others under the direction or control of Gunn.
For purposes of this Section 4.2 only the term "Gunn" shall also include any
officer, director, employee or agent of Gunn in the event any such person incurs
or suffers any such liability as a result of activities on behalf of or under
the direction or control of Gunn in connection with its services performed for
the HPP Partnerships. Such indemnification shall include payment by the HPP
Partnerships of all reasonable expenses and reasonable legal fees incurred in
defending a civil or criminal action or proceeding in advance of the final
disposition of such action or proceeding, receipt of an undertaking by the party
or person indemnified to repay such payment if it, he or she shall be
adjudicated to be not entitled to indemnification under this Section 4.2; and
provided further, that no indemnification shall be provided for Gunn, its
directors, officers, agents or employees with respect to any matter as to which
it shall have been fully adjudicated in any action or proceeding that Gunn, its
directors, officers, agents or employees had acted with negligence, willful
misconduct or fraud. This Section 4.2 shall survive any termination of the
Agreement.
Section 5. Term and Termination.
5.1 Term. The term of this Agreement shall commence on July 1, 1998 (the
"Commencement Date"), and shall terminate on June 30, 2006, unless previously
terminated by the parties hereto pursuant to Section 5.2.
5.2 Termination. This Agreement will expire on June 30, 2006 unless an
earlier termination date is mutually agreed upon by HPP Partnerships and Gunn.
On an individual HPP Partnership basis, this contract will naturally terminate
for a HPP Partnership on June 30th of the year following the calender year in
which the disposition of the final property in that HPP Partnership occurs.
5.3 Breach. This Agreement may be terminated by the HPP Partnerships or
Gunn upon the default by the other party of any such other party's material
obligations hereunder; provided, however, that the non-defaulting party shall
have delivered to the other party a written specifying such default in
reasonable detail and that the defaulting party shall not have cured such
default within thirty (30) days after the receipt of such notice.
5.4 Payment of Fees. Upon any termination pursuant to this Section 5, Gunn
shall have the right to receive any unpaid fees or unreimbursed expenses owed to
it under Section 3. Any such amount shall be prorated on a per diem basis from
the date of the last monthly fee payment to the effective date of any such
termination. If any individual HPP Partnership is unable to pay its share of
liabilities because of a lack of cash, then such debts shall be formally
recognized in a binding mutually agreed to Note Agreement.
Section 6. Miscellaneous Provisions.
6.1 Notices. Any notice or communication hereunder must be in writing, and
shall be personally delivered or mailed postage prepaid, by registered or
certified mail, return receipt requested, or by courier (against confirmation of
delivery or rejection of delivery) and if given by courier, registered or
certified mail same shall be deemed to have been given and received when
personally delivered or three days after its mailing. Such notices or
communications shall be given to the parties hereto at their respective
following addresses:
If to the HPP Partnerships: c/o Boston Bay Capital
45 Broad Street
Boston, MA 02109
Attn.: Terrence P. Sullivan
If to Gunn: Robert Gunn
Gunn Financial Incorporated
45 Broad Street
Boston, MA 02109
Any party hereto may at any time by giving ten (10) days' written notice to the
other party hereto designate any other address in substitution of the foregoing
address to which such notice or communication shall be given.
6.2 Severability. If any term, covenant or condition of this Agreement or
the application thereof to any person or circumstance shall , to any extent, be
invalid or unenforceable, the remainder of this Agreement or the application of
such term, covenant or condition to persons or circumstances other than those to
which it is held invalid or unenforceable, shall not be affected thereby, and
each term, covenant or condition of this Agreement or such other documents shall
be valid and shall be enforced to the fullest extent permitted by law.
6.3 Applicable Law. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of Massachusetts.
6.4 Successors and Assigns. No party hereto may assign any of its rights
or duties hereunder except with the prior written consent of the other parties.
6.5 Captions. Captions in this Agreement are inserted for convenience or
reference only and do not define, describe or limit the scope or intent of this
Agreement or any of the terms hereof.
6.6 No Partnership. Nothing contained in this Agreement or in the
relationship of HPP Partnerships and Gunn shall be deemed to constitute a
partnership, joint venture or any other relationship and Gunn shall at all times
be deemed an independent contractor for the purposes of this Agreement.
6.7 No Assignment. Gunn may not assign or in any way voluntarily transfer
this Agreement without the prior written approval of BHP and BHP II>
6.8 Modification or Amendment. This Agreement (including the exhibits
hereto) constitutes the entire agreement between the parties hereto with respect
to the subject matter hereof, supersedes all prior agreements between the
parties relating to the matters contained herein and may not be modified, waived
or terminated orally and may only be amended by an agreement in writing by the
parties hereto.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
HISTORIC PRESERVATION PROPERTIES
LIMITED PARTNERSHIP, a Delaware
limited partnership, by its general partner,
BOSTON HISTORIC PARTNERS
LIMITED PARTNERSHIP. a
Massachusetts limited partnership, by its
general partners
PORTFOLIO ADVISORY SERVICES, INC., a
Massachusetts corporation
By _________________________________
Terrace P. Sullivan, President
By __________________________________
Terrence P. Sullivan, General Partner
HISTORIC PRESERVATION PROPERTIES 1988 LIMITED
PARTNERSHIP, a Delaware limited partnership, by
its general partner, BOSTON HISTORIC PARTNERS
LIMITED PARTNERSHIP, a Massachusetts limited
partnership, by its general partners
PORTFOLIO ADVISORY SERVICES, INC., a
Massachusetts corporation
By ___________________________________
Terrence P. Sullivan, President
By ___________________________________
Terrence P. Sullivan, General Partner
HISTORIC PRESERVATION PROPERTIES 1989 LIMITED
PARTNERSHIP, a Delaware limited partnership, by
its general partner, BOSTON HISTORIC PARTNERS
LIMITED PARTNERSHIP, a Massachusetts limited
partnership, by its general partners
PORTFOLIO ADVISORY SERVICES, INC. a
Massachusetts corporation
By ____________________________________
Terrence P. Sullivan, President
By ____________________________________
Terrence P. Sullivan, General Partner
HISTORIC PRESERVATION PROPERTIES
1990 L. P. TAX CREDIT FUND, a
Delaware limited partnership, by its
general partner, BOSTON HISTORIC
PARTNERS II LIMITED PARTNERSHIP,
a Massachusetts limited partnership, by its
general partners
PORTFOLIO ADVISORY SERVICES II INC.,
a Massachusetts corporation
By _____________________________________
Terrence P. Sullivan, President
By _____________________________________
Terrence P. Sullivan, General Partner
BOSTONHISTORIC PARTNERS II LIMITED PARTNERSHIP, a
Massachusetts limited partnership, by its general
partner, BHP II ADVISORS LIMITED PARTNERSHIP, by
its general partners
PORTFOLIO ADVISORY SERVICES II, INC.,
a Massachusetts corporation
By ____________________________________
Terrence P. Sullivan, President
By ____________________________________
Terrence P. Sullivan, General Partner
GUNN FINANCIAL, INCORPORATED
a Massachusetts corporation
By ____________________________________
Robert Gunn, President
<PAGE>
Exhibit A
LIST OF PROPERTIES - HPP 1987
Name of Project Partnership Name of Project Location
1027 Arch Street Associates Pitcarin Building Philadelphia, PA
Limited Partnership
432 Julia Street Associates Gallery Row New Orleans, LA
Limited Partnership
<PAGE>
Exhibit B
LIST OF PROPERTIES - HPP 1988
Name of Project Partnership Name of Project Location
Union Station Associates Union Station Providence, RI
330 Julia Street Associates The Rotunda New Orleans, LA
Limited Partnership
New Bedford Historic Stores CWT Building New Bedford, MA
Associates Limited Partnership
Coastline Associates Limited Coastline Center Wilmington, NC
<PAGE>
Exhibit C
LIST OF PROPERTIES - HPP 1989
Name of Project Partnership Name of Project Location
Historic Preservation Properties The Cosmopolitan St. Paul, MN
1989 L. P. Building
Jenkins Court Associates Jenkins Court Jenkintown, PA
Limited Partnership (1)
Portland Loft Associates Honeyman Portland, OR
Limited Partnership Hardware Lofts
402 Julia Street Associates The Lofts New Orleans, LA
Limited Partnership
(1) 50% of standard Asset Management fee to monitor
and collect receivable
<PAGE>
Exhibit D
LIST OF PROPERTIES - HPP 1990
Name of Project Partnership Name of Project Location
Henderson's Wharf Baltimore, Henderson's Wharf Baltimore, MD
L.P. (Inn/ Apartments)
Henderson's Wharf Baltimore, Henderson's Wharf Baltimore, MD
L.P. Marina
SETTLEMENT AGREEMENT
THIS AGREEMENT ("Agreement") made this3rd day of November, 1998, by and
between The COUNCIL OF UNIT OWNERS OF THE RESIDENCES AND INN AT HENDERSON'S
WHARF, a Condominium, Incorporated (the "Council"), HENDERSON'S WHARF BALTIMORE
L.P., a Delaware limited partnership ("HWLP"), CLAREMONT MANAGEMENT CORPORATION
("Claremont"), MCKENNA MANAGEMENT ASSOCIATES, INC. ("McKenna"), CREDIT SERVICE
INTERNATIONAL BALTIMORE, INC. ("CSI"), TERENCE P. SULLIVAN ("Sullivan"), CHARLES
M. MORAN, JR. ("Moran"), CHARLES S. INTRAVAIA ("Intravaia"), BRIAN M. KRASON
("Krason") and JOSEPH V. BRADY ("Brady") (Claremont, McKenna, CSI, Sullivan,
Moran, Intravaia, Krason and Brady are sometimes collectively referred to herein
as the "Third Party Defendants") and RICHARD SASSI, a Maryland resident
("Sassi").
EXPLANATORY STATEMENT
The Council is the council of unit owners for the residential
condominium known as The Residences and Inn at Henderson's Wharf, located at
1000 Fell Street in Fells Point, Baltimore City, Maryland (the "Condominium").
HWLP operates and manages the Condominium. Sassi is the owner of Condominium
Unit No. 402 and Parking Unit No. P-61 in the Condominium (collectively, the
-Unit").
The Council and HWLP filed a legal action against Sassi, known as
The Council of Unit Owners of the Residences and Inn at Henderson's Wharf, A
Condominium, Incorporated and Henderson's Wharf Baltimore, L.P: v. Richard
Sassi, Civil Case No. 97-154-052-CC-2921, which is pending in the Circuit Court
of Maryland for Baltimore City ("Lawsuit"). In the Lawsuit, the Council and
HWLP assert claims against Sassi for delinquent condominium charges and
assessments and nuisance (all of the Council's and HWLP's claims are
hereinafter sometimes collectively referred to as the "Condominium's Claims").
Sassi filed a (1) counterclaim in the Lawsuit against the Council
and HWLP, as applicable, for violations of the Fair Debt Collection Practices
Act, breach of contract, deceit and trespass (all of such claims being
sometimes collectively referred to herein as the "Counterclaim").and (ii) third
party complaint in the Lawsuit against the Third Party Defendants, as
applicable, for violations of the Fair Debt Collection Practices Act, breach of
contract, negligence, deceit and trespass (all of such claims being sometimes
collectively referred to herein as the -Third Party Complaint").
CSI filed a cross complaint in the Lawsuit against the Council.
HWLP, Claremont, McKenna, Sullivan, Moran, Intravaia, Krason and Brady for
indemnification for certain matters ("Cross Claim").
The parties have agreed to compromise and settle all claims which
any party has asserted or may assert in the Lawsuit, Counterclaim, Third Party
Complaint or Cross Claim, or which any party may have arising out of the use or
ownership or operation of the Unit. or any part thereof.
<PAGE>
NOW, THEREFORE, for and in consideration of the foregoing
explanatory statements and the agreements hereinafter set forth, the
sufficiency and legal adequacy of which the parties acknowledge, they do
hereby agree as follows:
I . Purchase of Unit. HWLP shall purchase the Unit from Sassi for
a purchase price of One Hundred Ten Thousand Dollars ($110,000.00) ("Purchase
Price") in accordance with the terms of an Agreement of Sale and Purchase
attached hereto as Exhibit A and incorporated herein by reference ("Agreement
of Sale"). The parties agree that the Purchase Price represents the fair
market value of the Unit.
2. Settlement Sum. At the Closing (as defined in the Agreement of
Sale), HWLP shall pay to Sassi the Purchase Price (subject to any adjustments
and apportionments as set forth in the Agreement of Sale) plus, in settlement
of any claims for alleged damage to the Unit or to the fair market value of
the Unit, the additional sum of Sixty-Five Thousand Dollars ($65,000.00)
("Additional Payment"). The Purchase Price and the Additional Sum are
sometimes hereinafter collectively referred to as the "Settlement Sum". The
Purchase Price shall be reported on Form 1099-S and the Additional Payment
shall be reported on Form 1099-MISC., Box 3.
3. Attorneys' Fees. At Closing, HWLP shall pay to Sassi the sum of
Twenty Thousand Dollars ($20,000.00) representing reimbursement of legal fees
and other costs incurred by Sassi with respect to the Lawsuit, Counterclaim
and Third Party Claim ("Sassi's Attorneys' Fees").
4. Dismissal with Prejudice. At or before Closing, the Council,
HWLP, Sassi and the Third Party Defendants shall execute a Notice of Dismissal
with prejudice ("Notice of Dismissal") dismissing the Lawsuit, Counterclaim,
Third Party Claim and Cross Claim. The Notice of Dismissal shall be filed
promptly, the costs for which filing shall be split equally between HWLP and
Sassi.
5. Releases.
(a) The Council and HWLP, for themselves and for their
officers, directors, employees, agents, principals and shareholders, and for
all their respective successors and assigns, shall, at or by Closing, release
and forever discharge, in the form attached hereto as Exhibit B (the
"Release"), Sassi and the Third Party Defendants, their respective heirs,
personal representatives, successors, assigns, officers, directors, employees,
agents, principals and shareholders, from any and all claims, actions, suits,
debts, counts, covenants, contracts, damages, judgments and demands of
whatsoever kind or nature ("Claims"), which the Council and/or HVVLP,
individually or collectively, ever had, or may now have, up to the date of the
Release, pertaining in any way to the Unit (other than a breach by Sassi under
the Agreement of Sale), including but not limited to any Claims which were
raised or could have been raised in the Lawsuit.
(b) Sassi, for himself and his heirs, personal
representatives and assigns, shall, at or by Closing, release and forever
discharge, in the form of Exhibit B, the Council, HWLP and the Third Party
<PAGE>
Defendants, their respective heirs, personal representatives, successors,
assigns. officers, directors, employees, agents, principals and shareholders,
from any and all Claims which Sassi ever had, or may now have, up to the date of
the Release, pertaining in any way to the Unit (other than a breach by HWLP
under the Agreement of Sale), including but not limited to any Claims which were
raised or could have been raised in the Counterclaim or in the Third Party
Complaint.
(c) The Third Party Defendants, for themselves and for their
officers, directors, employees, agents, principals and shareholders, and for
all their respective heirs, personal representatives, successors and assigns,
shall, at or by Closing, release and forever discharge, in the form of Exhibit
B, Sassi, the Council and HWLP, their respective heirs, personal
representatives, successors, assigns, officers, directors, employees, agents,
principals and shareholders, from any and all Claims which the Third Party
Defendants, individually and/or collectively, ever had, or may now have, up to
the date of the Release, pertaining in any way to the Unit, including but not
limited to any Claims which were raised or could have been raised in the Cross
Complaint.
6. Contingency. The obligations of the parties as set out in this
Agreement are contingent upon the simultaneous occurrence at or by Closing of
the sale and purchase of the Unit pursuant to the terms of the Agreement of
Sale, the payment of the Settlement Sum to Sassi. the payment of Sassi's
Attorneys' Fees to Sassi, the execution of the Notice of Dismissal and the
execution of the Release.
7. Not an Admission. The parties have entered into this Agreement
as a full and complete settlement and compromise of their respective claims as
set forth in the Lawsuit, Counterclaim, Third Party Complaint and Cross Claim,
or otherwise referenced in this Agreement. It is expressly understood and
agreed that neither the execution of this Agreement, nor the tender or receipt
of any payment, is intended, nor shall it be understood, as an acknowledgment
of responsibility, an admission of liability, or other expression reflecting
upon the merits of the claims. and any such responsibility or liabilities are
expressly denied.
8. Confidentiality . The parties agree that they shall not reveal
to any third party the terms or conditions of this Agreement (except for the
Agreement of Sale, which may be disclosed by the Council, HWLP or Sassi to
anyone), except (i) with the express written consent of all parties; (ii) as
reasonably may be required by any party's accountants, attorneys and other
professionals; (111) as may be required by HWLP in connection with any
securities or other regulatory filing; (iv) as may be required by HWLP in
connection with any necessary or desirable communications with or among
partners of HWLP; (v) as may be necessary to enforce the provisions of this
Agreement or the Agreement of Sale; (vi) as may otherwise be required by law
and (vii) except as may be required or desirable in connection with the
administration or governance of the Condominium. The obligations under this
paragraph shall survive any termination of this Agreement.
9. List of Exhibits.
A. Form of Agreement of Sale
<PAGE>
B. Form of Release.
10. Miscellaneous.
(a) This Agreement sets forth the entire agreement and
understanding of the parties with respect to the subject matter hereof, and
may not be amended, modified or terminated except by written amendment signed
by all of the parties, and shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors, personal
representatives, heirs, legatees and assigns.
(b) Time is of the essence of performance of each of the
obligations of the parties which are set forth above in this Agreement.
(c) This Agreement shall be governed by and construed
according to the laws of the State of Maryland.
(d) This Agreement is made and entered into for the sole
protection and benefit of the parties hereto, their successors and assigns, and
no other person or entity shall directly or indirectly have any claims, rights
or causes of action under, or be a beneficiary o any provision of this
Agreement.
(e) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same document. This Agreement may
be delivered by facsimile transmission of an originally executed copy to be
followed by immediate delivery of the original of such executed copy.
IN WITNESS WHEREOF, the parties have duly executed and
acknowledged this Agreement as of the date and year first written above.
WITNESS/ATTEST: COUNCIL:
THE COUNCIL OF UNIT OWNERS OF THE
RESIDENCES AND INN AT HENDERSON'S WHARF, a
Condominium, Incorporated.
By:_________________________________
Name:________________________
Title:_________________________
<PAGE>
HWLP:
HENDERSON'S WHARF BALTIMORE L.P.
By: Henderson's Wharf Development
Corporation, General Partner
By:
Name:
Title:
CLAREMONT:
CLAREMONT MANAGEMENT
CORPORATION
By: (SEAL)
Name:
Title:
MCKENNA:
MCKENNA MANAGEMENT ASSOCIATES, INC.
By: (SEAL)
Name:
Title:
CSI:
CREDIT SERVICE INTERNATIONAL
BALTIMORE, INC.
By: (SEAL)
Name:
Title:
<PAGE>
SULLIVAN:
(SEAL)
Terence P. Sullivan
MORAN:
(SEAL)
Charles M. Moran, Jr.
INTRAVAIA:
(SEAL)
Charles S. Intravaia
KRASON:
(SEAL)
Brian M. Krason
BRADY:
(SEAL)
Joseph V. Brady
SASSI:
(SEAL)
Richard Sassi
<PAGE>
EXHIBIT A TO SETTLEMENT AGREEMENT
AGREEMENT OF SALE AND PURCHASE
<PAGE>
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement") is
made on this day of -1 1998 (the "Effective Date"), by and between RICHARD
SASSI, a Maryland resident ("Seller") and HENDERSON'S WHARF BALTIMORE L.P., a
Delaware limited partnership ("Buyer").
Background
Seller is the owner of Condominium Unit No. 402 (the
"Unit") in The Residences and Inn at Henderson's Wharf, a
Condominium (the "Condominium"). together with all appurtenances
and advantages thereunto pertaining, and Parking Unit No. P-61
and an undivided percentage interest in the common elements,
common expenses and common profits in the condominium regime. and
together with all appliances, fixtures. equipment and personalty
located in the Unit (collectively, the "Property").
Seller desires to sell and convey to Buyer. and Buyer
desires to purchase from Seller. the Property upon the terms and
conditions set forth in this Agreement.
Agreements
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and of other good and valuable
consideration. the receipt and sufficiency of 9 which are hereby acknowledged,
Seller and Buyer agree as follows:
1. . SALE AND PURCHASE. Subject to the terms and conditions set forth in
this Agreement, Seller hereby agrees to sell to Buyer. and Buyer hereby agrees
to purchase from Seller. the Property.
2. PURCHASE PRICE AND PAYMENT. The purchase price to be paid by
Buyer to Seller for the Property (the "Purchase Price") shall be the sum of One
Hundred Ten Thousand Dollars ($110,000.00). The Purchase Price shall be paid at
Closing (as hereinafter defined) by bank. cashier's, certified or title company
check or by bank wire.
3. POSSESSION: RISK OF LOSS.
(a) At Closing, Seller shall deliver to Buyer possession of the Property, in
broom clean condition, free of any and all tenancies.
<PAGE>
(b) Until Closing, the Seller shall bear the risk of any
damage to or destruction of the Property. From and after the date hereof and
until Closing, the Seller shall. at its expense, (a) keep the Property insured
against fire and such other insurable casualties as are commonly insured
against by an all-risk casualty insurance policy, to its full insurable value,
and (b) cause each such policy to be endorsed to name the Buyer (in its
capacity as contract purchaser hereunder) as an additional insured thereunder
as its interest may appear.
4. TITLE. Fee simple title in and to the Property shall be
marketable, insurable at standard rates on an ALTA Form B policy of owner's
title insurance, and free and clear of all liens, encumbrances, leases,
easements, covenants, conditions and restrictions, except for those matters
shown on the title report attached hereto as Exhibit A and incorporated herein
by reference (collectively, the "Permitted Property Exceptions"). From and
after the Effective Date Seller shall not do or cause to be done anything
which will affect the status of title of the Property. Notwithstanding
anything to the contrary, Seller shall discharge any lien or encumbrance which
is capable of being discharged by the payment of money. including anv deed of
trust or mortgage.
5. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller makes the
following representations and warranties to Buyer. each of which shall be true
and correct on the Effective Date and on the Closing Date (as hereinafter
defined) and shall survive the Closing:
(a) The execution and deliver,., of this Agreement by Seller,
and the performance by Seller of all terms and conditions contained herein, do
not violate the terms of, are not in conflict with, and will not result in the
breach of or default under (1) any agreement, commitment, obligation, contract
or instrument under which Seller or the Property is bound or affected or (ii)
any law, rule, regulation or court order by which the Property or Seller is
affected.
(b) As of the Effective Date, all taxes, assessments, fees or
other charges (other than condominium fees) affecting or pertaining to the
Unit have been paid in full.
(c) There are no leases or tenancies with respect to the
Property or any part thereof and there have not been any for the preceding six
months. The Property has never been a single family residential rental dwelling
as such term is defined in Article 13, Sections 46-55 of the Baltimore City
Code (1976 Edition. as amended). Seller will not lease the Unit prior to
Closing.
6. CONDITIONS PRECEDENT TO CLOSING. The obligation of Buyer to
purchase the Property pursuant to this Agreement shall be expressly conditioned
upon and subject to the satisfaction (or written waiver by Buyer) of each of
the following, conditions:
(i) Each of the representations and warranties of Seller contained in
Section 5 shall be true as of the Closing Date: and
(ii) Seller shall not be in default of any of its obligations under this
Agreement.
<PAGE>
If any one or more of such conditions precedent are not
satisfied (or the satisfaction thereof is not waived in writing by Buyer) as
of the Closing Date. then Buyer shall have the right, at its option, to
terminate this Agreement by written notice thereof to Seller, and thereafter
neither party shall have any further liability or obligation hereunder.
7. CLOSING; CLOSING COSTS, ADJUSTMENTS.
(a) The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Neuberger, Quinn,
Gielen, Rubin & Gibber, P.A., 27th Floor, One South Street, Baltimore, Maryland
21202, or at such other location in Baltimore City designated by Buyer, within
sixty (60) days from the date of this Agreement upon not less than five (5)
days prior notice from Buyer to Seller, at a time designated by Buyer ("Closing
Date"). If the Closing Date as provided herein falls on a Saturday, Sunday or
legal holiday. then the Closing Date shall be extended to the next day which is
a business day.
(b) Buyer shall pay all recording costs and any costs charged by the council of
unit owners of the Condominium in connection with such conveyance.
(c) All fees (other than condominium fees). all taxes,
general or special. and all other public and governmental charges or
assessments against the Property which are or may be payable on an annual or
semi-annual basis (including metropolitan and other benefit charges.
assessments. liens or encumbrances) shall be adjusted and apportioned as of the
Closing and are to be assumed and paid thereafter by Buyer, whether or not the
assessments have been levied as of the Closing.
(d) All outstanding condominium fees assessed against the
Property up through the date of Closing shall be paid by Buyer at Closing.
(e) All water and sewer bills for the Property shall be
adjusted as of the Closing based on prior bills and all gas and/or electric
bills shall be adjusted as of the Closing based on meter reading or prior
bills.
8. RECORDATION AND TRANSFERTAXES. OTHER COSTS.
(a) SECTION 14-104 OF THE REAL PROPERTY ARTICLE OF THE
ANNOTATED CODE OF MARYLAND PROVIDES THAT, UNLESS OTHERWISE NEGOTIATED IN THE
CONTRACT OR PROVIDED BY STATE OR LOCAL LAW, THE COST OF ANY RECORDATION TAX OR
STATE OR LOCAL TRANSFER TAX SHALL BE SHARED EQUALLY BY BUYER AND SELLER. This
statement is provided for informational purposes only. Except as provided in
subsection (b) below, Buyer shall pay the total cost of all documentary stamps,
recordation taxes and transfer taxes imposed upon the transfer of the Property.
<PAGE>
(b) This subsection applies if Buyer is a first-time Maryland
home buyer who will reside in the Property. If there are two or more Buyers,
then each Buyer must be someone who is a first-time Maryland home buyer, or
someone who will not occupy the house as a principal residence and who is a
co-maker or guarantor of a purchase money deed of trust or mortgage for the
benefit of the first-time Maryland home buyer. A "first-time Maryland home
buyer" means an individual who has never owned in the State of Maryland
residential real property that has been his or her principal residence.
Section 14-104 of the Real Property Article of the Annotated Code of Maryland
provides that:
(i) Buyer's portion of the State transfer tax is waived;
(ii) State transfer tax will be reduced to 0.25% of the sales
price of the property;
(iii) the entire amount of the State transfer tax shall be
paid by Seller; and
(iv) the entire amount of recordation tax and local transfer tax shall be paid
by Seller unless there is an express agreement between Buyer and Seller that
the recordation
tax and local transfer tax will not be paid entirely by Seller. In this
Agreement, the parties agree that the costs of transfer tax and recordation
tax shall be paid by Buyer.
___ check if first-time Maryland Home Buyer.
9. DEFAULT.
(a) If Buyer shall have fully performed its obligations
hereunder and Seller breaches this Agreement or otherwise falls to perform or
observe any of the covenants or obligations to be performed or observed by
Seller hereunder, or if any of Seller's representations or warranties hereunder
is incorrect or untrue as of the Closing Date. Buyer shall have the right to
(i) enforce Buyer's right of specific performance, (ii) bring suit for all
damages suffered by reason of Seller's action or inaction, and/or (111) enforce
any and all other remedies available to Buyer at law or in equity.
(b) If Seller shall have fully performed its obligations
hereunder and Buyer breaches this Agreement or otherwise fails to perform or
observe any of the covenants or obligations to be performed or observed by
Buyer hereunder. Seller shall have the right to (1) enforce Seller's right of
specific performance, (11) bring suit for all damages suffered by reason of
Buyer's action or inaction, and/or (111) enforce any and all other remedies
available to Seller at law or in equity.
(c) In the event of litigation, the prevailing party shall be
entitled to reasonable attorneys' fees and costs of litigation.
<PAGE>
10. CLOSING DOCUMENTS.
(a) At Closing, upon payment of the Purchase Price, Seller
shall execute and deliver to the closing officer or title company
representative a special warranty deed, with covenants of further assurances,
in the form attached hereto as Exhibit B and incorporated herein by reference,
conveying fee simple title to the Property to Buyer free and clear of all
liens, encumbrances, leases, easements, covenants, conditions. restrictions and
other title exceptions other than the Permitted Property Exceptions.
(b) On the Closing Date, Buyer shall execute, acknowledge and
deliver all additional documents that may reasonably be necessary or
appropriate to carry out the provisions hereof.
11. OPERATIONS PENDING CLOSING. From and after the dates listed
below, the parties shall perform as follows:
(a) From and after the Effective Date, Seller shall promptly
furnish to Buyer copies of any and all notices or communications that Seller
receives from (i) any governmental or quasi-governmental entities. or any other
body having jurisdiction with respect to the use and occupancy or physical
condition of the Property. and/or (ii) any other notice or communication
relating to the Property.
(b) From and after the Effective Date, Seller shall promptly
furnish to Buyer written notice of any event or condition that causes or may
tend to cause a change in the facts relating to, or the accuracy, completeness
or truth of. any of the representations, warranties. covenants, or any of the
information provided herein.
(c) From and after the Effective Date, neither Seller nor
Seller's agents. affiliates or employees shall sell, offer for sale, permit the
use of, negotiate with respect to, or otherwise deal in the sale, lease or
other transfer of the Property or any interest therein.
12. BROKERAGE. Each party represents and warrants to the other that
it has dealt with no agent, broker or finder in connection with this Agreement.
and each party shall indemnify, defend and save harmless the other from and
against any loss, cost. damage or expense (including reasonable attorneys'
fees) arising from a breach of such representation or warranty.
13. NOTICES. All notices hereunder shall be in ,writing and shall
be (i) delivered via commercial messenger delivery service with same day or
overnight receipted delivery, or (ii) mailed, registered or certified U.S.
mail, return receipt requested first class postage prepaid, and shall be
addressed as follows:
<PAGE>
If to Seller: Henderson's Wharf Baltimore L.P.
c/o Gunn Financial, Inc.
45 Broad Street
Boston, MA 02109
ATTN: Charles Intravaia
Telecopy No. (617)338-6164
With a copy to: Richard Rubin, Esquire
Neuberger, Quinn, Gielen, Rubin
& Gibber, P.A.
Commerce Place, 27th Floor
One South Street
Baltimore, Maryland 21202-3201
Telecopy No. (410) 332-8594
If to Buyer: Richard Sassi
10 East Lee Street
Unit 1509
Baltimore. Maryland 21202
Telecopy No. (410)__________
With a copy to Bruce D. Brown, Esquire
Siskind, Grady, Rosen & Hoover, P.A.
Jefferson Building
Two East Fayette Street
Baltimore, Maryland 21202
Telecopy No. (410) 332-0269
Notices that are delivered by commercial messenger shall be deemed effective
upon delivery to the commercial messenger. Notices that are sent by registered
or certified mail shall be deemed delivered and effective the day the same is
deposited in the U.S. malls. Each party may change its address or telecopy
number giving written notice as provided above. All notices shall also be sent
via telecopy to the number set forth above on the same day as such notice is
deposited with the messenger or U.S. Post Office.
14. RESALE NOTICE. SELLER IS REQUIRED BY LAW TO FURNISH TO BUYER
NOT LATER THAN FIFTEEN (15) DAYS PRIOR TO THE CLOSING CERTAIN INFORMATION
CONCERNING THE CONDOMINIUM WHICH IS DESCRIBED IN ss.11-135 OF THE MARYLAND
CONDOMINIUM ACT. THIS INFORMATION MUST INCLUDE AT LEAST THE FOLLOWING:
(1) A COPY OF THE DECLARATION (OTHER THAN THE
PLATS);
<PAGE>
(11) A COPY OF THE BYLAWS;
(111) A COPY OF THE RULES AND REGULATIONS OF
THE CONDOMINIUM;
(IV) A CERTIFICATE CONTAINING:
(1) A STATEMENT DISCLOSING THE EFFECT ON THE PROPOSED
CONVEYANCE OF ANY RIGHT OF FIRST REFUSAL OR OTHER RESTRAINT ON THE FREE
ALIENABILITY OF THE UNIT, OTHER THAN ANY RESTRAINT CREATED BY THE UNIT OWNER;
(2) A STATEMENT OF THE AMOUNT OF THE MONTHLY COMMON
EXPENSE ASSESSMENT AND ANY UNPAID COMMON EXPENSE OR SPECIAL ASSESSMENT
CURRENTLY DUE AND PAYABLE FROM THE SELLING UNIT OWNER;
(3) A STATEMENT OF ANY OTHER FEES PAYABLE BY THE UNIT
OWNERS TO THE COUNCIL OF UNIT OWNERS;
(4) A STATEMENT OF ANY CAPITAL EXPENDITURES APPROVED
BY THE COUNCIL OF UNIT OWNERS OR ITS AUTHORIZED DESIGNEE PLANNED AT THE TIME
OF THE CONVEYANCE WHICH ARE NOT REFLECTED IN THE CURRENT OPERATING BUDGET
INCLUDED IN THE CERTIFICATE;
(5) THE MOST RECENTLY PREPARED BALANCE SHEET AND
INCOME AND EXPENSE STATEMENT, IF ANY, OF THE CONDOMINIUM;
(6) THE CURRENT OPERATING BUDGET OF THE CONDOMINIUM,
INCLUDING DETAILS CONCERNING THE AMOUNT OF THE RESERVE FUND FOR REPAIR AND
REPLACEMENT OF ITS INTENDED USE, OR A STATEMENT THAT THERE IS NO RESERVE FUND;
(7) A STATEMENT OF ANY JUDGMENTS AGAINST THE
CONDOMINIUM AND THE EXISTENCE OF ANY PENDING SUITS TO WHICH THE COUNCIL OF
UNIT OWNERS IS A PARTY;
(8) A STATEMENT GENERALLY DESCRIBING ANY INSURANCE
POLICIES PROVIDED FOR THE BENEFIT OF THE UNIT OWNERS, A NOTICE THAT THE POLICIES
ARE AVAILABLE FOR INSPECTION STATING THE LOCATION AT WHICH THEY ARE AVAILABLE,
AND A NOTICE THAT THE TERMS OF THE POLICY PREVAIL OVER THE GENERAL DESCRIPTION;
<PAGE>
(9) A STATEMENT AS TO WHETHER THE COUNCIL OF UNIT
OWNERS HAS KNOWLEDGE THAT ANY ALTERATION OR IMPROVEMENT TO THE UNIT OR TO
THE LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT VIOLATES ANY PROVISION OF
THE DECLARATION, BYLAWS, OR RULES OR REGULATIONS;
(10) A STATEMENT AS TO WHETHER THE COUNCIL OF UNIT
OWNERS HAS KNOWLEDGE OF ANY VIOLATION OF THE HEALTH OR BUILDING CODES WITH
RESPECT TO THE UNIT, THE LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT,
OR ANY OTHER PORTION OF THE CONDOMINIUM;
(11) A STATEMENT OF THE REMAINING TERM OF ANY
LEASEHOLD ESTATE AFFECTING THE CONDOMINIUM AND THE PROVISIONS GOVERNING
ANY EXTENSION OR RENEWAL OF IT; AND
(12) A DESCRIPTION OF ANY RECREATIONAL OR OTHER
FACILITIES WHICH ARE TO BE USED BY THE UNIT OWNERS OR MAINTAINED BY THEM OR THE
COUNCIL OF UNIT OWNERS, AND A STATEMENT AS TO WHETHER OR NOT THEN' ARE TO BE A
PART OF THE COMMON ELEMENTS; AND
(V) A STATEMENT BY THE UNIT OWNER AS TO WHETHER THE UNIT
OWNER HAS KNOWLEDGE:
(1) THAT ANY ALTERATION TO THE UNIT OR TO THE
LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT VIOLATES ANY PROVISION OF THE
DECLARATION, BYLAWS, OR RULES AND REGULATIONS;
(2) OF ANY VIOLATION OF THE HEALTH OR BUILDING
CODES WITH RESPECT TO THE UNIT OR THE LIMITED COMMON ELEMENTS ASSIGNED TO THE
UNIT; AND
(3) THAT THE UNIT IS SUBJECT TO AN EXTENDED LEASE
UNDER 11-137 OF THE MARYLAND CONDOMINIUM ACT OR UNDER LOCAL LAW, AND IF SO, A
COPY OF THE LEASE MUST BE PROVIDED.
BUYER WILL HAVE THE RIGHT TO CANCEL THIS AGREEMENT WITHOUT PENALTY,
AT ANY TIME WITHIN SEVEN (7) DAYS FOLLOWING DELIVERY TO BUYER OF ALL OF THIS
INFORMATION. HOWEVER, AFTER THE CLOSING, BUYER'S RIGHT TO CANCEL THIS AGREEMENT
IS TERMINATED.
15. DISCLOSURE/DISCLAIMER STATEMENT. Attached hereto as Exhibit C
and incorporated herein by reference is a notice to Buyer advising Buyer of
Buyer's rights
<PAGE>
under 10-702 of the Real Property Article of the Annotated Code of Maryland.
Buyer acknowledges receipt of. and has executed, a copy of such notice.
Pursuant to the provisions of ss.10-702 of the Real Property Article of the
Annotated Code of Maryland, Seller has delivered to Buyer the written
residential property disclaimer statement on the form attached hereto as
Exhibit D and incorporated herein by reference.
16. CERTIFICATE OF NON-FOREIGN STATUS. At Closing, Seller shall
provide Buyer with either (i) an certificate of non-foreign status in
substantially the form attached hereto as Exhibit E, stating that Seller is
not a foreign person (as that term is defined in Section 1445 of the Internal
Revenue Code) and providing Seller's tax identification number, or (ii) a
"Qualifying Statement" as such term is defined by Section 1445 of the Internal
Revenue Code.
MISCELLANEOUS PROVISIONS.
(a) This Agreement contains the sole, final and entire
agreement between the parties and is intended to he an integration of all prior
and contemporaneous agreements, conditions and undertakings between the parties.
There are no promises, agreements, conditions, undertakings, warranties or
representations, oral or written, express or implied, between the parties other
than as herein set forth.
(b) This Agreement may be amended by and only by an
instrument executed and delivered by Seller and Buyer.
(c) This Agreement and all of the provisions hereof shall be
binding upon and shall inure to the benefit of the parties and their
respective heirs. devisees.
legatees, legal representatives. successors and assigns.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland.
(e) All provisions hereof shall survive the Closing Date,
unless otherwise provided herein.
(f) Each of the parties agrees to execute and deliver upon
reasonable demand of the other any document or instrument that such other party
reasonable, deems necessary or desirable to evidence or accomplish the rights
herein conferred or to implement or consummate the purposes and intent hereof.
(g) Time is of the essence.
(h) No determination by any court, governmental or
administrative entity or otherwise that any provision of this Agreement or any
amendment hereof is invalid or unenforceable in any instance shall affect the
validity or enforceability of (a) any other such
<PAGE>
provision, or (b) such provision in any circumstance not controlled by such
determination. Each such provision shall be valid and enforceable to the
fullest extent allowed by, and shall be construed wherever possible as being
consistent with. applicable law.
(i) This Agreement may be executed in one or more
counterparts. each of which shall be deemed an original and all of which when
taken together shall constitute one and the same document. This Agreement may
be delivered by facsimile transmission of an originally executed copy to be
followed by immediate delivery of the original of such executed copy.
(j) The following exhibits are attached to, and made a part
of. this Agreement:
A - Permitted Property Exceptions
B - Form of Deed
C - Notice to Buyer - Property Disclosure
D - Property Disclaimer Statement
E - Certificate of Non-Foreign Status
IN WITNESS WHEREOF. the parties hereto have duly executed this Agreement
tinder seal on the date first above written.
WITNESS/ATTEST: SELLER:
(SEAL)
Richard Sassi
WITNESS: BUYER:
HENDERSON'S WHARF BALTIMORE L.P.
By:Henderson's Wharf Development
Corporation. General Partner
By: (SEAL)
Name:
Title
<PAGE>
EXHIBIT A TO
AGREEMENT OF SALE AND PURCHASE
PERMITTED PROPERTY EXCEPTIONS
<PAGE>
SCHEDULE B
EXCEPTIONS FROM COVERAGE
Policy No.
File No.1980348
1 Taxes payable on an annual basis have been paid through the fiscal year ending
June 30, 1999, and other public charges including assessments by any County,
Municipality, Metropolitan District or Commission) payable on an annual basis
have been paid through the year ending December 31-, 1998. This policy does
insure against the balance of any public charges (including assessments by any
County, Municipality, Metropolitan District or Commission) payable on an annual
basis subsequent to the year ending December 31, 1998. Nor does this policy
insure against possible future tax levies, nor against possible public charges
as defined above that have not been levied or assessed, which future taxes,
charges and assessments are not now due and payable.
3. Declaration of the Residences and Inn at Henderson's Wharf, a condominium, by
Carley Capital Group dated August 30, 1988 and recorded among the Land Records
of Baltimore City in Liber SEBNo. 1821, folio 20, as amended by the following:
a) Amendment to Declaration dated April 3, 1989 and recorded among the
aforesaid Land Records in Liber SEB No. 2081, folio 329'
b) Second Amendment to Declaration dated July 31, 1990 and recorded among
the aforesaid Land Records in Liber SEB No. 2563, folio 230; and
c) Third Amendment to Declaration dated December 14, 1992 and recorded
among the aforesaid Land Records in Liber SEB NO. 3578, folio 030.
4. Amended and Restated Henderson's Wharf Disposition Agreement dated October
19, 1984 and recorded among the Land Records of Baltimore City in Liber SEB No.
335, folio 362, as amended by First Amendment to Amended and Restated
Henderson's Wharf Disposition Agreement dated July 31, 1990 and recorded among
the aforesaid Land Records in Liber SEB No. 2563, folio 264.
<PAGE>
CONTINUATION OF SCHEDULE B PART I
File No. 1951576
5. Building Perimeter Easement and Connecting Easement established by
Pedstrian Promenade Easement Agreement dated October 19, 1984 and recorded
among th Land Records of Baltimore City in Liber SEC No. 335, folio 204, by
and between Carley Capital Group and Mayor and City Council of Baltimore, as
amended by the following:
a) Amendment of Pedestrain Promenade Easement Agreement dated
April 6, 1987 and recorded amont the aforesaid Land Records in
Liber SEB No. 1308, folio 589; and
b) Second Amendment to Pedestrian Promenade Easement Agreement
dated July 31 1990 and recorded among the aforesaid Land
Records in Liber SEB No. 2563, folio 241;
6. Easement to the benefit of the Marina Owner over the Building Perimeter
Easement and Commercial Courtyard Area, as established by Reciprocal Easement
Agreement dated August 31, 1988 and recorded among the Land Records of
Baltimore City in Liber SEB No. 1824, folio 162, by and between Carley Capital
Group and The Council of Unit Owners of The Residences and Inn at Henderson's
Wharf, a Condominium, Incorporated, as amended by:
a) Amendment to Reciprocal Easement Agreement dated July 31, 1998
and recorded among the aforesaid Land Records in Liber SEB No.
2822, folio 277; and
b) Second Amendment to Reciprocal Easement Agreement dated
February 27, 1990 and recorded among the aforesaid Land
Records in Liber SEB 5395, folio 91.
7.Terms, conditions, easements, restrictions and other criteria as shown on
the Plats entitled "The Residences at Henderson's Wharf, a Condominium:, as
follows: a) Sheets 1 of 11 through 11 of 11 dated August, 1988 and recorded as
Condominium Plat SEB No. 232; and b) Sheets 1 of 11 through 11 of 11 dated
September, 1988 and revised December 14, 1992 and recorded as Condominium Plat
SEB No. 298.
<PAGE>
EXHIBIT B TO
AGREEMENT OF SALE AND PURCHASE
DEED
<PAGE>
DEED
THIS DEED ("Deed") is made on this day of , 1998, from RICHARD SASSI
("Grantor") to HENDERSON'S WHARF BALTIMORE L.P., a Delaware limited partnership
("Grantee").
