EXHIBIT 99.1
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
THIS PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (this
"Agreement") dated for reference purposes only as of February 4, 2004, is made
by and between SPRINGDALE ASSOCIATES, LTD., a Delaware limited partnership,
hereinafter referred to as "Seller", and JOINT VENTURE, LLC, XXXXXXX & XXXXX
XXXXXXXX REVOCABLE LIVING TRUST DATED 10/07/96, XXXXXXX X. & XXXXX X. XXXXXXXX
TRUST T/U/A DATED MARCH 8, 1999, THE XXXXXXXX AND CEREN FAMILY TRUST DATED APRIL
26, 1989, 2002 XXXXXXXX FAMILY TRUST, XXXXXXX XXXXXX TRUST AND XXXXXXX XXXXXX
TRUST, and SPRINGDALE APARTMENTS, L.L.C., hereinafter collectively referred to
as "Purchaser," upon the terms, provisions and conditions set forth herein. The
date this Agreement is executed by the last of Purchaser and Seller shall be the
"Effective Date" hereof.
IN CONSIDERATION of the mutual covenants and obligations of the parties set
forth in this Agreement, Seller and Purchaser hereby agree as follows:
1. PURCHASE AND SALE. Seller agrees to sell and convey to Purchaser and
Purchaser agrees to purchase from Seller, for the Purchase Price (as defined
below), and on the terms and conditions set forth herein, the following:
(a) REAL PROPERTY. All that certain real property located in the City
of Waukesha, County of Waukesha, State of Wisconsin, commonly known as
Springdale Apartments consisting of 199 dwelling units and having a
property address of 0000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx 00000, as
more particularly described in EXHIBIT A attached hereto (the "Real
Property");
(b) APPURTENANCES. All rights, privileges, easements, hereditaments,
tenements and rights-of-way appurtenant to, or used in connection with, the
beneficial use and enjoyment of the Real Property, including, without
limitation, all right, title and interest, if any, of Seller in and to all
water rights, open or proposed xxxxxxxx, xxxxxxx, xxxxx, xxxxxxx, alleys,
easements, strips, gores or rights-of-way in, on, across, in front of,
contiguous to, abutting, adjoining or otherwise benefiting the Real
Property (collectively, the "Appurtenances");
(c) IMPROVEMENTS. All improvements and fixtures located on the Real
Property, excluding any fixtures owned by tenants or leased by Seller from
third parties, but including all buildings and structures presently located
on the Real Property, and all apparatus, equipment and appliances owned by
Seller and used in connection with the operation or occupancy of the Real
Property, including, without limitation, all appliances located in
residential units or common areas, all heating and air conditioning
systems, parking and recreational facilities and services, refrigeration,
ventilation, trash disposal or other utilities, facilities and/or services
owned by Seller and located on the Real Property (collectively, the
"Improvements");
(d) PERSONAL PROPERTY. All of the right, title and interest of Seller
in and to all personal property owned by Seller and located on, in, or used
in connection with, the Real Property and/or Improvements, including,
without limitation, the items identified and described on Schedule I to
EXHIBIT C attached hereto (the "Inventory");
(e) INTANGIBLE PROPERTY. All of the right, title and interest of
Seller in and to all intangible personal property owned by Seller and used
in the ownership, use and operation of the Real Property, Improvements
and/or Inventory, including, without limitation, the right to use any
trademark and/or trade name used in connection with the Real Property or
Improvements, all transferable licenses, permits, approvals, applications
and warranties now in effect with respect to the Real Property,
Improvements or Inventory; and all equipment leases, utility contracts,
maintenance contracts, management contracts and all other similar
agreements listed on Schedule I to EXHIBIT E attached hereto (collectively,
the "Service Contracts"), and all other transferable rights relating to the
ownership, use and operation of the Property (as defined below)
(collectively, the "Intangible Property"); and
(f) LEASES. All right, title and interest of Seller in and to all
leases and other agreements to occupy the Real Property and/or the
Improvements, or any portion thereof, other than those leases, if any, to
be terminated prior to closing as provided herein (collectively, the
"Leases"), including, without limitation, the Leases identified and
described on the rent roll attached hereto as Schedule I to EXHIBIT D (the
"Rent Roll").
All of the items described in PARAGRAPHS 1 (A), (B), (C), (D), (E) AND (F)
above shall hereinafter be collectively referred to as the "Property."
2. PURCHASE PRICE. Purchaser agrees to pay as the purchase price for the
Property Eleven Million Three Hundred Eighty-Five Thousand Dollars
($11,385,000.00) (the "Purchase Price").
3. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to Seller by
Purchaser as follows:
(a) DEPOSIT. Within five (5) business days after the Effective Date,
Purchaser shall deliver, by wire transfer or bank or cashier's check, at
Purchaser's election, an amount equal to Two Hundred Thousand Dollars
($200,000.00) (the "Deposit") to Chicago Title Insurance Company (the
"Escrow Holder") located at 000 Xxxxx Xxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx
00000, contact person: Xxxxxxx Xxxxx. The proceeds of the Deposit shall be
deposited and held by Escrow Holder as a deposit against the Purchase Price
in accordance with the terms and provisions of this Agreement, and shall be
credited against the Purchase Price if the transaction closes. Such Deposit
shall be at all times invested in the following investments ("Approved
Investments"): (i) United States Treasury obligations, (ii) United States
Treasury-backed re-purchase agreements issued by a major money center
banking institution, or (iii) such other manner as may be reasonably agreed
to by Purchaser. All interest accruing on the Deposit shall be accrued and
added to the Deposit. The Deposit will become non-refundable at the
expiration of Due Diligence Period unless Purchaser has elected, prior
thereto, to terminate this Agreement in accordance with the terms of
PARAGRAPHS 4(B) OR 5(C). If the Closing (as defined in Section11(a)) does
not occur, the Deposit shall be treated as provided in PARAGRAPH 7 OR 13,
as applicable.
(b) INDEPENDENT CONSIDERATION. Within one (1) business day after the
Effective Date, Purchaser shall deliver to Seller's attorney, Xxxxxxx,
Xxxxxxx & Xxxx, Ltd. ("Seller's Attorney") the amount of $100.00 (the
"Independent Consideration"), which amount the parties have bargained for
and agreed to as consideration for Seller's grant to Purchaser of
Purchaser's exclusive right to purchase the Property pursuant to the terms
hereof and for Seller's execution, for Purchaser's right to inspect the
Property and conduct the feasibility and other due diligence investigations
set forth in PARAGRAPH 5 below, and delivery and performance of this
Agreement. Upon receipt of the Independent Consideration, Seller's Attorney
shall pay the same to Seller. This Independent Consideration is independent
of any other consideration or payment provided in this Agreement, is
non-refundable, and shall be paid to and retained by Seller. At Closing,
the Independent Consideration shall be applied to the Purchase Price.
(c) CLOSING PAYMENT. The balance of the Purchase Price, as adjusted by
the application of the Deposit plus accrued interest thereon and by the
prorations and credits specified herein, shall be paid in cash on the
Closing Date (as hereinafter defined).
4. TITLE AND SURVEY MATTERS.
(a) DELIVERY OF SURVEY AND TITLE DOCUMENTS. Seller shall use its best
efforts to deliver or cause to be delivered the following items to
Purchaser upon Seller's execution of this Agreement or within the time
period otherwise set forth herein:
(i) SURVEY. Within two (2) business days after the Effective
Date, Seller shall provide Purchaser with any existing survey of the
Property ("Existing Survey") currently in the possession of Seller.
Within forty-five (45) days from the Effective Date, Seller, at
Seller's expense, shall order and obtain either an update to the
Existing Survey or, if no Existing Survey exists, a new ALTA Survey
(either of the foregoing being defined as the "Updated Survey")
containing such information as Purchaser may reasonably request.
(ii) TITLE. Within two (2) business days after the Effective
Date, Seller shall provide Purchaser with any title report ("Existing
Title Report") currently in the possession of Seller. Within fourteen
(14) days after the Effective Date, Seller shall cause Escrow Holder
to deliver to Purchaser, at Seller's sole cost and expense:
(A) A current preliminary title report ("PTR") covering the
Property issued by Chicago Title Insurance Company (which
company, also acting in its capacity as the Escrow Holder
hereunder, is called the "Title Company");
(B) True, correct, and legible copies of any and all
instruments referred to in the PTR as constituting exceptions or
restrictions upon the title of Seller (the "Exceptions," and
together with the PTR and the Updated Survey, collectively, the
"Title Documents").
(b) TITLE AND SURVEY REVIEW; APPROVAL PERIOD. Purchaser shall have
thirty (30) days from the receipt of the Schedule B Permitted Exceptions
and the Title Documents (the "Title Review Period") to review the Title
Documents and to deliver in writing to Seller its approval of the Title
Documents or portions thereof and/or such objections (the "Title
Objections") as Purchaser may have to anything contained in said Exceptions
or the Title Documents. Purchaser's failure to timely notify Seller of its
objection of all or certain of the Title Documents and the Title
Objections, if any, within the Title Review Period shall constitute
approval of all Exceptions and of the condition of title to the Property.
If Title Objections are delivered to Seller by Purchaser, Seller shall have
ten (10) days after receipt of Purchaser's Title Objections to give
Purchaser, with respect to each Title Objection ("T.O. Response"), (i)
evidence satisfactory to Purchaser of the removal of the Title Objection or
that the Title Objection will be removed or cured on or before the Closing
(in which event such cure or removal shall be a condition precedent for
Purchaser's obligation to proceed with the Closing); or (ii) notice that
Seller elects not to remove or cure such Title Objection. If Seller elects
not to remove or cure any Title Objection, Purchaser shall notify Seller in
writing within five (5) business days after receipt of the T.O. Response
that Purchaser shall either (i) waive such Title Objection and proceed with
the Closing, or (ii) terminate this Agreement by written notice to Seller
in accordance with Paragraph 7.
(c) CONDITIONS OF TITLE. At the Closing, Seller shall convey to
Purchaser fee simple title to the Real Property and Improvements by good
and sufficient Deed (as defined in Section 8(a)(i)), subject to no
exceptions other than those title exceptions permitted herein, or as may be
approved by Purchaser in writing (the "Permitted Exceptions").
(d) TITLE POLICY. Close of Escrow shall be conditioned upon the
willingness of the Title Company to issue, upon payment of its normal
premium, an Owner's Policy of Title Insurance, together with such
endorsements thereto as may be available and requested by Purchaser, with
full coverage against mechanics' and materialmen's liens insuring Purchaser
in the amount of the Purchase Price that fee simple title to the Real
Property and Improvements is vested in Purchaser, subject only to the
Permitted Exceptions (collectively, the "Title Policy").
