ASSET PURCHASE AGREEMENT
THIS AGREEMENT is made as of February 17, 1998 between GREAT LAKES
INVESTORS LLC, a Wisconsin limited liability company, or assigns ("Buyer"), and
RAL INCOME + EQUITY GROWTH V LIMITED PARTNERSHIP, a Wisconsin limited
partnership ("Seller").
RECITALS
A. Seller owns the business described on the attached Exhibit A (the
"Business," consisting of the "Projects" listed on Exhibit A).
B. Buyer desires to purchase the Business and the assets of the
Business defined in Section 1 (the "Assets"), and Seller desires to sell the
Business and the Assets to Buyer, on the terms and conditions of this Agreement.
AGREEMENTS
In consideration of the foregoing recitals and the mutual agreements
that follow, the receipt and sufficiency of which Buyer and Seller acknowledge,
BUYER AND SELLER AGREE:
1. Purchase and Sale. Buyer shall purchase from Seller and Seller shall
sell to Buyer the Assets of the Business, comprised of the Property, the Name,
the Business Interests, and the Partnership Interest, defined as follows:
(a) "Property" means:
(1) The real property described on the attached Exhibit
1(a)(1) and all easements, servitudes and other rights appurtenant to it,
including all rights, title and interest of Seller in and to the adjacent
streets, alleys and rights-of-way and all interests in contiguous property owned
by Seller, its general partners or its affiliates (collectively, the "Land").
(2) All buildings, improvements, and building fixtures
located on the Land (collectively, the "Improvements"; together with the Land,
the "Real Property").
(3) All equipment and personal property owned by Seller and
located on the Real Property (collectively, the "Personal Property").
(4) All warranties for construction protecting against
material defects in and to the Improvements that were received by Seller from
its contractors and material suppliers, to the extent assignable ("Warranties").
(5) All contracts for maintenance, materials and service to
items (1) through (3) (collectively, the "Contracts").
(b) "Name" means all of Seller's right, title and interest in
and to the name of the Business set forth on Exhibit A, and all rights to
telephone numbers, telephone directory listings, existing advertising and media
and promotional materials, to the extent assignable.
(c) "Business Interests" means all of Seller's right, title
and interest in and to the contacts, reputation or good will of the Business,
all leases affecting the Property ("Leases"), any rights related to vacant land
adjacent to the Real Property, any dealership agreements for the sale or
distribution of manufactured housing related to the Business, any franchise
rights related to the Business, and such other rights, interests or intangibles
involved in the operation of the Business, including (without limitation) the
items described on the attached Exhibit 1(c).
(d) "Partnership Interest" means Seller's interest as general
partner in all partnerships described on Exhibit A, if any (together, the
"Partnership"). For purposes of Sections 4, 5, 7, 10, and 11, each component of
the Assets includes similarly-defined items owned by the Partnership. Further,
in Section 5, "Seller" means each Partnership where applicable. If the parties
discover before Closing that Seller, and not the Partnership, owns the items
thought to have been owned by such Partnership, or if ownership of such items is
transferred before Closing from the Partnership to Seller, such items shall be
deemed to be included in the definition of "Assets" and all references to
Seller's Partnership Interest in such Partnership shall be deemed to be omitted.
2. Xxxxxxx Money; Consideration.
(a) Contemporaneously with execution of this Agreement, Buyer
shall deliver $10,000.00 (the "Deposit") to Chicago Title Insurance Company (the
"Title Insurance Company") to be held as xxxxxxx money and either applied to the
cash payment set forth below at closing or disbursed to Buyer or Seller, as the
case may be, pursuant to the terms of this Agreement. The xxxxxxx money shall be
held in an interest-bearing account, with interest considered additional xxxxxxx
money. The parties agree that the xxxxxxx money is sufficient consideration for
Buyer's exclusive right to inspect and purchase the Assets pursuant to this
Agreement, and for Seller's execution and delivery of, and performance of its
obligations under, this Agreement. This consideration is in addition to and
independent of any other consideration or payment provided in the Agreement.
(b) Within 10 days after this Agreement becomes binding, Buyer
shall execute and deliver to Seller, as additional xxxxxxx money, Buyer's
$100,000 promissory note payable in full at Closing or upon Buyer's breach of
this Agreement (the "Buyer Note"). Within 3 business days after waiver or
satisfaction of the last of Seller's conditions precedent under Section 4A,
Buyer shall deliver to Seller a $100,000 letter of credit issued by a financial
institution reasonably acceptable to Seller securing Buyer's obligations under
the Buyer Note (the "Letter of Credit"). Buyer's payment of the Buyer Note shall
be credited against the Purchase
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Price at Closing. If the transactions contemplated under this Agreement fail to
close due to Seller's default (other than default limited to a valid legal
defect in title that Buyer is unwilling to waive) or failure to satisfy or waive
any of Seller's conditions precedent set forth in Section 4A, the Buyer Note
shall be void, and Seller shall immediately return the original Buyer Note and
the original Letter of Credit to Buyer, both marked "Canceled."
3. Purchase Price. The purchase price for the Assets ("Purchase Price")
is set forth on the attached Exhibit 3. The allocation of the Purchase Price
among the Projects (the "Project Allocations") is set forth on Exhibit A.
Subject to the prorations and credits set forth in Section 9 and elsewhere in
this Agreement, Buyer shall pay the Purchase Price to Seller at Closing by
certified or cashier's check or wire transfer.