The Grantor for a consideration of One Hundred Ten Thousand Dollars
($110,000.00) grants, conveys and assigns to the Grantee, its successors and
assigns, in fee simple. the real property located in Baltimore City, Maryland,
and described as follows:
Condominium Unit No. 402 ("Unit") and Parking Unit No. P-61 ("Parking
Unit") in THE RESIDENCES AND INN AT HENDERSON'S WHARF, A CONDOMINIUM
("Condominium"), a condominium established under the provisions of Title I I of
the Real Property Article of the Annotated Code of Maryland (1988 Replacement
Volume as amended) by the operation and effect of a Declaration dated August 30,
1988. and recorded among the Land Records of Baltimore City (the "Land Records")
at Liber S.E.B. No. 1821. page 20. et. seq.. made by Carley Capital Group
(hereinafter together with any amendments thereto, referred to as the
"Declaration"), all as the Unit, the Parking Unit and the Condominium are
defined in tile Declaration and are shown on those certain plats entitled
"Condominium Plat. The Residences and Inn at Henderson's Wharf, a Condominium."
dated August. 1988. and recorded among the Plat Records of Baltimore City at
Condominium Plat Record Book S.E.B. No. 232, Sheets I through 11, as amended
(all of which plats, together with any supplements thereto, are hereinafter
referred to collectively as the "Condominium Plats").
The improvements thereon being known as 1000 Fell Street, Unit No. 402,
along with Parking Unit No. P-61 are hereinafter referred to as the "Property",
and
Being the same property described in a Deed from Carley Capital
Group to Grantor dated September 6. 1988 and recorded among the Land Records in
Liber 1856, folio 239.
TOGETHER WITH all improvements contained in the Property. and all
appurtenances and advantages thereunto pertaining, including an undivided
percentage interest in the common elements, common expenses and common profits
in the condominium regime as set forth in the Declaration, the Bylaws and the
Condominium Plats.
TO HAVE AND TO HOLD the property hereby conveyed to Grantee. its
successors and assigns. in fee simple. forever.
The Grantor hereby covenants that it has not done or suffered to be
done anv act. matter or thing whatsoever to encumber the property hereby
conveyed. that it will warrant specially the property hereby-, and that it will
execute such further assurances of the same as may be requisite.
<PAGE>
IN WITNESS WHEREOF, the Grantor has executed this Deed under seal
oil the date first above written.
WITNESS: GRANTOR:
(SEAL)
Richard Sassi
STATE OF MARYLAND )
)
) to wit:
COUNITY OF )
I HEREBY CERTIFY that on this day of . 1998. before me, the
subscriber, a Notary Public of the State of Maryland, personally appeared
RICHARD SASSI. known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument. and he acknowledged that he
executed the foregoing, instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set rny hand and Notarial Seal.
Notary Public
My Commission Expires:
<PAGE>
CERTIFICATE
THE UNDERSIGNED, AN ATTORNEY ADMITTED TO PRACTICE BEFORE THE COURT OF
APPEALS OF MARYLAND, HEREBY CERTIFIES THAT THE ABOVE INSTRUMENT WAS PREPARED BY
ME OR UNDER MY SUPERVISION.
Susan M. Wilkins, Attorney
MR./MS. CLERK: AFTER THIS DEED OF EXCHANGE HAS BEEN RECORDED, PLEASE RETURN TO:
Susan M. Wilkins, Esq
Neuberger, Quinn. Gielen. Rubin
& Gibber. P.A.
Commerce Place, 27th Floor
One South Street
Baltimore, Maryland 21202-3201
<PAGE>
EXHIBIT C TO
AGREEMENT OF SALE AND PURCHASE
NOTICE TO BUYER-PROPERTY DISCLOSURE
<PAGE>
NOTICE TO BUYER OF BUYER'S RIGHT
UNDER MARYLAND'S PROPERTY DISCLOSURE LAW
NOTE: This Notice does not apply to: (1) The initial sale of single family
residential real property; (2) a transfer that is exempt from the transfer tax
under ss. 13-207 of the Tax-Property Article, except land installment contracts
of sale under ss. 1 3-207(l 1) of the Tax-Property Article and options to
purchase real property under ss. 13-207(12) of the Tax-Property Article; (3)a
sale by a lender acquiring the real property by foreclosure or deed in lieu of
foreclosure; (4) a sheriffs sale, tax sale, or sale by foreclosure, partition
or by court appointed trustee; (5) a transfer by a fiduciary in the course of
the administration of a decedent's estate, guardianship, conservatorship, or
trust; or (6) a transfer of single family residential real property to be
converted by the buyer into a use other than residential use or to be
demolished.
SECTION 10-702 OF THE REAL PROPERTY ARTICLE OF THE ANNOTATED CODE OF
MARYLAND ("SECTION 10-702") REQUIRES THAT SELLERS OF SINGLE FAMILY RESIDENTIAL
PROPERTY PROVIDE YOU. THE BUYER. ON OR BFFORF ENTERING INTO A CONTRACT OF SALE,
EITHER:
(A) A WRITTEN PROPERTY CONDITION DISCLOSURE STATEMENT LISTING ALL DEFECTS
OR INFORMATION OF WHICH THE SELLER HAS ACTUAL KNOWLEDGE IN RELATION TO THE
FOLLOWING:
(I) WATER AND SEWER SYSTEMS, INCLUDING THE SOURCE
OF HOUSEHOLD WATER, WATER TREATMENT SYSTEMS, AND
SPRINKLER SYSTEMS,
(II) INSULATION.
(III) STRUCTURAL SYSTEMS, INCLUDING THE ROOF. WALLS.
FLOORS. FOUNDATION. AND ANY BASEMENT,
(IV) PLUMBING. ELECTRICAL. HEATING. AND AIR
CONDITIONING SYSTEMS:
(V) INFESTATION OF WOOD-DESTROYING INSECTS:
(VI) LAND USE MATTERS.
(VIl) HAZARDOUS OR REGULATED MATERIALS, INCLUDING
ASBESTOS, LEAD-BASED PAINT. RADON. UNDERGROUND STORAGE
TANKS, AND LICENSED LANDFILLS: AND
<PAGE>
(VIII) ANY OTHER MATERIAL DEFECTS KNOWN TO THE
SELLER;OR
(B) A WRITTEN DISCLAIMER STATEMENT PROVIDING THAT:
(I) THE SELLER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE
CONDITION OF THE REAL PROPERTY OR ANY IMPROVEMENTS ON THE REAL
PROPERTY; AND
(II) THE BUYER WILL BE RECEIVING THE REAL PROPERTY "AS IS",
WITH ALL DEFECTS THAT MAY EXIST, EXCEPT AS OTHERWISE PROVIDED IN
THE CONTRACT OF SALE.
AT THE TIME THE DISCLOSURE OR DISCLAIMER STATEMENT IS DELIVERED TO YOU, YOU
ARE REQUIRED TO DATE AND SIGN A WRITTEN ACKNOWLEDGEMENT OF RECEIPT. WHICH SHALL
BE INCLUDED IN OR ATTACHED TO THE CONTRACT OF SALE.
YOU ARE HEREBY NOTIFIED THAT, IN CERTAIN CIRCUMSTANCES. YOU HAVE THE
RIGHT TO RESCIND YOUR CONTRACT OF SALE WITH THE SELLER IF THE YOU SELLER FAILS
TO DELIVER TO YOU THE WRITTEN PROPERTY CONDITION DISCLOSURE STATEMENT. SECTION
10-702 PROVIDES THAT A BUYER WHO DOES NOT RECEIVE THE DISCLOSURE STATEMENTON
OR BEFORE ENTERING INTO THE CONTRACT OF SALE HAS THE UNCONDITIONAL RIGHT, UPON
WRITTEN NOTICE TO THE SELLER OR SELLER'S AGENT:
(I) TO RESCIND THE CONTRACT OF SALE AT ANY TIME BEFORE THE RECEIPT
OF THE DISCLOSURE STATEMENT OR WITHIN 5 DAYS FOLLOWING RECEIPT OF
THE DISCLOSURE STATEMENT, AND
(II) TO THE IMMEDIATE RETURN OF ANY DEPOSITS MADE ON ACCOUNT OF THE
CONTRACT.
IF THE DISCLOSURE STATEMENT IS DELIVERED TO YOU LATER THAN 3 DAYS AFTER THE
SELLER ENTERS INTO A CONTRACT OF SALE WITH YOU. THE CONTRACT IS VOID. YOUR
RIGHT TO RESCIND THE CONTRACT OF SALE UNDER SECTION 10-702 TERMINATES IF NOT
EXERCISED BEFORE MAKING A WRITTEN APPLICATION TO A LENDER FOR A MORTGAGE LOAN.
IF THE LENDER DISCLOSES IN WRITING AT OR BEFORE THETINIE APPLICATION IS MADE
THAT THE RIGHT TO RESCIND TERMINATES ON SUBMISSION OF THE APPLICATION.
YOUR RIGHTS AS A BUYER UNDER SECTION 10-702 MAYNOT BE WAIVED IN THE
CONTRACT OF SALE AND ANY ATTEMPTED WAIVER IS VOID. YOUR RIGHTS
<PAGE>
AS THE BUYER TO TERMINATE THE CONTRACT UNDER SECTION 10-702 ARE WAIVED
CONCLUSIVELY IF NOT EXERCISED BEFORE:
(I) CLOSING OR OCCUPANCY BY YOU, WHICHEVER OCCURS FIRST, IN THE EVENT OF A
SALE; OR
(II) OCCUPANCY, IN THE EVENT OF A LEASE WITH OPTION TO PURCHASE.
THE INFORMATION CONTAINED IN THE PROPERTY CONDITION DISCLOSURE STATEMENT IS THE
REPRESENTATION OF THE SELLER AND NOT THE REPRESENTATION OF THE REAL ESTATE
BROKER OR SALESPERSON, IF ANY. THE SELLER IS NOT REQUIRED TO UNDERTAKE OR
PROVIDE AN INDEPENDENT INVESTIGATION OR INSPECTION OF THE PROPERTY IN ORDER TO
MAKE THE DISCLOSURES REQUIRED BY SECTION 10-702. THE SELLER IS NOT LIABLE FOR
AN ERROR. INACCURACY OR OMISSION IN THE DISCLOSURE STATEMENT IF THE ERROR,
INACCURACY. OR OMISSION %VAS BASED UPON INFORMATION THAT WAS NOT WITHIN THE
ACTUAL KNOWLEDGE OF THE SELLER: OR \VAS PROVIDED TO THE SELLER BY A THIRD
PARTY.
YOU HAVE THE RIGHT TO OBTAIN PROFESSIONAL ADVICE ABOUT THE PROPERTY OR
OBTAINAN INSPECTION OF THE PROPERTY.
THE UNDERSIGNED BUYER(S) ACKNGWLEDGES RECEIPT OF THIS NOTICE ON THE DATE
INDICATED BELOW.
WITNESS: HENDERSON'S
WHARF BALTIMORE L.P.
By: Henderson's Wharf
Development Corp.,
General Partner
By:
Narne:
Titie:
Date:
<PAGE>
EXHIBIT D TO
AGREEMENT OF SALE AND PURCHASE
PROPERTY DISCLAIMER STATEMENT
<PAGE>
MARYLAND RESIDENTIAL PROPERTY DISCLAIMER STATEMENT
NOTICE TO SELLER AND BUYER
Section 10-702 of the Real Property Article, Annotated Code of Maryland,
requires the owner of certain residential real property to furnish to the BUYER
either (a) a RESIDENTIAL PROPERTY DISCLAIMER STATEMENT stating that the owner
is selling the property "as is" and makes no representations or warranties as
to the condition of the property or any improvements on the real property,
except as otherwise provided in the contract of sale, or (b) a RESIDENTIAL
PROPERTY DISCLOSURE STATEMENT disclosing defects or other information about the
condition of the real property actually known by the owner. Certain transfers
of residential property are excluded from this requirement (see the exemptions
listed below).
MARYLAND RESIDENTIAL PROPERTY DISCLAIMER STATEMENT
NOTICE TO OWNER(S): Sign this statement only if you elect to sell the property
without representations and warranties as to its condition, except as otherwise
provided in the contract of sale, otherwise, complete and sign the RESIDENTIAL
PROPERTY DISCLOSURE STATEMENT.
Property Address:1000 Fell Street, Condominium Unit No. 402, along with
Parking Unit No. P-6 1.
Legal Description: Condominium Unit No. 402 and Parking Unit No. P-61 in
THE RESIDENCES AND INN AT HENDERSON'S WHARF, A CONDOMINIUM, as established
pursuant to a Declaration dated August 30, 1988, and recorded among the Land
Records of Baltimore City (the "Land Records") at Liber S.E.B. No. 1821, page
20. as amended by Amendment to Declaration dated April 3, 1989 and recorded
among the Land Records at Liber S.E.B. No. 2081, folio 329. and as further
amended by Second Amendment to Declaration dated July 31. 1990, and recorded
among the Land Records at Liber S.E.B. No. 2563. folio 230. and as further
amended by Third Amendment to Declaration dated as of December 14. 1992, and
recorded among the Land Records at Liber S.E.B. No. 3578. folio 30 (as amended.
the "Declaration"). and the Bylaws attached thereto (the "Bylaws"). and as shown
on those certain plats entitled "Condominium Plat. The Residences and Inn at
Henderson's Wharf, a Condominium." dated August, 1988, and recorded among the
Plat Records of Baltimore City at Condominium Plat Record Book S.E.B. No. 232.
Sheets I through 11. as amended by condominium plats dated December 14, 1992.
and recorded among the Plat Records of Baltimore City at Condominium Plat Record
Book S.E.B. 298, Sheets 1through 11(as arnended, the "Condominium Plats").
<PAGE>
undersigned owner(s) of the real property described above make no
representations or warranties as to the condition of the real property or any
improvements thereon, and the BUYER will be receiving the real property "as
is", with all defects which may exist, except as otherwise provided in the
real estate contract of sale. The owner(s) acknowledge having carefully
examined this statement and further acknowledge that they have been informed
of their rights and obligations under Section ss. 10-702 of the Maryland Real
Property Article.
SELLER: (SEAL)
Richard Sassi
Date:
The BUYER(s) acknowledge receipt of a copy of this disclaimer statement and
further acknowledge that he has been informed of his rights and obligations
under Section ss.10-702 of the Maryland Real Property Article.
BUYER: HENDERSON'S WHARF BALTIMORE L.P.
By:Henderson's Wharf Development
Corporation, General Partner
Date: By: (SEAL)
Name:
Title:
MARYLAND RESIDENTIAL PROPERTY DISCLOSURE ACT
10-702. Exemptions. - The following are specifically excluded from the
provisions of Section 10-702:
1. The initial sale of single family Residential Real Property
2. A transfer that is exempt from the transfer tax under 13-207 of the
Tax-Property Article, except land installment contracts of sale under 13-207(11)
of the Tax-Property Article except land installment Contracts of Sale under
13-207(11) of the Tax Property Article and options to purchase real property
under 13-207(12) of the Tax-Property Article;
3. A sale by a lender acquiring the Real Property by foreclosure or deed in lieu
of foreclosure;
4. A sheriff's sale, tax sale, or sale by foreclosure, partition, or by court
appointed trustee;
5. A transfer by a fiduciary in the course of the administration of a decedent's
estate, guardianship, conservatorship, or trust; or
6. A transfer of single family Residential Real Property to be converted by the
Buyer into a use other than residential use or to be demolished.
<PAGE>
EXHIBIT E TO
AGREEMENT OF SALE AND PURCHASE
CERTIFICATE OF NON-FOREIGN STATUS
<PAGE>
CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee
(buyer) of a U.S. real property interest must withhold tax if the transferor
(seller) is a foreign person. To inform the transferee that withholding of tax
is not required upon the undersigned's disposition of a U. S. real property
interest, the undersigned does hereby certify the following:
1. The undersigned is not a nonresident alien for purposes of U.S. income
taxation.
2. The undersigned's U.S. taxpayer identifying number is .
3. The undersigned's address is .
The undersigned does understand that this certification may be disclosed
to the Internal Revenue Service by the transferee and that any false statement
made here could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned does hereby declare that the
undersigned has examined this certification and, to the best of the undersigned"
knowledge and belief, it is true, correct, and complete.
Dated: , 1998
By:
Richard Sassi
<PAGE>
EXHIBIT B TO SETTLEMENT AGREEMENT
RELEASE
<PAGE>
MUTUAL RELEASE
This mutual release ("Release") made this day of , 1998, by and between The
COUNCIL OF UNIT OWNERS OF THE RESIDENCES AND INN AT HENDERSON'S WHARF BALITIMORE
L.P., a Delaware limited partnership ("HWLP"), CLAREMONT MANAGEMENT CORPORATION
("Claremont"), MCKENNA INTERNATIONAL BALTIMORE, INC. ("McKenna)", CREDIT SERVICE
INTERNATIONAL BALTIMORE, INC. ("CSI"), TERRENCE P. SULLIVAN ("Sullivan"),
CHARLES M. MORAN, JR. ("Moran"), CHARLES S. INTRAVAIA ("Intravaia"), BRIAN M.
KRASON ("Krason") and JOSEPH V. BRADY ("Brady") (Claremont, McKenna, Sullivan,
Intravaia, Krason and Brady are sometimes collectively referred to herein as the
"Third Party Defendants") and RICHARD SASSI, a Maryland resident ("Sassi").
EXPLANATORY STATEMENT
The Council is the council of unit owners for the residential
condominium known as The Residences and Inn at Henderson's Wharf, located at the
foot of Fell Street in Fells Point, Balitmore City, Maryland (the
"Condominium"). HWLP operates and manages the Condominium. Sassi is the owner of
Condominium Unit No. 402 and Parking Unit No. P-61 in the Condominium
(collectively, the "Unit").
The Council and HWLP filed a legal action against Sassi, known as
The Council of Unit Owners of the Residences and Inn at Henderson's Wharf, A
Condominium, Incorporated and Henderson's Wharf Baltimore, L.P. v. Richard
Sassi, Civil Case No. 97-154-052-CC-292, which is pending in the Circuit Court
of Maryland for Baltimore City ("Lawsuit"). In the Lawsuit, the Council and HWLP
assert caims against Sassi for delinquent condominium charges and assessments
and nuisance (all of the Council's and HWLP's claims are hereinafter sometimes
collectively referred to as the "Condominium's Claims").
Sassi filed a (I) counterclaim in the Lawsuit against the Council
and HWLP, as applicable, for violations of Fair Debt Collection Practices Act,
breach of contract, deceit and trespass (all of such claims being sometimes
collectively referred to herein as the "Counterclaim"); and (ii) third party
complaint in the Lawsuit against Claremont Management Corporation ("Claremont"0,
McKenna Management Associates, Inc. ("McKenna"), Credit Service International
Baltimore, Inc. ("CSI"), Terrence P. Sullivan ("Sullivan"), Charles M. Moran,
Jr. ("Moran"), Charles S. Intravaia ("Intravaia"), Brian M. Krason ("Krason")
and Joseph V. Brady ("Brady"), as applicable, for violations of Fair Debt
Collection Practices Act, breach of contract, negligence, deceit and trespass
(all of such claims being sometimes collectively referred to herein as the
"Third Party Complaint"). Claremont, McKenna, Sullivan, Intravaia and Krason and
Brady are sometimes collectively referred to herein as the "Third Party
Defendants".
<PAGE>
CSI filed a cross complaint in the Lawsuit against the Council,
HWLP, Claremont, McKenna, Sullivan, Moran, Intravaia, Krason and Brady for
indemnification for certain matters ("Cross Claim").
The parties have agreed to compromise and settle all claims which
any party has asserted or may assert in the Lawsuit, Counterclaim, Third Party
Complaint or Cross Claim, or which any party has asserted or may assert in the
Lawsuit, Counterclaim, Third Party Complaint or Cross Claim, or which any party
may have arising out of the use of ownership or operation of the Unit, or any
part thereof, pursuant to the terms of a Settlement Agreement of even date
herewith between the parties ("Settlement Agreement").
NOW, THEREFORE, for and in consideration of the foregoing
explanatory statements and the agreements hereinafter set forth, the sufficiency
and legal adequacy of which the parties acknowledge, they do hereby agree as
follows:
1. The Council and HWLP, for themselves and for their officers, directors,
employees, agents, principals and shareholders, and for all their respective
successors and assigns, hereby release and forever dischares Sassi and the Third
Party Defendants, their respective heirs, personal representatives, successors,
assigns, officers, directors, emplyees, agents, principals and shareholders,
from any and all claims, actions, suits, debts, counts, covenants, contracts,
damages, judgments and demands of whatsoever king or nature ("Claims"), which
the Council and/or HWLP, individually or collectively, ever had, or may now
have, up to the date of this Release, pertaining in any way to the Unit (other
than a misrepresentation by Sassi under the Agreement of Sale, as defined in the
Settlement Agreement), including but not limited to any Claims which ere raised
or could have been raised in the Lawsuit.
2. Sassi, for himself and his heirs and personal representatives and
assigns, hereby releases and forever discharges the Council, HWLP and the Third
Party Defendants, their respective heirs, personal representatives, successors,
assigns, officers, directors, employees, agents, principals and shareholders,
from any and all Claims which Sassi ever had, or may now have, up to the date of
this Release, pertaining in any way to the Unit, including but not limited to
any Clains which were raised or could have been raised in the Counterclaim or in
the Third Party Complaint.
3. The Third Party Defendants, for themselves and for their
officers, directors, employees, agents, principals and shareholders, and for
their respective heirs, personal representatives, successors and assigns, hereby
releases and forever discharges Sassi, the Council and HWLP, their respective
heirs, personal representatives, successors, assigns, officers, directors,
employees, agents, principals and shareholders, from any and all Claims which
the Third Party Defendants, individually and/or collectively, ever had, or may
now have, up to the date of the Release, pertaining in any way to the Unit,
including but not limited to any Claims which were raised or could have been
raised in the Cross Complaint.
<PAGE>
4. This Release contains the entire agreement between the parties
and is the complete written integration of that agreement. This writing is
intended by the parties as a final expression of that agreement and as a
complete and exclusive statement of the terms thereof, all negotiations,
considerations and representations between the parties having been incorporated
herein. No course or prior dealings between the parties or their officers,
employees, agents or affiliates shall be relevant or admissible to supplement,
explain or vary any of the terms of this Release. None of the parties to this
Release has any right to rely on any prior or contemporaneous representations
made by anyone concerning this Release and none of the parties has so relied.
