AGREEMENT OF SALE
THIS AGREEMENT, made this day of November, 1996, by and between CLOVER
APPRECIATION PROPERTIES I, L.P., a Delaware Limited Partnership, of ▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, hereinafter referred to as Seller, and
STRAND INC., a Texas Corporation, of Vancouver Centre, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇, hereinafter referred to as
Buyer.
WHEREAS, Seller is the owner of all that certain tract or parcel of land
and premises situate, lying and being in the 18th District of DeKalb County,
Georgia, commonly known and referred to as Royal Wood Apartments; and,
WHEREAS, Seller desires to sell to the Buyer and Buyer
desires to purchase from the Seller said Royal Wood Apartments pursuant to the
terms and conditions hereinafter set forth,
WITNESSETH THAT:
NOW, THEREFORE, in consideration of the mutual covenants, promises and
agreements contained herein, the parties hereto, intending to be legally bound
hereby, do covenant and agree with each other as follows:
1. PREMISES: The Seller does hereby agree to sell to the Buyer and the
Buyer does hereby agree to purchase from the Seller all that certain tract or
parcel of land and premises situate, lying and being in the 18th District of
DeKalb County, Georgia, commonly known and referred to as Royal Wood Apartments,
and being more particularly described in SCHEDULE A attached hereto and made a
part hereof, which is hereinafter referred to as the Premises.
2. PURCHASE PRICE: The total purchase price which the Buyer agrees to
pay to the Seller and which the Seller agrees to accept for the Premises is the
sum of SEVEN MILLION EIGHT HUNDRED THOUSAND ($7,800,000.00) DOLLARS, which
purchase price shall be paid by Buyer to Seller as follows:
(a) The sum of ONE HUNDRED THOUSAND ($100,000.00) DOLLARS (the
"Initial Deposit") simultaneously with the execution and delivery of this
Agreement and the further sum of FIFTY THOUSAND ($50,000.00) DOLLARS (the
"Second Deposit") on or before forty-five (45) days from the date hereof.
The Initial Deposit shall be hereinafter referred to as the "Deposit" and
the Second Deposit, when made, shall be included within the definition of
the "Deposit". The Deposit shall be deposited with the Escrow Agent, as
hereinafter defined, to be held subject to the terms and conditions
hereinafter set forth, and shall be treated as payment on account of the
purchase price if Closing is made for the Premises.
(b) At the time of Closing, as hereinafter provided, the further
sum of SEVEN MILLION SIX HUNDRED FIFTY THOUSAND ($7,650,000.00) DOLLARS on
account of the purchase price, subject to appropriate pro-rations and
credits provided for in this Agreement, at Seller's option, in cash, by
certified check or by federal funds wire transfer.
3. CLOSING: Closing shall take place on or before December 31, 1996
("Closing"), at 10:00 o'clock A.M. at the offices of Sherman, Silverstein, ▇▇▇▇,
▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇. Buyer shall have the right to extend the date of Closing to on or before
January 31, 1997 by serving written notice thereof upon the Seller on or before
December 15, 1996. The said time for Closing and the said extended time for
Closing as well as all other terms set forth in this Agreement are hereby agreed
to be of the essence of this Agreement. Tender of an executed Deed is hereby
waived.
4. TITLE AND CONVEYANCE: (a) The title to the Premises to be conveyed
at Closing by Seller to Buyer shall be conveyed in fee simple by limited
warranty deed (with the only covenants being against grantors acts). Title
shall be good and marketable and insurable as such by a reputable title
insurance company, but subject, however, to those exceptions set forth herein
and/or in SCHEDULE B attached hereto and made a part hereof.
(b) If title shall not be as aforesaid, then Buyer shall have the
option of either taking such title as Seller can convey without an abatement of
the purchase price, or of terminating and cancelling this Agreement and being
repaid the Deposit; the foregoing shall be Buyer's sole rights and remedies in
the event title shall not be as aforesaid; provided, however, Seller shall be
obligated to satisfy the existing Deed to Secure Debt, Assignment of Rents and
Security Agreement held by Aetna Life Insurance Company, a Connecticut
Corporation, encumbering the Premises and to cure any title defects which are
monetary in nature for a liquidated amount limited to the maximum total sum of
$100,000.00 and as to which there is no reasonable dispute.
