Exhibit 10.1
Chalet
AGREEMENT FOR PURCHASE AND SALE
THIS AGREEMENT, dated June 25, 2001 (the "Effective Date"), is made among
Garden Chalet I L.P., a Delaware limited partnership ("Chalet I Seller") and
Chalet II Associates, a Kansas general partnership ("Chalet II Seller"), each
with offices at 00000 Xxxxx Xxxxxxx Xxxxxxxxxx, Xxxxxx, Xxxxx 00000 (Chalet I
Seller and Chalet II Seller being collectively referred to as "Seller"), and
KelCor, Inc., a Missouri corporation, with offices at 000 Xxxxxx Xxxx, Xxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000 ("Purchaser").
Witnesseth That Purchaser and Seller Have Agreed as Follows:
ARTICLE 1
AGREEMENT FOR PURCHASE AND SALE
Seller agrees to sell and cause to be conveyed to Purchaser, and Purchaser
agrees to purchase, the following property (collectively, the "Project"):
(a) The real property located in the County of Shawnee, State of Kansas,
described on EXHIBIT 1.1a (the "Chalet I Land") together with the existing
improvements thereon situated (together, the "Chalet I Property");
(b) The real property located in the County of Shawnee, State of Kansas,
described on EXHIBIT 1.1a (the "Chalet II Land") together with the existing
improvements thereon situated (together, the "Chalet II Property")(the Chalet I
Land and the Chalet II Land are collectively referred to as the "Land")(the
Chalet I Property and the Chalet II Property are collectively referred to as the
"Property");
(c) The Seller's interest in any leases affecting the Property;
(d) Seller's right, if any, to the use of the names "Chalet I Apartments"
in connection with the Chalet I Property and "Chalet II Apartments" in
connection with the Chalet II Property;
(e) All fixtures and articles of personal property attached or appurtenant
to or used in connection with the Property which are owned by Seller and located
at the Property, free from all liens and encumbrances except those permitted by
this Agreement, as described on EXHIBIT 1.1(e).
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ARTICLE 2
PURCHASE PRICE
2.1 The purchase price (the "Purchase Price") for the Project is Seven
Million Nine Hundred Twenty Five Thousand and 00/100 Dollars ($7,925,000.00),
payable as follows:
(a) An amount, in cash, equal to the excess of the Purchase Price
above the principal balance of the Note (defined below) on the Closing Date (the
"Cash Portion of the Purchase Price"), shall be paid in federal funds for
immediate credit to Seller on the Closing Date, in such manner, place and
account as Seller may, by prior notice, instruct.
(b) By Purchaser's assumption of and taking the Project subject to the
lien of a Multifamily Mortgage, Assignment of Rents and Security Agreement
(together with any other instrument securing the hereinafter described Note, the
"Chalet I Mortgage") dated September 11, 1998 made by Seller for the benefit of
Xxxxxxx, Xxxxx & Associates whose interest has been assigned to Xxxxxx Mae
("Lender"), securing payment of a $4,240,000 promissory note of even date
therewith (the "Chalet I Note").
(c) By Purchaser's assumption of and taking the Project subject to the
lien of a Multifamily Mortgage, Assignment of Rents and Security Agreement
(together with any other instrument securing the hereinafter described Note, the
"Chalet II Mortgage") dated September 11, 1998 made by Seller for the benefit of
Xxxxxxx, Xxxxx & Associates whose interest has been Lender, securing payment of
a $1,600,000 promissory note of even date therewith (the "Chalet II Note")(the
Chalet I Mortgage and Chalet II Mortgage being collectively referred to as the
"First Mortgage")(the Chalet I Note and Chalet II Note being collectively
referred to as the "Note").
2.2 (a) Upon the execution of this Agreement, Purchaser shall deliver the
sum of $60,000, to the Title Company identified in Article 5 ("Escrow Agent") to
be held in escrow pursuant to the terms of this Agreement pending the Closing.
(b) As used in this Agreement, the term "Deposit" shall mean any sums
and instruments and accrued interest thereon, if any, held by Escrow Agent
hereunder. If Purchaser desires to terminate this Agreement pursuant to a
specific right granted to Purchaser in any section of this Agreement, Purchaser
shall effect such termination by giving written notice thereof to Seller and
Escrow Agent within any applicable time period provided therefore in this
Agreement, and upon receipt of such notice, the Escrow Agent shall return the
Deposit to Purchaser, this Agreement shall wholly cease and terminate, no party
to this Agreement shall have any further claim against, or obligation to, any
other party to this Agreement, and the lien, if any, of Purchaser against the
Project shall automatically cease and terminate.
