EXHIBIT 7.1
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is entered into as of
the 17th day of June, 1997, by and between Riverdale, L.L.C., a New York
liability company ("Seller"), and Insignia Financial Group, Inc., a Delaware
corporation ("Purchase").
RECITALS
WHEREAS, Seller is the record owner of 500 units of common membership
interest (the "Shares"), in DGP Acquisition, L.L.C., a Delaware limited
liability company (the "Company"), the affairs of which are governed by an
Operating Agreement dated as December 7, 1995, as amended (the "Operating
Agreement");
WHEREAS, Xxxxxxxx Corp. ("Xxxxxxxx"), which is an affiliate of Seller,
is the record owner of 25 units of limited partnership interest ("Units") in
Davidson Growth Plus, L.P., a Delaware limited partnership (the "Partnership");
WHEREAS, the only material assets owned by the Company are 2,087.58
Units;
WHEREAS, the 25 Units owned by Xxxxxxxx are referred to herein as the
"Subject Units," and the Shares and the Subject Units are collectively referred
to herein as the "Equity Interests"; and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
the Equity Interests on the terms and subject to the conditions set forth in
this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties covenants and agreements contained herein, and
intending to be legally bound, the parties hereto hereby agree as follows:
1. Purchase and Sale. Upon the terms and subject to the conditions set
forth in this Agreement, Seller agrees to sell to Purchaser, and Purchaser
agrees to purchase from Seller, in exchange for the consideration described in
Section 2, all of the right, title and interest of Seller in and to the Equity
Interests, free and clear of all liens. For all purposes of this Agreement,
Riverdale's obligations with respect to the Subject Units shall be to cause
Xxxxxxxx to sell the Subject Units and execute and deliver all instruments of
transfer relating thereto referred to herein on the terms and subject to the
conditions set forth herein.
2. Purchase Price. The aggregate purchase price for the
Equity Interests is $525,287 (the "Purchase Price"), payable in cash in the
manner provided in Section 3, of which $513,000 is allocated to the Shares and
$12,287 is allocated to the Subject Units.
3. Closing. The closing of the purchase and sale of the Equity
Interests contemplated hereby (the "Closing") will take place on June 17, 1997
(the "Closing Date"). At the Closing, Purchaser will pay the Purchase Price by
wire transfer of immediately available funds to the account of Seller
designated on Schedule I attached hereto. Simultaneously, Seller will assign
and transfer to Purchaser good and valid title in and to the Equity Interests,
free and clear of any and all liens, charges and encumbrances (other than those
contained in or resulting from the Operating Agreement), (i) with respect to
the Shares, by delivering to Purchaser the certificates evidencing the Shares,
in genuine and unaltered form, duly endorsed in blank or accompanied by duly
executed stock powers endorsed in blank, and (ii) with respect to the Subject
Units, by causing Xxxxxxxx to deliver to Purchaser the Assignment of
Partnership interest attached as Exhibit A hereto.
4. Representations and Warranties of Seller. Seller hereby represents
and warrants to Purchaser that each of the following statements is true and
correct as of the date hereof and will be true and correct as of the Closing
Date as if made on and as of such date:
(a) Organization of Seller. Seller is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of New York. Seller has full power and authority to execute and deliver
this Agreement and to perform its obligations hereunder and to consummate the
transactions contemplated hereby, including without limitation to own, hold,
sell and transfer (pursuant to this Agreement) the Equity Interests.
(b) Authority. The execution and delivery by Seller of this
Agreement, and the performance by Seller of its obligations hereunder, have
been duly and validly authorized by requisite action on the part of Seller.
This Agreement has been duly and validly executed and delivered by Seller and
constitutes a legal, valid and binding obligation of Seller, enforceable
against Seller in accordance with its terms.
(c) Equity Interests. The Shares are legally and beneficially owned
by Seller, and the Subject Shares are legally and beneficially owned by
Xxxxxxxx. Except as contemplated in this Agreement and in the Operating
Agreement, there is no option, warrant, conversion or other right, agreement or
commitment of any kind, contingent or otherwise, obligating commitment of any
kind, contingent or otherwise, obligating Seller or Xxxxxxxx to sell any of the
Equity Interests, and no authorization therefor has been given. The Equity
Interests are, and will immediately prior to the Closing be, free and clear of
2
any assessment, lien, restrictions, pledge, claim, proxy, security interest,
option, rights of others or encumbrances of any kind, nature or description
(other than those contained in or resulting from the Operating Agreement). None
of Seller, Xxxxxxxx or any of their affiliates owns (beneficially or of record)
any Units other than the Subject Units.