5. POSSESSION: (a) At Closing, Seller shall deliver to Buyer actual
possession of the Premises by delivery of the Deed and keys, and by assignment,
without representation, warranty or recourse, of all existing leases affecting
the Premises or any part thereof, hereinafter referred to as the Leases. The
said assignment of all Leases shall include Buyer's assumption of all the
obligations contained in the Leases which are by the terms thereof the
responsibility of Seller and shall further include Buyer's agreement to
indemnify and save harmless the Seller from any and all claims made by tenants
with respect to the Leases arising from and after the date of Closing hereunder.
Seller shall likewise agree to indemnify Buyer from any and all written claims
made by tenants with respect to the leases arising prior to the Closing
hereunder; provided, however, that such indemnification of Seller to Buyer shall
expire, and claims thereon shall be made, prior to three (3) months following
the date of Closing. Such indemnifications shall also include any costs,
expenses and reasonable attorney's fees.
(b) Buyer and his agents shall have the privilege of entering upon
the Premises during normal working hours upon forty-eight (48) hours advance
notice to Seller, at reasonable times between the date hereof and the date of
Closing, for the purpose of making surveys and physical inspections of the
Premises, provided no such activity shall in any way interfere with any tenants
in the Premises. Seller will cooperate with Buyer in making such surveys and
inspections. Buyer shall indemnify and save harmless the Seller from any
liability, loss, cost or expense (including reasonable attorney's fees) arising
from or in connection with such entry upon the Premises; said indemnification
shall survive Closing and/or termination of this Agreement.
(c) In addition to and not in limitation of the rights and
privileges granted to the Buyer hereinabove in Paragraph 5(b), for a period from
the date hereof to December 15, 1996, Buyer is granted the right to conduct a
physical inspection (including a lead-based paint and/or lead-based paint hazard
inspection and/or risk assessment) of the Premises and all personal property
located thereon in such a manner as not to inconvenience the tenants and to
review all leases, books and records pertaining to the Premises. At any time
during said inspection period, Buyer shall have the right to cancel and
terminate this Agreement, in its sole discretion, by serving written notice
thereof upon Seller on or before the expiration of said inspection period; if
Buyer elects to terminate this Agreement as permitted herein, then this
Agreement shall be cancelled and terminated and the Deposit shall be returned to
Buyer and neither party hereunder shall have any further liability or obligation
to the other hereunder except with respect to the indemnifications contained in
this Paragraph 5(c), Paragraph 5(b) and Paragraph 22; if Buyer fails to exercise
its right to terminate this Agreement as permitted herein, then said right shall
automatically lapse, terminate and become null and void. Buyer shall indemnify
and save harmless the Seller from any liability, loss, cost or expense
(including reasonable attorney's fees) arising from or in connection with such
inspection and/or entry upon the Premises; said indemnification shall survive
Closing and/or termination of this Agreement.
6. APPORTIONMENTS, ADJUSTMENTS AND INCIDENTAL COSTS:
(a) The following items shall be apportioned pro rata between Seller and
Buyer as of midnight of the day immediately preceding the date of Closing:
1. Current collected rents, and prepaid rents, if any, under the
Leases;
2. Real estate taxes based on the fiscal year used by the taxing
authority;
3. Water and sewer charges;
4. Any lump sum payment and/or the annual installment(s), if any,
for the year in which Closing occurs for any assessment(s) imposed by any
county, municipal and/or governmental authority, based on the fiscal year
used by the taxing authority;
5. Gas, electricity, and other public utility company charges not
billed directly to tenants;
6. Fuel oil, if applicable;
7. Amounts due on any service contracts including, but not limited
to trash collection, exterminating, maintenance, and the like assigned by
Seller to Buyer pursuant to this Agreement;
8. Any other current charges incurred in connection with the normal
operation of the Premises.