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ARTICLE 3
PHYSICAL CONDITION OF PROJECT, ETC.
3.1 Purchaser will inspect the Project during the hereinafter described
Inspection Period to the extent Purchaser deems necessary in connection with the
transactions contemplated by this Agreement. Purchaser acknowledges that Seller
has not made and does not make and is unwilling to make any express or implied
representations or warranties as to the present, past or future physical
condition, income, expenses, operation, legality of occupancy or any other
matter affecting or related to the Project except as specifically set forth in
this Agreement. No representation, warranty or covenant made by Seller in this
Agreement or any document delivered pursuant hereto shall survive the Closing
except as expressly provided in this Agreement. Purchaser agrees to purchase the
Project in its "AS IS" condition. Purchaser has not relied upon, and Seller is
not liable or bound in any manner, by any verbal or written statements,
representations, real estate brokers' "setups" or information pertaining to the
Project furnished by any real estate broker, agent, employee, servant or other
persons unless the same are expressly set forth in this Agreement. The delivery
of the deed by Seller, and the acceptance of the deed by Purchaser, shall be
deemed to be the full performance and discharge of every obligation of Seller to
be performed under this Agreement prior to the Closing Date and the truth or
waiver of every representation or warranty made by Seller in this Agreement or
in any Exhibit attached hereto or in any document, certificate, affidavit or
other instrument delivered by Seller or its agents at or in connection with the
Closing, except for those warranties, representations and obligations of Seller
which this Agreement expressly provides are to survive the Closing.
3.2 Seller represents and warrants to Purchaser as follows:
(a) Seller is a limited partnership duly formed, validly existing and
in good standing in the State of Delaware and is qualified to the extent
necessary in the jurisdiction in which the Project is located. Seller has full
power and authority to enter into and perform this Agreement. Subject to any
requirement of Board approval contained in this Agreement, the execution,
delivery and performance of this Agreement by Seller has been duly and validly
authorized by all necessary action on the part of Seller.
(b) Seller has received no notice of condemnation of any part of the
Property and there are no pending condemnation proceedings regarding the
Property.
(c) All leases and lease correspondence delivered in furtherance of
Purchaser's inspection of the Project have been prepared and assembled in the
ordinary course of business by Seller's fee manager and are believed by Seller
to be true, complete and accurate.
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(d) The rent roll to be delivered to Purchaser by Seller during the
Inspection Period (the "Rent Roll") is an accurate and complete list of all
presently effective leases with tenants leasing apartment units at the Property
as of the date set forth thereon.
(e) The operating statements of the Project to be delivered by Seller
to Purchaser during the Inspection Period were prepared in the ordinary course
of business by Seller's fee manager, are believed by Seller to be accurate, and
have been relied upon by Seller.
(f) Seller has not received any written notice from a governmental
authority wherein such authority alleges that the Property does not comply with
applicable law, which violation remains uncured.
(g) There is no litigation or arbitration or other legal or
administrative suit, action, proceeding of any kind pending against or involving
Seller relating to Seller's ownership of the Property or any part thereof or, to
Seller's actual knowledge, threatened against Seller, that would impair Seller's
ability to perform its obligations under this Agreement.
(h) Seller is not a "foreign person" as defined in ss.1445 of the
Internal Revenue Code of 1986, as amended, and the Income Tax Regulations
thereunder.
(i) Seller owns fee simple title to the Property.
(j) No tenant under a Lease has any purchase option or other interest
(other than its leasehold tenancy) in the Property.
(k) Prior to Closing, Seller (i) shall continue to lease units at the
Project in accordance with its normal business practices and shall continue to
operate and maintain the Project in accordance with its prior practices, (ii)
shall not enter into any lease for the use or occupancy of any apartment at the
Project with a term in excess of twelve (12) months, (iii) will not enter into
any written or oral service contract with respect to the Property that will not
be fully performed by Seller on or before the Closing Date, or that will not be
cancellable by Purchaser without liability on or after the Closing Date on not
more than thirty days notice, without Purchaser's prior written consent, (iv)
will advise Purchaser if any governmental or legal proceeding are instituted or,
to Seller's knowledge, threatened affecting the Property, (v) upon Purchaser's
request, will provide Purchaser with an updated Rent Roll, (vi) shall advise
Purchaser promptly upon obtaining knowledge that any representation and warranty
of Seller contained herein has become untrue, and (vii) upon reasonable notice,
will provide Purchaser and Purchaser's agents and representatives access to such
Property at reasonable times.
