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AGREEMENT
dated as of March 30, 2004, between BIR Xxxxxx Xxxxx Limited Partnership, a Delaware
limited partnership (“Buyer”), with an address c/o Berkshire Income Realty, Xxx
Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, XX 00000, Attention: Xx. Xxxxxxx Xxxxxxx, Telecopier
No. 000-000-0000, and BMF Acquisition Limited Partnership, a Delaware limited partnership
(“Seller”), with an address of c/o Berkshire Mortgage Finance, Xxx Xxxxxx
Xxxxxx, Xxxxxx, XX 00000, Attention: Ms Xxxxx Xxxxx and Xx. Xxxxxxx Xxxxxxxxx, Telecopier
No. 617574-8355.
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In
consideration of the mutual undertakings and covenants herein contained, Seller and Buyer
hereby covenant and agree as follows:
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SECTION I
SALE OF PROPERTY AND
ACCEPTABLE TITLE
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1.01
Agreement to Buy and to Sell; Property. Seller shall sell to Buyer, and Buyer shall
purchase from Seller, at the price and upon the terms and conditions set forth in this
Agreement the following:
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(a)
that certain tract or parcel of land located at 0000 Xxxxxx Xxxxxx, Xxxxxx,
Xxxxx, more particularly described in Schedule A attached hereto (the
“Land”); |
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(b)
the one hundred-fifty (150) unit apartment complex commonly known as Xxxxxx
Xxxxx Apartments, which contains related improvements, facilities, amenities,
structures, driveways and walkways, all of which have been constructed on the
Land (collectively, the “Improvements”); |
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(c)
all right, title and interest of Seller in and to any alleys, strips or gores
adjoining the Land, and any easements, rights-of-way or other interests in, on,
under or to, any land, highway, street, road, right-of-way or avenue, open or
proposed, in, on, under, across, in front of, abutting or adjoining the Land,
and all right, title and interest of Seller in and to any awards for damage
thereto by reason of a change of grade thereof; |
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(d)
all right, title and interest of Seller in and to the accessions, appurtenant
rights, privileges, appurtenances to the estate and rights of Seller in and to
the Land and the Improvements, as applicable, or otherwise appertaining to any
of the property described in the immediately preceding clauses (a), (b)
and/or (c); |
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(e)
all right, title and interest of Seller in and to the personal property listed
in Schedule B attached hereto and all other fixtures, machinery,
supplies, equipment and other personal property owned by Seller and located on
or in or used solely in connection with the Land and Improvements (collectively,
the “Personal Property”); and |
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(f)
all of Seller’s interest in any intangible property now or hereafter owned
by Seller and used solely in connection with the Land, Improvements and Personal
Property, including without limitation the name of the Property and any
trademarks, trade names, trade styles and service marks related to the Property,
all rights under any certificates of occupancy, licenses, permits and approvals
relating
to the Property, data Files in Seller’s possession containing the information set
forth in the Rent Roll, and any contract rights, escrow or security deposits, utility
agreements or other rights related to the ownership of or use and operation of the
Property, as hereinafter defined. |
All
of the items described in subparagraphs (a), (b), (c), (d), (e) and (f) above are
collectively the “Property”.
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1.02
Title. Seller shall convey to Buyer by special warranty deed (the “Deed”), and
Buyer shall accept the fee simple title to the Property in accordance with the terms of
this Agreement, and Buyer’s obligation to accept said title shall be conditioned upon
Buyer then being conveyed good and clear record and marketable fee simple title to the
Property, subject only to those matters of record shown on the title insurance commitment
dated March 24, 2004 issued by Lawyer’s Title Insurance Corporation (the “Title
Company”) for the benefit of Buyer (the “Permitted Exceptions”).
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SECTION 2
PURCHASE. PRICE,
ACCEPTABLE FUNDS, DEPOSIT AND ESCROW
OF DEPOSIT
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2.01
Purchase Price. The purchase price (“Purchase Price”) to be paid by Buyer
to Seller for the Property is Five Million Two Hundred Fifty Thousand Dollars ($5,250,000)
subject to the prorations and adjustments as hereinafter provided in this Agreement.
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2.02
Payment of’Monies. All monies payable under this Agreement, unless otherwise
specified in this Agreement, shall be paid by wire transfer.