5. DUE DILIGENCE; OTHER CONDITIONS PRECEDENT TO AGREEMENT.
(a) DUE DILIGENCE PERIOD. In addition to all other conditions to
Purchaser's obligations in this Agreement, Seller and Purchaser agree that
Purchaser's obligation to proceed with the Closing is subject to
Purchaser's acceptance, in its sole and absolute discretion, of all matters
pertaining to the physical, structural, electrical, mechanical, soil,
drainage, environmental, zoning, land use and other governmental compliance
matters and conditions with respect to the Property, in accordance with
this PARAGRAPH 5, on or before 5 p.m. Central time on that the date which
is thirty (30) days from the Effective Date (the "Due Diligence Period").
Within two (2) business days of the Effective Date, Seller shall use its
best efforts to deliver or cause to be delivered to Purchaser the following
documents in Seller's possession or control:
(i) Historical, financial and/or operating statements for the
immediately preceding three (3) full calendar years and the current
year to date (or, if Seller has not owned the Property for such entire
period, then for the period of Seller's ownership)*, in the form and
to the extent reasonably prepared by Seller (to be updated at thirty
(30) day intervals), and all capital expenditure records for the past
three (3) years, current ad valorem tax statements, and utility bills
for the preceding twenty-four (24) month period for the Property
(collectively, the "Financial Data"); * including IRS filed Tax
returns
(ii) A list of the Inventory owned by Seller and used in
connection with the ownership, operation and use of the Property to
the extent to be conveyed to Purchaser hereunder;
(iii) A current Rent Roll, to be updated and certified by Seller
as true and correct at the end of February, 2004 and at Closing, which
shall indicate with respect to each Lease the leased premises, lease
term, rent, concessions granted, renewal option(s), security deposits,
outstanding delinquencies, defaults or prepayments, and, if
applicable, Section 8 status of tenants;
(iv) All environmental, soils or other studies or reports with
respect to the physical and/or environmental condition of the
Property, including, without limitation, a Phase I Environmental Site
Assessment report, if any, that are in the possession or control of
Seller;
(v) All governmental permits or approvals with respect to the
Property that are in the possession or control of Seller, including,
without limitation, all building permits and certificates of occupancy
for the Improvements;
(vi) All Service Contracts and other contracts or agreements
relating to the ownership, operation and maintenance of the Property
that are in the possession or control of Seller;
(vii) Copies of all non-residential Leases affecting the
Property, if any, and of any form(s) of residential lease used in the
operation of the Property; and
(viii) Any other documents or instruments related to the
ownership, operation and maintenance of the Property reasonably
requested by Purchaser, excluding, the existing loan documents, and
further expressly excluding appraisals and other documents subject to
attorney-client privilege or confidentiality agreements.
In addition, Seller shall make all residential Leases affecting the
Property (collectively with the non-residential leases referenced in clause
(vii) above, the "Leases") and all tenant correspondence, including tenant
complaints regarding safety, mold, water penetration, or maintenance items, and
other leasing-related documentation, including, without limitation, tenant
profiles or surveys, and unit floor plans (collectively the "Lease Documents"),
available to Purchaser at the Property upon reasonable prior notice and during
normal business hours throughout the Due Diligence Period.
All of the foregoing items described in this PARAGRAPH 5(A) shall be
hereinafter collectively referred to as the "Due Diligence Items." Purchaser
expressly agrees that Seller is furnishing copies of the Due Diligence Items
(except the residential Leases and the Lease Documents) to Purchaser, and
providing Purchaser with access to the residential Leases and the Lease
Documents, for informational purposes only and without representation or
warranty as to the accuracy or completeness of the contents of such materials,
except as expressly provided in PARAGRAPH 8 hereof.
(b) ENTRY; INSPECTION. During the Due Diligence Period, Seller shall
provide Purchaser with reasonable access to the Property, in accordance
with the terms and conditions of this PARAGRAPH 5(B), in order for
Purchaser to conduct such inspections, tests and studies as Purchaser may
reasonably elect of the physical condition of the Property, including,
without limitation, inspection and testing for the presence of hazardous
materials or toxic mold, and for structural, mechanical, seismic,
electrical and other physical and environmental conditions and/or
characteristics of the Property. Such access, inspections, tests and
studies shall be permitted and conducted on the following terms and
conditions:
(i) Purchaser shall pay for all inspections, tests and studies
ordered by Purchaser.
(ii) In connection with any entry by Purchaser or its agents,
employees or contractors onto the Property, Purchaser shall give
Seller reasonable advance notice of such entry and shall conduct such
entry and any inspections in connection therewith so as to minimize
interference with Seller's business on, and Seller's tenants'
occupancy of, the Property.
(iii) PURCHASER SHALL INDEMNIFY AND HOLD SELLER HARMLESS FROM AND
AGAINST ALL COSTS, EXPENSES, DAMAGES, LIABILITIES, LIENS OR CLAIMS,
INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES AND COURT COSTS,
DIRECTLY RELATED TO ANY ENTRY ON THE PROPERTY BY PURCHASER, ITS
AGENTS, EMPLOYEES OR CONTRACTORS IN THE COURSE OF PERFORMING
INSPECTIONS, TESTS AND/OR INQUIRIES PROVIDED FOR UNDER THIS AGREEMENT,
OR RESULTING FROM ANY CONDITIONS ON THE PROPERTY CREATED BY
PURCHASER'S ENTRY AND TESTING (BUT NOT INCLUDING ANY CLAIMS RESULTING
FROM THE DISCOVERY OR DISCLOSURE OF PRE-EXISTING PHYSICAL OR
ENVIRONMENTAL CONDITIONS OR THE NON-NEGLIGENT AND NON-WILLFUL
AGGRAVATION OF PRE-EXISTING PHYSICAL OR ENVIRONMENTAL CONDITIONS ON,
IN, UNDER OR ABOUT THE PROPERTY). THE FOREGOING INDEMNITY SHALL
SURVIVE THE CLOSING DATE OR EARLIER TERMINATION OF THIS AGREEMENT FOR
A PERIOD OF ONE (1) YEAR.
(c) DUE DILIGENCE REVIEW; APPROVAL. Purchaser shall promptly commence,
and shall diligently and in good faith pursue, its due diligence reviews
hereunder within the Due Diligence Period. If, prior to the expiration of
the Due Diligence Period, based upon such review, examination or
inspection, Purchaser determines in its sole and absolute discretion that
it no longer intends to acquire the Property, then Purchaser shall promptly
notify Seller of such determination in writing ("Disapproval Notice"),
whereupon this Agreement, and the obligations of the parties to purchase
and sell the Property hereunder, shall terminate. If Purchaser fails to
deliver the Disapproval Notice to Seller on or before the expiration of the
Due Diligence Period, Purchaser shall be deemed to have approved all of the
foregoing Due Diligence Items.
(d) OTHER PURCHASER CONDITIONS PRECEDENT. In addition to Purchaser's
approval of its due diligence reviews as provided in Paragraph 5(c) above,
Seller and Purchaser agree that Purchaser's obligation to proceed with the
Closing is subject to the satisfaction or waiver by Purchaser of the
following conditions at or prior to the Closing:
(i) Seller shall have delivered those items described in
PARAGRAPH 11(D) hereof as provided in this Agreement;
(ii) Title Company shall be irrevocably committed to issue the
Title Policy pursuant to PARAGRAPH 4(D) hereof; and
(iii) Each representation and warranty made by Seller in this
Agreement shall be true, accurate and complete in all material
respects as of the Closing Date.
(e) SELLER'S CONDITIONS PRECEDENT. In addition to all other conditions
to Seller's obligations in this Agreement, Seller and Purchaser agree that
Seller's obligation to proceed with the Closing is subject to the
satisfaction or waiver by Seller of the following conditions at or prior to
the Closing:
(i) Purchaser shall have delivered those items described in
PARAGRAPH 11(E) hereof as provided in this Agreement;
(ii) Each representation and warranty made by Purchaser in this
Agreement shall be true, accurate and complete in all material
respects of as of the Closing Date; and
(iii) Seller shall have secured all approvals necessary from its
limited partners and the Securities & Exchange Commission to complete
the sale of the Property to Purchaser.
(f) WAIVER OF CONDITIONS PRECEDENT. The conditions set forth in
PARAGRAPH 5(D) are for the exclusive benefit of Purchaser and the
conditions set forth in PARAGRAPHS 5(E) are for the exclusive benefit of
Seller. If any of the conditions set forth in this PARAGRAPH 5 have not
been satisfied or waived within the period provided, this Agreement may be
terminated by the party benefiting from such condition in accordance with
PARAGRAPH 7 hereof.
6. INTENTIONALLY LEFT BLANK.
7. TERMINATION OF AGREEMENT. If this Agreement is terminated for any reason
other than as described in PARAGRAPH 13, (a) within two (2) business days
following such termination, Escrow Agent shall release to Purchaser the Deposit,
plus all interest earned thereon, if any (without further cancellation
instructions required of Seller); (b) all documents deposited with the Escrow
Holder by Purchaser shall be returned to Purchaser, all documents deposited with
Escrow Holder by Seller shall be returned to Seller; and all documents delivered
to Purchaser by Seller shall be returned to Seller; (c) no Broker's Fee shall be
payable to Broker; (d) the party terminating the transaction shall pay the
cancellation fee of the Escrow Holder, and (e) neither party shall have any
further obligations to the other hereunder, except for those obligations and
indemnities which are expressly made to survive the termination. If Purchaser
terminates the Agreement, Purchaser shall deliver to Seller all Due Diligence
Items and other reports, studies and investigations of the Property obtained by
Purchaser as a condition precedent to PARAGRAPH 7(A).
8. REPRESENTATIONS AND WARRANTIES.
(a) SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents and
warrants to Purchaser as follows:
(i) At Close of Escrow, Seller will have and will convey to
Purchaser good and indefeasible title to the Real Property,
Appurtenances and Improvements by Special Warranty Deed (the "Deed"),
subject only to the Permitted Exceptions.
(ii) To Seller's Actual Knowledge, the Rent Roll is true and
correct in all material respects.
(iii) To Seller's Actual Knowledge, as of the Effective Date,
Seller has received no notice from any governmental authority with
jurisdiction over the Property of any current violation by the
Property of any laws, ordinances or regulations applicable to the
Property. Seller shall immediately provide Purchaser with a copy of
any such notices received after the Effective Date.
(iv) To Seller's Actual Knowledge, there is no litigation pending
against Seller that arises out of the ownership of the Property;
(v) To Seller's Actual Knowledge, no condemnation or eminent
domain proceedings are pending or threatened against the Property.
(vi) This Agreement and all documents executed by Seller that are
to be delivered to Purchaser at the Close of Escrow are, or at the
time of Close of Escrow will be, duly authorized, executed and
delivered by Seller, and are, or at the time of Close of Escrow will,
be legal, valid and binding obligations of Seller, and do not, and at
the time of Close of Escrow, will not, violate any provisions of any
contract or judicial order to which Seller is a party or to which
Seller is subject.