(l) During the Inspection Period, Seller shall deliver to Purchaser
copies of any termite inspection reports or other information concerning
termites at the Property in Seller's possession.
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If, at any time prior to Closing, Seller shall discover that any representation
or warranty contained in this Section 3.2 is, or has become, inaccurate in any
material respect, Seller shall so notify Purchaser in writing (the "Correction
Notice"), and Purchaser shall, as its sole remedy, have the right by notice
given in writing not more than five (5) business days after receipt of the
Correction Notice to terminate this Agreement and receive a refund of the
Deposit.
The representations and warranties contained in this Section 3.2 shall survive
Closing for a period of one year.
ARTICLE 4
PERMITTED ENCUMBRANCES TO TITLE
Purchaser agrees to accept title to the Property subject to the following
matters (collectively, the "Permitted Encumbrances"):
(a) Leases and tenancies affecting the Property.
(b) Liens securing payment of all ad valorem, intangible and other
real and personal property taxes, special and general assessments, school taxes,
and water and sewer charges against the Property or the personal property
covered by this Agreement for the tax year in which the Closing Date occurs and
subsequent years, and the lien of any special taxes not entered of record
against the Property on the Closing Date.
(c) Any state of facts which an accurate survey or inspection of the
Property would disclose.
(d) Matters approved or deemed approved by Purchaser pursuant to
Article 5 of this Agreement.
(e) The First Mortgage.
ARTICLE 5
CONDITION OF TITLE, TITLE INSURANCE
5.1 Seller shall promptly obtain from Commonwealth Land Title Insurance
Company, 0000 Xxxxxx Xxxx, Xxx. 000, Xxxxxx, Xxxxx 00000 Attn: Xxxxx Xxxxx
(214-373-6100) (the "Title Company") a preliminary title report or commitment
prepared by Commonwealth Land Title Insurance Company or Lawyers Title Insurance
Corporation (the "Title Commitment") to issue an Owner's Policy of Title
Insurance (the "Title Policy") insuring Purchaser's title to the Property
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to be good and indefeasible in the amount of the Purchase Price, subject only to
the Permitted Encumbrances and other liens and encumbrances not constituting
objections to title in accordance herewith. A copy of the Title Commitment,
Seller's existing survey, and the documents of record reflected in the Title
Commitment shall be furnished to the attorneys for Purchaser. Within five (5)
business days after Purchaser's attorney receives the Title Commitment,
Purchaser shall give written notice (the "Objection Notice") to the attorneys
for Seller of any conditions of title which Purchaser is not obligated to take
the Property subject to pursuant to the provisions of this Agreement (the
"Objections") separately specifying and setting forth each of such Objections.
Seller shall be entitled to reasonable adjournments of the Closing Date to cure
the Objections. If Purchaser gives Seller an Objection Notice within the five
(5) business day period set forth above, then all matters disclosed on the Title
Commitment which are not objected to in such Objection Notice shall be deemed to
be Permitted Encumbrances. If Purchaser fails to give Seller an Objection Notice
within the five (5) business day period set forth above, then all matters
disclosed on the Title Commitment shall be deemed to be Permitted Encumbrances.
5.2 Seller shall not be required, however, to expend any money or bring any
action or proceeding or do any other thing in order to deliver the Project or
title to the Property as required by this Agreement. If Seller gives Purchaser
notice (the "Response Notice") that Seller is unable to convey the Project or
title to the Property as required by this Agreement, Purchaser may, as its
exclusive remedy, elect by written notice given to Seller within five (5) days
after the Response Notice is given, either (a) to accept such title as Seller is
able to convey without any reduction or abatement of the Purchase Price, or (b)
to terminate this Agreement in which event the Deposit shall be returned to
Purchaser.
If Purchaser fails to give notice of its election to terminate this Agreement
within such five (5) day period, Purchaser shall be deemed to have waived said
objections and to have elected to proceed to close the transactions contemplated
by this Agreement.