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2.03
Payment of Purchase Price. The Purchase Price, subject to prorations and
adjustments, shall be paid as follows:
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(a)
Within three (3) business days after, mutual execution and delivery of this
Agreement, Buyer shall deliver to the escrow department of the Title Company a
deposit of Two Hundred and Fifty Thousand Dollars ($250,000) (together with
interest accrued thereon, the “Deposit”), to be credited toward
payment of the Purchase Price; |
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(b)
Payment at Closing. At the consummation of the transaction contemplated
hereby (the “Closing”), Buyer shall deliver to Escrow Agent cash in an
amount equal to the Purchase Price less the amount of the Deposit held by the
Escrow Agent and subject to adjustments and apportionments as set forth herein.
The Purchase Price, as adjusted, shall be paid at Closing by wire transfer of
immediately available federal funds. |
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2.04
Deposit; Escrow Agent. The Deposit shall be delivered by Buyer to Title Company,
National Accounts, Boston Office, Attention: Xxxxxx X. Xxxxx, Esq. (the “Escrow
Agent”) within one (1) business day after the complete execution of thus Agreement.
Upon receipt from Buyer of the Deposit, Escrow Agent shall invest the Deposit in an
interest-bearing account or money market fund acceptable
to Buyer and Seller. All interest on the Deposit shall accrue to Buyer, except as
otherwise provided in Section 12.03 hereof. At the Closing, Escrow Agent shall release the
Deposit to Seller, which Deposit shall be credited against the balance of the Purchase
Price owed by Buyer to Seller. Escrow Agent shall agree to hold and dispose of the Deposit
in accordance with the terms and provisions of this Agreement. |
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2.05
Escrow Provisions. Escrow Agent agrees to hold, keep and deliver said Deposit and
all other sums delivered to it pursuant hereto in accordance with the terms and provisions
of this Agreement. Escrow Agent shall not be entitled to any fees or compensation for its
services hereunder Escrow Agent shall be liable only to hold said sums and deliver the
same to the parties named herein in accordance with the provisions of this Agreement, it
being expressly understood that by acceptance of this Agreement Escrow Agent is acting in
the capacity of a depository only and shall not be liable or responsible to anyone for any
damages, losses or expenses unless same shall have been caused by the gross negligence or
willful malfeasance of Escrow Agent. In the event of any disagreement between Buyer and
Seller resulting in any adverse claims and demands being made in connection with or for
the monies involved herein or affected hereby, Escrow Agent shall be entitled to refuse to
comply with any such claims or demands so long as such disagreement may continue; and in
so refusing Escrow Agent shall make no delivery or other disposition of any of the monies
then held by it under the terms of this Agreement, and in so doing Escrow Agent shall not
become liable to anyone for such refusal; and Escrow Agent shall be entitled to continue
to refrain from acting until (a) the rights of the adverse claimants shall have been
finally adjudicated in a court of competent jurisdiction of the monies involved herein or
affected hereby, or (b) all differences shall have been adjusted by agreement between
Seller and Buyer, and Escrow Agent shall have been notified in writing of such agreement
signed by the parties hereto. Escrow Agent shall not be required to disburse any of the
monies held by it under this Agreement unless in accordance with either a joint written
instruction of Buyer and Seller or an Escrow Demand from either Buyer or Seller in
accordance with the provisions hereinafter. Upon receipt by Escrow Agent from either Buyer
or Seller (the “Notifying Party”) of any notice or request (the “Escrow
Demand”) to perform any act or disburse any portion of the monies held by Escrow
Agent under the terms of this Agreement, Escrow Agent shall give written notice to the
other party (the “Notified Party”). If within five (5) business days after the
giving of such notice, Escrow Agent does not receive any written objection to the Escrow
Demand from the Notified Party, Escrow Agent shall comply with the Escrow Demand If Escrow
Agent does receive written objection from the Notified Party in a timely manner, Escrow
Agent shall take no further action until the dispute between the parties has been resolved
pursuant to either clause (a) or (b) above. Further Escrow Agent shall have the right at
all times to pay all sums held by it (i) to the appropriate party under the terns hereof,
or (ii) into any court of competent jurisdiction after a dispute between or among the
parties hereto has arisen, whereupon Escrow Agent’s obligations hereunder shall
terminate. |
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Seller
and Buyer jointly and severally agree to indemnify and hold harmless said Escrow Agent
from any and all costs, damages and expenses, including reasonable attorneys’ fees,
that said Escrow Agent may incur in its compliance of and in good faith with the terms of
this Agreement; provided, however, this indemnity shall not extend to any act of gross
negligence or willful malfeasance on the part of the Escrow Agent. |
SECTION 3
THE CLOSING
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Except
as otherwise provided in this Agreement, the delivery of all documents necessary for the
closing of this transaction pursuant to this Agreement (the “Closing”) shall
take place in the offices of Xxxxxxx XxXxxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000 or such other place as Seller and Buyer shall mutually agree, at 10:00
a.m. local time on March 30, 2004 (the “Original Closing Date”) or such earlier
date or place as Buyer and Seller shall mutually agree in writing. It is agreed that time
is of the essence of this Agreement, The Closing shall be conducted through an escrow
administered by Escrow Agent. Buyer and Seller shall execute supplemental escrow
instructions as may be appropriate to enable Title Company to comply with the terms of
this Agreement, so long as such instructions are not in conflict with this Agreement. The
transactions described herein shall be closed by means of concurrent delivery of the
documents of title, transfer of interest, delivery of Buyer’s title insurance policy
and the Purchase Price, customarily referred to as a “New York Style” closing.