(d) Partnership. Seller (on behalf of itself and Xxxxxxxx) hereby
expressly acknowledges that it understands that an affiliate of Purchaser is
the general partner of the Partnership, and, accordingly, Purchaser may possess
or have access to non-public information concerning the Partnership and its
properties and operations. Seller has taken the foregoing into account in
making its decision to sell the Equity Interests to Purchaser and in
determining the Purchase Price therefor. In addition, Seller has been given the
opportunity to ask questions of each Purchaser and the Partnership and the
general partner thereof, and of their respective managements, in connection
with the sale of the Equity Interests, and has received satisfactory answers to
all such questions.
(e) Brokers' and Finders' Fees. Neither Seller nor any agent or
representative of Seller has employed any broker or finder or incurred any
liability for any brokerage fees or commission in connection with the
transactions contemplated by this Agreement.
5. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller that each of the following statements is true
and correct as of the date hereof and will be true and correct as of the
Closing Date as if made on and as of such date:
(a) Organization. Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Purchaser has full corporate power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby and thereby.
(b) Authority. The execution and delivery by Purchaser of this
Agreement, and the performance by Purchaser of its obligations hereunder, have
been duly and validly authorized by requisite corporate action on the part of
Purchaser. This Agreement has been duly and validly executed and delivered by
Purchaser and constitutes a legal, valid and binding obligation of Purchaser,
enforceable against Purchaser in accordance with its terms.
(c) Brokers' and Finders' Fees. Neither Purchaser nor any agent or
representative of Purchaser has employed any broker or finder or incurred any
liability for any brokerage fees or commission in connection with the
transactions contemplated by
3
this Agreement.
6. Closing Conditions.
(a) Conditions to Obligations of Purchaser. The obligations of
Purchaser hereunder are subject to the fulfillment, at or before the Closing, of
each of the following conditions (all or any of which may be waived in whole or
in part by Purchaser in its sole discretion):
(i) Representations and Warranties. Each of the representations
and warranties made by Seller in this Agreement shall be true and correct in
all material respects on and as of the Closing Date as though such
representation or warranty was made on and as of the Closing Date.
(ii) Performance. Seller shall have performed and complied
with, in all material respects, each agreement, covenant and obligation
required by this Agreement to be so performed or complied with by Seller at
or before the Closing.
(b) Conditions to Obligations of Seller. The obligations of
Seller hereunder are subject to the fulfillment, at or before the Closing,
of each of the following conditions (all or any of which may be waived in
whole or in part by Seller in its sole discretion):
(i) Representations and Warranties. Each of the representations
and warranties made by Purchaser in this Agreement shall be true and correct
in all material respects on and as of the Closing Date as though such
representation or warranty was made on and as of the Closing Date.
(ii) Performance. Purchaser shall have performed and complied
with, in all material respects, each agreement, covenant and obligation required
by this Agreement to be so performed or complied with by Purchaser at or before
the Closing.
7. Operating Agreement. Notwithstanding the sale of the Equity
Interests pursuant to this Agreement, the parties agree, and Seller expressly
confirms and acknowledges, that the standstill provisions of Article IV of the
Operating Agreement shall continue to apply to Seller and its Affiliates (as
defined in the Operating Agreement) in full force and effect for the terms
thereof, unaffected by the sale of the Equity Interests pursuant hereto, but
the restrictions contained in such Article shall no longer apply to the Seller
or any of its Affiliates (as defined in the Operating Agreement); provided,
however, that if and to the extent that any of the terms and conditions of the
sale of the Equity Interests pursuant to this Agreement, or the mechanics of
such sale, are inconsistent with the provisions of the Operating Agreement,
such inconsistent provisions are hereby waived by Purchaser.
8. Indemnification.
4
(a) Survival of Representations, Warranties, Covenants and
Agreements. All representations, warranties, covenants and agreements contained
or made in this Agreement shall survive for a period of three years from the
date hereof, notwithstanding any investigation conducted with respect thereto
or any knowledge acquired as to the accuracy or inaccuracy of any such
representation or warranty or any breach or non-performance of any such
covenant or agreement.
(b) Losses. For purposes of this Section 8, the terms Losses shall
mean any and all losses, damages, liabilities (including punitive or exemplary
damages and fines or penalties and any interest thereon), costs, and expenses,
claims liens or other obligations of any nature whatsoever, including without
limitation the costs of investigation and defense and reasonable attorneys' and
other professional fees and expenses.