4. Buyer's Conditions Precedent. The matters set forth below are
conditions precedent to Buyer's obligation to conclude this transaction. If
Buyer does not deliver written notice to Seller by the date established on the
attached Exhibit 4 for each condition that the condition has not been satisfied
and that Buyer therefore elects to exercise such rights as Buyer may have under
this Section, Buyer shall be deemed to have waived the condition. If Buyer
timely elects to terminate Buyer's obligation to purchase a Project because of a
failure to satisfy any condition with respect to such Project, then the Purchase
Price shall be reduced by the Project Allocation for the affected Project, and
as to the affected Project, this Agreement shall terminate, and Buyer shall
promptly deliver to Seller (at no cost to Seller) copies of the reports it
obtains in connection with the Project.
(a) Buyer shall order a survey of each Project from a surveyor
or engineer reasonably acceptable to Seller. The parties shall share the survey
costs equally, subject to adjustment as provided below. Each survey must comply
with the minimum detail requirements to permit the Title Insurance Company to
issue owner's and lender's policies of title insurance free from exceptions for
matters that a current survey would disclose, showing the foundations of all
buildings constituting Improvements, the courses and dimensions of and the area
of the Land, all recorded or apparent easements or rights-of-way appurtenant to
or part of the Real Property or to which the Real Property is subject, the
location of all adjoining streets, any applicable flood hazard zone or notation
of the lack of any such zone, and the distances of any buildings to the
boundaries of the Real Property, and showing that the Real Property is free from
questions of encroachment. Buyer shall deliver each survey to the Title
Insurance Company. Buyer shall deliver written notice to Seller of any title
defects disclosed by the surveys that are not Permitted Encumbrances (defined
below) and to which Buyer objects. Seller shall use reasonable efforts to
eliminate such objections that are not Permitted Encumbrances. If Seller fails
to timely eliminate any objection that is not a Permitted Encumbrance, Buyer may
either accept such objections, which will then become Permitted Encumbrances, or
terminate this Agreement as to any or all affected Projects. If Buyer does not
timely notify Seller of any defects as required above, then this condition shall
be deemed satisfied.
(b)(1) Seller, at Seller's expense, shall order a written
commitment from the Title Insurance Company to issue an ALTA owner's policy of
title insurance with general exceptions
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deleted, in the amount of the Purchase Price allocated to the Real Property as
shown in the Purchase Price allocation on Exhibit 3, insuring that on recording
the warranty deed from Seller to Buyer the Real Property shall be free and clear
of all liens, encumbrances and defects except the matters listed on the attached
Exhibit 4(b) ("Permitted Encumbrances"). Buyer must either approve the form and
content of this commitment or give Seller written notice of its objections to
the matters disclosed in it. Seller shall use reasonable efforts to eliminate
such objections that are not Permitted Encumbrances. If Seller fails to timely
eliminate any objection that is not a Permitted Encumbrance, Buyer may either
accept such objections, which will then become Permitted Encumbrances, or
terminate this Agreement as to any or all affected Projects.
(2) If the Partnership Interest is sold to Buyer, then
Seller, at Seller's expense, shall order a written commitment from the Title
Insurance Company to update the Partnership's owner's policy of title insurance
on the Real Property owned by the Partnership through the closing date with
general exceptions deleted, in the amount of the Purchase Price allocated to the
Partnership Interest as shown in the purchase price allocation on Exhibit 3,
insuring that on transfer of the Partnership Interest from Seller to Buyer, the
Real Property owned by the Partnership shall be free and clear of all liens,
encumbrances and defects except Permitted Encumbrances. Buyer must either
approve the form and content of this commitment or give Seller written notice of
its objections to the matters disclosed in it. Seller shall use reasonable
efforts to eliminate such objections that are not Permitted Encumbrances. If
Seller fails to timely eliminate any objection that is not a Permitted
Encumbrance, Buyer may either accept such objections, which will then become
Permitted Encumbrances, or terminate this Agreement as to any or all affected
Projects.
(c) Buyer shall order a written environmental assessment of
the Property from a qualified environmental engineer and an engineering report
of the utility systems serving the Property from a qualified engineer. The
parties shall share the assessment costs equally, subject to adjustment as
provided below. Seller shall assist in the preparation of the environmental
assessment and engineering report, if reasonably required by Buyer, by providing
all information Seller may have and that is reasonably requested, permitting
soil samples to be taken from the Real Property, and complying in a timely
manner with any other reasonable requests of the persons preparing the
environmental assessment and engineering report. Buyer shall deliver written
notice to Seller of any defects disclosed by the environmental assessment and
engineering report (including the matters set forth in Section 7, the existence
of underground storage tanks, or objections by Buyer's lender, if any, to the
content or conclusion of the assessment and report) ("Defects"). Seller shall,
within 10 days after notice, obtain from one or more firms reasonably acceptable
to Buyer a quotation of the cost of remediating the Defects. If the quotation is
less than or equal to the lesser of $100,000 or 10% of the Project Allocation
for the affected Project, Seller shall, at its expense before closing, remediate
the Defects. If the quotation is more than such amount and Seller is unwilling
to pay the additional amount, Buyer may either (i) terminate this Agreement as
to the affected Project and have the Purchase Price reduced by the Project
Allocation; or (ii) close on the affected Project and offset Seller's share of
the quotation for remediating the Defects against the Purchase Price. If Buyer
chooses option (ii) above, Seller shall have no further obligations with respect
to remediating the affected
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Project's Defects. The foregoing rights notwithstanding, (1) Buyer shall not be
permitted to terminate this Agreement as to the Xxxx Heights Apartments ("Xxxx
Heights") in Madison, Wisconsin because of any Defects related to Seller's
lawsuit described in Exhibit 1(c) or because of any Defects of which Buyer is
aware as of the date of this Agreement, and (2) Seller shall not be obligated to
pay any portion of the cost of remediating any Defects affecting Xxxx Heights
described in clause (1) because such Defects were taken into account in
determining the purchase price for Xxxx Heights and/or are adequately provided
for in the sharing arrangement described in Exhibit 1(c).