(b) The Seller shall pay for the drawing of the Deed and the realty
transfer tax. Buyer shall pay for all title searches, title insurance, surveys,
recording of the Deed and any other conveyancing expenses.
(c) The amount of all security and other refundable deposits paid
by tenants together with tenant's portion of the interest earned thereon, if
such interest is required by applicable law, shall be paid or credited to Buyer
at Closing except with respect to those security and other refundable deposits
applied against the obligations of any tenants; and Buyer will thereafter assume
responsibility for repayment or proper application of such security and other
refundable deposits so paid or credited at Closing and tenant's portion of the
interest earned thereon, if such interest is required by applicable law, and
Buyer shall indemnify and save harmless the Seller from any and all claims made
by tenants with respect to said security and other refundable deposits and
interest earned thereon, if such interest is required by applicable law; such
indemnification shall also include any costs, expenses and reasonable attorneys'
fees.
(d) All sums collected by Buyer from tenants after Closing shall be
applied by Buyer first on account of current rents due Buyer and second on
account of sums due Seller for rents accrued prior to Closing. All sums due
Seller for rents accrued prior to Closing which are collected by Buyer from
tenants after Closing shall be disbursed by Buyer to Seller within fifteen (15)
days after receipt by Buyer.
(e) Buyer is accepting title subject to any assessments imposed by
any county, municipal and/or governmental authority payable on an annual basis,
and shall be responsible for all payments due therefore after Closing.
7. PROPERTY INCLUDED: This sale includes, for the consideration set
forth in Paragraph 2 hereof, and Seller shall at Closing transfer to Buyer by a
▇▇▇▇ of sale without representations, warranties or recourse except as to
covenants against Seller's acts only with respect to title (with respect to
those items for which a ▇▇▇▇ of sale is an appropriate instrument for transfer)
all of Seller's right, title and interest in and to all plumbing, heating, air
conditioning, lighting and electrical fixtures and equipment, together with all
equipment, fixtures, furnishings, appliances and personalty owned by Seller and
presently used in the operation of the Premises, including the items that appear
on SCHEDULE C attached hereto and made a part hereof.
8. CONDITION OF PREMISES: (a) Notwithstanding anything contained in
this Agreement to the contrary, except as otherwise set forth in this Agreement,
Seller makes no representation, either prior to or at the Closing, with respect
to the condition or character of the Premises or the use or uses to which the
Premises may be put. Buyer acknowledges that pursuant to Paragraph 5(c), Buyer
will carefully and thoroughly examine, inspect and investigate the Premises,
those items referred to hereinabove in Paragraph 7 and/or elsewhere in this
Agreement, and the Seller's operations (as to manner, income and expenses), and
Buyer will be fully satisfied with the same upon completion of the inspections
and examinations referred to in Paragraph 5(c); and Buyer is purchasing the same
on the basis of such examination, inspection and investigation and not in
reliance on any representation or warranty of Seller or any agent, employee or
representative of Seller of any kind or nature whatsoever. Accordingly, Buyer
hereby agrees to accept all of the assets being acquired by Buyer hereunder,
whether realty, personalty or mixed, on an absolutely and unconditionally "as
is" basis at the time of Closing.
(b) Notwithstanding Paragraph 8(a) above, Seller agrees that on or
before the date of Closing, Seller, at its expense, will repair the asphalt on
the parking lot, seal coat and stripe same, and make such repairs to the
concrete as may be required in Seller's sole discretion.
9. CONTINGENCY: Seller's and Buyer's obligation to close under this
Agreement is subject to and conditioned upon the receipt of any and all
approvals and consents necessary for Seller to consummate the transaction
contemplated by this Agreement. Seller will use its best efforts to endeavor to
obtain said approvals and consents. If all such approvals and consents
necessary for Seller to consummate the transaction contemplated by this
Agreement are not received on or before December 1, 1996, then this Agreement
shall be automatically cancelled and terminated, the Deposit shall be returned
to the Buyer, and neither party shall have any further liability or obligation
to the other hereunder except with respect to the indemnifications contained in
Paragraphs 5(b), 5(c) and 22.