5.3 Unpaid liens for real estate and personal property taxes for years
prior to the fiscal year in which the Closing Date occurs and any other matter
which Seller is obligated to pay and discharge at the Closing shall not be
deemed objections to title, but the amount thereof chargeable to Seller, plus
interest and penalties thereon, if any, shall be deducted from the Cash Portion
of the Purchase Price on the Closing Date and paid to the Title Company for the
payment of such matters.
5.4 Purchaser shall pay all costs related to the assumption of the First
Mortgage, including all costs imposed by the Lender, the cost of any survey
update, the cost of survey deletion and any endorsements to the Title Policy,
one half of the Title Company escrow fees and all recording costs and expenses
in connection with the Closing. Seller shall pay the documentary transfer tax on
recording the deed, if any, the base premium of the Title Policy, and one half
of the Title Company escrow fees.
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ARTICLE 6
CLOSING
6.1 The consummation of the transactions described in this Agreement (the
"Closing") shall occur five (5) days after the Loan Approval Date (as defined
below); provided, however, that if such date falls on a Saturday, Sunday, or
holiday on which banks located in the vicinity of the Property are closed, the
Closing shall occur on the second business day thereafter (the "Closing Date")
commencing at 10:00 A.M. local time, at the offices of the Title Company. TIME
IS OF THE ESSENCE IN REGARD TO THE PERFORMANCE BY PURCHASER AND SELLER OF ALL OF
THE PROVISIONS OF THIS AGREEMENT.
6.2 Upon the parties' delivery of all required documents and instruments
and Purchaser's payment of the Cash Portion of the Purchase Price and other
amounts required herein, Purchaser and Seller shall prepare and sign a closing
statement reflecting the adjustments and payments made and agreements in
connection therewith. Seller shall deliver a copy of the closing statement and
all of the aforesaid documents to the Title Company which shall do the
following:
(a) Record the deed.
(b) Deliver to Seller and Purchaser or other appropriate party the
documents and payments delivered to it as escrow holder for delivery to such
party.
(c) Pay all recording taxes and transfer fees and all filing fees
reflected on the closing statement.
(d) Issue the Title Policy
ARTICLE 7
DOCUMENTS REQUIRED ON CLOSING DATE
7.1 At or prior to the Closing, Seller shall execute and/or deliver the
following to Purchaser:
(a) Special Warranty Deed conveying fee simple title to Purchaser,
subject only to the Permitted Encumbrances
(b) Xxxx of Sale and Assignment of Leases, Warranties and Service
Contracts, in form reasonably acceptable to Purchaser and Seller, pursuant to
which Seller assigns and
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conveys to Purchaser (i) all personal property covered by this Agreement, (ii)
all service contracts and all other service agreements relating to the Project,
and (iii) Seller's interest as landlord in and to all tenant leases of portions
of the Property.
(c) Plans and specifications for the Property, if in the possession of
Seller or Seller's property manager, which shall be delivered to Purchaser at
the Property.
(d) A rent roll for the Property (the "Rent Roll") listing each
tenant, the monthly base rent payable, lease expiration date and unapplied
security deposit as of the Closing Date, certified by Seller to be true and
accurate.
(e) The originals or copies of the leases described in the Rent Roll,
which shall be delivered to Purchaser at the Property.
(f) Authority documents of Seller in form satisfactory to the Title
Company.
(g) All costs and fees required to be paid by Seller pursuant to this
Agreement.
(h) Such other documents and instruments as may be required by this
Agreement or by the Title Company in order to consummate the transactions
described in this Agreement.
(i) A non foreign affidavit for Seller complying with the requirements
of Internal Revenue Code Section 1445(f)(3) and the regulations promulgated
thereunder.
(j) Upon consummation of Closing and Seller's receipt of the Purchase
Price, Purchaser shall be given possession of the Property.
7.2 At or prior to the Closing, Purchaser shall execute and/or deliver the
following to Seller:
(a) The Cash Portion of the Purchase Price.
(b) Assumption by Purchaser of Seller's obligations under the leases
and service contracts from and after Closing.
(c) Authority documents of Purchaser satisfactory to the Title
Company.
(d) All costs and fees required to be paid by Purchaser pursuant to
this Agreement.
(e) A written notice of the acquisition of the Property by Purchaser,
originally executed by Seller and Purchaser, which Seller shall transmit to all
tenants and to other parties
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affected by the sale and purchase of the Property. Such notice shall be prepared
by the Seller, and shall inform the addressees of the sale and transfer of the
Property to Purchaser and contain appropriate instructions relating to the
payment of future rentals, the giving of future notices, and other matters
reasonably required by Purchaser. The said notices shall specify that unapplied
security deposits under the tenant leases have been delivered to the Purchaser
and that the Purchaser is responsible for the refund thereof and shall be
adequate under local law to relieve Seller of all liability for return of such
deposits.