(vii) To Seller's Actual Knowledge, the Financial Data provided
to Purchaser by Seller are true and correct in all material respects.
(viii) To the best of Seller's knowledge, all Due Diligence Items
provided to Purchaser are true, correct and complete copies of such
items. None of the Due Diligence Items provided to Purchaser has been
amended, modified or terminated by Seller except as disclosed in
writing to Purchaser.
(ix) There are no contracts or agreements relating to the
ownership, operation and maintenance of the Property that will survive
the Closing, other than the Service Contracts that Purchaser elects to
assume at Closing.
(x) From and after the execution of this Agreement to and
including the Closing Date, Seller shall cause its Property Manager to
manage and maintain the Property and to market and rent available
apartment units in a manner consistent with its historical practices.
For the purposes of this Agreement, whenever the phrase "to Seller's Actual
Knowledge" is used, then it shall be deemed to refer to the actual knowledge of
Xxxx X. Xxxxxxx, without such person undertaking any investigation.
(b) PURCHASER'S REPRESENTATIONS AND WARRANTIES. Purchaser hereby
represents and warrants that:
(i) The Purchasers are LLCs and Trusts duly organized, validly
existing and in good standing under the laws of the State in which
formed, with full right, power and authority to take title to the
Property and to enter into and otherwise perform and comply with the
terms of this Agreement.
(ii) This Agreement and all documents executed by Purchaser that
are to be delivered to Seller at Close of Escrow are, or at the time
of Close of Escrow will be, duly authorized, executed and delivered by
Purchaser. This Agreement and all documents executed by Purchaser that
are to be delivered to Seller on the Closing Date are, or at Close of
Escrow will be, legal, valid and binding obligations of Purchaser and
do not, and at the time of Close of Escrow will not, violate any
provisions of any contract or judicial order to which Purchaser is a
party or to which Purchaser is subject.
(c) SURVIVAL. Any cause of action of a party for a breach of the
representations and warranties described in PARAGRAPHS 8(A) AND (B) above
shall survive until December 15, 2004 (the "Survival Period"), at which
time such representations and warranties (and any cause of action resulting
from a breach thereof not then in litigation) shall terminate. The Survival
Period shall only apply to those representations and warranties described
in PARAGRAPHS 8(A) AND (B) and where elsewhere expressly stated to apply in
this Agreement.
9. SELLER'S COVENANTS. Between the Effective Date and the Closing or
earlier termination of this Agreement, Seller covenants and agrees as follows:
(a) Seller shall continue to maintain, operate, and lease the Property
in substantially the same manner in which Seller is currently operating,
maintaining and leasing the Property.
(b) Seller shall not enter into, materially modify or terminate any
Service Contracts or other similar arrangements without the prior consent
of Purchaser, except those service contracts that are not to be assumed by
Purchaser or deemed reasonably necessary by Seller which are cancellable on
thirty (30) days' notice.
(c) Seller shall maintain all casualty, liability and hazard insurance
currently in force with respect to the Property.
(d) Seller shall not sell or otherwise transfer or dispose of the
Property, nor shall Seller initiate, consent to, approve or otherwise take
any action with respect to zoning applicable to the Property.
(e) If prior to the Closing, Seller becomes aware that any
representation or warranty set forth in this Agreement that was true and
correct on the Effective Date has become materially incorrect due to
changes in conditions or the discovery by Seller of information of which
Seller was unaware on the Effective Date, then Seller shall immediately
notify Purchaser thereof and the representations and warranties set forth
herein which are to be remade and reaffirmed by Seller at the Closing shall
be supplemented by such new information. If such notification occurs after
expiration of the Due Diligence Period, and if in Purchaser's reasonable
judgment such change in condition or new information has a material adverse
impact on the Property, Purchaser may elect within ten (10) days after
receipt of such notice (or, if such notice is received less than ten days
prior to the Closing Date, Purchaser may elect on or before the Closing
Date) to provide written notice to Seller of Purchaser's intent to
terminate this Agreement in accordance with Paragraph 7 (subject to
Paragraph 13); provided, however, that Seller may within five (5) days
after receipt of such termination notice (or, if such termination notice is
received less than five days prior to the Closing Date, on or before the
Closing Date) notify Purchaser of Seller's intent to cure the condition
causing such misrepresentation prior to Closing, in which event Seller's
cure of such condition shall be a condition precedent to Purchaser's
obligations hereunder.
10. NO REPRESENTATIONS OR WARRANTIES BY SELLER; ACCEPTANCE OF PROPERTY.
(a) Purchaser acknowledges and agrees that Seller has not made, does
not make and specifically negates and disclaims any representations,
warranties (other than (i) the special warranty of title as set out in the
Deed, as defined below and (ii) the specific representations and warranties
set forth in Section 8(a) hereof), promises, covenants, agreements or
guaranties of any kind or character whatsoever, whether express or implied,
oral or written, past, present or future, of, as to, concerning or with
respect to (a) the value, nature, quality or condition of the Property,
including, without limitation, the water, soil and geology, (b) the income
to be derived from the Property, (c) the suitability of the Property for
any and all activities and uses which Purchaser or any tenant may conduct
thereon, (d) the compliance of or by the Property or its operation with any
laws, rules, ordinances or regulations of any applicable governmental
authority or body, (e) the habitability, merchantability, marketability,
profitability or fitness for a particular purpose of the Property, (f) the
manner or quality of the construction or materials, if any, incorporated
into the Property, (g) the manner, quality, state of repair or lack of
repair of the Property, or (h) compliance with any environmental
protection, pollution or land use laws, rules, regulations, orders or
requirements, including the existence in or on the Property of hazardous
materials (as defined below) or (i) any other matter with respect to the
Property including, but not limited to, the lateral bracing in the attics
of apartment units and the possible need for additional basement
joist/truss reinforcement(s). Additionally, no person acting on behalf of
Seller is authorized to make, and by execution hereof of Purchaser
acknowledges that no person has made, any representation, agreement,
statement, warranty, guaranty or promise regarding the Property or the
transaction contemplated herein; and no such representation, warranty,
agreement, guaranty, statement or promise , if any, made by any person
acting on behalf of Seller shall be valid or binding upon Seller unless
expressly set forth herein. Purchaser further acknowledges and agrees that
having been given the opportunity to inspect the Property, Purchaser is
relying solely on its own investigation of the Property and not on any
information provided or to be provided by Seller and agrees to accept the
Property at the closing and waive all objections or claims against Seller
(including, but not limited to, any right or claim of contribution) arising
from or related to the Property or to any hazardous materials on the
Property. Purchaser further acknowledges and agrees that any information
provided or to be provided with respect to the Property was obtained from a
variety of sources and that Seller has not made any independent
investigation or verification of such information and makes no
representations as to the accuracy, truthfulness or completeness of such
information. Seller is not liable or bound in any manner by any verbal or
written statement, representation or information pertaining to the
Property, or the operation thereof, furnished by the manager (including,
without limitation, any statement, representation or information contained
in the manager's certificate), any real estate broker, contractor, agent,
employee, servant or other person. Purchaser further acknowledges and
agrees that to the maximum extent permitted by law, the sale of the
Property as provided for herein is made on an "as is" condition and basis
with all faults. It is understood and agreed that the purchase price has
been adjusted by prior negotiation to reflect that all of the Property is
sold by Seller and purchased by Purchaser subject to the foregoing;
including, but not by limitation, the specific findings set forth in the
Purchaser's commissioned property inspection report issued by J & B Roofing
and Sheet Metal, LLC and Xxxxxxxxx Heating and Air Conditioning, Inc.
relating to the matters therein described, also including, but not limited
to, the condition of the roof; burned tubes in boilers; rusted furnaces;
furnace foundations and bases; boiler temperature controls; swimming pool
and swimming pool walls; swimming bathrooms. The provisions of this SECTION
10 shall survive the closing and delivery of the Deed.
(b) HAZARDOUS MATERIALS. "Hazardous Materials" shall mean any
substance which is or contain (i) any "hazardous substance" as now or
hereafter defined in 101(14) of the Comprehensive Environmental Response,
Compensation. And Liability Act of 1980, as amend (42 U.S.C. 9601 et seq.)
("CERCLA") or any regulations promulgated under CERCLA; (ii) any "hazardous
waste" as now or hereafter defined in the Resource Conservation and
Recovery Act (42 U.S.C. 6901 et seq.) ("RCRA") or regulations promulgated
under RCRA; (iii) any substance regulated by the Toxic Substances Control
Act (15 U.S.C. 2601 et seq.); (iv) gasoline, diesel fuel, or other
petroleum hydrocarbons; (v) asbestos and asbestos containing materials, in
any form, whether friable or non-friable; (vi) polychlorinated biphenyls;
(vii) radon gas; and (viii) any additional substances or materials which
are now or hereafter classified or considered to be hazardous or toxic
under Environmental Requirements (as hereinafter defined) or the common
law, or any other applicable laws relating to the Property. Hazardous
Materials shall include, without limitation, any substance, the presence of
which on the Property, (A) requires reporting, investigation or remediation
under Environmental Requirements (defined below); (B) causes or threatens
to cause a nuisance on the Property or adjacent property or poses or
threatens to pose a hazard to the health or safety of persons on the
Property or adjacent property; or (C) which, if it emanated or migrated
from the Property, could constitute a trespass.
(c) ENVIRONMENTAL REQUIREMENTS. "Environmental Requirements" shall
mean all laws, ordinances, statutes, codes, rules, regulations, agreements,
judgments, orders, and decrees, now or hereafter enacted, promulgated, or
amended, of the United States, the states, the counties, the cities, or any
other political subdivisions in which the Property is located, and any
other political subdivision, agency or instrumentality exercising
jurisdiction over the owner of the Property, the Property, or the use of
the Property, relating to pollution, the protection or regulation of human
health, natural resources, or the environment, or the emission, discharge,
release or threatened release of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or waste or Hazardous Materials
into the environment (including, without limitation, ambient air, surface
water, ground water or land or soil).
11. CLOSING.
(a) CLOSE OF ESCROW. The closing of the purchase and sale of the
Property pursuant to this Agreement (the "Closing") shall take place
through Escrow (as defined below) at the office of the Escrow Holder, or an
agent of Escrow Holder located geographically near the Property on the
later to occur of (i) thirtieth (30th) day after the expiration of the Due
Diligence Period as set forth in Section 5(a) hereinabove; or (ii) five (5)
days next following Seller's satisfaction of securing the approvals
described in PARAGRAPH 5(E)(III); or (iii) such other date as Purchaser and
Seller may mutually agree in writing; provided, however, the Closing Date
shall occur not later than April 15, 2004 (the "Closing Date"). The Closing
Date may not be extended without the prior written approval of both Seller
and Purchaser.
