EXHIBIT 7.6
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is entered into as of
the 13th day of June, 1997, by and between High River, a Delaware limited
partnership ("Seller"), and Insignia Financial Group, Inc., a Delaware
corporation ("Purchaser").
RECITALS
WHEREAS, Seller and certain of its affiliates and Purchaser and
certain of its affiliates are parties to a series of six separate settlement
agreements (collectively, the "Settlement Agreements"), each dated as of June
17, 1995 and relating to one of the six Shelter Partnerships (as defined
herein);
WHEREAS, Seller is the record owner of: 1,695 units of limited
partnership interest in Shelter Properties I Limited Partnership (the "Shelter
I Units"); 2,857 units of limited partnership interest in Shelter Properties II
Limited Partnership (the "Shelter II Units"); 5,398 units of limited
partnership interest in Shelter Properties III Limited Partnership (the
"Shelter III Units"); 4,263 units of limited partnership interest in Shelter
Properties IV Limited Partnership (the "Shelter IV Units"); 6,407 units of
limited partnership interest in Shelter Properties V Limited Partnership (the
"Shelter V Units"); and 2,961 units of limited partnership interest in Shelter
Properties VI Limited Partnership (the "Shelter VI Units");
WHEREAS, the limited partnerships referred to in the preceding clause
are collectively referred to herein as the "Shelter Partnerships," and the
Shelter I Units, Shelter II Units, Shelter III Units, Shelter IV Units, Shelter
V Units and Shelter VI Units are collectively referred to herein as the
"Shelter Units"; and
WHEREAS, Seller desires to sell, and Purchaser desires to purchase,
the Shelter Units 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
Sections 2, all of the right, title and interest of Seller in and to the
Shelter Units, free and clear of all liens.
2. Purchase Price. The aggregate purchase price for the Shelter Units
is $15,500,000.00 (the "Purchase Price"), payable in cash in the manner
provided in Section 3. The Purchase Price shall be allocated between the
Shelter I Units, Shelter II Units, Shelter III Units, Shelter IV Units, Shelter
V Units and Shelter VI Units sold by Seller pursuant hereto as provided on
Schedule I attached hereto.
3. Closing. The closing of the purchase and sale of the Shelter Units
contemplated hereby (the "Closing") will take place on June 13, 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 II attached hereto. Simultaneously, Seller will assign and transfer to
Purchaser good and valid title in and to the Shelter Units, free and clear of
any and all liens, charges and encumbrances (other than those contained in or
resulting from the Settlement Agreements), by delivering to Purchaser the
Assignments of Partnership Interest attached as Exhibits A -- F 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 partnership duly
organized, validly existing and in good standing under the laws of the State of
Delaware. 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 Shelter Units.
(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) Shelter Units. The Shelter Units are legally and beneficially
owned by Seller. Except as contemplated in this Agreement and in the Settlement
Agreements, there is no option, warrant, conversion or other right, agreement
or commitment of any kind, contingent or otherwise, obligating Seller to sell
any of the Shelter Units, and no authorization therefor has been given. The
Shelter Units are, and will immediately prior to the Closing be, free and clear
of 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 Settlement Agreements).
Neither Seller nor any of its affiliates owns (beneficially or of record) any
units of limited partnership interest in any of the Shelter Partnerships other
than the Shelter Units.
(d) Shelter Partnerships. Seller hereby expressly acknowledges that
it understands that certain affiliates of the Purchaser are the general
partners of the Shelter Partnerships, and, accordingly, the Purchaser may
possess or have access to non-public information concerning the Shelter
Partnerships and their respective properties and operations. Seller has taken
the foregoing into account in making its decision to sell the Shelter Units 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
Shelter Partnerships and the general
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partners thereof, and of their respective managements, in connection with the
sale of the Shelter Units, 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 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
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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. Settlement Agreements. Notwithstanding the sale of the Shelter
Units pursuant to this Agreement, the parties agree, and Seller expressly
confirms and acknowledges, that the provisions of Articles III and IV of each
of the Settlement Agreements shall continue to apply to the Icahn Entities and
their Affiliates (each as defined in the Settlement Agreements) in full force
and effect for the respective terms thereof, unaffected by the sale of the
Shelter Units pursuant hereto, but the restrictions contained in such Articles
shall no longer apply to the Insignia Entities and their Affiliates (each as
defined in the Settlement Agreements); provided, however, that if and to the
extent that any of the terms and conditions of the sale of the Shelter Units
pursuant to this Agreement, or the mechanics of such sale, are inconsistent
with the provisions of Article IV of the Settlement Agreements, such
inconsistent provisions are hereby waived by Purchaser.
8. Indemnification.
(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),
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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:
High River Limited Partnership
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone:
Facsimile:
(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
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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 be 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 right, power or privilege preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege by such party.
(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 Schedules and Exhibits 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
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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.
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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.
HIGH RIVER LIMITED PARTNERSHIP
By: Riverdale, L.L.C., its General
Partner
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx
Manager
INSIGNIA FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Xxxxxxx X. Xxxxx
Senior Vice President
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