If Buyer acquires a Project affected by Defects and all or a portion of the cost
of remediating the Defects is reimbursable from the State of Wisconsin PECFA
Fund, the reimbursement shall first be paid to reimburse Buyer such costs that
were paid by Buyer (to the extent they are reimbursable), and the balance shall
be paid to Seller.
(d) At closing, the information contained in the Exhibits to
this Agreement must be materially accurate and complete with respect to all
material matters, and not contain any untrue statements of material fact or omit
material facts which would render any Exhibit misleading.
4A. Seller's Conditions Precedent. The matters set forth below are
conditions precedent to Seller's obligation to conclude this transaction. If
Seller delivers written notice to Buyer by Seller's Contingency Deadline
(defined below) that any such condition has not been satisfied or waived, Seller
may terminate this Agreement by written notice to Buyer. If Seller timely elects
to terminate this Agreement because of Seller's failure to satisfy or waive any
condition, this Agreement shall terminate, the Deposit, the Buyer Note (marked
"Canceled"), and the Letter of Credit (also marked "Canceled") shall be promptly
returned to Buyer, and neither party shall have any further obligation to the
other except as set forth in Sections 8(b) and 11. If Seller fails to timely
deliver such notice, these conditions shall be deemed waived. "Seller's
Contingency Deadline" shall be June 13, 1998, provided that as long as Seller is
diligently pursuing satisfaction of Seller's conditions precedent, this date may
be extended, at Seller's option, to August 13, 1998.
(a) Seller must obtain either (1) approval of the transaction
by the federal Securities and Exchange Commission and all state securities
commissioners with jurisdiction, or (2) an opinion of counsel reasonably
satisfactory to Seller that such approval is not required. Buyer shall cooperate
in Seller's efforts to obtain such approvals, including providing financial
information concerning Buyer if required.
(b) The Limited Partners of Seller must approve the
transactions contemplated in this Agreement by the consent or approval of the
holders of a majority of the outstanding limited partnership interests in
Seller.
(c) Seller must receive a so-called "fairness opinion,"
prepared at Seller's expense by an independent valuation company (e.g.,
Valuation Research Corporation or
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American Appraisal Associates, Inc.) of Seller's choosing, which (1) states that
the Purchase Price is fair and adequate consideration for the Assets in
language, and subject to assumptions and qualifications, customary in the
industry and (2) is reasonably satisfactory to Seller's securities counsel,
Xxxxx & Xxxxxxx, and at least a majority of Seller's general partners.
4B. Mutual Condition Precedent. The parties' obligations under this
Agreement are contingent on this transaction closing simultaneously with the
transactions contemplated under the agreements of the same date between Buyer
and the affiliates of Seller described on the attached Exhibit 4B. Seller may,
at its sole option, sell one or more of the Projects to Buyer in up to three
separate transactions, so long as all of the Projects have been sold to Buyer by
January 31, 1999.
5. Matters Pending Closing. Until closing:
(a) Buyer's authorized representatives, including its
appraisers, architects and engineers, shall have access to the Property and to
all Seller's records and information regarding the Property (whether on the
Property or at Seller's offices) during normal business hours and after at least
24 hours prior written or oral notice. Any entry on the Property by Buyer's
authorized representatives shall not interfere with the rights of tenants in
possession, and shall be subject to the provisions of Section 11(b).
(b) Without Buyer's prior written consent, except as provided
in this paragraph or in Exhibit 1(c), Seller shall not: (1) make any new lease
affecting the Business or the Property or permit the termination or modification
of any Lease except in the ordinary course of Seller's Business; (2) transfer
all or any portion of the Property; (3) create any liens, encumbrances,
easements or rights-of-way affecting the Property; or (4) settle any lawsuits
related to the Business or the Assets. The foregoing provision notwithstanding,
Seller may sell, or enter into one or more contracts to sell, the specific
Projects identified in the attached Exhibit 5(b). If Seller sells, or enters
into a contract to sell, any such Project, the Purchase Price shall be reduced
by the Project Allocation.
(c) Seller shall maintain the Property in accordance with
standards previously followed by Seller and shall take no action affecting the
Property that is not in the ordinary course of Seller's Business without Buyer's
prior written consent. Seller shall maintain at customary levels all
inventories, building supplies and personal property used in the normal
maintenance, servicing, supplying and upkeep of the Property.
(d) Seller shall not remove any Improvements or Personal Property from
the Property unless removal is for the purpose of repair or maintenance, in
which case the property removed shall be promptly replaced.
(e) Seller shall maintain fire and extended coverage insurance
in the amount of the replacement cost of the Improvements and Personal Property,
together with rent loss insurance in an amount not less than the annual gross
rents payable by tenants under the Leases.
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(f) Seller shall not enter into any new or modify any existing
service or employment contracts that shall not expire on or before closing
without Buyer's prior written consent, which shall not be unreasonably withheld.
6. Closing Date.
(a) Subject to Section 4B, the transaction contemplated under
this Agreement shall be closed at the offices of Xxxxxxx & Xxxxxxxxx, S.C., 000
Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxxxx, Xxxxxxxxx 00000, or Buyer's
lender's attorneys, if any, within 45 days after satisfaction or waiver of the
conditions set forth in Section 4A (the "Closing Date"), or at such other time
and place as the parties may agree. Possession of the Property shall be
delivered to Buyer on the Closing Date, subject to the rights of tenants under
the Leases.