(b) PAYMENT OF THE PURCHASE PRICE. The Purchase Price shall be paid,
and all documents necessary for the consummation of the purchase and sale
transaction contemplated hereby shall be executed and delivered on or
before the Closing Date, and Seller shall deliver possession of the
Property to Purchaser on the Closing Date.
(c) SELLER'S DELIVERIES. On or before the Closing Date (or within such
timeframe as may be more specifically provided below), Seller shall cause
to be delivered into Escrow (except as specifically noted) the following
documents:
(i) The Deed in the form of EXHIBIT B attached hereto duly
executed by Seller and acknowledged, conveying to Purchaser the Real
Property, Appurtenances and Improvements described in EXHIBIT A in fee
simple;
(ii) The Xxxx of Sale duly executed by Seller, in the form of
EXHIBIT C attached hereto;
(iii) Two (2) counterparts of the Assignment and Assumption of
Leases duly executed by Seller, assigning and conveying to Purchaser
the Seller's interest in, to and under the Leases, in the form of
EXHIBIT D attached hereto;
(iv) Originals of all Leases (and all amendments thereto, if any,
and all records and correspondence relating thereto) and Lease
Documents in Seller's possession or control covering the Property or
any portion thereof (to be delivered outside of Escrow), and any
security deposits relating thereto (unless Purchaser is being credited
for the amount of such security deposits pursuant to PARAGRAPH 11(G)
below), together with a Certificate of Rent Roll dated as of the
Closing Date, in the form of EXHIBIT G attached hereto;
(v) Two (2) counterparts of the Assignment and Assumption of
Contracts and Intangibles duly executed by Seller, assigning and
conveying to Purchaser Seller's interest in, to and under the Service
Contracts to be continued by Purchaser after the Closing and the
Intangible Property, in the form attached hereto as EXHIBIT E;
(vi) Originals or copies of all Service Contracts in the
possession or control of Seller (to be delivered outside of Escrow) to
be continued by Purchaser after the Closing;
(vii) Notices to tenants at the Property duly executed by Seller,
in the form attached hereto as EXHIBIT F;
(viii) An affidavit sworn by an officer of Seller to the effect
that Seller is not a "foreign person" as that term is defined in
Section 1445(f)(3) which affidavit shall be in the form reasonably
required by the Escrow Holder;
(ix) Such entity formation documents, authorizations,
certificates of trust, and other documentation with respect to Seller
as Escrow Holder may require in order to cause the Closing to occur or
as the Title Company may require in order issue the Title Policy;
(x) Seller shall deliver to Purchaser on the Closing Date all
keys for the Property with identification of the lock to which each
such key relates (to be delivered outside of Escrow). There will be
one key that is clearly labeled for every door and every mailbox
throughout the entire complex. Seller shall cause its Property Manager
to meet with Purchaser's representative approximately thirty (30) days
prior to the Closing Date to exhibit the existence of the labeled keys
as aforesaid;
(xi) A certificate of Seller, duly executed by Seller, confirming
that all of the representations and warranties of Seller contained in
PARAGRAPH 8(A) hereof are true and correct in all material respects as
of the Closing Date, subject to any notice provided by Seller pursuant
to PARAGRAPH 9(E) hereof;
(xii) Two (2) counterparts duly executed by Seller of the
Lead-Based Paint Disclosure Addendum to Purchase Agreement pursuant to
PARAGRAPH 28 hereof;
(xiii) A closing statement prepared in writing by Escrow Holder
and approved in writing by Seller;
(xiv) A Rent Roll and a separate Delinquency Report, each
certified by the Seller as true and correct as of the Closing Date.
(xv) Any other documents, instruments, records, correspondence or
agreements called for hereunder which have not previously been
delivered, or which are reasonably required by Escrow Holder or
otherwise to close the Escrow and consummate the purchase of the
Property in accordance with the terms hereof.
(e) PURCHASER DELIVERIES. On or before the Closing Date (or within
such timeframe as may be more specifically provided below), Purchaser shall
cause to be delivered into Escrow (except as specifically noted) the
following documents:
(i) Two (2) counterparts of the Assignment and Assumption of
Leases duly executed by Purchaser, in the form of EXHIBIT D attached
hereto;
(ii) Two (2) counterparts of the Assignment of Contracts and
Intangibles duly executed by Purchaser, in the form attached hereto as
EXHIBIT E;
(iii) Such corporate, partnership or other entity formation
documents, resolutions, authorizations, certificates of incumbency,
certificates of good standing, and other documentation with respect to
Purchaser as Escrow Holder may require in order to cause the Closing
to occur or as the Title Company may require in order to issue the
Title Policy;
(iv) Two (2) counterparts duly executed by Purchaser of the
Lead-Based Paint Disclosure Addendum to Purchase Agreement pursuant to
PARAGRAPH 28 hereof;
(v) A closing statement prepared by Escrow Holder and approved in
writing by `Purchaser; and
(vi) Any other documents, instruments, records, correspondence or
agreements called for hereunder which have not previously been
delivered, or which are reasonably required by Escrow Holder or
otherwise to close the Escrow and consummate the purchase of the
Property in accordance with the terms hereof.
(f) DELIVERY OF TITLE POLICY. At the Close of Escrow, the Title
Company shall commit to deliver to Purchaser the Title Policy in accordance
with PARAGRAPH 4(D).
(g) TITLE CHARGES; CLOSING FEES AND COSTS. Seller shall pay the
premium for the portion of the Title Policy attributable to "standard"
coverage together with a later date to the Closing Date or GAP endorsement.
Purchaser shall pay the incremental premium and the cost of any
endorsements to the Title Policy requested by Purchaser. State transfer
taxes shall be paid by Seller. Recording fees shall be paid by Purchaser.
Costs and charges of the escrow for the sale and deed closing paid by
Seller. Costs and charges of the escrow for the Purchaser's loan closing
shall be paid by Purchaser.
(h) REAL ESTATE TAX PRORATION. General real estate taxes for the
Property shall be prorated on the basis of one hundred percent (100%) of
the most recent ascertainable tax xxxx. The parties agree to reprorate the
credit provided to Purchaser at closing within ten (10) days after actual
bills for the Property become available. Any amounts due hereunder shall be
paid by the responsible party within ten (10) days after written notice
from the requesting party. Seller shall escrow from the purchase proceeds
the sum of Twenty Thousand Dollars ($20,000.00) with a financial
institution selected by Seller to assure the timely satisfaction of
Seller's obligations, if any, pursuant to this subparagraph (h).
(i) OTHER PRORATIONS. Rents (regardless of collection), lease
commissions, interest, insurance, utility charges, personal property taxes
and ad valorem taxes for the then current year shall be prorated at the
Close of Escrow effective as of the Closing Date. If for any reason utility
charges cannot be accurately determined at Closing Date for proration
purposes, Purchaser may postpone proration of utility charges until bills
are received. Charges appearing on such statement shall then be prorated as
of the Closing Date, and Seller shall tender in cash the cost of all
utility charges to the Closing Date to Purchaser upon demand. If Seller
elects not to deliver security deposits directly to Purchaser, Purchaser
shall be entitled to a credit against the Purchase Price for the total sum
of all refundable security deposits paid to Seller by tenants under any
Leases affecting the Property, except for deposits which have been credited
or refunded to tenants as disclosed on the Rent Roll, or are expressly
nonrefundable to tenants pursuant to their Leases.
(j) DELINQUENT RENTS. Any monies collected by Purchaser or Seller from
a tenant who is delinquent in payment of rent as of the Closing Date shall
be applied in the following order of priority, with respect to the
applicable lease: (i) first, to any rent then due to Purchaser for the
month in which the Closing occurs or any subsequent months; (ii) second, to
pay reasonable outside collection costs incurred by the party collecting
such rent; and (iii) third, to Seller to the extent of any rents delinquent
as of the Closing Date.
(k) VACANT APARTMENT UNIT CREDIT. In the event that more than thirty
(30) apartment units are vacant as of the Closing Date, Seller shall
provide a credit to Purchaser in the sum of One Thousand Five Hundred
Ninety Dollars ($1,590.00) for every vacant apartment unit in excess of
thirty (30) vacant apartment units; provided, however, that the credit, if
any, granted by this subparagraph (k) shall not exceed the total of Ten
Thousand Dollars ($10,000.00) units.
12. ESCROW INSTRUCTIONS.
(a) DEPOSIT OF PURCHASE AGREEMENT IN ESCROW. Within five (5) business
days after the Effective Date, the parties shall deposit an executed copy
of this Agreement (or a fully executed copy in counterparts) with Escrow
Holder, and Purchaser shall concurrently therewith place the Deposit with
Escrow Holder. Escrow Holder shall promptly execute this Agreement upon
receipt of this Agreement and the Deposit and, thereupon, escrow hereunder
(the "Escrow") shall be established. This Agreement shall serve as the
instruction to Escrow Holder to consummate the purchase and sale
contemplated hereunder. Seller and Purchaser agree to execute such
additional and supplementary escrow instructions as may be reasonably
appropriate to enable Escrow Holder to comply with the terms of this
Agreement. If there is any conflict between the provisions of this
Agreement and any such additional or supplementary escrow instructions,
however, the terms of this Agreement shall control. The transactions
contemplated herein shall be consummated through Escrow. "Close of Escrow"
shall occur on the Closing Date and shall mean the day the transfer and
purchase price financing documents required to be recorded hereunder are in
fact recorded.
(b) CONDITIONS TO CLOSE. Escrow Holder shall close the Escrow on the
Closing Date by (i) causing the Deed to be recorded in the Recorder's
Office of the county in which the Property is located, and (ii) delivering
the Deposit to Seller and the other funds and documents as provided in this
Agreement, WHEN AND ONLY WHEN each of the following conditions have been
satisfied:
(i) All funds and documents have been delivered to Escrow Holder;
and
(ii) Title Company is committed to deliver the Title Policy.
(c) DISTRIBUTION OF FUNDS AND DOCUMENTS. Unless this Agreement
terminates as provided herein, all funds received by Escrow Holder shall
be, until Close of Escrow, kept on deposit and invested in Approved
Investments. Interest accruing to such account prior to the Close of Escrow
shall be added to the Deposit. Interest accruing on all sums due Seller
after the Close of Escrow shall be for the account of Seller. All
disbursements by Escrow Holder to Seller shall be made by federal wire
transfer in accordance with wiring instructions to be given by Seller prior
to the Closing Date. Upon Close of Escrow:
(i) Escrow Holder shall disburse the Closing Payment and the
Deposit to Seller.
(ii) Escrow Holder shall cause the recorded Deed to be delivered
to Purchaser.
(iii) Escrow Holder shall deliver all other items deposited into
Escrow to the party entitled thereto or benefited thereby.
13. DEFAULT.
(a) DEFAULT BY PURCHASER; LIMITATION ON LIABILITY; LIQUIDATED DAMAGES.