(f) Such other documents and instruments as may be required in this
Agreement or by the Title Company in order to consummate the transactions
described in this Agreement.
ARTICLE 8
APPORTIONMENTS AND ADJUSTMENTS
8.1 Seller shall be responsible for and pay all accrued expenses with
respect to the Project accruing up to 11:59 P.M. on the day prior to the Closing
Date (the "Adjustment Date") and shall be entitled to receive and retain all
revenue from the Project accruing up to the Adjustment Date.
8.2 On the Closing Date, the following adjustments and apportionments shall
be made in cash as of the Adjustment Date:
(a) (i) Rents for the month in which the Closing Date occurs (the
"Closing Month"). If past due rents or other sums are owing by tenants for any
period prior to the Closing Month (the "Rent Arrearages"), then promptly after
the Closing Date Purchaser shall xxxx all tenants for such sums and shall use
its reasonable efforts to collect all Rent Arrearages. Rents collected after
Closing will be applied first to current rents due and then to Rent Arrearages.
In determining the amounts required to be paid to Seller pursuant to the
immediately preceding sentence, Purchaser shall not be permitted to accept any
rentals or other amounts from tenants more than five (5) days in advance of the
due dates therefor. If, as and when the Purchaser collects payments from a
tenant on account of Rent Arrearages, Purchaser shall hold such funds as trustee
for Seller and shall pay an amount equal to the Rent Arrearages to Seller within
ten (10) days after Purchaser or its agent receives each such payment.
(ii) After the Closing for a period of five months, at Seller's
request Purchaser shall deliver to Seller a monthly collection report showing
the sum, if any, paid by each tenant at the Property with Rent Arrearages and
the unpaid balance owed by such tenant pursuant to its lease through the end of
such calendar month; such collection report shall be delivered to Seller within
ten (10) days after request until the earlier of: (a) five months after Closing,
and (b)
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when Seller has received all Rent Arrearages. The Seller shall have the right to
review and audit the Purchaser's records with respect to the Rent Arrearages
payable to or collected by Purchaser.
(b) Real estate taxes, ad valorem taxes, school taxes, assessments and
personal property, intangible and use taxes, if any.
(c) Charges under service contracts affecting the Project on the
Closing Date and utility charges and deposits relating to the Project.
(d) Income from users of vending machines and tenant services, if any.
Laundry lease bonus money, decoration allowances or other non-recurring income
shall not be prorated.
(e) Accrued and unpaid interest under the First Mortgage.
8.3 At the Closing, Purchaser will receive a credit against the Cash
Portion of the Purchase Price in an amount equal to all unapplied security
deposits payable to tenants under leases in effect on the Closing Date against
Purchaser's receipt and indemnification therefor. Upon making such credit,
Purchaser will be deemed to have received all such security deposits and shall
be fully responsible for the same as if a cash amount equal to such security
deposits were actually delivered to Purchaser. Prior to the Closing, Seller
reserves the right to apply all security deposits as provided under the
respective leases.
8.4 At the Closing, Seller shall receive a cash credit in an amount equal
to the sum of all amounts held in escrow by the holder of the First Mortgage for
insurance premiums, taxes, replacements, repairs or any other matter pursuant to
the terms of such First Mortgage.
8.5 At Closing no more than 50% of the vacant units at the Property shall
not be in rent- ready condition and the non-rent ready units will have operating
appliances and plumbing in working order. If more than 50% of the vacant units
at the Property are not in rent-ready condition at Closing, Purchaser shall
receive a credit in the amount of $1,000 for each unit in excess of 50% of the
vacant units at the Property that is not in rent-ready condition; provided that
in no event shall the credit to Purchaser under this provision exceed $13,000.
As used herein, rent-ready condition shall mean such unit is cleaned, repaired
and recently painted with appliance package and plumbing in good working order
in accordance with Seller's prior practices. Representatives of the Seller and
Purchaser shall inspect the vacant units on the day prior to Closing to
determine the number of units not in rent-ready condition.