(b) At closing Seller shall deliver to Buyer the following
documents:
(1) A General Warranty Deed conveying to Buyer the Real
Property, subject only to Permitted Encumbrances;
(2) A Xxxx of Sale conveying to Buyer the Personal Property
free and clear of liens or encumbrances;
(3) Each Lease then in effect and an Assignment conveying to
Buyer the interest of Seller in and to each Lease, as amended;
(4) An Assignment conveying to Buyer the interest of Seller
in and to the Warranties and the Contracts and written verification that any
present property management agreement with an affiliate of Seller other than
Midwest Property Management I, Inc. or Midwest Property Management II, Inc. has
been terminated;
(5) The owner's policy of title insurance required under
Section 4(b)(1) and the endorsement required under Section 4(b)(2);
(6) An Assignment conveying to Buyer the interest of Seller
in the Name and good will;
(7) An Assignment conveying to Buyer the Partnership
Interest (if the Partnership Interest is being sold);
(8) The original Buyer Note, marked "Paid," and the original
Letter of Credit, marked "Canceled";
(9) The original Forest Downs Note (defined below), marked
"Paid," together with satisfactions and releases of all instruments providing
security or evidence of
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security for the Forest Downs Note, in recordable or fileable form where the
original instrument was recorded or filed; and
(9) Such other documents as Buyer may reasonably request.
(c) At closing Buyer shall (1) deliver to Seller payment of
the balance of the Purchase Price; (2) pay in full all principal and accrued
interest under the $142,500 promissory note from Buyer to Seller (the "Forest
Downs Note") executed in connection with Buyer's purchase from Seller of Xxxxxx
Xxxxx Xxxxxxxxxx, Xxxxx Xxxxxxx, Xxxxxxxxx (the "Forest Downs Property") on
December 30, 1997; and (3) reimburse Seller for those categories of Seller's
closing costs paid in connection with the sale of the Forest Downs Property by
Seller to Buyer for which Buyer would have been responsible under Section 8(a)
if the Forest Downs Property were included among the Property being sold
pursuant to this Agreement.
7. Seller's Warranties and Representations. This Agreement is entered
into by Buyer based on the representations and warranties of Seller contained in
it. These representations and warranties shall be true and correct as of the
date of this Agreement and as of the Closing Date and shall survive closing,
subject to the provisions of Section 13(d). Seller acknowledges that the
warranties and representations made by Seller are a material inducement to
Buyer's entering into this Agreement. No inspection, testing or mapping by Buyer
of the Property shall constitute a waiver by Buyer of its rights to rely on
Seller's representations and warranties, provided, however, that the
representations and warranties shall be deemed modified by any factual matters
disclosed by any inspection, testing or mapping that make Buyer or its agents
actually aware of inaccuracies in the representations and warranties. Seller's
representations and warranties shall also be deemed modified by any factual
matters of which Buyer, Buyer's affiliate First Financial Realty Management,
Inc. ("FFRM"), or their respective employees or agents have received or do
receive actual or constructive notice in the course of performing partnership
administration services for Seller or managing the Property and the Business, or
otherwise. Seller represents and warrants to Buyer that Seller owns the Assets
free and clear of all liens and encumbrances other than Permitted Encumbrances.
Seller makes no representations or warranties concerning the physical condition
of the Assets, and is selling the Assets in their physical condition as-is,
where-is, and with all faults.
8. Closing Costs.
(a) If the transaction closes, Seller shall be responsible for
the title insurance premiums for the owner's policy (with no special
endorsements), survey charges, real estate transfer fees, and costs for the
engineering reports; and Buyer shall be responsible for the costs of the
environmental studies. To the extent either party has paid costs for which the
other is responsible, the responsible party shall reimburse the other party at
closing.
(b) If the transaction does not close due to Buyer default,
Buyer shall reimburse Seller for all costs previously paid by Seller for the
items set forth in paragraph (a). If the transaction does not close due to
Seller default, Seller shall reimburse Buyer for all costs
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previously paid by Buyer for such items. If this transaction does not close for
any other reason, the parties shall share the costs of such items equally.
(c) In either case, each party shall pay its own attorneys'
fees and expenses.
9. Prorations and Credits.
(a) The following items shall be prorated and apportioned as
of the Closing Date: net general real estate taxes, utility charges, current and
prepaid rent, and any amounts payable under the Contracts. For the purposes of
prorating real estate and personal property taxes on the Closing Date, the taxes
for the year of closing shall be prorated based upon the prior year's net tax
amounts. Municipal parking fees shall be reflected, if necessary, to avoid Buyer
incurring any liability for parking fees collected or assessed prior to the
Closing Date. Special assessments, if any, for work on site actually commenced,
announced, or levied before the Closing Date, and all charges, tap fees,
paybacks, and other obligations for improvements affecting the Property and
imposed prior to the Closing Date, and the costs of restoring the Property as
nearly as possible to the condition that existed before such work or
improvements, shall be paid by Seller; provided, however, that the restoration
costs, if any, shall be included in the costs of remedying Defects under Section
4(c) and accordingly shall be subject to the limitations on Seller's liability
in Section 4(c). Income and expenses attributable to the Closing Date shall
accrue to Seller.
(b) Buyer shall receive credit for free rent and other rent
concessions made or granted by Seller with respect to any portion of the
Property. On the Closing Date, Seller shall pay to Buyer the amount of any rent
security deposits then held by Seller together with accrued interest, if any.
10. Fire or Other Casualty.
(a) If the Property or any part of it is damaged by fire or
other casualty prior to the Closing Date (as determined by Buyer in good faith),
and this casualty results in uninsured or unreimbursed loss or abatement of rent
or termination of Leases accounting for more than 5% of the rental income of the
Property, Buyer may terminate this Agreement by written notice to Seller within
20 days after the damage and this Agreement shall be of no further effect and
neither party will thereafter have any further obligation to the other except
that all xxxxxxx money paid, plus accrued interest, shall be returned promptly
to Buyer. Seller shall grant to Buyer full and free access to the Property for
the purpose of inspecting such damage and assessing the extent of it, but this
entry upon the Property by Buyer shall not interfere with Seller's
reconstruction or the rights of tenants in possession under the Leases, and
shall be subject to the provisions of Section 11(b).