Seller and Purchaser expressly acknowledge and agree that if closing fails
to occur solely as the result of a default under this Agreement by
Purchaser, and if all other conditions to Purchaser's obligations to
consummate the purchase of the Property have been satisfied at the time of
closing, (i) Seller will be materially damaged, (ii) it would be extremely
difficult and impracticable at this time to estimate the amount of such
damage, and (iii) after negotiation, the parties have agreed that,
considering all of the circumstances existing on the date of this
Agreement, the amount of the Deposit is a reasonable estimate of the
damages that Seller would incur in such event. Accordingly, Seller and
Purchaser agree that in the event of such a default by Purchaser, and
conditioned on all other conditions to Purchaser's obligations to
consummate the purchase of the Property being fulfilled at the time of
closing, the Deposit shall constitute liquidated damages for such default.
The Escrow Holder is hereby instructed by Seller and Purchaser to deliver
the Deposit to Seller in such event, and Seller shall retain the Deposit as
liquidated damages. Such liquidated damages shall constitute Seller's sole
and exclusive remedy for Purchaser's default, and shall be in lieu of any
other monetary relief or any other relief to which Seller may otherwise be
entitled under this Agreement or under the law, and Seller hereby waives
any right to specific performance or damages hereunder, except that Seller
shall be entitled to exercise any rights or remedies it may have by virtue
of any indemnity created or granted herein.
BY PLACING ITS INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE
ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS
REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE,
THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION.
INITIALS: SELLER: /S/JFK PURCHASER: /S/MA
(b) DEFAULT BY SELLER; LIMITATION ON LIABILITY; LIQUIDATED DAMAGES.
Seller and Purchaser expressly acknowledge and agree that if closing fails
to occur solely as the result of a default under this Agreement by Seller,
and if all other conditions to Seller's obligations to consummate the
purchase of the Property have been satisfied at the time of closing, (i)
Purchaser will be materially damaged, (ii) it would be extremely difficult
and impracticable at this time to estimate the amount of such damage, and
(iii) after negotiation, the parties have agreed that, considering all of
the circumstances existing on the date of this Agreement, the amount of One
Hundred Thousand Dollars ($100,000.00) ("Seller's Liquidated Damages") is a
reasonable estimate of the damages that Purchaser would incur in such
event. Accordingly, Seller and Purchaser agree that in the event of such a
default by Seller, and conditioned on all other conditions to Seller's
obligations to consummate the purchase of the Property being fulfilled at
the time of closing, the Seller's Liquidated Damages shall constitute
liquidated damages for such default. Seller shall deliver the Seller's
Liquidated Damages to Purchaser in such event, and Purchaser shall retain
the Seller's Liquidated Damages as liquidated damages. Such liquidated
damages shall constitute Purchaser's sole and exclusive remedy for Seller's
default, and shall be in lieu of any other monetary relief or any other
relief to which Purchaser may otherwise be entitled under this Agreement or
under the law, and Purchaser hereby waives any right to specific
performance or damages hereunder, except that Purchaser shall be entitled
to exercise any rights or remedies it may have by virtue of any indemnity
created or granted herein.
BY PLACING ITS INITIALS BELOW, EACH PARTY SPECIFICALLY CONFIRMS THE
ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS
REPRESENTED BY COUNSEL WHO EXPLAINED, AT THE TIME THIS AGREEMENT WAS MADE,
THE CONSEQUENCES OF THIS LIQUIDATED DAMAGES PROVISION.
INITIALS: SELLER: JFK PURCHASER: MA
14. LOSS BY FIRE OR OTHER CASUALTY; CONDEMNATION.
(a) CASUALTY. If, prior to the Closing Date, any part of the Property
is damaged or destroyed by fire or other casualty loss, Seller shall
restore the Property to its previous condition as soon as reasonably
possible (but in no event will Seller be required to expend on such
restoration more than the insurance proceeds collected by Seller plus any
deductible), but, in any event, prior to the Closing Date. If Seller is
unable to do so, without fault and notwithstanding Seller's diligent, good
faith efforts, Purchaser shall have the option, as its sole remedy, to
either (x) terminate this Agreement by delivering written notice of
termination to Seller, in accordance with PARAGRAPH 7 hereof, or (y)
proceed with the purchase of the Property, in which event at Closing
Purchaser shall be credited against the Purchase Price the amount of all
insurance proceeds or condemnation awards collected by Seller as a result
of any such damage or destruction (or such proceeds shall be assigned to
Purchaser if not then collected), plus any insurance deductibles applicable
to such damage or destruction, less any monies actually expended by Seller
to repair any damage.
(b) CONDEMNATION. If any part of the Property is condemned prior to
Closing Date, Seller shall promptly give Purchaser written notice of such
condemnation and Purchaser shall have the option of (i) proceeding with the
close of its purchase of the Property subject to receiving a credit for all
condemnation proceeds received by Seller (up to the Purchase Price), or
(ii) declaring this Agreement terminated in accordance with PARAGRAPH 7
hereof by delivering written notice of termination to Seller within five
(5) business days after Purchaser's receipt of notice of such condemnation.
15. ATTORNEYS' FEES. Any signatory to this Agreement who is the prevailing
party in any legal proceeding against any other signatory brought in connection
with this Agreement or transaction shall be additionally entitled to recover
court costs and reasonable attorney fees, and all other litigation expenses,
including deposition costs, travel and expert witness fees, from the
non-prevailing party.
16. NOTICES. Any notice required or permitted to be given under this
Agreement shall be in writing and (i) personally delivered, (ii) sent by United
States registered or certified mail, postage prepaid, return receipt requested,
(iii) sent by Federal Express or similar nationally recognized overnight courier
service, or (iv) transmitted by facsimile with a hard copy sent within one (1)
business day by any of the foregoing means. Such notice shall be deemed to have
been given upon the date of actual receipt or delivery (or refusal to accept
delivery), as evidenced by the notifying party's receipt of written or
electronic confirmation of such delivery or refusal, if received by the party to
be notified between the hours of 8 a.m. and 5 p.m. Central time on any business
day, with delivery made after such hours to be deemed received on the following
business day. For the purposes of notice, the addresses of the parties shall be
as follows:
Seller: Springdale Associates, Ltd.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xx. Xxxx X. Xxxxxxx/Mr. Xxxxxx Xxxxx
PH: (000) 000-0000
FX: (000) 000-0000
E-mail: xxxxxxxx@xxxxxxxx.xxx
xxxxx@xxxxxxxx.xxx
Copies to: Xxxxxxx, Xxxxxxx & Xxxx, Ltd.
00 Xxxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxx, Esq.
PH: (000) 000-0000
FX: (000) 000-0000
E-mail: xxxxx@xxxxxx.xxx
and
Xxxxxxx Xxxxx, Esq.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
PH: (414) 273-2640
FX: (000) 000-0000
E-mail: xx@xxxxxxxx.xxx
Purchaser: Trike Property Management, LLC
0000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxx
PH: (000) 000-0000
FX: (000) 000-0000
E-mail: xxxxxxxxx@xxxxxxx.xxx
Copies to: Xxxx Xxxxxxx, Esq.
0000 Xxxx Xxxx Xxxx Xxxx
Xxxxxxxx, Xxxxxxxxx 00000
PH: (414) 540-6400
FX: (000) 000-0000
or such other address as either party may from time to time specify in writing
delivered to the other in accordance with this PARAGRAPH 16.
17. INTEGRATION. This Agreement contains the complete agreement between the
parties and cannot be varied except by the written agreement of the parties. The
parties agree that there are no oral agreements, understandings, representations
or warranties that are not expressly set forth herein.
18. BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, executors,
representatives, successors and assigns where permitted by this Agreement.
19. ASSIGNMENT. Purchaser may not assign this Agreement or all rights
hereunder without Seller's prior written consent, which consent shall not be
unreasonably withheld or delayed. Purchaser shall be relieved of any liability
under this Agreement from and after such assignment provided the assignee
assumes in writing all obligations of Purchaser hereunder.
20. 1031 EXCHANGE. Seller and/or Purchaser may wish to effect an IRC
Section 1031 tax-deferred exchange and both parties will cooperate to facilitate
such an exchange; provided, however, neither party shall incur additional cost
or expense on the other party's behalf, and shall not be required to advance or
deposit monies in excess of amounts required by this Agreement for purchase of
the subject Property, and such exchange shall not cause any delays in the time
periods or Closing Date specified in this Agreement.
21. GOVERNING LAW. This Agreement shall be construed under and in
accordance with the laws of the state of Wisconsin.
22. SEVERABILITY. In case any one or more of the provisions contained in
this Agreement shall for any reason be held to be invalid, illegal, or
unenforceable in any respect, such invalidity, illegality, or unenforceability
shall not affect any other provision hereof and this Agreement shall be
construed as if such invalid, illegal, or unenforceable provision had never been
contained herein.
23. EXHIBITS. All exhibits attached hereto are incorporated herein by this
reference.
24. TIME. Time is of the essence.
25. DATE OF PERFORMANCE. If the date for performance of any act under this
Agreement falls on a Saturday, Sunday or federal holiday, the date for such
performance shall automatically be extended to the first succeeding business day
that is not a Saturday, Sunday or federal holiday.
26. LEGALLY BINDING. This is intended to be a legally binding agreement.
This Agreement constitutes the entire agreement between the parties and their
real estate agents, there being no oral contracts, representations, conditions,
or warranties, express or implied, in addition to this Agreement.
27. WAIVER. No waiver by Purchaser or Seller of a breach of any of the
terms, covenants and conditions of this Agreement by the other party shall be
construed or held to be a waiver of any succeeding or preceding breach of the
same or any other term, covenant or condition herein contained. No waiver of any
default by Purchaser or Seller hereunder shall be implied from any omission by
the other party to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect a default other than
as specified in such waiver.
28. LEAD-BASED PAINT DISCLOSURE. If the Improvements or any part thereof
were built prior to 1978, the attached "Lead-Based Paint Disclosure Addendum to
Purchase Agreement" is incorporated herein by this reference and shall be
completed by Seller and Purchaser.
29. CONFIDENTIALITY. Seller and Purchaser agree to keep the terms of this
Agreement confidential (subject to disclosures to Title Company, surveyor,
Seller's and Purchaser's respective partners, attorneys, accountants and other
consultants reasonably necessary to consummate this transaction) and not make
any public announcements or disclosures with respect to the subject matter
hereof without the prior written consent of the other party.
30. FURTHER INSTRUMENTS. Each party will, whenever and as often as it shall
be requested so to do by the other, cause to be executed, acknowledged or
delivered any and all such further instruments and documents as may be necessary
or proper, in the reasonable opinion of the requesting party, in order to carry
out the intent and purpose of this Agreement.
31. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, provided each of the parties hereto executed at least one
counterpart; each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
32. WAIVER OF TRIAL BY JURY. Purchaser and Seller, to the extent they may
legally do so, hereby expressly waive any right to trial by jury of any claim,
demand, action, cause of action, or proceeding arising under or with respect to
this Agreement, or in any way connected with, or related to, incidental to, the
dealing of the parties hereto with respect to this Agreement or the transactions
related hereto or thereto, in each case whether now existing or hereafter
arising, and irrespective of whether sounding in contract, tort, or otherwise.
To the extent they may legally do so, Seller and Purchaser hereby agreement that
any such claim, demand, action, cause of action or proceeding shall be decided
by a court trial without a jury and that any party hereto may file an original
counterpart or a copy of this section with any court as written evidence of the
consent of the other party or parties hereto to waiver of its or their right to
trial by jury.
33. BROKERS; INDEMNITY. Seller has agreed to pay Xxxxxxxxx & Partners a
commission (the "Broker's Fee") by separate agreement. Other than as stated
above, Seller and Purchaser each represent and warrant to the other that no real
estate brokerage commission is payable to any person or entity in connection
with the transaction contemplated hereby, and each agrees to and does hereby
indemnify and hold the other harmless against the payment of any commission to
any person or entity claiming by, through or under Seller or Purchaser, as
applicable. This indemnification shall extend to any and all claims,
liabilities, costs and expenses (including reasonable attorneys' fees and
litigation costs) arising as a result of such claims and shall survive the
Closing. Broker shall not be entitled to any monies or other recovery realized
by Seller arising out of Purchaser's default. Broker shall not be entitled to
any commission if Purchaser or Seller elect to terminate this Agreement. This
PARAGRAPH 33 shall expressly survive any Closing or any termination of this
Agreement.
34. ENERGY LAW. Purchaser shall be responsible for compliance with the
Wisconsin Energy Law (Section 101.122, Wisconsin Statutes) and shall provide a
stipulation or compliance certificate at Closing.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
EXECUTED BY PURCHASER ON FEBRUARY 4,2004
PURCHASER:
Joint Venture, LLC, Xxxxxxx & Xxxxx Xxxxxxxx Revocable
Living Trust dated 10/07/96, Xxxxxxx X. & Xxxxx X. Xxxxxxxx
Trust T/U/A dated March 8, 1999, The Xxxxxxxx and Ceren
Family Trust dated April 26, 1989, 2002 Xxxxxxxx Family
Trust, Xxxxxxx Xxxxxx Trust and Xxxxxxx Xxxxxx Trust
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Its: Managing Member and/or Authorized Agent/Signatory
EXECUTED BY SELLER ON FEBRUARY 9, 2004
SELLER:
Springdale Associates, Ltd.,
a Delaware limited partnership
By: /s/ Xxxx X. Xxxxxxx
Its: Managing Partner
RECEIPT OF DEPOSIT ACKNOWLEDGMENT
Title Company acknowledges receipt of the xxxxxxx money Deposit in the amount of
and in the form of on this day of ,
------- -------------------- ----- ------------
2004.
By:
-------------------------------
Name:
----------------------------
Title:
---------------------------
ESCROW HOLDER'S ACKNOWLEDGMENT
The undersigned hereby executes this Agreement to evidence its contract to act
as Escrow Holder in accordance with the terms of this Agreement.
Date: , 2004 CHICAGO TITLE INSURANCE COMPANY
---------------
By:
----------------------------
Name:
--------------------------
Title:
-------------------------
EXHIBIT A
(REAL PROPERTY LEGAL DESCRIPTION)
Parcel 1 of Certified Survey Map No. 4444, recorded November 28, 1983 in Volume
35 of Certified Survey Maps on pages 232, 233 and 234, as Document No. 1237990
as corrected by Affidavit recorded as Document No. 1239073 being a resurvey of
Certified Survey Map No. 1779, recorded as Document No. 842178, located in part
of the NW 1/4 and SW 1/4 of the SW 1/4 of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx Xxxxx 00
Xxxx, Xxxx of Waukesha, County of Waukesha, State of Wisconsin.
PERMITTED EXCEPTIONS
1. Taxes for the year 200_ and subsequent years, not now due or payable.
2. Rights of claims of tenants in possession.
3. Drainage easement granted to Town of Brookfield, dated August 2, 1967 and
recorded on October 11, 1967 in Volume 1099 of Deeds, page 454, as Document NO.
696995 and as set forth on Certified Survey Map No. 4444, recorded November 28,
1983 in Volume 35 of Certified Survey Maps on pages 232, 233 and 234, as
Document No. 1237990. Said easement is also depicted on the Plat of Survey in
our possession prepared by Ruekert and Xxxxxx, Inc. under date of February 19,
1987.
4. Limitations imposed on access set forth in a Finding, Determination and
Declaration by the State Highway Commission of Wisconsin, establishing certain
controlled-access highways in Waukesha County, Wisconsin, approved and adopted
August 23, 1951 and recorded September 26, 1951 in Volume 556 of Deeds, page
394, as Document No. 356777.
5. Utility easement granted to Wisconsin Electric Power Company and Wisconsin
Telephone Company, their successors and assigns, dated April 23, 1973 and
recorded June 5, 1973 in Reel 42, image 194, as Document No. 852517. Said
easement is also depicted on the Plat of Survey in our possession prepared by
Ruekert and Xxxxxx, Inc. under date of February 19, 1987.
6. Utility easement granted to Wisconsin Natural Gas Company, its successors and
assigns, dated July 17, 1974 and recorded October 7, 1974 on Reel 96, Image 907,
as Document No. 895037. Said easement is also depicted on the Plat of Survey in
our possession prepared by Ruekert and Xxxxxx, Inc. under date of February 19,
1987.
7. Utility easement granted to Wisconsin Natural Gas Company, its successors and
assigns, dated July 17, 1974 and recorded October 7, 1974 on Reel 96, Image 909,
as Document No. 895038. Said easement is also depicted on the Plat of Survey in
our possession prepared by Ruekert and Xxxxxx, Inc. under date of February 19,
1987.
8. Reservation for easement set forth on Certified Survey Map No. 4444, recorded
November 28, 1983 in Volume 35 of Certified Survey Maps on pages 232, 233 and
234, as Document No. 1237990, reciting as follows:
1. There shall be a 10' wide temporary slope easement across Parcel Xx. 0
xxxxx Xxxxxxxxx Xx. (X.X.X. "JJ"), Springdale Rd. and Hollidale Rd. Said
easement not to be permanently improved until concrete sidewalk is
installed.
2. An easement for sidewalk purposes shall apply to Parcel No. 1 as
follows: (That area which lies between Bluemound Rd. (C.T.H. "JJ" and
Springdale Rd. and between the chord of a curve with a 10' radius, the
center of which curve is the NW. Cor. of Parcel No. 1.)
(That area which lies between Springdale Rd. and Hollidale Rd. and
between the chord of a curve with a 10' radius, the center of which curve
is the SW. Cor. of Parcel No. 1.)
9. Easement granted to Waukesha Water Utility, City of Waukesha dated November
23, 1983 and recorded November 30, 1983 on Reel 578, Image 795, as Document No.
1238210 and as set forth on Certified Survey Map No. 4444, recorded November 28,
1983 in Volume 35 of Certified Survey Maps on pages 232, 233 and 234, as
Document No. 1237990, as "20' water main esm't." and "20' water main esm't.)
Said easement is also depicted on the Plat of Survey in our possession prepared
by Ruekert and Xxxxxx, Inc. under date of February 19, 1987.
10. "20' San. Sewer Esm't" and "20' San. Sewer Esm't" as set forth on Certified
Survey Map No. 4444, recorded November 28, 1983 in Volume 35 of Certified Survey
Maps on pages 232, 233 and 234, as Document No. 1237990 as corrected by
Affidavit recorded as Document No. 1239073. Said easement is also depicted on
the Plat of Survey in our possession prepared by Ruekert and Xxxxxx, Inc. under
date of February 19, 1987.
11. 25 foot building setback line affecting the Northerly, Southerly, and
Westerly lines as disclosed in Warranty Deed recorded as Document No. 1241604,
and as set forth in the Survey in our possession prepared by Ruekert and Xxxxxx,
Inc. under dated of February 19, 1987.
12. Encroachment of a garage into the "25' Building Setback Line" along the
North property line as disclosed in Warranty Deed recorded as Document No.
1241604 and encroachment of said garage into the 10' slope easement reserved in
Certified Survey Map No. 4444, recorded November 28, 1983 in Volume 35 of
Certified Survey Maps on page 232, 233 and 234, as Document No. 1237990, being a
resurvey of Certified Survey Map No. 1779, encroachments are also disclosed on
the plat of Survey in our possession prepared by Ruekert and Xxxxxx, Inc. under
date of February 19, 1987.
13. Unrecorded existing Storm Sewers and unrecorded Sanitary Sewer ,Laterals as
set forth on survey in our possession prepared by Ruekert & Xxxxxx, Inc. under
date of February 19, 1987.
14. Encroachment of "Bit. Parking Lots" into easement areas set forth in Items
3, 5, 9 and 10 above and as set, forth on the survey in our possession prepared
by Ruekert & Xxxxxx, Inc. under date of February 19, 1987. "
15. Grant executed by Xxxxx Xxxxxxxx to The Milwaukee Electric Railway and Light
Co. dated November 13, 1925 and recorded March 10, 1926 in Volume 197 of Deeds
on page 523 as Document No. 142606. Said easement is also depicted on the plat
of Survey in our possession prepared by Ruekert 5 Xxxxxx, Inc. under date of
February 19, 1987.
EXHIBIT B
SPECIAL WARRANTY DEED
In a style and form mutually acceptable to Seller, Purchaser and Title Insurer.
EXHIBIT A
Parcel 1 of Certified Survey Map No. 4444, recorded November 28, 1983 in Volume
35 of Certified Survey Maps on pages 232, 233 and 234, as Document No. 1237990
as corrected by Affidavit recorded as Document No. 1239073 being a resurvey of
Certified Survey Map No. 1779, recorded as Document No. 842178, located in part
of the NW 1/4 and SW 1/4 of the SW 1/4 of Xxxxxxx 00, Xxxxxxxx 0 Xxxxx Xxxxx 00
Xxxx, Xxxx of Waukesha, County of Waukesha, State of Wisconsin.
EXHIBIT B
PERMITTED EXCEPTIONS
1. Taxes for the year 200 and subsequent years, not now due or payable.
--
2. Rights of claims of tenants in possession.
3. Drainage easement granted to Town of Brookfield, dated August 2, 1967 and
recorded on October 11, 1967 in Volume 1099 of Deeds, page 454, as Document NO.
696995 and as set forth on Certified Survey Map No. 4444, recorded November 28,
1983 in Volume 35 of Certified Survey Maps on pages 232, 233 and 234, as
Document No. 1237990. Said easement is also depicted on the Plat of Survey in
our possession prepared by Ruekert and Xxxxxx, Inc. under date of February 19,
1987.