5. Each of the parties has read this Release and fully understands it.
6. This Release may be executed in one or more counterparts, each of which Shall
be deemed an original and all of which when taken together shall constitute one
and the same document. This Release may be delivered by facsimile transmission
or an originally executed copy to be followed by immediate delivery of the
original of such executed copy.
IN WITNESS WHEREOF, the parties have executed this Release under
seal as of the day of , 1998.
WITTNESS/ATTEST: COUNCIL:
THE COUNCIL OF UNIT OWNERS OF THE
RESIDENCES AND INN AT HENDERSON'S
WHARF, a Condominium, Incorporated
By: (SEAL)
Name:
Title:
<PAGE>
HWLP:
HENDERSON'S WHARF BALTIMORE L.P.
By: Henderson's Wharf Development
Corporation, General Partner
By: (SEAL)
Name:
Title:
CLAREMONT
CLAREMONT MANAGEMENT
CORPORATION
By: (SEAL)
Name:
Title:
MCKENNA:
MCKENNA MANAGEMENT ASSOCIATES, INC.
By: (SEAL)
Name:
Title:
<PAGE>
CSI:
CREDIT SERVICE INTERNATIONAL
BALTIMORE, INC.
By: (SEAL)
Name:
Title:
SULLIVAN:
(SEAL)
Terrence P. Sullivan
MORAN:
(SEAL)
Charles M. Moran, Jr.
INTRAVAIA:
(SEAL)
Charles S. Intravaia
KRASON:
(SEAL)
Brian M. Krason
BRADY:
(SEAL)
Joseph V. Brady
SASSI:
(SEAL)
Richard Sassi
<PAGE>
STATE OF )
) TO WIT:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of 1998 , before me, the subscriber, a
Notary Publicof the State and City/County aforesaid, personally appeared , who
acknowledged himself/herself to be the of The Council of Unit Owners of the
Residences and Inn at Henderson's Wharf, a , and that he/she as such officer,
being authorized so to do, executed the foregoing instrument for the purposes
therein contained, by signing in my presence the name of the corporation by
himself/herself as suchofficer. In Witness Whereof. I have hereunto set my hand
and official seal.
Notary PublicMy Commission expires:
STATE OF )
) TO WIT:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of 1998 , before me, the subscriber, a
Notary Publicof the State and City/County aforesaid, personally appeared , who
acknowledged himself/herself to be the of Henderson's Wharf Development
Corporation, general partner of Henderson's Wharf Baltimore, L.P., a Delaware
limited partnership, and that he/she as such officer, being authorized so to do,
executed the foregoing instrument for the purposes therein contained, by signing
in my presence the name of the corporation by himself/herself as suchofficer. In
Witness Whereof. I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
STATE OF )
) TO WIT:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of 1998 , before me, the subscriber, a
Notary Publicof the State and City/County aforesaid, personally appeared , who
acknowledged himself/herself to be the of Claremont Management Corporation, a ,
and that he/she as such officer, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing in my
presence the name of the corporation by himself/herself as suchofficer. In
Witness Whereof. I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
<PAGE>
STATE OF )
) TO WIT:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of 1998 , before me, the subscriber, a
Notary Publicof the State and City/County aforesaid, personally appeared , who
acknowledged himself/herself to be the of McKenna Management Associates, Inc., a
, and that he/she as such officer, being authorized so to do, executed the
foregoing instrument for the purposes therein contained, by signing in my
presence the name of the corporation by himself/herself as suchofficer. In
Witness Whereof. I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
<PAGE>
STATE OF )
) TO WIT
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of , 1998 , before me, the subscriber, a
Notary Public of the State and City/County aforesaid, personally appeared , who
acknowledged himself/herself to be the of Credit Service International
Baltimore, Inc., a , and that he/she as such officer, being authorized so to do,
executed the foregoing instrument for the purposes therein contained, by signing
in my presence the name of the corporation by himself/herself as such officer.
In Witness Whereof, I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
STATE OF )
) to wit:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of - . 1998, before me, the subscriber, a
Notary Public of the State aforesaid, personally appeared Terence P. Sullivan,
known to me (or satisfactorily proven) to be the persons whose name is
subscribed to the within instrument, and he acknowledged that he executed the
foregoing instrument for the purposestherein contained.IN WITNESS WHER-EOF. I
have hereunto set my hand and Notarial Seal. Notarv PublicMy Commission Expires:
<PAGE>
STATE OF )
) to wit:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of , 1998, before me, the subscriber,a
Notary Public of the State afoiesaid, personally appeared Charles M. Moran, Jr.,
known to me (or satisfactorily proven) to be the persons whose name is
subscribed to the within instrument, and he acknowledged that he executed the
foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
STATE OF )
) to wit:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of , 1998, before me, the subscriber, a
Notary Public of the State aforesaid, personally appeared Charles S. Intravaia,
known to me (or atisfactorily proven) to be the persons whose name is subscribed
to the within instrument, and he acknowledged that he executed the foregoing
instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
<PAGE>
STATE OF )
) to wit:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of , 1998, beforeme, the subscriber, a
Notary Public of the State aforesaid, personally appeared Brian M. Krason,known
to me (or satisfactorily proven) to be the persons whose name is subscribed to
the withininstrument, and he acknowledged that he executed the foregoing
instrument for the purposes thereincontained.IN WITNESS WHEREOF, I have hereunto
set my hand and Notarial Seal.
Notary Public
My Commissior Expires:
STATE OF )
) to wit:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of , 1998, before me, the subscriber, a
Notary Public of the State aforesaid, personally appeared Joseph V. Brady, known
to me (or satisfactorily proven) to be the persons whose name is subscribed to
the within instrument, and he acknowledged that lie executed the foregoing
instrument for the purposes therein contained.
IN WITNESS WHEREOF. I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
<PAGE>
STATE OF )
) to wit:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this day of , 1998, before me, the subscriber, a
Notary Public of the State aforesaid, personally appeared Richard Sassi, known
to me (or satisfactorily proven) to be the persons whose name is subscribed to
the within instrument, and he acknowledged that he executed the foregoing
instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
MUTUAL RELEASE
THIS MUTUAL RELEASE ("Release") made this 3RD day of November 1998, by and
between The COUNCIL OF UNIT OWNERS OF THE RESIDENCES AND INN AT HENDERSON'S
WHARF, a Condominium, Incorporated (the "Council"), HENDERSON'S WHARF BALTIMORE
L.P., a Delaware limited partnership ("HWLP"), CLAREMONT MANAGEMENT CORPORATION
("Claremont"), MCKENNA MANAGEMENT ASSOCIATES, INC. ("McKenna"), CREDIT SERVICE
INTERNATIONAL BALTIMORE, INC. ("CSI"), TERENCE P. SULLIVAN ("Sullivan"), CHARLES
M. MORAN, JR. ("Moran"), CHARLES S. INTRAVAIA ("Intravaia"), BRIAN M. KRASON
("Krason") and JOSEPH V. BRADY ("Brady") (Claremont, McKenna, Sullivan,
Intravaia, Krason and Brady are sometimes collectively referred to herein as the
"Third Party Defendants") and RICHARD SASSI, a Maryland resident ("Sassi").
EXPLANATORY STATEMENT
The Council is the council of unit owners for the residential
condominium known as The Residences and Inn at Henderson's Wharf, located at
the foot of Fell Street in Fells Point, Baltimore City, Maryland (the
"Condominium"). HWLP operates and manages the Condominium. Sassi is the owner
of Condominium Unit No. 402 and Parking Unit No. P-61 in the Condominium
(collectively, the "Unit").
The Council and HWLP filed a legal action against Sassi, known as
The Council of Unit Owners of the Residences and Inn at Henderson's Wharf, A
Condominium, Incorporated and Henderson's Wharf Baltimore, L.P. v. Richard
Sassi, Civil Case No. 97-154-052-CC-2921, which is pending in the Circuit Court
of Maryland for Baltimore City ("Lawsuit"). In the Lawsuit, the Council and
HWLP assert claims against Sassi for delinquent condominium charges and
assessments and nuisance (all of the Council's and HWLP's claims are
hereinafter sometimes collectively referred to as the "Condominium's Claims").
Sassi filed a (i) counterclaim in the Lawsuit against the Council and HWLP,
as applicable, for violations of Fair Debt Collection Practices Act, breach of
contract, deceit and trespass (all of such claims being sometimes collectively
referred to herein as the "Counterclaim"); and (ii) third party complaint in the
Lawsuit against Claremont Management Corporation ("Claremont"), McKenna
Management Associates, Inc. ("McKenna"), Credit Service International Baltimore,
Inc. ("CSI"), Terence P. Sullivan ("Sullivan"), Charles M. Moran, Jr. ("Moran"),
Charles S. Intravaia ("Intravaia"), Brian M. Krason ("Krason") and Joseph V.
Brady ("Brady"), as applicable, for violations of Fair Debt Collection Practices
Act, breach of contract, negligence, deceit and trespass (all of such claims
being sometimes collectively referred to herein as the "Third Party Complaint").
Claremont, McKenna, Sullivan, Intravaia and Krason and Brady are sometimes
collectively referred to herein as the "Third Party Defendants".
<PAGE>
CSI filed a cross complaint in the Lawsuit against the Council,
HWLP, Claremont, McKenna, Sullivan, Moran, Intravaia, Krason and Brady for
indemnification for certain matters ("Cross Claim").
The parties have agreed to compromise and settle all claims which
any party has asserted or may assert in the Lawsuit, Counterclaim, Third Party
Complaint or Cross Claim, or which any party has asserted or may assert in the
Lawsuit, Counterclaim, Third Party Complaint or Cross Claim, or which any
party may have arising out of the use or ownership or operation of the Unit,
or any part thereof, pursuant to the terms of a Settlement Agreement of even
date herewith between the parties ("Settlement Agreement").
NOW, THEREFORE, for and in consideration of the foregoing
explanatory statements and the agreements hereinafter set forth, the
sufficiency and legal adequacy of which the parties acknowledge, they do
hereby agree as follows:
1 . The Council and HWLP, for themselves and for their officers,
directors, employees, agents, principals and shareholders, and for all their
respective successors and assigns, hereby releases and forever discharges
Sassi and the Third Party Defendants, their respective heirs. personal
representatives, successors, assigns, officers, directors, employees, agents,
principals and shareholders, from any and all claims, actions, suits, debts,
counts, covenants. contracts, damages. judgments and demands of whatsoever
kind or nature ("Claims"), which the Council and/or HWLP, individually or
collectively, ever had, or may now have, up to the date of this Release,
pertaining in any way to the Unit (other than a misrepresentation by Sassi
under the Agreement of Sale, as defined in the Settlement Agreement),
including but not limited to any Claims which were raised or could have been
raised in the Lawsuit.
2. Sassi, for himself and his heirs and personal representatives
and assigns, hereby releases and forever discharges the Council, 14WLP and the
Third Party Defendants, their respective heirs, personal representatives,
successors, assigns, officers, directors, employees, agents, principals and
shareholders, from any and all Claims which Sassi ever had, or may now have,
up to the date of this Release, pertaining in any way to the Unit. including
but not limited to any Claims which were raised or could have been raised in
the Counterclaim or in the Third Party Complaint.
3. The Third Party Defendants, for themselves and for their
officers, directors, employees, agents, principals and shareholders, and for
their respective heirs, personal representatives, successors and assigns,
hereby releases and forever discharges Sassi, the Council and HWLP, their
respective heirs, personal representatives, successors, assigns, officers,
directors. employees, agents, principals and shareholders, from any and all
Claims which the Third Party Defendants, individually and/or collectively, ever
had, or may now have, up to the date of this Release, pertaining in any way to
the Unit, including but not limited to any Claims which were raised or could
have been raised in the Cross Complaint.
<PAGE>
4. This Release contains the entire agreement between the parties
and is the complete written integration of that agreement. This writing is
intended by the parties as a final expression of that agreement and as a
complete and exclusive statement of the terms thereof, all negotiations,
considerations and representations between the parties having been
incorporated herein. No course or prior dealings between the parties or their
officers, employees, agents or affiliates shall be relevant or admissible to
supplement, explain or vary any of the terms of this Release. None of the
parties to this Release has any right to rely on any prior or contemporaneous
representations made by anyone concerning this Release and none of the parties
has so relied.
5. Each of the parties has read this Release and fully understands
it.
6. This Release may be executed in one or more counterparts, each
of which shall be deemed an original and all of which when taken together shall
constitute one and the same document. This Release may be delivered by
facsimile transmission of an originally executed copy to be followed by
immediate delivery of the original of such executed copy.
IN WITNESS WHEREOF, the parties have executed this Release under
seal as of the 3rd day of November, 1998.
WITNESS/ATTEST: COUNCIL:
THE COUNCIL OF UNIT OWNERS OF THE
RESIDENCES AND INN AT HENDERSON'S
WHARF, a Condominium, Incorporated
By:
Name:
Title:
<PAGE>
HWLP:
HENDERSON'S WHARF BALTIMORE L.P.
BY: Henderson's Wharf Development
Corporation, General Partner
By: (SEAL)
Name:
Title:
CLAREMONT:
CLAREMONT MANAGEMENT CORPORATION
By: (SEAL)
Name:
Title:
MCKENNA:
MCKENNA MANAGEMENT ASSOCIATES, INC.
By: (SEAL)
Name:
Title:
<PAGE>
STATE OF )
)TO WIT:
CITY/C0UNTY0F )
I HEREBY CERTIFY that on this 29th day of September, 1998, before me, the
subscriber, a Notary Public of the State and City/County aforesaid, personally
appeared Jeffrey F. Ault, who acknowledged himself/herself to bc the President
of Credit Service International Baltimore, Inc., a corporation,and that he/she
as such officer, being authorized so to do, executed the foregoing instrument
for the purpose therein contained by signing in my presence the name of the
corporation by himself/herself as such officer.
In-Witness Whereof, I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
STATE OF )
) to wit:
CITY/COUNTY OF )
I HEREBY CEPUIFY that on thisday of 1998, before me, the
subscriber, a Notary Public of the State aforesaid, personally appeared
Terence P. Sullivan, known to me (or satisfactorily proven) to be the
persons whose name is subscribed to the within instrument, and he
acknowledges that he executed the foregoing instrument for the purposes
therein contained.
IN WITNESS WHERE0F, I have hereunto set my hand and Notarial
Seal.
Notary Public
My Commission Expires;
<PAGE>
CSI:
CREDIT SERVICE INTERNATIONAL
BALTIMORE, INC.
By: (SEAL)
Name:
Tit1c:
SULLIVAN:
(SEAL)
Terence P. Sullivan
MORAN:
(SEAL)
Charles M. Moran, Jr.
INTRAVAIA:
(SEAL)
Charles S. Intravaia
KRASOIN:
(SEAL)
Brian M. Krason
BRADY:
Joseph Brady
<PAGE>
STATE OF )
) to wit:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this dav of 1998. before me, the subscriber, a
Notary Public of the State aforesaid, personally appeared Brian M. Krason, known
to me (or satisfactorily proven) to be the persons whose name is subscribed to
the within instrument, and he acknowledged that he executed the foregoing
instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial
Seal.
Notary Public
My Commission Expires:
STATE OF )
) to wit:
CITY/COUNTY 0F )
I HEREBY CERTIFY that on this 30th day of .October, 1998
before me, the subscriber, a Notary Public of the State aforesaid,
personally appeared Joseph V. Brady, known to me (or satisfactori1v
proven) to be the persons whose name is subscribed to the within
instrument, and he acknowledged that he executed the foregoing instrument
for the purposes therein contained.
IN WITNESS WHEREOF. I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
<PAGE>
SASSI:
(SEAL)
Richard Sassi
STATE OF )
)TO WIT:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this _ day of 1 1998 , before me, the subscriber,
a Notary Public of the State and City/County aforesaid, personally appeared ,
who acknowledged himself/herself to be the of The Council of Unit Owners of the
Residences and Inn at Henderson's Wharf, a Condominium Incorporated, and that
he/she as such officer, being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing in my presence the
name of the corporation by himself/herself as such officer.
In Witness Whereof, I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
STATE OF
TO WIT:
CITY/COUNTY OF
I HEREBY CERTIFY that on this - day of 1 1998, before me, the subscriber, a
Notary Public of the State and City/County aforesaid. personally appeared I who
acknowledged himself/herself to be the of Henderson's Wharf Development
Corporation, general partner of Henderson's Wharf Baltimore, L.P.,a Delaware
limited partnership, and that he/she as such officer. being authorized so to do,
executed the foregoing instrument for the purposes therein contained. by signing
in my presence the name of the corporation by himself/herself as such officer.
In Witness Whereof, I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
<PAGE>
STATE OF )
)to wit:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this 3rd , of November , 1998, before me,
the subscriber, a Notary Public of the State aforesaid, personally appeared
Richard Sassi, known to me (or satisfactorily proven) to be the persons whose
name is subscribed to the within instrument, and he acknowledged that he
executed the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
Notarv Public
My Commission Expires:
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement") is
made on this 3rd day of November, 1998 (the "Effective Date"), by and between
RICHARD SASSI a Maryland resident ("Seller") and HENDERSON'S WHARF BALTIMORE
L.P., a Delaware limited partnership ("Buyer").
Background
Seller is the owner of Condominium Unit No. 402 (the "Unit")
in The Residences and Inn at Henderson's Wharf, a Condominium (the
"Condominium"), together with all appurtenances and advantages
thereunto pertaining, and Parking Unit No. P-61 and an undivided
percentage interest in the common elements, common expenses and
common profits in the condominium regime, and together with all
appliances, fixtures, equipment and personally located in the Unit
(collectively, the "Property").
Seller desires to sell and convey to Buyer, and Buyer desires
to purchase from Seller, the Property upon the terms and conditions
set forth in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Buyer agree as follows:
1. SALE AND PURCHASE. Subject to the terms and conditions set forth
in this Agreement, Seller hereby agrees to sell to Buyer, and Buyer hereby
agrees to purchase from Seller, the Property.
2. PURCHASE PRICE AND PAYMENT. The purchase price to be paid by
Buyer to Seller for the Property (the "Purchase Price") shall be the sum of One
Hundred Ten Thousand Dollars ($110,000.00). The Purchase Price shall be paid at
Closing (as hereinafter defined) by bank, cashier's, certified or title company
check or by bank wire.
3. POSSESSION; RISK OF LOSS.
(a) At Closing, Seller shall deliver to Buyer possession of
the Property, in broom clean condition, free of any and all tenancies.
<PAGE>
(b) Until Closing, the Seller shall bear the risk of any
damage to or destruction of the Property. From and after the date hereof and
until Closing, the Seller shall, at its expense, (a) keep the Property insured
against fire and such other insurable casualties as are commonly insured
against by an all-risk casualty insurance policy, to its full insurable value,
and (b) cause each such policy to be endorsed to name the Buyer (in its
capacity as contract purchaser hereunder) as an additional insured thereunder
as its interest may appear.
4. TITLE. Fee simple title in and to the Property shall be
marketable, insurable at standard rates on an ALTA Form B policy of owner's
title insurance, and free and clear of all liens, encumbrances, leases,
easements, covenants, conditions and restrictions, except for those matters
shown on the title report attached hereto as Exhibit A and incorporated herein
by reference (collectively, the "Permitted Property Exceptions"). From and
after the Effective Date Seller shall not do or cause to be done anything which
will affect the status of title of the Property. Notwithstanding anything to
the contrary, Seller shall discharge any lien or encumbrance which is capable
of being discharged by the payment of money, including any deed of trust or
mortgage.
5. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller makes the
following representations and warranties to Buyer, each of which shall be true
and correct on the Effective Date and on the Closing Date (as hereinafter
defined) and shall survive the Closing:
(a) The execution and delivery of this Agreement by Seller.,
and the performance by Seller of all terms and conditions contained herein, do
not violate the terms of, are not in conflict with, and will not result in the
breach of or default under (1) any agreement, commitment, obligation, contract
or instrument under which Seller or the Property is bound or affected or (ii)
any law, rule, regulation or court order by which the Property or Seller is
affected.
(b) As of the Effective Date, all taxes, assessments, fees or
other charges (other than condominium fees) affecting or pertaining to the
Unit have been paid in full.
(c) There are no leases or tenancies with respect to the
Property or any part thereof and there have not been any for the preceding six
months. The Property has never been a single family residential rental dwelling
as such term is defined in Article 13, Sections 46-55 of the Baltimore City
Code (1976 Edition, as amended). Seller will not lease the Unit prior to
Closing.
6. CONDITIONS PRECEDENT TO CLOSING. The obligation of Buyer to
purchase the Property pursuant to this Agreement shall be expressly conditioned
upon and subject to the satisfaction (or written waiver by Buyer) of each of
the following conditions:
(i) Each of the representations and warranties of
Seller contained in Section 5 shall be true as of the Closing Date, and
(ii) Seller shall not be in default of any of its
obligations under this Agreement.
<PAGE>
If any one or more of such conditions precedent are not
satisfied (or the satisfaction thereof is not waived in writing by Buyer) as of
the Closing Date, then Buyer shall have the right, at its option, to terminate
this Agreement by written notice thereof to Seller, and thereafter neither
party shall have any further liability or obligation hereunder.
7. CLOSING; CLOSING COSTS; ADJUSTMENTS.
(a) The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Neuberger, Quinn,
Gielen, Rubin & Gibber, P.A., 27th Floor, One South Street, Baltimore, Maryland
21202, or at such other location in Baltimore City designated by Buyer, within
sixty (60) days from the date of this Agreement upon not less than five (5)
days prior notice from Buyer to Seller, at a time designated by Buyer ("Closing
Date"). If the Closing Date as provided herein falls on a Saturday, Sunday or
legal holiday, then the Closing Date shall be extended to the next day which is
a business day.
(b) Buyer shall pay all recording costs and any costs charged
by the council of unit owners of the Condominium in connection with such
conveyance.