(b) If this Agreement is not terminated pursuant to subsection
(a) above, closing shall occur without abatement of the Purchase Price and
Seller shall assign and transfer to Buyer at closing by written instrument all
of Seller's right, title and interest to all insurance
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proceeds paid or payable to Seller on account of such fire or casualty, less the
amount expended by Seller for the cost of restoration prior to the Closing Date,
and Seller shall reimburse Buyer for the amount of any "deductible" under the
insurance policy, to the extent paid by Buyer.
11. Indemnification.
(a) Seller shall indemnify and hold Buyer harmless and shall
assume the defense of any liability or claim asserted on or after the Closing
Date against and in respect of any liabilities, obligations, costs and expenses
directly related to or connected with the Property, whether accrued, absolute or
contingent, or otherwise existing on the Closing Date or arising out of any
transaction entered into or any set of facts existing prior to the Closing Date,
except as expressly assumed in this Agreement by Buyer, or for any loss, cost,
expense or liability arising from any breach or default by Seller under this
Agreement, including breaches of Seller's warranties. Notwithstanding the
foregoing, Buyer's rights against Seller under Section 11(a) (except rights
resulting from fraud or intentional misrepresentation) shall expire unless Buyer
gives Seller written notice of a claim under this provision within one year
after closing. Further, Seller shall have no obligations under Section 11(a)
unless and until Buyer's damages exceed $50,000, and then only for the amount by
which the damages exceed that amount. Buyer agrees to look solely to the assets
of Seller (including any assets or proceeds distributed to its partners after
closing) to satisfy any claims under Section 11(a). In no event shall the
general partners of Seller be personally liable under Section 11(a), except to
the extent they have actually received assets or proceeds from Seller after
Closing.
(b) Buyer shall indemnify and hold Seller harmless and shall
assume the defense of any liability or claim asserted on or after the Closing
Date against and in respect of any liabilities, obligations, costs and expenses
related to or connected with the Property, whether accrued, absolute or
contingent but only to the extent that such liability or claim arises out of any
transaction entered into or any set of facts coming into existence after the
Closing Date, or for any loss, cost, expense or liability arising from any
breach or default by Buyer under this Agreement, except as provided in Section
12(a). Buyer shall hold Seller harmless from and indemnify Seller against any
loss, liability, damages or expenses (including reasonable attorney fees and
disbursements) arising out of or resulting from any entry, inspection, mapping
or other investigations on the Property by Buyer, its agents, contractors or
consultants. In addition, Buyer acknowledges and is aware that Article VI(C) of
the Property Management Agreement dated as of June 1, 1993, between Seller and
Midwest Property Management II, Inc. (the "Management Agreement"), provides that
after the Projects have been transferred to Buyer pursuant to this Agreement,
the Management Agreement shall continue in full force and effect in respect of
the Projects and shall be jointly and severally binding upon Seller and Seller's
successors in title or assigns, unless terminated as provided in the Management
Agreement. Therefore, in addition to the foregoing indemnification obligations,
Buyer agrees to indemnify and hold Seller harmless from and against any loss,
costs, damages or expenses (including, without limitation, reasonable attorney's
fees and disbursements) suffered or incurred by Seller with respect to the
Management Agreement after the Closing Date.
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(c) If as a result of any liability or claim either Buyer or
Seller is required to indemnify and hold the other harmless, the party to whom
the claim is made shall promptly notify the other in writing of such liability
or claim and both Buyer and Seller will cooperate with each other in the defense
of the liability or claim; the party responsible for the defense shall select
such defense counsel as it may deem necessary subject to the reasonable approval
of the other party.
12. Termination, Default and Remedies.
(a) If, after waiver or satisfaction of all contingencies
listed in Section 4, Buyer defaults under this Agreement, Buyer shall pay to
Seller, as liquidated damages, in lieu of all legal or equitable remedies which
may be available to Seller, (1) any xxxxxxx money paid or to be paid by Buyer
under this Agreement (including, without limitation, the Deposit, the Buyer
Note, and the Letter of Credit) plus accrued interest, plus (2) an additional
amount equal to Seller's actual out of pocket costs (including reasonable
attorneys' fees) incurred in connection with Seller's performance under this
Agreement.
(b) If Seller defaults under this Agreement, all xxxxxxx money
(including, without limitation, the Deposit, the Buyer Note, marked "Canceled,"
and the Letter of Credit, also marked "Canceled") and accrued interest shall be
returned to Buyer and, in addition, Buyer may pursue any legal or equitable
remedy that may be available to Buyer. In the alternative, Buyer may choose the
remedy set forth in Section 12(c) below, if applicable. However, if Seller is in
default under this Agreement solely by reason of a valid legal defect in title
that Buyer is unwilling to waive, the xxxxxxx money paid and accrued interest
shall be returned to Buyer as Buyer's sole remedy and this Agreement shall be
void.
(c) If this transaction does not close due to Seller's default
(other than default limited to a valid legal defect in title that Buyer is
unwilling to waive) or inability to satisfy the condition set forth in Section
4A(b), then if, within 12 months after Seller's default or termination of this
Agreement, Seller sells or enters into a contract to sell the Assets to another
buyer (the "Post-Termination Sale or Contract"), Seller shall pay Buyer a
termination fee equal to the lesser of the following: (1) 25% of the amount by
which the sale price under the Post- Termination Sale or Contract exceeds the
Purchase Price defined in this Agreement; or (2) 6% of the Purchase Price
defined in this Agreement. If Buyer chooses this remedy, such payment shall be
paid by Seller to Buyer as liquidated damages, in lieu of all legal or equitable
remedies that may be available to Buyer.