8.6 The provisions of this ARTICLE 8 shall survive the Closing.
ARTICLE 9
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REMEDIES
9.1 If Purchaser fails to purchase the Project pursuant to this Agreement
because of Purchaser's failure to perform its obligations hereunder, then Seller
shall have the right to terminate this Agreement by giving Purchaser and the
Escrow Agent written notice thereof and, upon receipt of such notice, the Escrow
Agent shall deliver the Deposit to Seller which shall retain the same as
liquidated damages (Seller and Purchaser hereby acknowledging that the amount of
damages resulting from a breach of this Agreement by Purchaser would be
difficult or impossible to accurately ascertain and that Seller's damages would,
in any event, be substantial and would exceed the Deposit) and upon Seller's
receipt of the Deposit, this Agreement shall wholly cease and terminate, no
party to this Agreement shall have any further claim, agreement, or obligation
to any other party to this Agreement, and any lien of Purchaser against the
Project shall automatically cease, terminate and be released.
9.2 If the sale contemplated by this Agreement is not consummated because
of Seller's failure to perform its obligations hereunder, Purchaser shall be
entitled, as its exclusive remedies, to elect either (a) to terminate this
Agreement and have the Deposit returned to it or (b) to enforce specific
performance of Seller's obligations under this Agreement; provided, however,
that Seller shall not be required to expend any money other than the amounts
provided in this Agreement, or take any action other than as provided in this
Agreement, in connection with such specific performance.
9.3 The non breaching party shall also be entitled to recover against the
breaching party its costs and expenses, including reasonable attorneys fees and
court costs, incurred by such non breaching party in enforcing any of the its
remedies hereunder.
ARTICLE 10
DAMAGE, DESTRUCTION OR CONDEMNATION
10.1 Seller agrees to maintain its present (or similar) policies of fire
insurance covering the Project in full force and effect from the date of this
Agreement through and including the Closing Date.
10.2 If on or before the Closing Date either (a) all or a substantial part
of the improvements on the Land is damaged or destroyed by fire or the elements
or by any other cause, or (b) all or a substantial part of the Property is taken
by condemnation or other power of eminent domain, Purchaser or Seller may, by
written notice given to the other within ten (10) days after Purchaser shall
have notice of the occurrence or the taking (but in no event after the Closing
Date), elect to terminate this Agreement.
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10.3 If either (a) a substantial part of the improvements on the Land is
damaged or destroyed or a substantial part of the Property is taken by
condemnation or other power of eminent domain but this Agreement is not canceled
as provided in Section 10.2, or (b) on or before the Closing Date, an
insubstantial part of the improvements on the Land is damaged or destroyed or an
insubstantial part of the Property is so taken, then neither Seller nor
Purchaser shall have the right to terminate this Agreement based upon such
damage, destruction or taking, and on the Closing Date,
(i) Seller shall credit the Cash Portion of the Purchase Price
with an amount equal to any sums of money collected by Seller under its policies
of insurance or renewals thereof insuring against the loss in question (after
deducting any amount that Seller shall have paid, agreed to pay, or shall have
been obligated to pay for repairs or restoration of the damage), and Seller
shall assign, transfer and set over to Purchaser all of Seller's right, title
and interest in and to said policies with respect to the Property and any
further sums payable under said policies (provided that in no event shall the
credits and insurance assigned exceed the unrepaired damage), and
(ii) Seller shall assign, transfer and set over to Purchaser all
of Seller's right, title and interest in and to any awards that may be made for
any taking by condemnation or other power of eminent domain.
10.4 For the purposes of this Article, a substantial part of the Property
or the improvements on the Land shall be deemed to mean a portion having a value
of $150,000 or more or which would require expenditure of $150,000 or more for
repair or restoration.
ARTICLE 11
BROKER
11.1 Purchaser represents and warrants to Seller that neither Purchaser nor
any entity related to Purchaser has dealt with any broker or other person or
entity who would be entitled to a commission or other brokerage fee from Seller
in connection with the transactions described in this Agreement. Purchaser
agrees to indemnify, defend and hold the Seller harmless of and from any loss,
cost, damage or expense (including reasonable attorneys' fees and court costs)
arising out of any inaccuracy in the representation or warranty made by
Purchaser in the preceding sentence.