(c) All fees (other than condominium fees), all taxes,
general or special. and all other public and governmental charges or
assessments against the Property which are or may be payable on an annual or
semi-annual basis (including metropolitan and other benefit charges,
assessments, liens or encumbrances) shall be adjusted and apportioned as of the
Closing and are to be assumed and paid thereafter by Buyer. whether or not the
assessments have been levied as of the Closing.
(d) All outstanding condominium fees assessed against the
Property up through the date of Closing shall be paid by Buyer at Closing.
(e) All water and sewer bills for the Property shall be
adjusted as of the Closing based on prior bills and all gas and/or electric
bills shall be adjusted as of the Closing based on meter reading or prior
bills.
8. RECORDATION AND TRANSFER TAXES, OTHER COSTS.
(a) SECTION 14-104 OF THE REAL PROPERTY ARTICLE OF THE
ANNOTATED CODE OF MARYLAND PROVIDES THAT, UNLESS OTHERWISE NEGOTIATED IN THE
CONTRACT OR PROVIDED BY STATE OR LOCAL LAW, THE COST OF ANY RECORDATION TAX OR
STATE OR LOCAL TRANSFER TAX SHALL BE SHARED EQUALLY BY BUYER AND SELLER. This
statement is provided for informational purposes only. Except as provided in
subsection (b) below, Buyer shall pay the total cost of all documentary stamps,
recordation taxes and transfer taxes imposed upon the transfer of the Property.
<PAGE>
(b) This subsection applies if Buyer is a first-time Maryland
home buyer who will reside in the Property. If there are two or more Buyers,
then each Buyer must be someone who is a first-time Maryland home buyer, or
someone who will not occupy the house as a principal residence and who is a
co-maker or guarantor of a purchase money deed of trust or mortgage for the
benefit of the first-time Maryland home buyer. A "first-time Maryland home
buyer" means an individual who has never owned in the State of Maryland
residential real property that has been his or her principal residence. Section
14-104 of the Real Property Article of the Annotated Code of Maryland provides
that:
(i) Buyer's portion of the State transfer
tax is waived;
(ii) State transfer tax will be reduced to 0.25% of the sales
price of the
property;
(iii) the entire amount of the State transfer tax shall be
paid by Seller; and
(iv) the entire amount of recordation tax and local transfer
tax shall be paid by Seller unless there is an express agreement between Buyer
and Seller that the recordation tax and local transfer tax will not be paid
entirely by Seller. In this Agreement, the parties agree that the costs of
transfer tax and recordation tax shall be paid by Buyer.
check if first-time Maryland Home
Buyer.
9. DEFAULT.
(a) If Buyer shall have fully performed its obligations
hereunder and Seller breaches this Agreement or otherwise fails to perform or
observe any of the covenants or obligations to be performed or observed by
Seller hereunder, or if any of Seller's representations or warranties hereunder
is incorrect or untrue as of the Closing Date, Buyer shall have the right to
(i) enforce Buyer's right of specific performance, (ii) bring suit for all
damages suffered by reason of Seller's action or inaction, and/or (iii) enforce
any and all other remedies available to Buyer at law or in equity.
(b) If Seller shall have fully performed its obligations
hereunder and Buyer breaches this Agreement or otherwise fails to perform or
observe any of the covenants or obligations to be performed or observed by
Buyer hereunder, Seller shall have the right to (i) enforce Seller's right of
specific performance, (ii) bring suit for all damages suffered by reason of
Buyer's action or inaction, and/or (iii) enforce any and all other remedies
available to Seller at law or in equity.
(c) In the event of litigation, the prevailing party shall be
entitled to reasonable attorneys' fees and costs of litigation.
<PAGE>
10. CLOSING DOCUMENTS.
(a) At Closing, upon payment of the Purchase Price, Seller
shall execute and deliver to the closing officer or title company
representative a special warranty deed, with covenants of further assurances,
in the form attached hereto as Exhibit B and incorporated herein by reference,
conveying fee simple title to the Property to Buyer free and clear of all
liens, encumbrances, leases, easements, covenants, conditions, restrictions and
other title exceptions other than the Permitted Property Exceptions.
(b) On the Closing Date, Buyer shall execute, acknowledge and
deliver all additional documents that may reasonably be necessary or
appropriate to carry out the provisions hereof.
11. OPERATIONS PENDING CLOSING. From and after the dates listed
below, the parties shall perform as follows:
(a) From and after the Effective Date, Seller shall promptly
furnish to Buyer copies of any and all notices or communications that Seller
receives from (i) any governmental or quasi -governmental entities, or any
other body having jurisdiction with respect to the use and occupancy or
physical condition of the Property, and/or (ii) any other notice or
communication relating to the Property.
(b) From and after the Effective Date, Seller shall promptly
furnish to Buyer written notice of any event or condition that causes or may
tend to cause a change in the facts relating to, or the accuracy, completeness
or truth of, any of the representations, warranties, covenants, or any of the
information provided herein.
(c) From and after the Effective Date, neither Seller nor
Seller's agents, affiliates or employees shall sell, offer for sale., pen-nit
the use of, negotiate with respect to, or otherwise deal in the sale, lease or
other transfer of the Property or any interest therein.
12. BROKERAGE. Each party represents and warrants to the other that
it has dealt with no agent, broker or finder in connection with this Agreement,
and each party shall indemnify, defend and save harmless the other from and
against any loss, cost, damage or expense (including reasonable attorneys'
fees) arising from a breach of such representation or warranty.
13. NOTICES. All notices hereunder shall be in writing and shall be
(i) delivered via commercial messenger delivery service with same day or
overnight receipted delivery, or (ii) mailed, registered or certified U.S.
mail, return receipt requested, first class postage prepaid, and shall be
addressed as follows:
<PAGE>
If to Seller: Henderson's Wharf Baltimore L.P.
c/o Gunn Financial, Inc.
45 Broad Street
Boston, MA 02109
ATTN: Charles Intravaia
Telecopy No. (617) 338-6164
With a copy to: Richard Rubin, Esquire
Neuberger, Quinn, Gielen,Rubin & Gibber, P.A.
Commerce Place, 27th Floor
One South Street
Baltimore, Maryland 21202-3201
Telecopy No. (410) 332-8594
If to Buyer: Richard Sassi
10 East Lee Street
Unit 1509
Baltimore, Maryland 21202
Telecopy No. (410)342-3155.
With a copy to Bruce D. Brown, Esquire
Siskind, Grady, Rosen & Hoover, P.A.
Jefferson Building
Two East Fayette Street
Baltimore, Maryland 21202
Telecopy No. (410) 332-0269
Notices that are delivered by commercial messenger shall be deemed effective
upon delivery to the commercial messenger. Notices that are sent by registered
or certified mail shall be deemed delivered and effective the day the same is
deposited in the U.S. mails. Each party may change its address or telecopy
number by giving written notice as provided above. All notices shall also be
sent via telecopy to the number set forth above on the same day as such notice
is deposited with the messenger or U.S. Post Office.
14. RESALE NOTICE. SELLER IS REQUIRED BY LAW TO FURNISH TO BUYER
NOT LATER THAN FIFTEEN (15) DAYS PRIOR TO THE CLOSING CERTAIN INFORMATION
CONCERNING THE CONDOMINIUM WHICH IS DESCRIBED IN ss.11-135 OF THE MARYLAND
CONDOMINIUM ACT. THIS INFORMATION MUST INCLUDE AT LEAST THE FOLLOWING:
(I) A COPY OF THE DECLARATION (OTHER THAN THE
PLATS);
<PAGE>
(II) A COPY OF THE BYLAWS;
(III) A COPY OF THE RULES AND REGULATIONS OF THE
CONDOMINIUM;
(IV) A CERTIFICATE CONTAINING:
(1) A STATEMENT DISCLOSING THE EFFECT ON
THE PROPOSED CONVEYANCE OF ANY RIGHT OF FIRST REFUSAL OR OTHER RESTRAINT ON
THE FREE ALIENABILITY OF THE UNIT, OTHER THAN ANY RESTRAINT CREATED BY THE
UNIT OWNER;
(2) A STATEMENT OF THE AMOUNT OF THE
MONTHLY COMMON EXPENSE ASSESSMENT AND ANY UNPAID COMMON EXPENSE OR SPECIAL
ASSESSMENT CURRENTLY DUE AND PAYABLE FROM THE SELLING UNIT OWNER;
(3) A STATEMENT OF ANY OTHER FEES PAYABLE
BY THE UNIT OWNERS TO THE COUNCIL OF UNIT OWNERS;
(4) A STATEMENT OF ANY CAPITAL EXPENDITURES
APPROVED BY THE COUNCIL OF UNIT OWNERS OR ITS AUTHORIZED DESIGNEE PLANNED AT
THE TIME OF THE CONVEYANCE WHICH ARE NOT REFLECTED IN THE CURRENT OPERATING
BUDGET INCLUDED IN THE CERTIFICATE;
(5) THE MOST RECENTLY PREPARED BALANCE
SHEET AND INCOME AND EXPENSE STATEMENT, IF ANY, OF THE CONDOMINIUM;
(6) THE CURRENT OPERATING BUDGET OF THE
CONDOMINIUM, INCLUDING DETAILS CONCERNING THE AMOUNT OF THE RESERVE FUND FOR
REPAIR AND REPLACEMENT OF ITS INTENDED USE, OR A STATEMENT THAT THERE IS NO
RESERVE FUND;
(7) A STATEMENT OF ANY JUDGMENTS AGAINST
THE CONDOMINIUM AND THE EXISTENCE OF ANY PENDING SUITS TO WHICH THE COUNCIL
OF UNIT OWNERS IS A PARTY;
(8) A STATEMENT GENERALLY DESCRIBING ANY
INSURANCE POLICIES PROVIDED FOR THE BENEFIT OF THE UNIT OWNERS, A NOTICE THAT
THE POLICIES ARE AVAILABLE FOR INSPECTION STATING THE LOCATION AT WHICH THEY
ARE AVAILABLE, AND A NOTICE THAT THE TERMS OF THE POLICY PREVAIL OVER THE
GENERAL DESCRIPTION;
<PAGE>
(9) A STATEMENT AS TO WHETHER THE COUNCIL OF UNIT
OWNERS HAS KNOWLEDGE THAT ANY ALTERATION OR IMPROVEMENT TO THE UNIT OR TO THE
LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT VIOLATES ANY PROVISION OF THE
DECLARATION, BYLAWS, OR RULES OR REGULATIONS;
(10) A STATEMENT AS TO WHETHER THE COUNCIL OF UNIT
OWNERS HAS KNOWLEDGE OF ANY VIOLATION OF THE HEALTH OR BUILDING CODES WITH
RESPECT TO THE UNIT, THE LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT, OR ANY
OTHER PORTION OF THE CONDOMINIUM;
(11) A STATEMENT OF THE REMAINING TERM OF ANY
LEASEHOLD ESTATE AFFECTING THE CONDOMINIUM AND THE PROVISIONS GOVERNING ANY
EXTENSION OR RENEWAL OF IT; AND
(12) A DESCRIPTION OF ANY RECREATIONAL OR OTHER
FACILITIES WHICH ARE TO BF USED BY THE UNIT OWNERS OR MAINTAINED BY THEM OR THE
COUNCIL OF UNIT OWNERS, AND A STATEMENT AS TO WHETHER OR NOT THEY ARE TO BE A
PART OF THE COMMON ELEMENTS; AND
(V) A STATEMENT BY THE UNIT OWNER AS TO WHETHER THF UNIT
OWNER HAS KNOWLEDGE:
(1) THAT ANY ALTERATION TO THE UNIT OR TO THE LIMITED
COMMON ELEMENTS ASSIGNED TO THE UNIT VIOLATES ANY PROVISION OF THE
DECLARATION, BYLAWS, OR RULES AND REGULATIONS;
(2) OF ANY VIOLATION OF THE HEALTH OR BUILDING CODES
WITH RESPECT TO THE UNIT OR THE LIMITED COMMON ELEMENTS ASSIGNED TO THE
UNIT; AND
(3) THAT THE UNIT IS SUBJECT TO AN EXTENDED LEASE
UNDER ss.11-137 OF THE MARYLAND CONDOMINIUM ACT OR UNDER LOCAL LAW, AND IF SO,
A COPY OF THE LEASE MUST BE PROVIDED.
BUYER WILL HAVE THE RIGHT TO CANCEL THIS AGREEMENT WITHOUT PENALTY,
AT ANY TIME WITHIN SEVEN (7) DAYS FOLLOWING DELIVERY TO BUYER OF ALL OF THIS
INFORMATION. HOWEVER, AFTER THE CLOSING, BUYER'S RIGHT TO CANCEL THIS AGREEMENT
IS TERMINATED.
15. DISCLOSURE/DISCLAIMER STATEMENT. Attached hereto as Exhibit C
and incorporated herein by reference is a notice to Buyer advising Buyer of
Buyer's rights
<PAGE>
under ss. 10-702 of the Real Property Article of the Annotated Code of
Maryland. Buyer acknowledges receipt of, and has executed, a copy of such
notice. Pursuant to the provisions of ss.10-702 of the Real Property Article
of the Annotated Code of Maryland, Seller has delivered to Buyer the written
residential property disclaimer statement on the form attached hereto as
Exhibit D and incorporated herein by reference.
16. CERTIFICATE OF NON-FOREIGN STATUS. At Closing, Seller shall
provide Buyer with either (i) an certificate of non-foreign status in
substantially the form attached hereto as Exhibit E, stating that Seller is
not a foreign person (as that term is defined in Section 1445 of the Internal
Revenue Code) and providing Seller's tax identification number; or (ii) a
"Qualifying Statement" as such term is defined by Section 1445 of the Internal
Revenue Code.
17. MISCELLANEOUS PROVISIONS.
(a) This Agreement contains the sole, final and entire
agreement between the parties and is intended to be an integration of all prior
and contemporaneous agreements, conditions and undertakings between the
parties. There are no promises, agreements, conditions, undertakings,
warranties or representations, oral or written, express or implied, between the
parties other than as herein set forth.
(b) This Agreement may be amended by and only by an
instrument executed and delivered by Seller and Buyer.
(c) This Agreement and all of the provisions hereof shall be
binding upon and shall inure to the benefit of the parties and their respective
heirs, devisees, legatees, legal representatives, successors and assigns.
(d) This Agreement hall be governed by and construed in
accordance with the laws of the State of Maryland.
(e) All provisions hereof shall survive the Closing Date,
unless otherwise provided herein.
(f) Each of the parties agrees to execute and deliver upon
reasonable demand of the other any document or instrument that such other party
reasonably deems necessary or desirable to evidence or accomplish the rights
herein conferred or to implement or consummate the purposes and intent hereof.
(g) Time is of the essence.
(h) No determination by any court, governmental or
administrative entity or otherwise that any provision of this Agreement or any
amendment hereof is invalid or unenforceable in any instance shall affect the
validity or enforceability of (a) any other such
<PAGE>
provision, or (b) such provision in any circumstance not controlled by such
determination. Each such provision shall be valid and enforceable to the
fullest extent allowed by, and shall be construed wherever possible as being
consistent with, applicable law.
(i) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same document. This Agreement may
be delivered by facsimile transmission of an originally executed copy to be
followed by immediate delivery of the original of such executed copy.
(j) The following exhibits are attached to, and made a part
of, this
Agreement:
A - Permitted Property Exceptions
B - Form of Deed
C - Notice to Buyer - Property Disclosure
D - Property Disclaimer Statement
E - Certificate of Non-Foreign Status
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement under seal on the date first above written.
WITNESS/ATTEST: SELLER:
(SEAL)
Richard Sassi
WITNESS: BUYER:
HENDERSON'S WHARF BALTIMORE L.P.
By: Henderson's Wharf Development
Corporation, General Partner
By: (SEAL)
Name:
Title:
<PAGE>
EXHIBIT A TO
AGREEMENT OF SALE AND PURCHASE
PERMITTED PROPERTY EXCEPTIONS
<PAGE>
SCHEDULE B
EXCEPTIONS FROM COVERAGE
Policy No.
File No.1980348
1 . Taxes payable On an annual basis have been paid through the fiscal year
ending June 30, 1999, and other public charges (including assessments by any
County, Municipality, Metropolitan District or Commission) payable on an
annual basis have been paid through the year ending December 31, 1998. This
policy does not insure against the balance of any public charges including
assessments by any County, Municipality, Metropolitan District or
Commission)payable on an annual basis subsequent to the year ending December
31, 1998. Nor does this policy insure against possible future tax levies, nor
against possible public charges as defined above that have not been levied or
assessed, which future taxes, charges and assessments are not now due and
payable.
3. Declaration of The Residences and Inn at Henderson's Wharf, a condominium,
by Carley Capital Group dated August 30, 1988 and recorded among the Land
Records of BaltimoreCity in Liber SEB no. 1821, folio 20, as amended by the
following:
a) Amendment to Declaration dated April 3, 1989 and recorded among the
aforesaid Land Records in Liber SEB No. 2081, folio 329;
b) Second Amendment to Declaration dated July 31, 1990 and
recorded among the aforesaid Land Records in Liber SEB
No. 2563, folio 230; and
c) Third Amendment to Declaration dated December 14, 1992 and recorded
among the aforesaid Land Records in Liber SEB No. 3578, folio 030.
4. Amended and Restated Henderson's Wharf Disposition Agreement dated October
10, 1984 and recorded among the Land Records of Baltimore City in Liber SEB No.
335, folio 062, as amended by First Amendment to Amended and Restated
Henderson's Wharf Disposition agreement dated July 31, 1990 and recorded among
he aforesaid Land Records in Liber SEB No. 2563, folio 264.
<PAGE>
CONTINUATION OF SCHEDULE B PART I
File No. 1951576
5. Building Perimeter Easement and Connecting Easement established by
Pedestrian Promenade Easement Agreement dated October 19, 1984 and recorded
among the Land Records of Baltimore City in Liber SEB no. 335, folio 204, by
and between Carley Capital Group and Mayor and City Council of Baltimore, as
amended by the following:
a) Amendment of Pedestrian Promenade Easement Agreement dated April 6,
1987 and recorded among the aforesaid Land Records in Liber SEB No.
1308, folio 589; and
b) Second Amendment t o Pedestrian Promenade Easement Agreement dated
July 31, 1990 and recorded among the aforesaid Land Records in
Liber SEB No. 2563, folio 241;
6. Easement to the benefit of the Marina Owner over the Building Perimeter
Easement and Commercial Courtyard Area, as established by Reciprocal
Easement Agreement dated August 31, 1988 and recorded among the Land
Records of Baltimore City in Liber SEB No. 1824, folio 162, by and
between Carley Capital Group and The Council of Unit Owners of The
Residences and Inn at Henderson's Wharf, a Condominium, Incorporated, as
amended by:
(a) Amended to Reciprocal Easement Agreement dated July 31, 1990 and
recorded
among the aforesaid Land Records in Liber SEB No. 2822, folio
477; and
(b) Second Amendment to Reciprocal Easement Agreement dated February 27,
1996 and recorded among the aforesaid Land Records in Liber SEB 5395,
folio 91.
7. Terms, conditions, easements, restrictions and other criteria as shown on
the Plats entitled "The Residences at Henderson's Wharf, a Condominium", as
follows:
(a) Sheets 1 of 11 through 11 of 11 dated August, 1988 and recorded as
Condominium Plat SEB No. 232; and
(b) Sheets 1 of 11 through 11 of 11 dated September, 1988 and revised
December 14, 1992 and recorded as Condominium Plat SEB No. 298.
<PAGE>
EXHIBIT B TO
AGREEMENT OF SALE AND PURCHASE
DEED
<PAGE>
DEED
THIS DEED ("Deed") is made on this day of 1 1998,
from
RICHARD SASSI ("Grantor") to HENDERSON'S WHARF BALTIMORE L.P., a Delaware
limited partnership ("Grantee").
The Grantor for a consideration of One Hundred Ten Thousand Dollars
($110,000.00) grants, conveys and assigns to the Grantee, its successors and
assigns, in fee simple, the real property located in Baltimore City, Maryland,
and described as follows:
Condominium Unit No. 402 ("Unit") and Parking Unit No. P-61
("Parking Unit") in THE RESIDENCES AND INN AT HENDERSON'S WHARF, A
CONDOMINIUM ("Condominium"), a condominium established under the provisions
of Title I I of the Real Property Article of the Annotated Code of Maryland
(1988 Replacement Volume as amended) by the operation and effect of a
Declaration dated August 30, 1988, and recorded among the Land Records of
Baltimore City (the "Land Records") at Liber S.E.B. No. 1821, page 20, et.
seq., made by Carley Capital Group (hereinafter together wit', any amendments
thereto, referred to as the "Declaration"), all as the Unit, the Parking Unit
and the Condominium are defined in the Declaration and are shown on those
certain plats entitled "Condominium Plat, The Residences and Ian at
Henderson's Wharf, a Condominium," dated August, 1988, and recorded among the
Plat Records of Baltimore City at Condominium Plat Record Book S.E.B. No.
232, Sheets I through 11. as amended (all of which plats, together with any
supplements thereto, are hereinafter referred to collectively as the
"Condominium Plats").
The improvements thereon being known as 1000 Fell Street, Unit No. 402,
along with Parking Unit No. P-61 are hereinafter referred to as the
"Property"; and
Being the same property described in a Deed from Carley Capital
Group to Grantor dated September 6, 1988 and recorded among the Land Records in
Liber 1856, folio 239.
TOGETHER WITH all improvements contained in the Property, and all
appurtenances and advantages thereunto pertaining, including an undivided
percentage interest in the common elements, common expenses and common profits
in the condominium regime as set forth in the Declaration, the Bylaws and the
Condominium Plats.
TO HAVE AND TO HOLD the property hereby conveyed to Grantee, its
successors and assigns, in fee simple, forever.
The Grantor hereby covenants that it has not done or suffered to be
done any act. matter or thing whatsoever to encumber the property hereby
conveyed-, that it will warrant specially the property hereby; and that it will
execute such further assurances of the same as may be requisite.
<PAGE>
IN WITNESS WHEREOF, the Grantor has executed this Deed under seal
on the date first above written.