13. Miscellaneous Provisions.
(a) Interpretation. This Agreement is governed by and shall be
construed in accordance with the laws of the State of Wisconsin. Time is of the
essence of this Agreement. This Agreement supersedes all prior agreements and
communications, written or verbal, between Buyer and Seller relating to the
purchase and sale of the Assets.
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(b) Assignment. Buyer may assign this Agreement, provided the
assignee assumes the obligations of Buyer, but Buyer shall remain liable for
Buyer's obligations. The representations, warranties, covenants and agreements
contained in this Agreement and all other rights of Buyer arising under this
Agreement shall inure to the benefit of any such assignee.
(c) Effect of Acceptance. Upon execution of this Agreement by
Buyer, FFRM, and at least three out of four of the individuals signing on behalf
of Seller, this Agreement shall be binding upon and inure to the benefit of
Buyer and Seller and their respective heirs, legal representatives, successors
and assigns. There are no conditions, representations, warranties, covenants, or
agreements relating to this transaction not contained in this Agreement or in
the Exhibits to it. Any subsequent conditions, representations, warranties,
covenants or agreements shall not be valid and binding upon the parties unless
in writing and signed by both parties.
(d) Survival. All representations, warranties, covenants and
agreements in this Agreement shall survive the Closing Date and shall not merge
in the General Warranty Deed or any other document executed and delivered in
performance of this Agreement. However, Buyer's rights against Seller for any
breach of a representation or warranty (except a breach resulting from fraud or
intentional misrepresentation) shall expire unless Buyer gives Seller written
notice of an alleged breach within one year after Closing. Buyer agrees to look
solely to the assets of Seller (including any assets or proceeds distributed to
its partners after Closing) to satisfy any claims under such provision.
Notwithstanding anything to the contrary provided in this Agreement, in no event
shall the general partners of Seller be personally liable under any provision(s)
of this Agreement or with respect to any of Seller's obligations hereunder,
except to the extent they have actually received assets or proceeds from Seller
after Closing.
(e) Notices. Any notice required to be given herein will be in
writing and either delivered personally or sent postage prepaid by certified
United States Mail, return receipt requested, addressed, if to Buyer, at 00000
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxx 00000 and if to Seller c/o Xxxxxx X.
Xxxxx, Esq., Domnitz, Mawicke, Goisman & Xxxxxxxxx, S.C., 0000 Xxxxx Xxxxxxxx
Xxxxxx, Xxxxxxxxx, Xxxxxxxxx 00000. Either party may, by written notice,
designate a different address for notices. Notice shall be deemed given when
personally delivered to the office of either party during normal business hours
or when deposited in the mail.
(f) Disclosure. Certain of Buyer's affiliates are licensed
real estate brokers who intend to realize a profit from this transaction.
(g) Post-Closing Management. Buyer shall cause FFRM to
continue to provide partnership administration services (preparation of Seller's
tax returns and reports and attendant income tax schedules for partners of
Seller and the like) to Seller at no cost to Seller until Seller has been
dissolved and finally liquidated. If FFRM fails to perform such partnership
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administration services for any reason, Buyer shall be obligated to perform, or
cause to be performed, such partnership administration services.
(The rest of this page is intentionally left blank.)
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GREAT LAKES INVESTORS LLC
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Manager
RAL INCOME + EQUITY GROWTH V
LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx,
General Partner
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx,
General Partner
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx,
General Partner
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx,
General Partner
CONSENT OF MANAGER
First Financial Realty Management, Inc. agrees to the provisions of
Section 13(g) of this Agreement.
FIRST FINANCIAL REALTY MANAGEMENT, INC.
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, President
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EXHIBITS:
A - Description of Business
1(a)(1) - Legal Description of Land
1(c) - Specific Business Interests
3 - Purchase Price and Allocation
4 - Contingency Deadlines
4(b) - Permitted Encumbrances
4B - Agreements with Seller's Affiliates
5(b) - Assets Seller May Sell
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EXHIBIT A
Description of Business
Project Allocation
Xxxx Heights Apartments $1,200,000
Madison, Wisconsin
Evergreen Estates Mobile Home Park TBD
Faribault, Minnesota
Camelot Mobile Home Park TBD
Pulaski, Wisconsin
Champion Auto Supply Store XXX
Xxxxxxxxxxx, Xxxxxxxxx
Seller's interest, as general partner, TBD in a joint venture that owns and
operates Cedar Crossings Apartments, a 109-unit residential apartment project in
Frederick, Maryland
EXHIBIT 1(a)(1)
Legal Description
To be provided in title insurance commitment
EXHIBIT 1(c)
Specific Business Interests
Seller's right as plaintiff under that certain lawsuit captioned RAL Income +
Equity Growth V Limited Partnership v. Aztec Builders (Dane County, Wisconsin
Circuit Court Case). Buyer shall notify Seller when the case is resolved.
If the case is resolved by sale of the affected Project
before Closing, this Agreement shall be terminated as to the
affected Project, the Purchase Price shall be reduced by the
Project Allocation, and Buyer or its affiliate shall be paid
a commission of 6% of the sale price for the affected
Project at closing of the sale of the affected Project.
If the case is resolved by sale of the affected Project
after Closing, the net sale proceeds shall be disbursed at
closing of the sale of the affected Project as follows:
First, to pay Buyer or its affiliate a commission of 6% of
the sale price for the affected Project; second, to
reimburse Buyer for the Project Allocation; third, to
reimburse Buyer and Seller for their respective costs of
litigation and collection (provided that if the proceeds are
insufficient to reimburse these costs in full, the
reimbursement shall be made pro rata in proportion to the
parties' respective costs); and finally, any remaining
balance 75% to Seller and 25% to Buyer.