10. RENT ROLL: Seller represents that SCHEDULE D attached hereto and
made a part hereof is a true and accurate Rent Roll; and to the best of Seller's
knowledge, the Leases are in full force and effect and not in default except as
otherwise disclosed in the Rent Roll. At Closing, Seller shall deliver an
updated Rent Roll certified to be true and correct as of such date.
11. VIOLATIONS: Seller represents that, to the best of its knowledge, as
of the date hereof Seller has not received any written notice of any
governmental violations respecting the Premises. In the event any such notices
are served or received prior to the date of this Agreement, then Seller will
correct any such violation, at Seller's sole cost and expense, prior to Closing.
If Buyer does not terminate this Agreement pursuant to Paragraph 5(c) hereof,
then, if between the date of this Agreement and the date of Closing, Seller
receives any written notice of any violations issued by any governmental
authority with respect to the Premises, Seller and Buyer will share equally the
cost and expense of correcting any such violations up to the maximum sum of
$50,000.00; if the cost to correct such violations exceeds the sum of
$50,000.00, then either Seller or Buyer shall have the right, but not the
obligation, to pay such excess and complete Closing hereunder; if neither Seller
nor Buyer elects to pay such excess, then this Agreement shall be cancelled and
terminated, and the Deposit shall be returned to the Buyer and neither party
hereunder shall have any further liability or obligation to the other hereunder
except with respect to the indemnifications contained in Paragraphs 5(b), 5(c)
and 22.
12. SERVICE OR OTHER AGREEMENTS: Seller represents that there are no
existing and outstanding agreements of sale or service or maintenance or other
contracts affecting the Premises, except such as are set forth in SCHEDULE E
attached hereto and made a part hereof, true copies of which have been
heretofore delivered to Buyer; at Closing Seller shall assign, without
representation, warranty or recourse, to Buyer such outstanding agreements
referred to in SCHEDULE E, which by their terms extend beyond the date of
Closing, which assignment shall include Buyer's assumption of all of the
obligations contained in said agreements which are by the terms thereof the
responsibility of Seller and shall further include Buyer's agreement to
indemnify and save harmless the Seller from any and all claims made thereunder
arising from and after the date of Closing hereunder which indemnity shall also
include any costs, expenses and reasonable attorney's fees. At the time of
Closing, the existing Management Agreement pertaining to the Premises shall be
terminated.
13. OPERATIONS PRIOR TO CLOSING: (a) Seller may rent any apartment on
the Premises now vacant or which becomes vacant prior to Closing and may extend
or renew Leases, provided such initial, extended or renewal term may not exceed
one (1) year and shall be effected on forms and under the terms in use by Seller
at the time of execution of this Agreement at a monthly rental equivalent to the
market rent for that type of unit. So long as Seller complies with the terms of
this Paragraph, it shall continue to operate and manage the Premises in the same
manner as it has done in the past, until Seller gives possession to Buyer at
Closing. At Closing, all vacant apartment units will be in rent ready condition
except for units which become vacant within five (5) days of Closing.
(b) Seller covenants and agrees with Buyer from the date hereof and
until the Closing, Seller shall:
(1) Perform all of its obligations under
agreements and instruments relating to or affecting the
Premises (including, without limitation, all Leases);
(2) Maintain the books of account and records for
the Premises in the usual, regular and ordinary manner;
and
(3) Not grant a mortgage, restriction or easement
further encumbering the Premises.
14. DOCUMENTS: (a) At Closing, Seller will deliver or cause to be
delivered to Buyer the aforesaid Deed; an assignment of all Leases and of
security deposits, together with tenant's portion of the interest earned
thereon, if required by applicable law, held by Seller thereunder; all Leases
affecting the Premises; an assignment of outstanding agreements as hereinabove
provided; any existing service contracts pertaining to items such as
maintenance, snow removal, laundry service, extermination, and the like; any
agreements for the rental of equipment used in connection with the normal
operation of the Premises; the aforesaid ▇▇▇▇ of Sale; an Affidavit stating that
Seller is not a "foreign person" within the meaning of IRC Section 1445(f)3;
notices to all tenants instructing tenants to make all future rent payments to
Buyer; and such other documents as may be reasonably required to effectuate this
Agreement.