(c) Indemnification by Seller. Seller shall indemnify, defend and
hold harmless Purchaser from, against and in respect of any and all Losses
asserted against, or paid, suffered or incurred by, Purchaser which, directly
or indirectly, arise out of, result from, are based upon or relate to (i) the
inaccuracy, untruth, or incompleteness, as of the date made (or deemed made),
of any representation or warranty of Seller contained herein or (ii) any breach
by Seller of any covenant or agreement of Seller contained herein.
(d) Indemnification by Purchaser. Purchaser shall indemnify, defend
and hold harmless Seller from, against and in respect of any and all Losses
asserted against, or paid, suffered or incurred by, Seller which, directly or
indirectly, arise out of, result from, are based upon or relate to (i) the
inaccuracy, untruth, or incompleteness, as of the date made (or deemed made),
of any representation or warranty of Purchaser contained herein or (ii) any
breach by Purchaser of any covenant or agreement of Purchaser contained herein.
9. Notices. All notices, requests, demands and other communications
required or permitted to be given hereunder shall be in writing and shall be
delivered personally, sent by facsimile transmission, or sent next-day delivery
via Federal Express or a similar overnight courier, as follows:
(a) If to Seller:
Riverdale, L.L.C.
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Telephone:
Facsimile:
5
(b) If to Purchaser:
Insignia Financial Group, Inc.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Insignia Financial Group, Inc.
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
A notice shall be deemed given for purposes of this Agreement (i) on the date
of delivery, if delivered personally or sent by facsimile transmission, and
(ii) on the first business day following the date of dispatch if sent next-day
delivery via Federal Express or similar a overnight courier. Any party may
change the address to which notices are to sent by giving written notice of
such change of address to the other parties in the manner above provided for
giving notice.
10. Miscellaneous Provisions.
(a) Fees and Expenses. Except as otherwise specifically provided in
this Agreement, each of the parties hereto shall pay its own expenses
(including, without limitation, attorneys' fees and out-of-pocket expenses)
incident to this Agreement and the transactions contemplated hereby.
(b) Amendment. This Agreement may not be amended, modified,
superseded, canceled, renewed or extended except by a written instrument signed
by each of the parties hereto.
(c) Waiver; Effect of Waiver. No provision of this Agreement may be
waived except by a written instrument signed by the party waiving compliance.
No waiver by any party hereto of any of the requirements hereof or of any of
such party's rights hereunder shall release the other parties from full
performance of their remaining obligations stated herein. No failure to
exercise or delay in exercising on the part of any party hereto any right,
power or privilege of such party shall operate as a waiver thereof, nor shall
any single or partial exercise of any rights, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege by such party.
6
(d) Assignment. This Agreement and the rights and obligations
hereunder shall not be assigned or transferred by any party without the prior
written consent of the other party hereto. Any purported assignment or transfer
made in violation of the provisions of this Agreement shall be void and of no
effect.
(e) Entire Agreement. Except as provided in Section 7, this
Agreement (including the Schedule and Exhibit hereto) constitutes the entire
agreement among the parties with respect to the transactions described herein,
and supersedes all prior and purportedly contemporaneous agreements,
understandings, representations and warranties, written and oral, among the
parties with respect to the subject matter hereof.
(f) Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the parties and their respective successors and permitted
assigns.
(g) No Third-Party Beneficiary. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and their
respective successors or permitted assigns, and it is not the intention of the
parties to confer third-party beneficiary rights upon any other person.
(h) Time of Essence. Time is of the essence in this Agreement.
(i) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York,
without regard to principles of conflicts of law.
(j) Interpretation. Each of the parties hereto acknowledges that
this Agreement has been reviewed by such party and its counsel prior to its
execution and that changes were made to this Agreement based upon the comments
of such party and its counsel. If any dispute arises with respect to the
interpretation of any provision of this Agreement, such provision shall be
deemed to have been drafted by all of the parties hereto and shall not be
construed against any party on the basis that such party was responsible for
drafting such provision.
(k) Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7
IN WITNESS WHEREOF, each of the parties hereto, intending to be
legally bound, has executed this Purchase and Sale Agreement as of the date
first above written.
RIVERDALE, L.L.C.
By: /s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
Manager
INSIGNIA FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Xxxxxxx X. Xxxxx
Senior Vice President
8