If the case is resolved other than by sale of the affected
Project, the resolution proceeds shall be disbursed as and
when received as follows: First, to reimburse Buyer and
Seller for their respective costs of litigation and
collection (provided that if the proceeds are insufficient
to reimburse these costs in full, the reimbursement shall be
made pro rata in proportion to the parties' respective
costs); and second, any remaining balance 75% to Seller and
25% to Buyer.
Buyer shall be obligated to diligently and vigorously pursue Seller's claims in
the lawsuit described above, at Buyer's expense (subject to reimbursement as
provided above). Before resolving or settling such lawsuit, Buyer shall obtain
the written consent of Seller, which consent shall not be unreasonably withheld.
EXHIBIT 3
Purchase Price
The Purchase Price is $4,628,000.
EXHIBIT 4
Contingency Deadlines
Section Contingency Deadline*
4(a) Notice of survey defects 60 days
Remedy of survey defects 90 days
4(b) Notice of title objections 60 days
Remedy of title objections 90 days
4(c) Notice of environmental defects 75 days
Remedy of environmental defects 105 days
* Expressed as the number of days after the date of this Agreement. Deadlines
falling on a non-business day shall be extended to the next business day.
EXHIBIT 4(b)
Permitted Encumbrances
Each encumbrance specifically listed in the Title Insurance Commitment shall be
a "Permitted Encumbrance" under this Agreement, provided it does not (a)
materially interfere with the access to and from or the use or occupancy of the
Real Property; or (b) result in the violation of any building or zoning code; or
(c) create or result in a material encroachment that materially interferes with
the access to and from or the use or occupancy of the Real Property or any
properties adjacent to the Real Property or materially reduces the value of the
Real Property or any properties adjacent to the Real Property; (d) constitute a
monetary lien that will not be discharged at or prior to the Closing Date; or
(e) materially interfere with Buyer's ability to continue to lease at their fair
rental values those mobile home sites at the Property (assuming the Property is
a mobile home park) that have been under lease during any part of the year
preceding the Closing Date.
EXHIBIT 4B
Agreements With Seller's Affiliates
Asset Purchase Agreement with RAL - Yield Equities II Limited Partnership
Asset Purchase Agreement with RAL Yield + Equities III Limited Partnership
Asset Purchase Agreement with RAL Yield + Equities IV Limited Partnership
Asset Purchase Agreement with RAL Germantown/Monroe Income Limited Partnership
(The simultaneous closing of this transaction with Buyer, as required under
Section 4B, shall only be required if the transaction with Buyer is approved by
the holders of a majority of the outstanding limited partnership interests in
RAL Germantown/Monroe Income Limited Partnership)
Purchase Agreement with Xxxxxx X. Xxxxxx, Xxxx X. Xxxxxx, and Xxxxxx X. Xxxx
(and possibly Xxxx Xxxxx)
EXHIBIT 5(b)
Assets Seller May Sell
Xxxx Heights Apartments, Madison, Wisconsin, subject to the terms of Exhibit
1(c)
FIRST AMENDMENT TO ASSET PURCHASE AGREEMENT
This First Amendment to Asset Purchase Agreement ("First
Amendment") is made as of June 26, 1998 by and between GREAT LAKES INVESTORS
LLC, a Wisconsin limited liability company ("Buyer"), and RAL INCOME + EQUITY
GROWTH V LIMITED PARTNERSHIP, a Wisconsin limited partnership ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Asset Purchase
Agreement dated February 17, 1998 (the "Original Agreement"), pursuant to which
Seller agreed to sell and Buyer agreed to purchase the Assets, as defined in
Section 1 of the Original Agreement.
B. Purchaser and Seller desire to amend certain provisions of
the Original Agreement as set forth in this First Amendment.
NOW, THEREFORE, in consideration of the mutual agreements
contained in the Original Agreement and in this First Amendment, it is agreed as
follows:
1. Contingency Deadlines. The deadlines contained in Sections
4 and 4A of the Original Agreement regarding notices, remedies and the
satisfaction or waiver of the contingencies contained therein shall be changed
as follows:
a. Exhibit 4 of the Original Agreement shall be deleted in
its entirety and replaced with the form of Exhibit 4 attached to this First
Amendment. If Buyer is diligently attempting to satisfy the contingencies set
forth in Sections 4(a), 4(b) and 4(c) of the Original Agreement, Buyer shall
have the right to further extend to September 15, 1998 any or all of the
deadlines set forth on the amended Exhibit 4 that relate to notice of defects or
objections, in which case the related deadline for the remedy of such defects or
objections shall be extended to October 15, 1998. If Buyer desires to exercise
its right to extend any or all of such deadlines, it must so notify Seller on or
before July 15, 1998.
b. "Seller's Contingency Deadline", as defined in Section 4A
of the Original Agreement, shall be changed from June 13, 1998 (which was
previously extended by Seller to August 13, 1998) to July 15, 1998. If Seller is
diligently attempting to satisfy the contingencies set forth in Section 4A of
the Original Agreement, Seller shall have the right to further extend the date
of Seller's Contingency Deadline to September 15, 1998. If Seller desires to
exercise its right to extend Seller's Contingency Deadline, it must so notify
Buyer on or before July 15, 1998.
2. Closing Date. The "Closing Date" as defined in Section 6(a)
of the Original Agreement shall be changed to July 31, 1998, provided that if
Buyer exercises its right to extend one or more contingency deadlines pursuant
to Section 1(a) of this First Amendment and/or if Seller exercises its right to
extend Seller's Contingency Deadline pursuant to Section 1(b) of this First
Amendment, then the "Closing Date" shall be extended to the date that is
fifteen (15) days after all of the conditions set forth in Sections 4 and 4A
have been satisfied or waived.