(b) At Closing, Seller shall assign, to the extent assignable and
without representation, warranty or recourse, to Buyer any right Seller may have
to the name, Royal Wood Apartments, and any plans and drawings in Seller's
possession relating to the construction of or alterations to the Premises,
including without limitation, any permits and licenses, guarantees or warranties
received by Seller from any contractors or materialmen with respect to any work
or installations in the Premises as well as any guarantees or warranties
relating to personal property.
15. (a) Buyer's Status. Buyer represents and warrants to Seller that
Buyer is a corporation duly organized, validly existing and in good standing
under the laws of the State of Texas and same shall be true at the time of
Closing; Buyer has full power and authority to consummate the purchase of the
Premises as contemplated hereby, and all requisite action as required by law to
authorize the execution, delivery and performance hereof by Buyer has been
taken. At Closing, Buyer shall deliver to Seller such evidence and
documentation as Seller's counsel may reasonably require respecting Buyer in
order to verify the foregoing and the due and valid execution of any closing
documents required to be executed by Buyer hereunder.
(b) Seller's Status. Seller represents and warrants to Buyer that
Seller is a limited partnership duly organized, validly existing and in good
standing under the laws of the State of Delaware and same shall be true at the
time of Closing; Seller has full power and authority to consummate the sale of
the Premises as contemplated hereby, and all requisite action as required by law
to authorize the execution, delivery and performance hereof by Seller has been
taken (the foregoing is subject to compliance with the provisions of Paragraph 9
of this Agreement). At Closing Seller shall deliver to Buyer such evidence and
documents as Buyer's counsel may reasonably require respecting Seller in order
to verify the foregoing and the due and valid execution of any closing documents
required to be executed by Seller hereunder.
(c) Accuracy of Schedules. To the Seller's best knowledge, no fact
or reason exists why Buyer may not rely upon the accuracy in all material
respects of the Schedules attached to and made a part of this Agreement.
(d) Litigation. Seller has received no written notice of any
pending or threatened litigation, condemnation, investigation or other legal
proceeding affecting title to the Premises or any portion thereof, and Seller
has received no written notice of any actions, suits, proceedings, orders,
administrative proceedings or investigations, pending or threatened, against the
Premises, or to the title thereto except those claims covered by insurance.
(e) Assessments. No assessments have been made against the
Premises which are unpaid or shall not be paid in full at or prior to the
Closing (except those ad valorem taxes, if any, for the then current year which
are not yet due and payable), whether or not they have become liens; and Seller
has received no written notice of any assessments against the Premises for
public improvements not yet in place.
(f) Hazardous Substances. Seller represents and warrants that to
the best of Seller's knowledge, during Seller's ownership of the Property,
Seller has not received written notice that:
(i) any underground storage tanks have been placed on or
removed from the Property;
(ii) Seller has caused or permitted to be stored, disposed of,
transferred, produced, or processed on the Property "Hazardous
Substances" (as defined below) except in compliance with all
applicable federal, state and local laws or regulations;
(iii) "Release" (as defined below) of any Hazardous Substances
on the Property which might have a material adverse affect upon the
Property has occurred;
(iv) there are any enforcement, cleanup, removal or other
governmental or regulatory actions being instituted or threatened
against it or the Property; and
(v) any claims have been made by any third party or other
person with respect to the Property relating to damage,
contribution, cost recovery, compensation, loss, or injury resulting
from Hazardous Substances.
For purposes of this Contract, the term "Release" shall have the meaning
given to it under CERCLA, as amended and the term "Hazardous Substances" shall
mean asbestos, petroleum or petroleum byproducts, PCBs, and any other waste,
substance or material now or hereafter defined, listed or designated as
hazardous, toxic, a pollutant, waste, or otherwise harmful to human health or
the environment under any law, statute, regulation or ordinance.