4. Limitations imposed on access set forth in a Finding, Determination and
Declaration by the State Highway Commission of Wisconsin, establishing certain
controlled-access highways in Waukesha County, Wisconsin, approved and adopted
August 23, 1951 and recorded September 26, 1951 in Volume 556 of Deeds, page
394, as Document No. 356777.
5. Utility easement granted to Wisconsin Electric Power Company and Wisconsin
Telephone Company, their successors and assigns, dated April 23, 1973 and
recorded June 5, 1973 in Reel 42, image 194, as Document No. 852517. Said
easement is also depicted on the Plat of Survey in our possession prepared by
Ruekert and Xxxxxx, Inc. under date of February 19, 1987.
6. Utility easement granted to Wisconsin Natural Gas Company, its successors and
assigns, dated July 17, 1974 and recorded October 7, 1974 on Reel 96, Image 907,
as Document No. 895037. Said easement is also depicted on the Plat of Survey in
our possession prepared by Ruekert and Xxxxxx, Inc. under date of February 19,
1987.
7. Utility easement granted to Wisconsin Natural Gas Company, its successors and
assigns, dated July 17, 1974 and recorded October 7, 1974 on Reel 96, Image 909,
as Document No. 895038. Said easement is also depicted on the Plat of Survey in
our possession prepared by Ruekert and Xxxxxx, Inc. under date of February 19,
1987.
8. Reservation for easement set forth on Certified Survey Map No. 4444, recorded
November 28, 1983 in Volume 35 of Certified Survey Maps on pages 232, 233 and
234, as Document No. 1237990, reciting as follows:
1. There shall be a 10' wide temporary slope easement across Parcel Xx. 0
xxxxx Xxxxxxxxx Xx. (X.X.X. "JJ"), Springdale Rd. and Hollidale Rd. Said
easement not to be permanently improved until concrete sidewalk is
installed.
2. An easement for sidewalk purposes shall apply to Parcel No. 1 as
follows: (That area which lies between Bluemound Rd. (C.T.H. "JJ" and
Springdale Rd. and between the chord of a curve with a 10' radius, the
center of which curve is the NW. Cor. of Parcel No. 1.)
(That area which lies between Springdale Rd. and Hollidale Rd. and
between the chord of a curve with a 10' radius, the center of which curve
is the SW. Cor. of Parcel No. 1.)
9. Easement granted to Waukesha Water Utility, City of Waukesha dated November
23, 1983 and recorded November 30, 1983 on Reel 578, Image 795, as Document No.
1238210 and as set forth on Certified Survey Map No. 4444, recorded November 28,
1983 in Volume 35 of Certified Survey Maps on pages 232, 233 and 234, as
Document No. 1237990, as "20' water main esm't." and "20' water main esm't.)
Said easement is also depicted on the Plat of Survey in our possession prepared
by Ruekert and Xxxxxx, Inc. under date of February 19, 1987.
10. "20' San. Sewer Esm't" and "20' San. Sewer Esm't" as set forth on Certified
Survey Map No. 4444, recorded November 28, 1983 in Volume 35 of Certified Survey
Maps on pages 232, 233 and 234, as Document No. 1237990 as corrected by
Affidavit recorded as Document No. 1239073. Said easement is also depicted on
the Plat of Survey in our possession prepared by Ruekert and Xxxxxx, Inc. under
date of February 19, 1987.
11. 25 foot building setback line affecting the Northerly, Southerly, and
Westerly lines as disclosed in Warranty Deed recorded as Document No. 1241604,
and as set forth in the Survey in our possession prepared by Ruekert and Xxxxxx,
Inc. under dated of February 19, 1987.
12. Encroachment of a garage into the "25' Building Setback Line" along the
North property line as disclosed in Warranty Deed recorded as Document No.
1241604 and encroachment of said garage into the 10' slope easement reserved in
Certified Survey Map No. 4444, recorded November 28, 1983 in Volume 35 of
Certified Survey Maps on page 232, 233 and 234, as Document No. 1237990, being a
resurvey of Certified Survey Map No. 1779, encroachments are also disclosed on
the plat of Survey in our possession prepared by Ruekert and Xxxxxx, Inc. under
date of February 19, 1987.
13. Unrecorded existing Storm Sewers and unrecorded Sanitary Sewer ,Laterals as
set forth on survey in our possession prepared by Ruekert & Xxxxxx, Inc. under
date of February 19, 1987.
14. Encroachment of "Bit. Parking Lots" into easement areas set forth in Items
3, 5, 9 and 10 above and as set, forth on the survey in our possession prepared
by Ruekert & Xxxxxx, Inc. under date of February 19, 1987. "
15. Grant executed by Xxxxx Xxxxxxxx to The Milwaukee Electric Railway and Light
Co. dated November 13, 1925 and recorded March 10, 1926 in Volume 197 of Deeds
on page 523 as Document No. 142606. Said easement is also depicted on the plat
of Survey in our possession prepared by Ruekert 5 Xxxxxx, Inc. under date of
February 19, 1987.
EXHIBIT C
XXXX OF SALE
Seller, SPRINGDALE APARTMENTS, LTD., A DELAWARE LIMITED PARTNERSHIP, in
consideration of TEN ($10.00) Dollars and other good and valuable
considerations, receipt whereof is hereby acknowledged, does hereby sell,
assign, transfer and set over to Buyer, JOINT VENTURE, LLC, XXXXXXX & XXXXX
XXXXXXXX REVOCABLE LIVING TRUST DATED 10/07/96, XXXXXXX X. & XXXXX X. XXXXXXXX
TRUST T/U/A DATED MARCH 8, 1999, THE XXXXXXXX AND CEREN FAMILY TRUST DATED APRIL
26, 1989, 2002 XXXXXXXX FAMILY TRUST, XXXXXXX XXXXXX TRUST AND XXXXXXX XXXXXX
TRUST, the following described personal property:
IF ANY, located on the premises commonly known as the Springdale Apartments,
0000 Xxxxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxx ("Premises"), TO WIT:
AS SET FORTH IN THAT PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS DATED , 2004
----------
BETWEEN SELLER AND BUYER FOR THE PURCHASE OF
THE PREMISES, AND SCHEDULE "1"
ATTACHED HERETO AND MADE A PART HEREOF
Seller hereby represents and warrants to Purchaser that Seller is the
absolute owner of said property, that said property is free and clear of all
liens, charges and encumbrances, and that Seller has full right, power and
authority to sell said personal property and to make this xxxx of sale. Subject
to the foregoing provisions of this Xxxx of Sale, sale and transfer of the
personal property provided for herein is made on an "AS IS - WHERE IS" basis.
IN WITNESS WHEREOF, Seller has caused this xxxx of sale to be signed and
sealed at Chicago, Illinois this day of , 2004.
-------------- --------
SPRINGDALE APARTMENTS, LTD., a Delaware limited
partnership
By:
------------------------------------
STATE OF ILLINOIS )
) ss
COUNTY OF XXXX )
I, the undersigned, a Notary Public in and for said County, the State
aforesaid, DO HEREBY CERTIFY that Springdale Apartments, Ltd., a Delaware
limited partnership, personally known to me to be the same person whose name is
subscribed to the foregoing instrument, appeared before me this day in person,
and acknowledged that he signed, sealed and delivered the said instrument as his
free and voluntary act and the free and voluntary act of the partnership, for
the uses and purposes therein set forth.
Given under my hand and official seal this day of , 2004.
----- ---------
---------------------------------------
NOTARY PUBLIC
SCHEDULE I
to
Xxxx of Sale
[Inventory of Personal Property Included in the Sale]
To be provided by Seller within five (5) business days of Effective Date.
EXHIBIT D
ASSIGNMENT AND ASSUMPTION OF LEASES
THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Assignment") dated as of
, 2004, is between Springdale Apartments, Ltd., a Delaware limited
-------------
partnership ("Assignor") and Joint Venture, LLC, Xxxxxxx & Xxxxx Xxxxxxxx
Revocable Living Trust dated 10/07/96, Xxxxxxx X. & Xxxxx X. Xxxxxxxx Trust
T/U/A dated March 8, 1999, The Xxxxxxxx and Ceren Family Trust dated April 26,
1989, 2002 Xxxxxxxx Family Trust, Xxxxxxx Xxxxxx Trust and Xxxxxxx Xxxxxx Trust
("Assignee").
Assignor is the lessor under certain leases executed with respect to the
Property (as defined below), which leases are described in SCHEDULE I attached
hereto (the "Leases").
Assignor and Assignee have entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions dated effective as of , 2004
------------
(the "Agreement"), pursuant to which Assignee agreed to purchase the real
property and improvements described therein (the "Property") from Assignor and
Assignor agreed to sell the Property to Assignee, on the terms and conditions
contained therein.
Pursuant to the Agreement, Assignor desires to assign its interest as
landlord under the Leases to Assignee, and Assignee desires to accept the
assignment thereof, on the terms and conditions set forth below.
ACCORDINGLY, the parties hereto agree as follows:
As of the date on which the Property is conveyed to Assignee pursuant to
the Agreement (the "Conveyance Date"), Assignor hereby assigns to Assignee all
of its right, title and interest in and to the Leases;
Assignor hereby agrees to indemnify Assignee against and hold Assignee
harmless from any and all liabilities, losses, claims, damages, costs or
expenses, including, without limitation, reasonable attorneys' fees and costs
(collectively, the "Claims"), originating prior to the Conveyance Date and
arising out of the Assignor's obligations under the Leases.
As of the Conveyance Date, Assignee hereby assumes all of Assignor's
obligations under the Leases and agrees to indemnify Assignor against and hold
Assignor harmless from any and all Claims originating on or subsequent to the
Conveyance Date and arising out of the Assignee's obligations under the Leases.
In the event of any dispute between Assignor and Assignee arising out of
the obligations of the parties under this Assignment or concerning the meaning
or interpretation of any provision contained herein, the losing party shall pay
the prevailing party's costs and expenses of such dispute, including, without
limitation, reasonable attorneys' fees and costs.
This Assignment shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns.
This Assignment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
Assignor and Assignee have executed this Agreement as of the day and year
first written above.
ASSIGNOR:
Springdale Apartments, Ltd.,
a Delaware limited partnership
By:
------------------------------------
Its:
-----------------------------------
ASSIGNEE:
Joint Venture, LLC, Xxxxxxx & Xxxxx Xxxxxxxx
Revocable Living Trust dated 10/07/96,
Xxxxxxx X. & Xxxxx X. Xxxxxxxx Trust T/U/A dated
March 8, 1999, The Xxxxxxxx and Ceren Family Trust
dated April 26, 1989, 2002 Xxxxxxxx Family Trust,
Xxxxxxx Xxxxxx Trust and Xxxxxxx Xxxxxx Trust
By:
------------------------------------
Its:
-----------------------------------
SCHEDULE I
to
Assignment and Assumption of Leases
(List of Leases - Rent Roll)
To be provided by Seller within five (5) business days of Effective Date.