WITNESS: GRANTOR:
(SEAL)
Richard Sassi
STATE OF MARYLAND
)
) to wit:
COUNTY OF
)
I HEREBY CERTIFY that on this day of -1 1998, before me. the
subscriber, a Notary Public of the State of Maryland, personally appeared
RICHARD SASSI. known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and he acknowledged that he
executed the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
<PAGE>
CERTIFICATE
THE UNDERSIGNED, AN ATTORNEY ADMITTED TO PRACTICE BEFORE THE
COURT OF APPEALS OF MARYLAND, HEREBY CERTIFIES THAT THE ABOVE INSTRUMENT
WAS PREPARED BY ME OR UNDER MY SUPERVISION.
Susan M. Wilkins,
Attorney
MR./MS. CLERK: AFTER THIS DEED OF EXCHANGE HAS BEEN RECORDED, PLEASE RETURN
TO:
Susan M. Wilkins, Esq.
Neuberger, Quinn, Gielen, Rubin
& Gibber, P.A.
Commerce Place, 27th Floor
One South Street
Baltimore, Maryland 21202-3201
<PAGE>
EXHIBIT C TO
AGREEMENT OF SALE AND PURCHASE
NOTICE TO BUYER-PROPERTY DISCLOSURE
<PAGE>
NOTICE TO BUYER OF BUYER'S RIGHT
UNDER MARYLAND'S PROPERTY DISCLOSURE LAW
NOTE: This Notice does not apply to: (1) The initial sale of single family
residential real property; (2) a transfer that is exempt from the transfer tax
under ss. 13-207 of the Tax-Property Article, except land installment contracts
of sale under ss. 13 -207(l 1) of the Tax-Property Article and options to
purchase real property under ss. 13 -207(12) of the Tax-Property Article; (3) a
sale by a lender acquiring the real property by foreclosure or deed in lieu of
foreclosure; (4) a sheriffs sale, tax sale, or sale by foreclosure, partition
or by court appointed trustee; (5) a transfer by a fiduciary in the course of
the administration of a decedent's estate, guardianship, conservatorship, or
trust; or (6) a transfer of single family residential real property to be
converted by the buyer into a use other than residential use or to be
demolished.
SECTION 10-702 OF THE REAL PROPERTY ARTICLE OF THE ANNOTATED CODE OF
MARYLAND ("SECTION 10-702") REQUIRES THAT SELLERS OF SINGLE FAMILY RESIDENTIAL
PROPERTY PROVIDE YOU, THE BUYER, ON OR BEFORE ENTERING INTO A CONTRACT OF SALE,
EITHER:
(A) A WRITTEN PROPERTY CONDITION DISCLOSURE STATEMENT LISTING ALL
DEFECTS OR INFORMATION OF WHICH THE SELLER HAS ACTUAL KNOWLEDGE IN RELATION
TO THE FOLLOWING:
(I) WATER AND SEWER SYSTEMS, INCLUDING THE SOURCE
OF HOUSEHOLD WATER, WATER TREATMENT SYSTEMS, AND
SPRINKLER SYSTEMS;
(II) INSULATION;
(III) STRUCTURAL SYSTEMS, INCLUDING THE ROOF. WALLS.
FLOORS, FOUNDATION, AND ANY BASEMENT;
(IV) PLUMBING, ELECTRICAL. HEATING, AND AIR
CONDITIONING SYSTEMS;
(V) INFESTATION OF WOOD-DESTROYING INSECTS;
(VI) LAND USE MATTERS;
(VII) HAZARDOUS OR REGULATED MATERIALS, INCLUDING
ASBESTOS, LEAD-BASED PAINT, RADON, UNDERGROUND STORAGE
TANKS, AND LICENSED LANDFILLS; AND
<PAGE>
(VIII) ANY OTHER MATERIAL DEFECTS KNOWN TO THE
SELLER;OR
(B) A WRITTEN DISCLAIMER STATEMENT PROVIDING THAT:
(I) THE SELLER MAKES NO REPRESENTATIONS OR
WARRANTIES AS TO THE CONDITION OF THE REAL PROPERTY OR
ANY IMPROVEMENTS ON THE REAL PROPERTY; AND
(II) THE BUYER WILL BE RECEIVING THE REAL PROPERTY
"AS IS", WITH ALL DEFECTS THAT MAY EXIST, EXCEPT AS OTHERWISE
PROVIDED IN THE CONTRACT OF SALE.
AT THE TIME THE DISCLOSURE OR DISCLAIMER STATEMENT IS DELIVERED TO YOU,
YOU ARE REQUIRED TO DATE AND SIGN A WRITTEN ACKNOWLEDGEMENT OF RECEIPT, WHICH
SHALL BE INCLUDED IN OR ATTACHED TO THE CONTRACT OF SALE.
YOU ARE HEREBY NOTIFIED THAT, IN CERTAIN CIRCUMSTANCES. YOU HAVE THE
RIGHT TO RESCIND YOUR CONTRACT OF SALE WITH THE SELLER IF THE SELLER FAILS TO
DELIVER TO YOU THE WRITTEN PROPERTY CONDITION DISCLOSURE STATEMENT. SECTION
10-702 PROVIDES THAT A BUYER WHO DOES NOT RECEIVE THE DISCLOSURE STATEMENT ON
OR BEFORE ENTERING INTO THE CONTRACT OF SALE HAS THE UNCONDITIONAL RIGHT, UPON
WRITTEN NOTICE TO THE SELLER OR SELLER'S AGENT:
(I) TO RESCIND THE CONTRACT OF SALE AT ANY TIME BEFORE THE RECEIPT
OF THE DISCLOSURE STATEMENT OR WITHIN 5 DAYS FOLLOWING RECEIPT OF
THE DISCLOSURE STATEMENT; AND
(II) TO THE IMMEDIATE RETURN OF ANY DEPOSITS MADE ON ACCOUNT OF THE
CONTRACT.
IF THE DISCLOSURE STATEMENT IS DELIVERED TO YOU LATER THAN 3) DAYS AFTER THE
SELLER ENTERS INTO A CONTRACT OF SALE WITH YOU. THE CONTRACT IS VOID. YOUR
RIGHT TO RESCIND THE CONTRACT OF SALE UNDER SECTION 10-702 TERMINATES IF NOT
EXERCISED BEFORE MAKING A WRITTEN APPLICATION TO A LENDER FOR A MORTGAGE LOAN,
IF THE LENDER DISCLOSES IN WRITING AT OR BEFORE THE TIME APPLICATION IS MADE
THAT THE RIGHT TO RESCIND TERMINATES ON SUBMISSION OF THE APPLICATION.
YOUR RIGHTS AS A BUYER UNDER SECTION 10-702 MAY NOT BE WAIVED IN
THE CONTRACT OF SALE AND ANY ATTEMPTED WAIVER IS VOID. YOUR RIGHTS
<PAGE>
AS THE BUYER TO TERMINATE THE CONTRACT UNDER SECTION 10-702 ARE WAIVED
CONCLUSIVELY IF NOT EXERCISED BEFORE:
(I) CLOSING OR OCCUPANCY BY YOU, WHICHEVER OCCURS
FIRST, IN THE EVENT OF A SALE; OR
(II) OCCUPANCY, IN THE EVENT OF A LEASE WITH OPTION
TO PURCHASE.
THE INFORMATION CONTAINED IN THE PROPERTY CONDITION DISCLOSURE STATEMENT IS THE
REPRESENTATION OF THE SELLER AND NOT THE REPRESENTATION OF THE REAL ESTATE
BROKER OR SALESPERSON, IF ANY. THE SELLER IS NOT REQUIRED TO UNDERTAKE OR
PROVIDE AN INDEPENDENT INVESTIGATION OR INSPECTION OF THE PROPERTY IN ORDER TO
MAKE THE DISCLOSURES REQUIRED BY SECTION 10-702. THE SELLER IS NOT LIABLE FOR
AN ERROR, INACCURACY OR OMISSION IN THE DISCLOSURE STATEMENT IF THE ERROR,
INACCURACY, OR OMISSION WAS BASED UPON INFORMATION THAT WAS NOT WITHIN THE
ACTUAL KNOWLEDGE OF THE SELLER. OR WAS PROVIDED TO THE SELLER BY A THIRD PARTY.
YOU HAVE THE RIGHT TO OBTAIN PROFESSIONAL ADVICE ABOUT THE PROPERTY OR
OBTAIN AN INSPECTION OF THE PROPERTY.
THE UNDERSIGNED BUYER(S) ACKNOWLEDGES RECEIPT OF THIS NOTICE ON
THE DATE INDICATED BELOW.
WITNESS: HENDERSON'S WHARF
BALTIMORE L.P.
By: Henderson's Wharf
Development Corp
General Partner
By:
Name:
Title:
Date:
<PAGE>
EXHIBIT D TO
AGREEMENT OF SALE AND PURCHASE
PROPERTY DISCLAIMER STATEMENT
<PAGE>
MARYLAND RESIDENTIAL PROPERTY DISCLAIMER STATEMENT
NOTICE TO SELLER AND BUYER
Section ss. 10-702 of the Real Property Article, Annotated Code of Maryland,
requires the owner of certain residential real property to furnish to the BUYER
either (a) a RESIDENTIAL PROPERTY DISCLAIMER STATEMENT stating that the owner
is selling the property "as is" and makes no representations or warranties as
to the condition of the property or any improvements on the real property,
except as otherwise provided in the contract of sale, or (b) a RESIDENTIAL
PROPERTY DISCLOSURE STATEMENT disclosing defects or other information about the
condition of the real property actually known by the owner. Certain transfers
of residential property are excluded from this requirement (see the exemptions
listed below).
MARYLAND RESIDENTIAL PROPERTY DISCLAIMER STATEMENT
NOTICE TO OWNER(S): Sign this statement only if you elect to sell the property
without representations and warranties as to its condition', except as
otherwise provided in the contract of sale; otherwise, complete and sign the
RESIDENTIAL PROPERTY DISCLOSURE STATFMENT.
Property Address:1000 Fell Street, Condominium Unit No. 402, along
with
Parking Unit No. P-6 1.
Legal Description: Condominium Unit No. 402 and Parking Unit No. P-61 in THE
RESIDENCES AND INN AT HENDERSON'S WHARF, A CONDOMINIUM, as established
pursuant to a Declaration dated August 30, 1988, and recorded among the Land
Records of Baltimore City (the "Land Records") at Liber S.E.B. No. 1821, page
20, as amended by Amendment to Declaration dated April 3, 1989 and recorded
among the Land Records at Liber S.E.B. No. 2081, folio 329, and as further
amended by Second Amendment to Declaration dated July 31, 1990, and recorded
among the Land Records at Liber S.E.B. No. 2563, folio 230, and as further
amended by Third Amendment to Declaration dated as of December 14, 1992, and
recorded among the Land Records at Liber S.E.B. No. 3578, folio 30 (as
amended, the "Declaration"). and the Bylaws attached thereto (the "Bylaws"),
and as shown on those certain plats entitled "Condominium Plat, The
Residences and Inn at Henderson's Wharf, a Condominium," dated August, 1988,
and recorded among the Plat Records of Baltimore City at Condominium Plat
Record Book S.E.B. No. 232, Sheets I through 11, as amended by condominium
plats dated December 14, 1992, and recorded among the Plat Records of
Baltimore City at Condominium Plat Record Book S.E.B. 298, Sheets I through I
I (as amended, the "Condominium Plats").
<PAGE>
The undersigned owner(s) of the real property described above make no
representations or warranties as to the condition of the real property or any
improvements thereon, and the BUYER will be receiving the real property "as
is", with all defects which may exist, except as otherwise provided in the
real estate contract of sale. The owner(s) acknowledge having carefully
examined this statement and further acknowledge that they have been informed
of their rights and obligations under Section ss. 10-702 of the Maryland Real
Property Article.
SELLER: (SEAL)
Richard Sassi
Date:
The BUYER(s) acknowledge receipt of a copy of this disclaimer statement and
further acknowledge that he has been informed of his rights and obligations
under Section ss. 10-702 of the Maryland Real Property Article.
BUYER: HENDERSON'S WHARF BALTIMORE L.P.
By: Henderson's Wharf Development
Corporation, General Partner
Date: By:
Name:
Title:
MARYLAND RESIDENTIAL FROPERTY DISCLOSURE ACT
10-702. Exemptions. - The following are specifically excluded from the
provisions of Section 10-702:
1. The initial sale of single family Residential
Real Property;
2. A transfer that is exempt from the transfer tax under ss. 13 -207 of the
Tax-Property Article, except land installment contracts of sale under
ss.13-207(11) of the Tax-Property Article except hand installment Contracts of
Sale under ss. 1 3-207(l 1) of the Tax Property Article and options to purchase
real property under ss.13-207(12) of the Tax-Property Article;
3. A sale by a lender acquiring the Real Property by foreclosure or deed in
lieu of foreclosure;
<PAGE>
4. A sheriffs sale, tax sale, or sale by foreclosure, partition, or by court
appointed trustee;
5. A transfer by a fiduciary in the course of the administration of a
decedent's estate, guardianship, conservatorship, or trust; or
6. A transfer of single family Residential Real Property to be converted by the
Buyer into a use other than residential use or to be demolished.
<PAGE>
EXHIBIT E TO
AGREEMENT OF SALE AND PURCHASE
PROPERTY DISCLAIMER STATEMENT
<PAGE>
CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee
(buyer) of a U.S. real property interest must withhold tax if the transferor
(seller) is a foreign person. To inform the transferee that withholding of tax
is not required upon the undersigned's disposition of a U.S. real property
interest, the undersigned does hereby certify the following:
I . The undersigned is not a nonresident alien for purposes of U.S.
income taxation.
2. The undersigned's U.S. taxpayer identifying
number is
3. The undersigned's address is:
The undersigned does understand that this certification may be disclosed
to the Internal Revenue Service by the transferee and that any false statement
made here could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned does hereby declare that the
undersigned has examined this certification and, to the best of the
undersigned's knowledge and belief, it is true, correct, and complete.
Dated: , 1998
By:
Richard Sassi
MUTUAL RELEASE
THIS MUTUAL RELEASE ("Release") made this 3RD day of November 1998, by and
between The COUNCIL OF UNIT OWNERS OF THE RESIDENCES AND INN AT HENDERSON'S
WHARF, a Condominium, Incorporated (the "Council"), HENDERSON'S WHARF BALTIMORE
L.P., a Delaware limited partnership ("HWLP"), CLAREMONT MANAGEMENT CORPORATION
("Claremont"), MCKENNA MANAGEMENT ASSOCIATES, INC. ("McKenna"), CREDIT SERVICE
INTERNATIONAL BALTIMORE, INC. ("CSI"), TERENCE P. SULLIVAN ("Sullivan"), CHARLES
M. MORAN, JR. ("Moran"), CHARLES S. INTRAVAIA ("Intravaia"), BRIAN M. KRASON
("Krason") and JOSEPH V. BRADY ("Brady") (Claremont, McKenna, Sullivan,
Intravaia, Krason and Brady are sometimes collectively referred to herein as the
"Third Party Defendants") and RICHARD SASSI, a Maryland resident ("Sassi").
EXPLANATORY STATEMENT
The Council is the council of unit owners for the residential
condominium known as The Residences and Inn at Henderson's Wharf, located at
the foot of Fell Street in Fells Point, Baltimore City, Maryland (the
"Condominium"). HWLP operates and manages the Condominium. Sassi is the owner
of Condominium Unit No. 402 and Parking Unit No. P-61 in the Condominium
(collectively, the "Unit").
The Council and HWLP filed a legal action against Sassi, known as
The Council of Unit Owners of the Residences and Inn at Henderson's Wharf, A
Condominium, Incorporated and Henderson's Wharf Baltimore, L.P. v. Richard
Sassi, Civil Case No. 97-154-052-CC-2921, which is pending in the Circuit Court
of Maryland for Baltimore City ("Lawsuit"). In the Lawsuit, the Council and
HWLP assert claims against Sassi for delinquent condominium charges and
assessments and nuisance (all of the Council's and HWLP's claims are
hereinafter sometimes collectively referred to as the "Condominium's Claims").
Sassi filed a (i) counterclaim in the Lawsuit against the Council and HWLP,
as applicable, for violations of Fair Debt Collection Practices Act, breach of
contract, deceit and trespass (all of such claims being sometimes collectively
referred to herein as the "Counterclaim"); and (ii) third party complaint in the
Lawsuit against Claremont Management Corporation ("Claremont"), McKenna
Management Associates, Inc. ("McKenna"), Credit Service International Baltimore,
Inc. ("CSI"), Terence P. Sullivan ("Sullivan"), Charles M. Moran, Jr. ("Moran"),
Charles S. Intravaia ("Intravaia"), Brian M. Krason ("Krason") and Joseph V.
Brady ("Brady"), as applicable, for violations of Fair Debt Collection Practices
Act, breach of contract, negligence, deceit and trespass (all of such claims
being sometimes collectively referred to herein as the "Third Party Complaint").
Claremont, McKenna, Sullivan, Intravaia and Krason and Brady are sometimes
collectively referred to herein as the "Third Party Defendants".
<PAGE>
CSI filed a cross complaint in the Lawsuit against the Council,
HWLP, Claremont, McKenna, Sullivan, Moran, Intravaia, Krason and Brady for
indemnification for certain matters ("Cross Claim").
The parties have agreed to compromise and settle all claims which
any party has asserted or may assert in the Lawsuit, Counterclaim, Third Party
Complaint or Cross Claim, or which any party has asserted or may assert in the
Lawsuit, Counterclaim, Third Party Complaint or Cross Claim, or which any
party may have arising out of the use or ownership or operation of the Unit,
or any part thereof, pursuant to the terms of a Settlement Agreement of even
date herewith between the parties ("Settlement Agreement").
NOW, THEREFORE, for and in consideration of the foregoing
explanatory statements and the agreements hereinafter set forth, the
sufficiency and legal adequacy of which the parties acknowledge, they do
hereby agree as follows:
1 . The Council and HWLP, for themselves and for their officers,
directors, employees, agents, principals and shareholders, and for all their
respective successors and assigns, hereby releases and forever discharges
Sassi and the Third Party Defendants, their respective heirs. personal
representatives, successors, assigns, officers, directors, employees, agents,
principals and shareholders, from any and all claims, actions, suits, debts,
counts, covenants. contracts, damages. judgments and demands of whatsoever
kind or nature ("Claims"), which the Council and/or HWLP, individually or
collectively, ever had, or may now have, up to the date of this Release,
pertaining in any way to the Unit (other than a misrepresentation by Sassi
under the Agreement of Sale, as defined in the Settlement Agreement),
including but not limited to any Claims which were raised or could have been
raised in the Lawsuit.
2. Sassi, for himself and his heirs and personal representatives
and assigns, hereby releases and forever discharges the Council, 14WLP and the
Third Party Defendants, their respective heirs, personal representatives,
successors, assigns, officers, directors, employees, agents, principals and
shareholders, from any and all Claims which Sassi ever had, or may now have,
up to the date of this Release, pertaining in any way to the Unit. including
but not limited to any Claims which were raised or could have been raised in
the Counterclaim or in the Third Party Complaint.
3. The Third Party Defendants, for themselves and for their
officers, directors, employees, agents, principals and shareholders, and for
their respective heirs, personal representatives, successors and assigns,
hereby releases and forever discharges Sassi, the Council and HWLP, their
respective heirs, personal representatives, successors, assigns, officers,
directors. employees, agents, principals and shareholders, from any and all
Claims which the Third Party Defendants, individually and/or collectively, ever
had, or may now have, up to the date of this Release, pertaining in any way to
the Unit, including but not limited to any Claims which were raised or could
have been raised in the Cross Complaint.
<PAGE>
4. This Release contains the entire agreement between the parties
and is the complete written integration of that agreement. This writing is
intended by the parties as a final expression of that agreement and as a
complete and exclusive statement of the terms thereof, all negotiations,
considerations and representations between the parties having been
incorporated herein. No course or prior dealings between the parties or their
officers, employees, agents or affiliates shall be relevant or admissible to
supplement, explain or vary any of the terms of this Release. None of the
parties to this Release has any right to rely on any prior or contemporaneous
representations made by anyone concerning this Release and none of the parties
has so relied.
5. Each of the parties has read this Release and fully understands
it.
6. This Release may be executed in one or more counterparts, each
of which shall be deemed an original and all of which when taken together shall
constitute one and the same document. This Release may be delivered by
facsimile transmission of an originally executed copy to be followed by
immediate delivery of the original of such executed copy.
IN WITNESS WHEREOF, the parties have executed this Release under
seal as of the 3rd day of November, 1998.
WITNESS/ATTEST: COUNCIL:
THE COUNCIL OF UNIT OWNERS OF THE
RESIDENCES AND INN AT HENDERSON'S
WHARF, a Condominium, Incorporated
By:
Name:
Title:
<PAGE>
HWLP:
HENDERSON'S WHARF BALTIMORE L.P.
BY: Henderson's Wharf Development
Corporation, General Partner
By: (SEAL)
Name:
Title:
CLAREMONT:
CLAREMONT MANAGEMENT CORPORATION
By: (SEAL)
Name:
Title:
MCKENNA:
MCKENNA MANAGEMENT ASSOCIATES, INC.
By: (SEAL)
Name:
Title:
<PAGE>
STATE OF )
)TO WIT:
CITY/C0UNTY0F )
I HEREBY CERTIFY that on this 29th day of September, 1998, before me, the
subscriber, a Notary Public of the State and City/County aforesaid, personally
appeared Jeffrey F. Ault, who acknowledged himself/herself to bc the President
of Credit Service International Baltimore, Inc., a corporation,and that he/she
as such officer, being authorized so to do, executed the foregoing instrument
for the purpose therein contained by signing in my presence the name of the
corporation by himself/herself as such officer.
In-Witness Whereof, I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
STATE OF )
) to wit:
CITY/COUNTY OF )
I HEREBY CEPUIFY that on thisday of 1998, before me, the
subscriber, a Notary Public of the State aforesaid, personally appeared
Terence P. Sullivan, known to me (or satisfactorily proven) to be the
persons whose name is subscribed to the within instrument, and he
acknowledges that he executed the foregoing instrument for the purposes
therein contained.
IN WITNESS WHERE0F, I have hereunto set my hand and Notarial
Seal.