16. CONDEMNATION OR CASUALTY: (a) The Premises and the personal
property shall be and remain until Closing, at the risk of Seller. Until the
date of Closing, Seller covenants that it shall maintain in full force and
effect, insurance covering the Premises for fire and extended perils. In the
event of any insured damage to any of the Premises in excess of the sum of
$200,000 ("Casualty"), the Buyer shall have the right to either take the
proceeds from such insurance and complete the transaction of purchase and sale
contemplated by this Agreement, or to declare this Agreement to be null and void
and have the Deposit returned with interest as may be herein provided. Seller
shall promptly notify Buyer of such Casualty and Buyer shall notify Seller of
Buyer's decision to proceed to Closing within five (5) days of receipt of
Seller's notification. In the event such damage to the Premises is less than
$200,000, or should the Buyer elect to take proceeds from such insurance and
complete the transaction, the Seller shall do all reasonable things as may be
necessary to obtain prompt payment of the proceeds from such insurance policy,
provided, however, Seller shall not be obligated to repair or restore the
Premises. Any cost and/or expense in connection with the foregoing or securing,
repairing and/or restoring the Premises shall be paid from the insurance
proceeds. At Closing, Seller shall pay to Buyer any applicable deductible under
the insurance policy(ies). After transfer of the Premises, the risk of loss
shall be assumed by Buyer.
(b) Without limiting the generality of the provisions of Paragraph
16(a), in the event there shall be a Casualty, and this Agreement is not
cancelled by the Buyer in accordance with the provisions of Paragraph 16(a), and
as a result of which Casualty, insurance proceeds have been paid or are payable
with respect to the value of lost rental income, then in such event said rental
income insurance proceeds shall be apportioned as and when collected as of the
Closing and Seller shall transfer and/or assign to Buyer at the Closing, the
right to receive the portion of such proceeds, if any, to which Buyer is
entitled pursuant to such apportionment.
(c) In the event of any uninsured damage to any of the Premises as
a result of fire or other casualty, the Seller shall have the obligation, to
repair and/or restore the Premises provided the cost thereof does not exceed One
Hundred Fifty Thousand ($150,000.00) Dollars. In the event of any uninsured
damage to any of the Premises as a result of fire or other casualty in excess of
One Hundred Fifty Thousand ($150,000.00) Dollars, the Seller shall have the
right, but not the obligation to repair and/or restore the Premises. In either
event Seller shall serve written notice thereof upon the Buyer within thirty
(30) days following receipt of written notice of such uninsured damage; if such
damage exceeds One Hundred Fifty Thousand ($150,000.00) Dollars and Seller fails
to exercise its right to repair and/or restore the Premises as aforesaid, then
Buyer shall have the right to proceed to Closing subject to the existence of
such uninsured damage or to terminate this Agreement and be repaid the Deposit
by serving written notice of its election upon the Seller within five (5) days
of receipt of Seller's aforesaid notification.
(d) If, at any time, prior to or on the date of Closing, any
material part of the Premises shall be taken or threatened to be taken, in the
exercise of the power of eminent domain by any sovereign, the Seller immediately
shall notify Buyer of such taking and provide Buyer with copies of all documents
relevant thereto. If within five (5) days after receiving written notice from
Seller of such undertaking, Buyer shall notify Seller of Buyer's election to
terminate this Agreement, the Deposit shall be paid over to Buyer. If Buyer
shall fail, within five (5) days of receiving Seller's notice, to notify Seller
of Buyer's election to terminate this Agreement, this Agreement shall remain in
full force and effect, without reduction in the Purchase Price, and on the
Closing, Seller shall transfer and/or assign to Buyer any and all monies and
claims, including, without limitation, Buyer's share of any monies and claims
relating to such taking.
(e) If less than a material part of the Premises is taken by
eminent domain, the obligations of the parties under this Agreement shall not be
impaired and this Agreement shall not be cancelled, and Seller shall, at
Closing, assign to Buyer all of Seller's right, title and interest in and to any
awards in condemnation, or damages of any kind, to which Seller is or may become
entitled, but has not received, by reason of any exercise of the power of
eminent domain with respect to or for the taking of any part of the Premises, or
credit on account of the purchase price by reducing the amount due Seller at
Closing, the amount of any such awards or damages which Seller has theretofore
received.