3. Effect of Amendment. Except as amended or modified as set
forth herein, the Original Agreement shall remain unchanged, in full force and
effect and binding upon the parties.
4. Counterparts. This First Amendment may be executed in one
or more counterparts, each of which will be deemed an original of this First
Amendment.
IN WITNESS WHEREOF, Buyer and Seller have executed this First
Amendment as of the date first written above.
GREAT LAKES INVESTORS LLC
By: /s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Manager
RAL INCOME + EQUITY GROWTH V
LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx, General Partner
By: /s/ Xxxx X. Xxxxxx
Xxxx X. Xxxxxx, General Partner
By: /s/ Xxxxxx X. Xxxx
Xxxxxx X. Xxxx, General Partner
By: /s/ Xxxx Xxxxx
Xxxx Xxxxx, General Partner
2
EXHIBIT 4
Contingency Deadlines
Section Contingency Deadline
4(a) Notice of survey defects July 15, 1998
Remedy of survey defects July 31, 1998
4(b) Notice of title objections July 15, 1998
Remedy of title objections July 31, 1998
4(c) Notice of environmental defects July 15, 1998
Remedy of environmental defects July 31, 1998
3
SECOND AMENDMENT TO ASSET PURCHASE AGREEMENT
This Second Amendment to Asset Purchase Agreement ("Second Amendment")
is made as of October 29, 1998 by and between GREAT LAKES INVESTORS LLC, a
Wisconsin limited liability company ("Buyer"), and RAL INCOME + EQUITY GROWTH V
LIMITED PARTNERSHIP, a Wisconsin limited partnership ("Seller").
RECITALS
A. Buyer and Seller entered into that certain Asset Purchase Agreement
dated February 17, 1998 and amended June 26, 1998 (as amended, the "Original
Agreement"), pursuant to which Seller agreed to sell and Buyer agreed to
purchase the Assets, as defined in Section 1 of the Original Agreement.
B. Purchaser and Seller desire to amend certain provisions of the
Original Agreement as set forth in this Second Amendment.
NOW, THEREFORE, in consideration of the mutual agreements
contained in the Original Agreement and in this Second Amendment, it is agreed
as follows:
1. Xxxx Heights; Purchase Price. All references in the Original
Agreement to Xxxx Heights Apartments, Madison, Wisconsin are deleted. Exhibit
1(c), Specific Business Interests, is revised to read "None." The Purchase Price
is changed to $3,428,000.
2. Closing Date. The "Closing Date" as defined in Section 6(a) of the
Original Agreement is changed to November 2, 1998 or such other date as the
parties may agree to in writing.
3. Project Allocations. The second sentence in Section 3 of the
Original Agreement shall be amended to read as follows: "The allocation of the
Purchase price among the Projects (the `Project Allocations') shall be mutually
agreeable to Buyer and Seller and shall be set forth on the Closing Statement(s)
to be executed by Seller and Buyer at closing." The column with the heading
"Allocation" on Exhibit A of the Original Agreement shall be deleted in its
entirety. The following new provision shall be added at the end of Section 3 of
the Original Agreement:
For each Project Allocation, Buyer and Seller shall mutually
agree on an allocation among various categories such as
land, improvements, goodwill, favorable leases, business
interests, personal property and non-competition agreements.
Such allocation shall be set forth on the Closing
Statement(s) to be executed by Seller and Buyer at closing,
and shall be used by Seller and Buyer for income tax
reporting purposes and to determine the amount of transfer
fees or taxes to be paid upon the sale of each Project. If
the taxing authority that imposes such transfer fees or
taxes upon the sale of each Project requires adjustments in
such allocations to be made, thereby resulting in an
increase in the transfer fees or taxes payable with respect
to such sale, Buyer shall be responsible for the payment of
such additional transfer fees or taxes. Buyer
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shall indemnify and holder Seller harmless from and against
such additional transfer fees and taxes and any interest or
penalties related thereto, and any costs or expenses
(including, without limitation, reasonable attorney's fees
and legal costs and disbursements) incurred by Seller in
connection with the imposition of such additional transfer
fees or taxes.
4. Special Assessments Affecting Camelot Mobile Home Park. Buyer
acknowledges that the Village of Pulaski has approved special assessments for
certain public improvements to be imposed on Camelot Mobile Home Park
("Camelot") and other properties in the Village of Pulaski. Seller's estimated
allocation of such special assessments is $104,675. Seller has protested the
imposition of such special assessments on Camelot. At closing, Buyer shall be
given a credit against the Purchase Price in the amount of $105,000, and shall
place the sum of $105,000 into an escrow account to be maintained by X.X. Melody
& Co. (the "Escrow Agent"), pursuant to a written escrow agreement among Seller,
Buyer and the Escrow Agent. In general, the Escrow Agreement shall provide that:
(a) Seller shall be entitled to continue its protest of such special assessments
at Seller's expense, and if Seller is successful in reducing or eliminating such
special assessments, Seller shall receive from the Escrow Agent the excess of
the amount held in escrow over the final amount of such special assessments; and
(b) the Escrow Agent shall pay the special assessments to the Village of Pulaski
as and when the same become due and payable.
5. Effect of Amendment. Except as amended or modified as set forth
herein, the Original Agreement shall remain unchanged, in full force and effect
and binding upon the parties.
IN WITNESS WHEREOF, Buyer and Seller have executed this Second
Amendment as of the date first written above.
GREAT LAKES INVESTORS LLC
BY: GREAT LAKES INVESTMENT
MANAGEMENT LLC, Its Manager
By: /S/Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx, Member
RAL YIELD + EQUITY GROWTH V
LIMITED PARTNERSHIP
By: /S/Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
General Partner