EXHIBIT E
ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND INTANGIBLES
THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS AND INTANGIBLES (this
"Assignment") ") dated as of , 2004, is between Springdale
--------------
Apartments, Ltd., a Delaware limited partnership ("Assignor") and Joint Venture,
LLC, Xxxxxxx & Xxxxx Xxxxxxxx Revocable Living Trust dated 10/07/96, Xxxxxxx X.
& Xxxxx X. Xxxxxxxx Trust T/U/A dated March 8, 1999, The Xxxxxxxx and Ceren
Family Trust dated April 26, 1989, 2002 Xxxxxxxx Family Trust, Xxxxxxx Xxxxxx
Trust and Xxxxxxx Xxxxxx Trust ("Assignee").
Assignor has entered into certain service contracts which affect the
Property (as defined below), which service contracts are described in SCHEDULE I
attached hereto (the "Contracts").
Assignor and Assignee have entered into that certain Purchase and Sale
Agreement and Joint Escrow Instructions dated effective as of , 2004
------------
(the "Agreement"), pursuant to which Assignee agreed to purchase the real
property and improvements described therein (the "Property") from Assignor and
Assignor agreed to sell the Property to Assignee, on the terms and conditions
contained therein.
Pursuant to the Agreement, Assignor desires to assign its interest in the
Contracts and in certain intangible personal property with respect tot he
Property to Assignee, to the extent such interests are transferable, and
Assignee desires to accept the assignment thereof, on the terms and conditions
set forth below.
ACCORDINGLY, the parties hereto agree as follows:
As of the date on which the Property is conveyed to Assignee pursuant to
the Agreement (the "Conveyance Date"), Assignor hereby assigns to Assignee all
of its right, title and interest in and to the Contracts and any intangible
property now owned by Assignor in connection with the Property, to the extent
such interests are transferable, excluding claims by Assignor, if any, arising
out of matters occurring before the Conveyance Date;
Assignor hereby agrees to indemnify Assignee against and hold Assignee
harmless from any and all liabilities, losses, claims, damages, costs or
expenses, including, without limitation, reasonable attorneys' fees and costs
(collectively, the "Claims"), originating prior to the Conveyance Date and
arising out of Assignor's obligations under the Contracts.
As of the Conveyance Date, Assignee hereby assumes all of Assignor's
obligations under the Contracts and agrees to indemnify Assignor against and
hold Assignor harmless from any and all Claims originating on or subsequent to
the Conveyance Date and arising out of the Assignee's obligations under the
Contracts.
In the event of any dispute between Assignor and Assignee arising out of
the obligations of the parties under this Assignment or concerning the meaning
or interpretation of any provision contained herein, the losing party shall pay
the prevailing party's costs and expenses of such dispute, including, without
limitation, reasonable attorneys' fees and costs.
This Assignment shall be binding on an inure to the benefit of the parties
hereto and their respective successors and assigns.
This Assignment may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
Assignor and Assignee have executed this Agreement as of the day and year
first written above.
ASSIGNOR:
Springdale Apartments, Ltd.,
a Delaware limited partnership
By:
----------------------------------
Its:
---------------------------------
ASSIGNEE:
Joint Venture, LLC, Xxxxxxx & Xxxxx Xxxxxxxx
Revocable Living Trust dated 10/07/96,
Xxxxxxx X. & Xxxxx X. Xxxxxxxx Trust T/U/A dated
March 8, 1999, The Xxxxxxxx and Ceren Family Trust
dated April 26, 1989, 2002 Xxxxxxxx Family Trust,
Xxxxxxx Xxxxxx Trust and Xxxxxxx Xxxxxx Trust
By:
----------------------------------
Its:
---------------------------------
SCHEDULE I
to
Assignment and Assumption of Contracts and Intangible Property
(List of Contracts)
To be provided by Seller within five (5) business days of Effective Date.
EXHIBIT F
TENANT NOTICE LETTER
, 2004
--------------
Tenant in Apartment
-----------
Springdale Apartments
---------------------
Waukesha, Wisconsin
Re: Change in Ownership of the Springdale Apartments
Dear Tenant:
You are hereby notified and advised that as of , 2004, Joint
------------
Venture, LLC, Xxxxxxx & Xxxxx Xxxxxxxx Revocable Living Trust dated 10/07/96,
Xxxxxxx X. & Xxxxx X. Xxxxxxxx Trust T/U/A dated March 8, 1999, The Xxxxxxxx and
Ceren Family Trust dated April 26, 1989, 2002 Xxxxxxxx Family Trust, Xxxxxxx
Xxxxxx Trust and Xxxxxxx Xxxxxx Trust ("Purchaser") has purchased and acquired
from Springdale Apartments, Ltd., a Delaware limited partnership ("Seller"), all
of Seller's right, title and interest in and to the Springdale Apartments (the
"Property") including, without limitation, all of Seller's right, title and
interest as the "Landlord," "Lessor" and "Owner" in and to all lease agreements
and non-applied security deposits, including the refundable portion of your
security deposit in the amount of $ . In addition, the new
----------------
property manager for the Property is , located at the following
----------------
address, and copies of all future notices to the landlord or lessor under your
lease should be sent to:
------------------------------
------------------------------
------------------------------
In accordance with the new ownership, you are hereby notified that the
refundable portion of your security deposit in the amount of
$ has been transferred to Purchaser as of the date hereof.
-------------------
All future, current, or past due payments of rent should be made payable to
. and mailed to at the address above.
-------------------- --------------------
All other terms and provisions of your lease shall remain in full force and
effect. It has been a pleasure having you as a tenant. Should you have any
questions, please call
------------------
Springdale Apartments, Ltd.,
a Delaware limited partnership
By:
--------------------------------
EXHIBIT G
CERTIFICATE OF RENT ROLL
To: Joint Venture, LLC, Xxxxxxx & Xxxxx Xxxxxxxx Revocable Living Trust dated
10/07/96, Xxxxxxx X. & Xxxxx X. Xxxxxxxx Trust T/U/A dated March 8, 1999,
The Xxxxxxxx and Ceren Family Trust dated April 26, 1989, 2002 Xxxxxxxx
Family Trust, Xxxxxxx Xxxxxx Trust and Xxxxxxx Xxxxxx Trust X.X. Xxx 00000
Xxxxxxxxx, Xxxxxxxxx 00000
Gentlemen,
You are hereby advised that the undersigned is the owner of those certain
premises comprising the real property and improvements thereon commonly known as
the Springdale Apartments and located in Waukesha County, State of Wisconsin
(the "Property"). The undersigned hereby represents and warrants that the
information in the attached Rent Roll is true and correct in all material
respects as of , 2004.
------------------
The undersigned makes this representation and warranty for your benefit and
protection with the understanding that you intend to rely upon this statement in
connection with your intended purchase of the Property from the undersigned. The
representation and warranty contained in this Certificate shall survive the
closing of your purchase of the Property for a period of one (1) year.
Dated: , 2004
----------
Springdale Apartments, Ltd.,
a Delaware limited partnership
By:
----------------------------
Its:
---------------------------
LEAD-BASED PAINT DISCLOSURE ADDENDUM
TO THE PURCHASE AND SALE AGREEMENT
THIS DOCUMENT IS AN ADDENDUM ("ADDENDUM") TO THE PURCHASE AND SALE AGREEMENT
WITH JOINT ESCROW INSTRUCTIONS ("AGREEMENT") BETWEEN SPRINGDALE APARTMENTS,
LTD., A DELAWARE LIMITED PARTNERSHIP ("SELLER") AND JOINT VENTURE, LLC, XXXXXXX
& XXXXX XXXXXXXX REVOCABLE LIVING TRUST DATED 10/07/96, XXXXXXX X. & XXXXX X.
XXXXXXXX TRUST T/U/A DATED MARCH 8, 1999, THE XXXXXXXX AND CEREN FAMILY TRUST
DATED APRIL 26, 1989, 2002 XXXXXXXX FAMILY TRUST, XXXXXXX XXXXXX TRUST AND
XXXXXXX XXXXXX TRUST ("PURCHASER") DATED AS OF , 2004.
-----------------
THE PROVISIONS OF THIS ADDENDUM ARE HEREBY ADDED TO AND INCORPORATED IN THE
AGREEMENT.
LEAD WARNING STATEMENT
EVERY PURCHASER OF ANY INTEREST IN RESIDENTIAL REAL PROPERTY ON WHICH A
RESIDENTIAL DWELLING WAS BUILT PRIOR TO 1978 IS NOTIFIED THAT SUCH PROPERTY MAY
PRESENT EXPOSURE TO LEAD FROM LEAD-BASED PAINT THAT MAY PLACE YOUNG CHILDREN AT
RISK OF DEVELOPING LEAD POISONING. LEAD POISONING IN YOUNG CHILDREN MAY PRODUCT
PERMANENT NEUROLOGICAL DAMAGE, INCLUDING LEARNING DISABILITIES, REDUCED
INTELLIGENCE QUOTIENT, BEHAVIORAL PROBLEMS, AND IMPAIRED MEMORY. LEAD POISONING
ALSO POSES A PARTICULAR RISK TO PREGNANT WOMEN. THE SELLER OF ANY INTEREST IN
RESIDENTIAL REAL PROPERTY IS REQUIRED TO PROVIDE THE PURCHASER WITH ANY
INFORMATION ON LEAD-BASED PAINT HAZARDS. A RISK ASSESSMENT OR INSPECTION FOR
POSSIBLE LEAD-BASED PAINT HAZARDS IS RECOMMENDED PRIOR TO PURCHASE.
SELLER'S DISCLOSURE:
(a) Presence of lead-based paint and/or lead-based paint hazards (check one
below):
Known lead-based paint and/or lead-based paint hazards are present in
--- the housing (explain).
Seller has no knowledge of lead-based paint and/or lead-based paint
--- hazards in the housing.
Records and reports available to the Seller (check one below):
Seller has provided the buyer with all available records and reports
--- pertaining to lead-based paint and/or lead-based paint hazards in the
housing (list documents below).
Seller has no knowledge of lead-based paint and/or lead- based paint
--- hazards in the housing.
SELLER'S INITIALS:
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PURCHASER'S ACKNOWLEDGMENT
(a) Purchaser has received copies of all information listed above.
(b) Purchaser has received the pamphlet "Protect Your Family from Lead in Your
Home."
(c) Purchaser has (check one below):
Received a 10-day opportunity (or mutually agreed upon period) to
--- conduct a risk assessment or inspection for the presence of lead-based
paint and/or lead-based paint hazards; or
Waived the opportunity to conduct a risk assessment or inspection for
--- the presence of lead-based paint and/or lead-based paint hazards.
PURCHASER'S INITIALS:
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