Notary Public
My Commission Expires;
<PAGE>
CSI:
CREDIT SERVICE INTERNATIONAL
BALTIMORE, INC.
By: (SEAL)
Name:
Tit1c:
SULLIVAN:
(SEAL)
Terence P. Sullivan
MORAN:
(SEAL)
Charles M. Moran, Jr.
INTRAVAIA:
(SEAL)
Charles S. Intravaia
KRASOIN:
(SEAL)
Brian M. Krason
BRADY:
Joseph Brady
<PAGE>
STATE OF )
) to wit:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this dav of 1998. before me, the subscriber, a
Notary Public of the State aforesaid, personally appeared Brian M. Krason, known
to me (or satisfactorily proven) to be the persons whose name is subscribed to
the within instrument, and he acknowledged that he executed the foregoing
instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial
Seal.
Notary Public
My Commission Expires:
STATE OF )
) to wit:
CITY/COUNTY 0F )
I HEREBY CERTIFY that on this 30th day of .October, 1998
before me, the subscriber, a Notary Public of the State aforesaid,
personally appeared Joseph V. Brady, known to me (or satisfactori1v
proven) to be the persons whose name is subscribed to the within
instrument, and he acknowledged that he executed the foregoing instrument
for the purposes therein contained.
IN WITNESS WHEREOF. I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
<PAGE>
SASSI:
(SEAL)
Richard Sassi
STATE OF )
)TO WIT:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this _ day of 1 1998 , before me, the subscriber,
a Notary Public of the State and City/County aforesaid, personally appeared ,
who acknowledged himself/herself to be the of The Council of Unit Owners of the
Residences and Inn at Henderson's Wharf, a Condominium Incorporated, and that
he/she as such officer, being authorized so to do, executed the foregoing
instrument for the purposes therein contained, by signing in my presence the
name of the corporation by himself/herself as such officer.
In Witness Whereof, I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
STATE OF
TO WIT:
CITY/COUNTY OF
I HEREBY CERTIFY that on this - day of 1 1998, before me, the subscriber, a
Notary Public of the State and City/County aforesaid. personally appeared I who
acknowledged himself/herself to be the of Henderson's Wharf Development
Corporation, general partner of Henderson's Wharf Baltimore, L.P.,a Delaware
limited partnership, and that he/she as such officer. being authorized so to do,
executed the foregoing instrument for the purposes therein contained. by signing
in my presence the name of the corporation by himself/herself as such officer.
In Witness Whereof, I have hereunto set my hand and official seal.
Notary Public
My Commission expires:
<PAGE>
STATE OF )
)to wit:
CITY/COUNTY OF )
I HEREBY CERTIFY that on this 3rd , of November , 1998, before me,
the subscriber, a Notary Public of the State aforesaid, personally appeared
Richard Sassi, known to me (or satisfactorily proven) to be the persons whose
name is subscribed to the within instrument, and he acknowledged that he
executed the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
Notarv Public
My Commission Expires:
AGREEMENT OF SALE AND PURCHASE
THIS AGREEMENT OF SALE AND PURCHASE (this "Agreement") is
made on this 3rd day of November, 1998 (the "Effective Date"), by and between
RICHARD SASSI a Maryland resident ("Seller") and HENDERSON'S WHARF BALTIMORE
L.P., a Delaware limited partnership ("Buyer").
Background
Seller is the owner of Condominium Unit No. 402 (the "Unit")
in The Residences and Inn at Henderson's Wharf, a Condominium (the
"Condominium"), together with all appurtenances and advantages
thereunto pertaining, and Parking Unit No. P-61 and an undivided
percentage interest in the common elements, common expenses and
common profits in the condominium regime, and together with all
appliances, fixtures, equipment and personally located in the Unit
(collectively, the "Property").
Seller desires to sell and convey to Buyer, and Buyer desires
to purchase from Seller, the Property upon the terms and conditions
set forth in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and of other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller and Buyer agree as follows:
1. SALE AND PURCHASE. Subject to the terms and conditions set forth
in this Agreement, Seller hereby agrees to sell to Buyer, and Buyer hereby
agrees to purchase from Seller, the Property.
2. PURCHASE PRICE AND PAYMENT. The purchase price to be paid by
Buyer to Seller for the Property (the "Purchase Price") shall be the sum of One
Hundred Ten Thousand Dollars ($110,000.00). The Purchase Price shall be paid at
Closing (as hereinafter defined) by bank, cashier's, certified or title company
check or by bank wire.
3. POSSESSION; RISK OF LOSS.
(a) At Closing, Seller shall deliver to Buyer possession of
the Property, in broom clean condition, free of any and all tenancies.
<PAGE>
(b) Until Closing, the Seller shall bear the risk of any
damage to or destruction of the Property. From and after the date hereof and
until Closing, the Seller shall, at its expense, (a) keep the Property insured
against fire and such other insurable casualties as are commonly insured
against by an all-risk casualty insurance policy, to its full insurable value,
and (b) cause each such policy to be endorsed to name the Buyer (in its
capacity as contract purchaser hereunder) as an additional insured thereunder
as its interest may appear.
4. TITLE. Fee simple title in and to the Property shall be
marketable, insurable at standard rates on an ALTA Form B policy of owner's
title insurance, and free and clear of all liens, encumbrances, leases,
easements, covenants, conditions and restrictions, except for those matters
shown on the title report attached hereto as Exhibit A and incorporated herein
by reference (collectively, the "Permitted Property Exceptions"). From and
after the Effective Date Seller shall not do or cause to be done anything which
will affect the status of title of the Property. Notwithstanding anything to
the contrary, Seller shall discharge any lien or encumbrance which is capable
of being discharged by the payment of money, including any deed of trust or
mortgage.
5. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller makes the
following representations and warranties to Buyer, each of which shall be true
and correct on the Effective Date and on the Closing Date (as hereinafter
defined) and shall survive the Closing:
(a) The execution and delivery of this Agreement by Seller.,
and the performance by Seller of all terms and conditions contained herein, do
not violate the terms of, are not in conflict with, and will not result in the
breach of or default under (1) any agreement, commitment, obligation, contract
or instrument under which Seller or the Property is bound or affected or (ii)
any law, rule, regulation or court order by which the Property or Seller is
affected.
(b) As of the Effective Date, all taxes, assessments, fees or
other charges (other than condominium fees) affecting or pertaining to the
Unit have been paid in full.
(c) There are no leases or tenancies with respect to the
Property or any part thereof and there have not been any for the preceding six
months. The Property has never been a single family residential rental dwelling
as such term is defined in Article 13, Sections 46-55 of the Baltimore City
Code (1976 Edition, as amended). Seller will not lease the Unit prior to
Closing.
6. CONDITIONS PRECEDENT TO CLOSING. The obligation of Buyer to
purchase the Property pursuant to this Agreement shall be expressly conditioned
upon and subject to the satisfaction (or written waiver by Buyer) of each of
the following conditions:
(i) Each of the representations and warranties of
Seller contained in Section 5 shall be true as of the Closing Date, and
(ii) Seller shall not be in default of any of its
obligations under this Agreement.
<PAGE>
If any one or more of such conditions precedent are not
satisfied (or the satisfaction thereof is not waived in writing by Buyer) as of
the Closing Date, then Buyer shall have the right, at its option, to terminate
this Agreement by written notice thereof to Seller, and thereafter neither
party shall have any further liability or obligation hereunder.
7. CLOSING; CLOSING COSTS; ADJUSTMENTS.
(a) The consummation of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Neuberger, Quinn,
Gielen, Rubin & Gibber, P.A., 27th Floor, One South Street, Baltimore, Maryland
21202, or at such other location in Baltimore City designated by Buyer, within
sixty (60) days from the date of this Agreement upon not less than five (5)
days prior notice from Buyer to Seller, at a time designated by Buyer ("Closing
Date"). If the Closing Date as provided herein falls on a Saturday, Sunday or
legal holiday, then the Closing Date shall be extended to the next day which is
a business day.
(b) Buyer shall pay all recording costs and any costs charged
by the council of unit owners of the Condominium in connection with such
conveyance.
(c) All fees (other than condominium fees), all taxes,
general or special. and all other public and governmental charges or
assessments against the Property which are or may be payable on an annual or
semi-annual basis (including metropolitan and other benefit charges,
assessments, liens or encumbrances) shall be adjusted and apportioned as of the
Closing and are to be assumed and paid thereafter by Buyer. whether or not the
assessments have been levied as of the Closing.
(d) All outstanding condominium fees assessed against the
Property up through the date of Closing shall be paid by Buyer at Closing.
(e) All water and sewer bills for the Property shall be
adjusted as of the Closing based on prior bills and all gas and/or electric
bills shall be adjusted as of the Closing based on meter reading or prior
bills.
8. RECORDATION AND TRANSFER TAXES, OTHER COSTS.
(a) SECTION 14-104 OF THE REAL PROPERTY ARTICLE OF THE
ANNOTATED CODE OF MARYLAND PROVIDES THAT, UNLESS OTHERWISE NEGOTIATED IN THE
CONTRACT OR PROVIDED BY STATE OR LOCAL LAW, THE COST OF ANY RECORDATION TAX OR
STATE OR LOCAL TRANSFER TAX SHALL BE SHARED EQUALLY BY BUYER AND SELLER. This
statement is provided for informational purposes only. Except as provided in
subsection (b) below, Buyer shall pay the total cost of all documentary stamps,
recordation taxes and transfer taxes imposed upon the transfer of the Property.
<PAGE>
(b) This subsection applies if Buyer is a first-time Maryland
home buyer who will reside in the Property. If there are two or more Buyers,
then each Buyer must be someone who is a first-time Maryland home buyer, or
someone who will not occupy the house as a principal residence and who is a
co-maker or guarantor of a purchase money deed of trust or mortgage for the
benefit of the first-time Maryland home buyer. A "first-time Maryland home
buyer" means an individual who has never owned in the State of Maryland
residential real property that has been his or her principal residence. Section
14-104 of the Real Property Article of the Annotated Code of Maryland provides
that:
(i) Buyer's portion of the State transfer
tax is waived;
(ii) State transfer tax will be reduced to 0.25% of the sales
price of the
property;
(iii) the entire amount of the State transfer tax shall be
paid by Seller; and
(iv) the entire amount of recordation tax and local transfer
tax shall be paid by Seller unless there is an express agreement between Buyer
and Seller that the recordation tax and local transfer tax will not be paid
entirely by Seller. In this Agreement, the parties agree that the costs of
transfer tax and recordation tax shall be paid by Buyer.
check if first-time Maryland Home
Buyer.
9. DEFAULT.
(a) If Buyer shall have fully performed its obligations
hereunder and Seller breaches this Agreement or otherwise fails to perform or
observe any of the covenants or obligations to be performed or observed by
Seller hereunder, or if any of Seller's representations or warranties hereunder
is incorrect or untrue as of the Closing Date, Buyer shall have the right to
(i) enforce Buyer's right of specific performance, (ii) bring suit for all
damages suffered by reason of Seller's action or inaction, and/or (iii) enforce
any and all other remedies available to Buyer at law or in equity.
(b) If Seller shall have fully performed its obligations
hereunder and Buyer breaches this Agreement or otherwise fails to perform or
observe any of the covenants or obligations to be performed or observed by
Buyer hereunder, Seller shall have the right to (i) enforce Seller's right of
specific performance, (ii) bring suit for all damages suffered by reason of
Buyer's action or inaction, and/or (iii) enforce any and all other remedies
available to Seller at law or in equity.
(c) In the event of litigation, the prevailing party shall be
entitled to reasonable attorneys' fees and costs of litigation.
<PAGE>
10. CLOSING DOCUMENTS.
(a) At Closing, upon payment of the Purchase Price, Seller
shall execute and deliver to the closing officer or title company
representative a special warranty deed, with covenants of further assurances,
in the form attached hereto as Exhibit B and incorporated herein by reference,
conveying fee simple title to the Property to Buyer free and clear of all
liens, encumbrances, leases, easements, covenants, conditions, restrictions and
other title exceptions other than the Permitted Property Exceptions.
(b) On the Closing Date, Buyer shall execute, acknowledge and
deliver all additional documents that may reasonably be necessary or
appropriate to carry out the provisions hereof.
11. OPERATIONS PENDING CLOSING. From and after the dates listed
below, the parties shall perform as follows:
(a) From and after the Effective Date, Seller shall promptly
furnish to Buyer copies of any and all notices or communications that Seller
receives from (i) any governmental or quasi -governmental entities, or any
other body having jurisdiction with respect to the use and occupancy or
physical condition of the Property, and/or (ii) any other notice or
communication relating to the Property.
(b) From and after the Effective Date, Seller shall promptly
furnish to Buyer written notice of any event or condition that causes or may
tend to cause a change in the facts relating to, or the accuracy, completeness
or truth of, any of the representations, warranties, covenants, or any of the
information provided herein.
(c) From and after the Effective Date, neither Seller nor
Seller's agents, affiliates or employees shall sell, offer for sale., pen-nit
the use of, negotiate with respect to, or otherwise deal in the sale, lease or
other transfer of the Property or any interest therein.
12. BROKERAGE. Each party represents and warrants to the other that
it has dealt with no agent, broker or finder in connection with this Agreement,
and each party shall indemnify, defend and save harmless the other from and
against any loss, cost, damage or expense (including reasonable attorneys'
fees) arising from a breach of such representation or warranty.
13. NOTICES. All notices hereunder shall be in writing and shall be
(i) delivered via commercial messenger delivery service with same day or
overnight receipted delivery, or (ii) mailed, registered or certified U.S.
mail, return receipt requested, first class postage prepaid, and shall be
addressed as follows:
<PAGE>
If to Seller: Henderson's Wharf Baltimore L.P.
c/o Gunn Financial, Inc.
45 Broad Street
Boston, MA 02109
ATTN: Charles Intravaia
Telecopy No. (617) 338-6164
With a copy to: Richard Rubin, Esquire
Neuberger, Quinn, Gielen,Rubin & Gibber, P.A.
Commerce Place, 27th Floor
One South Street
Baltimore, Maryland 21202-3201
Telecopy No. (410) 332-8594
If to Buyer: Richard Sassi
10 East Lee Street
Unit 1509
Baltimore, Maryland 21202
Telecopy No. (410)342-3155.
With a copy to Bruce D. Brown, Esquire
Siskind, Grady, Rosen & Hoover, P.A.
Jefferson Building
Two East Fayette Street
Baltimore, Maryland 21202
Telecopy No. (410) 332-0269
Notices that are delivered by commercial messenger shall be deemed effective
upon delivery to the commercial messenger. Notices that are sent by registered
or certified mail shall be deemed delivered and effective the day the same is
deposited in the U.S. mails. Each party may change its address or telecopy
number by giving written notice as provided above. All notices shall also be
sent via telecopy to the number set forth above on the same day as such notice
is deposited with the messenger or U.S. Post Office.
14. RESALE NOTICE. SELLER IS REQUIRED BY LAW TO FURNISH TO BUYER
NOT LATER THAN FIFTEEN (15) DAYS PRIOR TO THE CLOSING CERTAIN INFORMATION
CONCERNING THE CONDOMINIUM WHICH IS DESCRIBED IN ss.11-135 OF THE MARYLAND
CONDOMINIUM ACT. THIS INFORMATION MUST INCLUDE AT LEAST THE FOLLOWING:
(I) A COPY OF THE DECLARATION (OTHER THAN THE
PLATS);
<PAGE>
(II) A COPY OF THE BYLAWS;
(III) A COPY OF THE RULES AND REGULATIONS OF THE
CONDOMINIUM;
(IV) A CERTIFICATE CONTAINING:
(1) A STATEMENT DISCLOSING THE EFFECT ON
THE PROPOSED CONVEYANCE OF ANY RIGHT OF FIRST REFUSAL OR OTHER RESTRAINT ON
THE FREE ALIENABILITY OF THE UNIT, OTHER THAN ANY RESTRAINT CREATED BY THE
UNIT OWNER;
(2) A STATEMENT OF THE AMOUNT OF THE
MONTHLY COMMON EXPENSE ASSESSMENT AND ANY UNPAID COMMON EXPENSE OR SPECIAL
ASSESSMENT CURRENTLY DUE AND PAYABLE FROM THE SELLING UNIT OWNER;
(3) A STATEMENT OF ANY OTHER FEES PAYABLE
BY THE UNIT OWNERS TO THE COUNCIL OF UNIT OWNERS;
(4) A STATEMENT OF ANY CAPITAL EXPENDITURES
APPROVED BY THE COUNCIL OF UNIT OWNERS OR ITS AUTHORIZED DESIGNEE PLANNED AT
THE TIME OF THE CONVEYANCE WHICH ARE NOT REFLECTED IN THE CURRENT OPERATING
BUDGET INCLUDED IN THE CERTIFICATE;
(5) THE MOST RECENTLY PREPARED BALANCE
SHEET AND INCOME AND EXPENSE STATEMENT, IF ANY, OF THE CONDOMINIUM;
(6) THE CURRENT OPERATING BUDGET OF THE
CONDOMINIUM, INCLUDING DETAILS CONCERNING THE AMOUNT OF THE RESERVE FUND FOR
REPAIR AND REPLACEMENT OF ITS INTENDED USE, OR A STATEMENT THAT THERE IS NO
RESERVE FUND;
(7) A STATEMENT OF ANY JUDGMENTS AGAINST
THE CONDOMINIUM AND THE EXISTENCE OF ANY PENDING SUITS TO WHICH THE COUNCIL
OF UNIT OWNERS IS A PARTY;
(8) A STATEMENT GENERALLY DESCRIBING ANY
INSURANCE POLICIES PROVIDED FOR THE BENEFIT OF THE UNIT OWNERS, A NOTICE THAT
THE POLICIES ARE AVAILABLE FOR INSPECTION STATING THE LOCATION AT WHICH THEY
ARE AVAILABLE, AND A NOTICE THAT THE TERMS OF THE POLICY PREVAIL OVER THE
GENERAL DESCRIPTION;
<PAGE>
(9) A STATEMENT AS TO WHETHER THE COUNCIL OF UNIT
OWNERS HAS KNOWLEDGE THAT ANY ALTERATION OR IMPROVEMENT TO THE UNIT OR TO THE
LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT VIOLATES ANY PROVISION OF THE
DECLARATION, BYLAWS, OR RULES OR REGULATIONS;
(10) A STATEMENT AS TO WHETHER THE COUNCIL OF UNIT
OWNERS HAS KNOWLEDGE OF ANY VIOLATION OF THE HEALTH OR BUILDING CODES WITH
RESPECT TO THE UNIT, THE LIMITED COMMON ELEMENTS ASSIGNED TO THE UNIT, OR ANY
OTHER PORTION OF THE CONDOMINIUM;
(11) A STATEMENT OF THE REMAINING TERM OF ANY
LEASEHOLD ESTATE AFFECTING THE CONDOMINIUM AND THE PROVISIONS GOVERNING ANY
EXTENSION OR RENEWAL OF IT; AND
(12) A DESCRIPTION OF ANY RECREATIONAL OR OTHER
FACILITIES WHICH ARE TO BF USED BY THE UNIT OWNERS OR MAINTAINED BY THEM OR THE
COUNCIL OF UNIT OWNERS, AND A STATEMENT AS TO WHETHER OR NOT THEY ARE TO BE A
PART OF THE COMMON ELEMENTS; AND
(V) A STATEMENT BY THE UNIT OWNER AS TO WHETHER THF UNIT
OWNER HAS KNOWLEDGE:
(1) THAT ANY ALTERATION TO THE UNIT OR TO THE LIMITED
COMMON ELEMENTS ASSIGNED TO THE UNIT VIOLATES ANY PROVISION OF THE
DECLARATION, BYLAWS, OR RULES AND REGULATIONS;
(2) OF ANY VIOLATION OF THE HEALTH OR BUILDING CODES
WITH RESPECT TO THE UNIT OR THE LIMITED COMMON ELEMENTS ASSIGNED TO THE
UNIT; AND
(3) THAT THE UNIT IS SUBJECT TO AN EXTENDED LEASE
UNDER ss.11-137 OF THE MARYLAND CONDOMINIUM ACT OR UNDER LOCAL LAW, AND IF SO,
A COPY OF THE LEASE MUST BE PROVIDED.
BUYER WILL HAVE THE RIGHT TO CANCEL THIS AGREEMENT WITHOUT PENALTY,
AT ANY TIME WITHIN SEVEN (7) DAYS FOLLOWING DELIVERY TO BUYER OF ALL OF THIS
INFORMATION. HOWEVER, AFTER THE CLOSING, BUYER'S RIGHT TO CANCEL THIS AGREEMENT
IS TERMINATED.
15. DISCLOSURE/DISCLAIMER STATEMENT. Attached hereto as Exhibit C
and incorporated herein by reference is a notice to Buyer advising Buyer of
Buyer's rights
<PAGE>
under ss. 10-702 of the Real Property Article of the Annotated Code of
Maryland. Buyer acknowledges receipt of, and has executed, a copy of such
notice. Pursuant to the provisions of ss.10-702 of the Real Property Article
of the Annotated Code of Maryland, Seller has delivered to Buyer the written
residential property disclaimer statement on the form attached hereto as
Exhibit D and incorporated herein by reference.
16. CERTIFICATE OF NON-FOREIGN STATUS. At Closing, Seller shall
provide Buyer with either (i) an certificate of non-foreign status in
substantially the form attached hereto as Exhibit E, stating that Seller is
not a foreign person (as that term is defined in Section 1445 of the Internal
Revenue Code) and providing Seller's tax identification number; or (ii) a
"Qualifying Statement" as such term is defined by Section 1445 of the Internal
Revenue Code.
17. MISCELLANEOUS PROVISIONS.
(a) This Agreement contains the sole, final and entire
agreement between the parties and is intended to be an integration of all prior
and contemporaneous agreements, conditions and undertakings between the
parties. There are no promises, agreements, conditions, undertakings,
warranties or representations, oral or written, express or implied, between the
parties other than as herein set forth.
(b) This Agreement may be amended by and only by an
instrument executed and delivered by Seller and Buyer.
(c) This Agreement and all of the provisions hereof shall be
binding upon and shall inure to the benefit of the parties and their respective
heirs, devisees, legatees, legal representatives, successors and assigns.