(f) The provisions contained in this Paragraph 16 are subject to
the rights of Aetna Life Insurance Company, the holder of the existing Deed to
Secure Debt, Assignment of Rents and Security Agreement encumbering the Premises
and the obligations contained therein.
17. OMITTED PRIOR TO EXECUTION
18. DEFAULT BY BUYER: In the event the Buyer fails to comply with or
otherwise defaults in its obligations to close as required under this Agreement,
the Deposit shall be retained by the Seller as liquidated damages; the foregoing
shall be Seller's sole remedy in the event Buyer fails to comply with or
otherwise defaults in any of the provisions of this Agreement. Notwithstanding
anything contained in this Paragraph 18 to the contrary, the indemnifications
contained in Paragraphs 5(b), 5(c) and 22 shall survive termination of this
Agreement and remain in full force and effect.
19. SURVIVAL: Except as otherwise specifically provided in this
Agreement, none of the covenants, conditions, representations, warranties, and
agreements of Seller contained in this Agreement shall survive Closing
hereunder, notwithstanding any legal presumption which may be to the contrary.
20. ASSIGNMENT: This Agreement of Sale shall not be assigned by Buyer
except to an entity affiliated with Buyer.
21. RECORDATION: The parties hereto agree that this Agreement of Sale
shall not be recorded by either party in any public recording office or
elsewhere. Recordation of this Agreement by Buyer shall be deemed to be a
substantial breach by Buyer of this Agreement and, at Seller's option, this
Agreement may thereby be declared to be null and void and Buyer hereby grants to
Seller, without further authorization, its Power of Attorney to do whatever is
necessary to make, execute, acknowledge and deliver any and all proper documents
and/or instruments in order to discharge the said recordation of this Agreement.
22. BROKERAGE: The parties represent and warrant to each other that no
finders, real estate brokers or other persons entitled to claim a fee or
commission have interested either of them in this transaction except The
Apartment Group, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇,
to which broker Buyer shall pay a brokerage fee or sales commission pursuant to
a separate agreement between Buyer and said broker for effecting this
transaction; otherwise the parties hereto expressly agree to indemnify and save
harmless each other of and from the payment of any and all finders' and brokers'
fees and commissions caused and/or created by the acts or conduct of the other.
The provisions of this paragraph shall survive Closing or the termination of
this Agreement.
23. ESCROW OF DEPOSIT: (a) The Deposit shall be held in escrow by
Sherman, Silverstein, ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A. and ▇▇▇ ▇. ▇▇▇▇▇▇ &
Associates, Attorneys-at-Law, herein referred to as Escrow Agent, who shall pay
the same over to the Seller at the time of Closing hereunder or shall pay the
same over to the party entitled thereto upon the cancellation or termination of
this Agreement of Sale, and in either event said Escrow Agent shall thereupon be
discharged from all liabilities therefor.
(b) Said Escrow Agent shall be responsible only for the safekeeping
of the Deposit and shall not be responsible for the resolution of any questions
of fact or law. In the event of a dispute arising between the parties, said
Escrow Agent is authorized to deposit the Deposit into Court or hold the same
until said dispute is resolved. The parties hereto understand and agree that in
the event of any such dispute, none of the parties hereto shall assert or allege
that Escrow Agent has a conflict of interest respecting its obligations
hereunder, and Escrow Agent shall be permitted to represent Seller in connection
with any such dispute.
(c) The Escrow Agent shall hold the Deposit in an interest-bearing
account in a federally insured bank or savings institution. The interest earned
on the Deposit being held in escrow shall be paid to the party entitled to the
Deposit pursuant to Paragraph 23(a) above.