11.2 Seller represents and warrants to Purchaser that neither Seller nor
any entity related to Seller has dealt with any broker or other person or entity
who would be entitled to a commission or other brokerage fee from Purchaser in
connection with the transactions described in this Agreement. Seller shall pay a
fee equal to 0.5% of the Purchase Price to The Xxxxxxx Corporation if, as and
when the Closing occurs and the Purchase Price is received by Seller, but
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not otherwise. Seller agrees to indemnify, defend and hold the Purchaser
harmless of and from any loss, cost, damage or expense (including reasonable
attorneys' fees and court costs) arising out of any inaccuracy in the
representation or warranty made by Seller in the preceding sentences.
11.3 Notwithstanding any other provision of this Agreement to the contrary,
the provisions of this Article shall survive the Closing and any prior
termination of this Agreement for any reason whatsoever.
ARTICLE 12
NOTICES
Any notice given or required to be given pursuant to any provision of this
Agreement shall be in writing and shall either be personally delivered or sent
by a reputable commercial courier service guaranteeing overnight delivery or
sent by telecopy, and shall be deemed to have been given upon receipt if
personally delivered or sent by telecopy, or, upon delivery to such courier,
with delivery charges prepaid, if sent by such a courier, in any case addressed
as follows:
Purchaser: KelCor, Inc.
000 Xxxxxx Xxxx
Xxxxx Xxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxx
Fax: 000-000-0000
Phone: 000-000-0000
E-mail: xxxxxxxx00@xxxxx.xxx
with a copy to: Xxxxxx X. Xxxxxxx
0000 Xxxxxxxxx, Xxxxx 000
Xxxxxx Xxxx, XX. 00000
Fax: 000-000-0000
Phone: 000-000-0000
E-mail: xxxxxxxx@xxx.xxx
Seller: Garden Chalet I L.P.
Chalet II Associates
0000 Xxxxxx Xxxx Xxxx, Xxx. 000
Xxxxxx, XX 00000
Attn: XxXxxx Xxxx
Fax: 000-000-0000
Phone: 000-000-0000
E-mail: XxXxxx.Xxxx@xxxxxx.xxx
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with a copy to: Xxxx X. Xxxxxxxxx, Esq.
000 Xxxx 00xx Xx., #0X
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
Phone: 000-000-0000
E-mail: XXxxxxxxxx@xxx.xxx
Either party may, by giving notice to the other in the manner set forth
above, change the address to which notices shall be sent to it, provided that
any such change of address shall be effective three (3) days after it is given.
The attorney for each party to this Agreement may give notices on behalf of his
client with the same force and effect as if such notice was given directly by
such party.
ARTICLE 13
NO ASSIGNMENT
Neither the rights of Purchaser hereunder, nor any portion thereof, may be
assigned. provided, however, that upon not less than five (5) days' prior
written notice, which notice to be effective must be accompanied by an executed
instrument of assignment and assumption, Purchaser may assign all of its
interest in this Agreement and the Deposit to an entity approved by the Lender
in which Purchaser or its affiliates retains a controlling interest.
ARTICLE 14
INSPECTION PERIOD
Purchaser intends to continue its physical inspection of the Project
through and including the date that is thirty (30) days after the Effective Date
("Inspection Period"), which inspection shall be at the sole cost and expense of
Purchaser. Seller shall assist with such inspection, but shall not be obligated
to incur any cost or expense or to furnish any information other than at the
place where same is maintained in connection therewith. All information received
by Purchaser relating to the Project, Seller or its affiliates shall be kept in
strict confidence and used solely for the purpose of determining the
advisability of proceeding with the transaction described in this Agreement.
Purchaser shall have the right to terminate this Agreement if Purchaser, in its
sole discretion, deems the Project or any aspect thereof, to be unsatisfactory;
provided, however, that Purchaser may only exercise such right by giving Seller
written notice of such termination on or before the last day of the Inspection
Period.
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If Purchaser does not give Seller written notice on or before the last day
of the Inspection Period of Purchaser's election to terminate this Agreement
pursuant to the provisions of this Article, Purchaser shall be deemed to have
irrevocably and absolutely waived its right to terminate this Agreement pursuant
to the provisions of this Article and to have agreed to purchase the Project in
its "AS IS" condition.
ARTICLE 15
MISCELLANEOUS
15.1 This Agreement is binding upon and shall inure to the benefit of the
parties hereto, their respective heirs, successors, legal representatives and
permitted assigns.
15.2 Wherever under the terms and provisions of this Agreement the time for
performance falls upon a Saturday, Sunday or legal holiday, such time for
performance shall be extended to the second business day thereafter.