(d) This Agreement hall be governed by and construed in
accordance with the laws of the State of Maryland.
(e) All provisions hereof shall survive the Closing Date,
unless otherwise provided herein.
(f) Each of the parties agrees to execute and deliver upon
reasonable demand of the other any document or instrument that such other party
reasonably deems necessary or desirable to evidence or accomplish the rights
herein conferred or to implement or consummate the purposes and intent hereof.
(g) Time is of the essence.
(h) No determination by any court, governmental or
administrative entity or otherwise that any provision of this Agreement or any
amendment hereof is invalid or unenforceable in any instance shall affect the
validity or enforceability of (a) any other such
<PAGE>
provision, or (b) such provision in any circumstance not controlled by such
determination. Each such provision shall be valid and enforceable to the
fullest extent allowed by, and shall be construed wherever possible as being
consistent with, applicable law.
(i) This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which when
taken together shall constitute one and the same document. This Agreement may
be delivered by facsimile transmission of an originally executed copy to be
followed by immediate delivery of the original of such executed copy.
(j) The following exhibits are attached to, and made a part
of, this
Agreement:
A - Permitted Property Exceptions
B - Form of Deed
C - Notice to Buyer - Property Disclosure
D - Property Disclaimer Statement
E - Certificate of Non-Foreign Status
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement under seal on the date first above written.
WITNESS/ATTEST: SELLER:
(SEAL)
Richard Sassi
WITNESS: BUYER:
HENDERSON'S WHARF BALTIMORE L.P.
By: Henderson's Wharf Development
Corporation, General Partner
By: (SEAL)
Name:
Title:
<PAGE>
EXHIBIT A TO
AGREEMENT OF SALE AND PURCHASE
PERMITTED PROPERTY EXCEPTIONS
<PAGE>
SCHEDULE B
EXCEPTIONS FROM COVERAGE
Policy No.
File No.1980348
1 . Taxes payable On an annual basis have been paid through the fiscal year
ending June 30, 1999, and other public charges (including assessments by any
County, Municipality, Metropolitan District or Commission) payable on an
annual basis have been paid through the year ending December 31, 1998. This
policy does not insure against the balance of any public charges including
assessments by any County, Municipality, Metropolitan District or
Commission)payable on an annual basis subsequent to the year ending December
31, 1998. Nor does this policy insure against possible future tax levies, nor
against possible public charges as defined above that have not been levied or
assessed, which future taxes, charges and assessments are not now due and
payable.
3. Declaration of The Residences and Inn at Henderson's Wharf, a condominium,
by Carley Capital Group dated August 30, 1988 and recorded among the Land
Records of BaltimoreCity in Liber SEB no. 1821, folio 20, as amended by the
following:
a) Amendment to Declaration dated April 3, 1989 and recorded among the
aforesaid Land Records in Liber SEB No. 2081, folio 329;
b) Second Amendment to Declaration dated July 31, 1990 and
recorded among the aforesaid Land Records in Liber SEB
No. 2563, folio 230; and
c) Third Amendment to Declaration dated December 14, 1992 and recorded
among the aforesaid Land Records in Liber SEB No. 3578, folio 030.
4. Amended and Restated Henderson's Wharf Disposition Agreement dated October
10, 1984 and recorded among the Land Records of Baltimore City in Liber SEB No.
335, folio 062, as amended by First Amendment to Amended and Restated
Henderson's Wharf Disposition agreement dated July 31, 1990 and recorded among
he aforesaid Land Records in Liber SEB No. 2563, folio 264.
<PAGE>
CONTINUATION OF SCHEDULE B PART I
File No. 1951576
5. Building Perimeter Easement and Connecting Easement established by
Pedestrian Promenade Easement Agreement dated October 19, 1984 and recorded
among the Land Records of Baltimore City in Liber SEB no. 335, folio 204, by
and between Carley Capital Group and Mayor and City Council of Baltimore, as
amended by the following:
a) Amendment of Pedestrian Promenade Easement Agreement dated April 6,
1987 and recorded among the aforesaid Land Records in Liber SEB No.
1308, folio 589; and
b) Second Amendment t o Pedestrian Promenade Easement Agreement dated
July 31, 1990 and recorded among the aforesaid Land Records in
Liber SEB No. 2563, folio 241;
6. Easement to the benefit of the Marina Owner over the Building Perimeter
Easement and Commercial Courtyard Area, as established by Reciprocal
Easement Agreement dated August 31, 1988 and recorded among the Land
Records of Baltimore City in Liber SEB No. 1824, folio 162, by and
between Carley Capital Group and The Council of Unit Owners of The
Residences and Inn at Henderson's Wharf, a Condominium, Incorporated, as
amended by:
(a) Amended to Reciprocal Easement Agreement dated July 31, 1990 and
recorded
among the aforesaid Land Records in Liber SEB No. 2822, folio
477; and
(b) Second Amendment to Reciprocal Easement Agreement dated February 27,
1996 and recorded among the aforesaid Land Records in Liber SEB 5395,
folio 91.
7. Terms, conditions, easements, restrictions and other criteria as shown on
the Plats entitled "The Residences at Henderson's Wharf, a Condominium", as
follows:
(a) Sheets 1 of 11 through 11 of 11 dated August, 1988 and recorded as
Condominium Plat SEB No. 232; and
(b) Sheets 1 of 11 through 11 of 11 dated September, 1988 and revised
December 14, 1992 and recorded as Condominium Plat SEB No. 298.
<PAGE>
EXHIBIT B TO
AGREEMENT OF SALE AND PURCHASE
DEED
<PAGE>
DEED
THIS DEED ("Deed") is made on this day of 1 1998,
from
RICHARD SASSI ("Grantor") to HENDERSON'S WHARF BALTIMORE L.P., a Delaware
limited partnership ("Grantee").
The Grantor for a consideration of One Hundred Ten Thousand Dollars
($110,000.00) grants, conveys and assigns to the Grantee, its successors and
assigns, in fee simple, the real property located in Baltimore City, Maryland,
and described as follows:
Condominium Unit No. 402 ("Unit") and Parking Unit No. P-61
("Parking Unit") in THE RESIDENCES AND INN AT HENDERSON'S WHARF, A
CONDOMINIUM ("Condominium"), a condominium established under the provisions
of Title I I of the Real Property Article of the Annotated Code of Maryland
(1988 Replacement Volume as amended) by the operation and effect of a
Declaration dated August 30, 1988, and recorded among the Land Records of
Baltimore City (the "Land Records") at Liber S.E.B. No. 1821, page 20, et.
seq., made by Carley Capital Group (hereinafter together wit', any amendments
thereto, referred to as the "Declaration"), all as the Unit, the Parking Unit
and the Condominium are defined in the Declaration and are shown on those
certain plats entitled "Condominium Plat, The Residences and Ian at
Henderson's Wharf, a Condominium," dated August, 1988, and recorded among the
Plat Records of Baltimore City at Condominium Plat Record Book S.E.B. No.
232, Sheets I through 11. as amended (all of which plats, together with any
supplements thereto, are hereinafter referred to collectively as the
"Condominium Plats").
The improvements thereon being known as 1000 Fell Street, Unit No. 402,
along with Parking Unit No. P-61 are hereinafter referred to as the
"Property"; and
Being the same property described in a Deed from Carley Capital
Group to Grantor dated September 6, 1988 and recorded among the Land Records in
Liber 1856, folio 239.
TOGETHER WITH all improvements contained in the Property, and all
appurtenances and advantages thereunto pertaining, including an undivided
percentage interest in the common elements, common expenses and common profits
in the condominium regime as set forth in the Declaration, the Bylaws and the
Condominium Plats.
TO HAVE AND TO HOLD the property hereby conveyed to Grantee, its
successors and assigns, in fee simple, forever.
The Grantor hereby covenants that it has not done or suffered to be
done any act. matter or thing whatsoever to encumber the property hereby
conveyed-, that it will warrant specially the property hereby; and that it will
execute such further assurances of the same as may be requisite.
<PAGE>
IN WITNESS WHEREOF, the Grantor has executed this Deed under seal
on the date first above written.
WITNESS: GRANTOR:
(SEAL)
Richard Sassi
STATE OF MARYLAND
)
) to wit:
COUNTY OF
)
I HEREBY CERTIFY that on this day of -1 1998, before me. the
subscriber, a Notary Public of the State of Maryland, personally appeared
RICHARD SASSI. known to me (or satisfactorily proven) to be the person whose
name is subscribed to the within instrument, and he acknowledged that he
executed the foregoing instrument for the purposes therein contained.
IN WITNESS WHEREOF, I have hereunto set my hand and Notarial Seal.
Notary Public
My Commission Expires:
<PAGE>
CERTIFICATE
THE UNDERSIGNED, AN ATTORNEY ADMITTED TO PRACTICE BEFORE THE
COURT OF APPEALS OF MARYLAND, HEREBY CERTIFIES THAT THE ABOVE INSTRUMENT
WAS PREPARED BY ME OR UNDER MY SUPERVISION.
Susan M. Wilkins,
Attorney
MR./MS. CLERK: AFTER THIS DEED OF EXCHANGE HAS BEEN RECORDED, PLEASE RETURN
TO:
Susan M. Wilkins, Esq.
Neuberger, Quinn, Gielen, Rubin
& Gibber, P.A.
Commerce Place, 27th Floor
One South Street
Baltimore, Maryland 21202-3201
<PAGE>
EXHIBIT C TO
AGREEMENT OF SALE AND PURCHASE
NOTICE TO BUYER-PROPERTY DISCLOSURE
<PAGE>
NOTICE TO BUYER OF BUYER'S RIGHT
UNDER MARYLAND'S PROPERTY DISCLOSURE LAW
NOTE: This Notice does not apply to: (1) The initial sale of single family
residential real property; (2) a transfer that is exempt from the transfer tax
under ss. 13-207 of the Tax-Property Article, except land installment contracts
of sale under ss. 13 -207(l 1) of the Tax-Property Article and options to
purchase real property under ss. 13 -207(12) of the Tax-Property Article; (3) a
sale by a lender acquiring the real property by foreclosure or deed in lieu of
foreclosure; (4) a sheriffs sale, tax sale, or sale by foreclosure, partition
or by court appointed trustee; (5) a transfer by a fiduciary in the course of
the administration of a decedent's estate, guardianship, conservatorship, or
trust; or (6) a transfer of single family residential real property to be
converted by the buyer into a use other than residential use or to be
demolished.
SECTION 10-702 OF THE REAL PROPERTY ARTICLE OF THE ANNOTATED CODE OF
MARYLAND ("SECTION 10-702") REQUIRES THAT SELLERS OF SINGLE FAMILY RESIDENTIAL
PROPERTY PROVIDE YOU, THE BUYER, ON OR BEFORE ENTERING INTO A CONTRACT OF SALE,
EITHER:
(A) A WRITTEN PROPERTY CONDITION DISCLOSURE STATEMENT LISTING ALL
DEFECTS OR INFORMATION OF WHICH THE SELLER HAS ACTUAL KNOWLEDGE IN RELATION
TO THE FOLLOWING:
(I) WATER AND SEWER SYSTEMS, INCLUDING THE SOURCE
OF HOUSEHOLD WATER, WATER TREATMENT SYSTEMS, AND
SPRINKLER SYSTEMS;
(II) INSULATION;
(III) STRUCTURAL SYSTEMS, INCLUDING THE ROOF. WALLS.
FLOORS, FOUNDATION, AND ANY BASEMENT;
(IV) PLUMBING, ELECTRICAL. HEATING, AND AIR
CONDITIONING SYSTEMS;
(V) INFESTATION OF WOOD-DESTROYING INSECTS;
(VI) LAND USE MATTERS;
(VII) HAZARDOUS OR REGULATED MATERIALS, INCLUDING
ASBESTOS, LEAD-BASED PAINT, RADON, UNDERGROUND STORAGE
TANKS, AND LICENSED LANDFILLS; AND
<PAGE>
(VIII) ANY OTHER MATERIAL DEFECTS KNOWN TO THE
SELLER;OR
(B) A WRITTEN DISCLAIMER STATEMENT PROVIDING THAT:
(I) THE SELLER MAKES NO REPRESENTATIONS OR
WARRANTIES AS TO THE CONDITION OF THE REAL PROPERTY OR
ANY IMPROVEMENTS ON THE REAL PROPERTY; AND
(II) THE BUYER WILL BE RECEIVING THE REAL PROPERTY
"AS IS", WITH ALL DEFECTS THAT MAY EXIST, EXCEPT AS OTHERWISE
PROVIDED IN THE CONTRACT OF SALE.
AT THE TIME THE DISCLOSURE OR DISCLAIMER STATEMENT IS DELIVERED TO YOU,
YOU ARE REQUIRED TO DATE AND SIGN A WRITTEN ACKNOWLEDGEMENT OF RECEIPT, WHICH
SHALL BE INCLUDED IN OR ATTACHED TO THE CONTRACT OF SALE.
YOU ARE HEREBY NOTIFIED THAT, IN CERTAIN CIRCUMSTANCES. YOU HAVE THE
RIGHT TO RESCIND YOUR CONTRACT OF SALE WITH THE SELLER IF THE SELLER FAILS TO
DELIVER TO YOU THE WRITTEN PROPERTY CONDITION DISCLOSURE STATEMENT. SECTION
10-702 PROVIDES THAT A BUYER WHO DOES NOT RECEIVE THE DISCLOSURE STATEMENT ON
OR BEFORE ENTERING INTO THE CONTRACT OF SALE HAS THE UNCONDITIONAL RIGHT, UPON
WRITTEN NOTICE TO THE SELLER OR SELLER'S AGENT:
(I) TO RESCIND THE CONTRACT OF SALE AT ANY TIME BEFORE THE RECEIPT
OF THE DISCLOSURE STATEMENT OR WITHIN 5 DAYS FOLLOWING RECEIPT OF
THE DISCLOSURE STATEMENT; AND
(II) TO THE IMMEDIATE RETURN OF ANY DEPOSITS MADE ON ACCOUNT OF THE
CONTRACT.
IF THE DISCLOSURE STATEMENT IS DELIVERED TO YOU LATER THAN 3) DAYS AFTER THE
SELLER ENTERS INTO A CONTRACT OF SALE WITH YOU. THE CONTRACT IS VOID. YOUR
RIGHT TO RESCIND THE CONTRACT OF SALE UNDER SECTION 10-702 TERMINATES IF NOT
EXERCISED BEFORE MAKING A WRITTEN APPLICATION TO A LENDER FOR A MORTGAGE LOAN,
IF THE LENDER DISCLOSES IN WRITING AT OR BEFORE THE TIME APPLICATION IS MADE
THAT THE RIGHT TO RESCIND TERMINATES ON SUBMISSION OF THE APPLICATION.
YOUR RIGHTS AS A BUYER UNDER SECTION 10-702 MAY NOT BE WAIVED IN
THE CONTRACT OF SALE AND ANY ATTEMPTED WAIVER IS VOID. YOUR RIGHTS
<PAGE>
AS THE BUYER TO TERMINATE THE CONTRACT UNDER SECTION 10-702 ARE WAIVED
CONCLUSIVELY IF NOT EXERCISED BEFORE:
(I) CLOSING OR OCCUPANCY BY YOU, WHICHEVER OCCURS
FIRST, IN THE EVENT OF A SALE; OR
(II) OCCUPANCY, IN THE EVENT OF A LEASE WITH OPTION
TO PURCHASE.
THE INFORMATION CONTAINED IN THE PROPERTY CONDITION DISCLOSURE STATEMENT IS THE
REPRESENTATION OF THE SELLER AND NOT THE REPRESENTATION OF THE REAL ESTATE
BROKER OR SALESPERSON, IF ANY. THE SELLER IS NOT REQUIRED TO UNDERTAKE OR
PROVIDE AN INDEPENDENT INVESTIGATION OR INSPECTION OF THE PROPERTY IN ORDER TO
MAKE THE DISCLOSURES REQUIRED BY SECTION 10-702. THE SELLER IS NOT LIABLE FOR
AN ERROR, INACCURACY OR OMISSION IN THE DISCLOSURE STATEMENT IF THE ERROR,
INACCURACY, OR OMISSION WAS BASED UPON INFORMATION THAT WAS NOT WITHIN THE
ACTUAL KNOWLEDGE OF THE SELLER. OR WAS PROVIDED TO THE SELLER BY A THIRD PARTY.
YOU HAVE THE RIGHT TO OBTAIN PROFESSIONAL ADVICE ABOUT THE PROPERTY OR
OBTAIN AN INSPECTION OF THE PROPERTY.
THE UNDERSIGNED BUYER(S) ACKNOWLEDGES RECEIPT OF THIS NOTICE ON
THE DATE INDICATED BELOW.
WITNESS: HENDERSON'S WHARF
BALTIMORE L.P.
By: Henderson's Wharf
Development Corp
General Partner
By:
Name:
Title:
Date:
<PAGE>
EXHIBIT D TO
AGREEMENT OF SALE AND PURCHASE
PROPERTY DISCLAIMER STATEMENT
<PAGE>
MARYLAND RESIDENTIAL PROPERTY DISCLAIMER STATEMENT
NOTICE TO SELLER AND BUYER
Section ss. 10-702 of the Real Property Article, Annotated Code of Maryland,
requires the owner of certain residential real property to furnish to the BUYER
either (a) a RESIDENTIAL PROPERTY DISCLAIMER STATEMENT stating that the owner
is selling the property "as is" and makes no representations or warranties as
to the condition of the property or any improvements on the real property,
except as otherwise provided in the contract of sale, or (b) a RESIDENTIAL
PROPERTY DISCLOSURE STATEMENT disclosing defects or other information about the
condition of the real property actually known by the owner. Certain transfers
of residential property are excluded from this requirement (see the exemptions
listed below).
MARYLAND RESIDENTIAL PROPERTY DISCLAIMER STATEMENT
NOTICE TO OWNER(S): Sign this statement only if you elect to sell the property
without representations and warranties as to its condition', except as
otherwise provided in the contract of sale; otherwise, complete and sign the
RESIDENTIAL PROPERTY DISCLOSURE STATFMENT.
Property Address:1000 Fell Street, Condominium Unit No. 402, along
with
Parking Unit No. P-6 1.
Legal Description: Condominium Unit No. 402 and Parking Unit No. P-61 in THE
RESIDENCES AND INN AT HENDERSON'S WHARF, A CONDOMINIUM, as established
pursuant to a Declaration dated August 30, 1988, and recorded among the Land
Records of Baltimore City (the "Land Records") at Liber S.E.B. No. 1821, page
20, as amended by Amendment to Declaration dated April 3, 1989 and recorded
among the Land Records at Liber S.E.B. No. 2081, folio 329, and as further
amended by Second Amendment to Declaration dated July 31, 1990, and recorded
among the Land Records at Liber S.E.B. No. 2563, folio 230, and as further
amended by Third Amendment to Declaration dated as of December 14, 1992, and
recorded among the Land Records at Liber S.E.B. No. 3578, folio 30 (as
amended, the "Declaration"). and the Bylaws attached thereto (the "Bylaws"),
and as shown on those certain plats entitled "Condominium Plat, The
Residences and Inn at Henderson's Wharf, a Condominium," dated August, 1988,
and recorded among the Plat Records of Baltimore City at Condominium Plat
Record Book S.E.B. No. 232, Sheets I through 11, as amended by condominium
plats dated December 14, 1992, and recorded among the Plat Records of
Baltimore City at Condominium Plat Record Book S.E.B. 298, Sheets I through I
I (as amended, the "Condominium Plats").
<PAGE>
The undersigned owner(s) of the real property described above make no
representations or warranties as to the condition of the real property or any
improvements thereon, and the BUYER will be receiving the real property "as
is", with all defects which may exist, except as otherwise provided in the
real estate contract of sale. The owner(s) acknowledge having carefully
examined this statement and further acknowledge that they have been informed
of their rights and obligations under Section ss. 10-702 of the Maryland Real
Property Article.
SELLER: (SEAL)
Richard Sassi
Date:
The BUYER(s) acknowledge receipt of a copy of this disclaimer statement and
further acknowledge that he has been informed of his rights and obligations
under Section ss. 10-702 of the Maryland Real Property Article.
BUYER: HENDERSON'S WHARF BALTIMORE L.P.
By: Henderson's Wharf Development
Corporation, General Partner
Date: By:
Name:
Title:
MARYLAND RESIDENTIAL FROPERTY DISCLOSURE ACT
10-702. Exemptions. - The following are specifically excluded from the
provisions of Section 10-702:
1. The initial sale of single family Residential
Real Property;
2. A transfer that is exempt from the transfer tax under ss. 13 -207 of the
Tax-Property Article, except land installment contracts of sale under
ss.13-207(11) of the Tax-Property Article except hand installment Contracts of
Sale under ss. 1 3-207(l 1) of the Tax Property Article and options to purchase
real property under ss.13-207(12) of the Tax-Property Article;
3. A sale by a lender acquiring the Real Property by foreclosure or deed in
lieu of foreclosure;
<PAGE>
4. A sheriffs sale, tax sale, or sale by foreclosure, partition, or by court
appointed trustee;
5. A transfer by a fiduciary in the course of the administration of a
decedent's estate, guardianship, conservatorship, or trust; or
6. A transfer of single family Residential Real Property to be converted by the
Buyer into a use other than residential use or to be demolished.
<PAGE>
EXHIBIT E TO
AGREEMENT OF SALE AND PURCHASE
PROPERTY DISCLAIMER STATEMENT
<PAGE>
CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee
(buyer) of a U.S. real property interest must withhold tax if the transferor
(seller) is a foreign person. To inform the transferee that withholding of tax
is not required upon the undersigned's disposition of a U.S. real property
interest, the undersigned does hereby certify the following:
I . The undersigned is not a nonresident alien for purposes of U.S.
income taxation.
2. The undersigned's U.S. taxpayer identifying
number is
3. The undersigned's address is:
The undersigned does understand that this certification may be disclosed
to the Internal Revenue Service by the transferee and that any false statement
made here could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned does hereby declare that the
undersigned has examined this certification and, to the best of the
undersigned's knowledge and belief, it is true, correct, and complete.
Dated: , 1998
By:
Richard Sassi