24. DEFAULT BY SELLER: (a) In the event of Seller's default hereunder,
Buyer's sole remedies shall be that of specific performance without abatement of
purchase price or termination of this Agreement and return of the Deposit; in no
event shall Buyer be entitled to damages of any kind or nature; provided,
however, Buyer shall be entitled to reimbursement of Buyer's actual out-of-
pocket expenses in performing under this Agreement, not to exceed the sum of
$1,000.00.
(b) With respect to any representations or warranties of Seller contained
in this Agreement, Buyer's obligations hereunder are contingent upon such
representations and/or warranties contained in this Agreement being true and
correct as of the date hereof and where the context indicates, as of the date of
Closing, but recision of this Agreement and return of the Deposit shall be
Buyer's exclusive remedy for any breach of any representation and/or warranty by
Seller.
25. ENTIRE AGREEMENT: This Agreement constitutes and expresses the whole
agreement of the parties hereto with reference to the subject matter hereof and
to any of the matters or things herein provided for or hereinbefore discussed or
mentioned in reference to the subject matter hereof; all prior promises,
undertakings, representations, agreements, understandings and arrangements
relative thereto being herein merged.
26. MODIFICATION: This Agreement may not be modified, altered, amended
or changed except by an instrument in writing duly and validly executed by the
parties hereto.
27. CONSTRUCTION: This Agreement shall be governed by and construed
according to the laws of the State of Georgia.
28. WAIVER: Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant or condition, nor shall any waiver or relinquishment of any right
or power hereunder at any one time or more times be deemed a waiver or
relinquishment of such right or power at any other time or times.
29. NOTICES: (a) All notices to be given by either party to the other
shall be in writing, shall be served in person, by Federal Express or other
overnight delivery, or by depositing such notice in the United States mails,
certified, with certification and postage charges prepaid, properly addressed
and directed to the party to receive the same as follows:
As to the Seller:
Clover Appreciation Properties I, L.P.
A Delaware Limited Partnership
ATTN: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
cc: Sherman, Silverstein, ▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.A.
ATTN: M. ▇▇▇ ▇▇▇▇, Esquire
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
As to the Buyer:
Strand Inc.,
A Texas Corporation
ATTN: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior Vice President
Vancouver Centre
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇ (Ext. #513)
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
cc: ▇▇▇ ▇. ▇▇▇▇▇▇, Esquire
▇▇▇ ▇. ▇▇▇▇▇▇ & Associates
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
FAX No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) Either party may designate a different person or entity or
place to or at which notices shall be given by delivering a written notice to
that effect to the other party, which notice shall be effective after the same
is actually received by the other party. In lieu of mailing, the parties may
deliver any such notice, documents or papers to the aforesaid addresses.
30. CAPTIONS: The captions contained herein are not a part of this
Agreement. They are only for the convenience of the parties and do not in any
way modify, amplify, or give full notice of any of the terms, covenants or
conditions of this Agreement.
31. NUMBER AND GENDER: For purposes of this Agreement, the masculine
shall be deemed to include the feminine and the neuter, and the singular shall
be deemed to include the plural, and the plural the singular, as the context may
require.
32. BINDING EFFECT: This Agreement of Sale shall inure to the benefit of
and be binding upon the parties hereto and their respective legal or personal
representatives, heirs, executors, administrators, successors and assigns.
33. LEAD-BASED PAINT DISCLOSURE: Attached hereto and made a part hereof
and marked SCHEDULE F is a completed and executed Disclosure of Information on
Lead-Based Paint and Lead-Based Paint Hazards together with a copy of the
Pamphlet "Protect Your Family From Lead In Your Home" as required by the
Residential Lead-Based Paint Hazard Reduction Act of 1992 and the regulations
promulgated thereunder.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have caused this Agreement to be signed the day and year first above
written.
SIGNED, SEALED AND DELIVERED CLOVER APPRECIATION PROPERTIES I,
IN THE PRESENCE OF: L.P.,
A Delaware Limited Partnership
BY: CROWN MANAGEMENT CORPORATION,
A New Jersey Corporation,
General Partner
BY:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Vice President
STRAND INC.,
A Texas Corporation
BY:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Senior
Vice President