15.3 This Agreement may be executed in one or more counterparts, all of
which when taken together shall constitute one and the same agreement, and shall
become effective when one or more counterparts have been executed by each of the
parties hereto and delivered to each of the other parties hereto.
15.4 The captions at the beginning of the several paragraphs, Sections and
Articles are for convenience in locating the context, but are not part of the
context. Unless otherwise specifically set forth in this Agreement to the
contrary, all references to Exhibits contained in this Agreement refer to the
Exhibits which are attached to this Agreement, all of which Exhibits are
incorporated in, and made a part of, this Agreement by reference. Unless
otherwise specifically set forth in this Agreement to the contrary, all
references to Articles, Sections, paragraphs and clauses refer to portions of
this Agreement.
15.5 If any term or provision of this Agreement shall be held to be
illegal, invalid, unenforceable or inoperative as a matter of law, the remaining
terms and provisions of this Agreement shall not be affected thereby, but each
such remaining term and provision shall be valid and shall remain in full force
and effect.
15.6 This Agreement and the other writings referred to in, or delivered
pursuant to, this Agreement, embody the entire understanding and contract
between the parties hereto with respect to the Project and supersede any and all
prior agreements and understandings between the parties hereto, whether written
or oral, formal or informal, with respect to the subject matter of this
Agreement. This Agreement has been entered into after full investigation by each
party and
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its professional advisors, and neither party is relying upon any
statement, representation or warranty made by or on behalf of the other which is
not expressly set forth in this Agreement.
15.7 No extensions, changes, waivers, modifications or amendments to or of
this Agreement, of any kind whatsoever, shall be made or claimed by Seller or
Purchaser, and no notices of any extension, change, waiver, modification or
amendment made or claimed by Seller or Purchaser shall have any force or effect
whatsoever, unless the same is contained in a writing and is fully executed by
the party against whom such matter is asserted.
15.8 This Agreement shall be governed and interpreted in accordance with
the laws of the State of Kansas.
15.9 Each party hereto shall pay all charges specified to be paid by them
pursuant to the provisions of this Agreement and their own attorney's fees in
connection with the negotiation, drafting and closing of this Agreement.
15.10 Purchaser warrants and represents to Seller that, subject to any
provisions hereof to the contrary, Purchaser has full power and authority to
enter into this Agreement and to perform all of Purchaser's obligations under
this Agreement, and that the person executing this Agreement on Purchaser's
behalf has been duly authorized and is empowered to bind Purchaser to this
Agreement.
15.11 Purchaser and Seller agree that this Agreement has been entered into
solely for the benefit of Purchaser and Seller and no other person or entity, it
being the intention of Purchaser and Seller that no person or entity not a party
to this Agreement shall have any right or standing to (a) bring any action
against Purchaser or Seller based on this Agreement, or (b) assume that any
provision of this Agreement will be enforced or remain unmodified or unwaived,
or (c) assert that it or he is or should be or was intended to be a beneficiary
of any provision of this Agreement.
15.12 This Agreement is subject to the written approval of the Board of
Directors of Sellers' general partners. If such approval is not obtained within
ten days after the Effective Date, this Agreement shall be terminated and the
Deposit returned to Purchaser.
ARTICLE 16
LENDER CONSENT
The parties acknowledge that the written consent to Purchaser's assumption
of the Chalet I Mortgage and Chalet II Mortgage and the transfer of the Project
to Purchaser (the "Consent") of the Lender is a condition to the Closing of this
transaction. Purchaser shall apply for the
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Consent within fourteen (14) days after the Effective Date and shall provide the
Lender with such financial and other information as the Lender may reasonably
request. Purchaser shall pay all review, transfer and other costs and fees of
the Lender. Seller shall cooperate with Purchaser in obtaining the Consent. At
Closing, Purchaser shall deliver such assumption agreements, opinion letters and
other materials as Lender may require. If the Consent is not obtained on or
before the date that is seventy (70) days after the Effective Date (the
"Assumption Period"), then this Agreement shall be terminated and the Deposit
shall be returned to Purchaser. The date upon which Lender issues the Consent is
referred to as the "Loan Approval Date".
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IN WITNESS WHEREOF, the parties have executed this Agreement.
SELLER: Garden Chalet I L.P.
By: Garden National Realty, Inc.,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
Chalet II Associates,
a Kansas general partnership
By: National Operating, L.P.,
its general partner
By: NRLP Management Corp.
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Executive Vice President
PURCHASER: KelCor, Inc.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