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SECTION 4
REPRESENTATIONS AND
WARRANTIES OF SELLER
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Seller
hereby makes the following representations and warranties, each of which (i) is true as of
the date of this Agreement, (ii) shall be true on the Closing Date, and (iii) shall
survive the Closing for a period of six (6) months, and no longer:
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4.01
Leases. To Seller’s knowledge, the Rent Roll attached hereto as Schedule
C (the “Rent Roll”) is true, accurate and complete in all material respects
as of the date hereof. To Seller’s knowledge, except as otherwise specifically set
forth in the Rent Roll or elsewhere in this Agreement:
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(a)
Except as shown in Schedule F, there are no defaults on the part of
landlord or any tenant under those leases set forth on the Rent Roll
(collectively, the “Leases”), which defaults remain uncured other than
as shown on the Rent Roll; |
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(b)
there are no security deposits or other deposits other than those set forth in
the Rent Roll; |
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(c)
no rent has been paid more than thirty (30) days in advance under any lease of
any unit in the Property other than as shown on the Rent Roll; |
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(d)
all brokerage commissions with respect to the Leases shall have been paid in
full by the time of Closing. |
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4.02 Contracts. To Seller's knowledge, Schedule D attached hereto lists all contracts affecting the ownership, maintenance
and/or operation of the Property (the "Service Contracts"). |
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4.03 Ability to Perform. Seller has full power to execute, deliver, and carry out the terms and provisions of this Agreement
and has taken all necessary action to authorize the execution, delivery and performance of
this Agreement, and this Agreement constitute the legal, valid and binding obligation of
Seller enforceable in accordance with its terms. Except to tire extent previously
obtained, no order, permission, consent, approval, license, authorization, registration or
validation of, or filing with, or exemption by, any governmental agency, commission, board
or public authority is required to authorize, or is required in connection with, the
execution, delivery and performance of this Agreement by Seller or the taking by Seller of
any action contemplated by this Agreement. |
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4.04
No Actions. Except as set forth on Schedule F attached hereto, to
Seller’s knowledge, there are no pending or threatened actions or proceedings against
or relating to Seller or to the construction, ownership, use, possession or, operation of
the Property, including, without limitation, regarding condemnation of or encumbrances
(including, without limitation, any assessment payable in annual installments) on the
construction, ownership, use, operation, or possession of the Property or any part
thereof.
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4.05
No Violation Notice. To Seller’s knowledge, Seller has not received written
notice from any federal, state, county or municipal authority or any other third party
alleging any fire, health, safety, building, pollution, environmental, zoning or other
violation of law in respect of the Property or any part thereof, which has not been
entirely corrected.
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As
used in this Agreement, or in any other agreement, document, certificate or instrument
delivered by Seller to Buyer, the phrase “to Seller’s actual knowledge”,
“to the best of Seller’s knowledge” or any similar phrase shall mean the
actual, not constructive or imputed, knowledge of Xxxxx Xxxxx and Xxxxxxx Xxxxxxxxx,
without any obligation on their part to make any independent investigation of the matters
being represented and warranted, or to make any inquiry of any other persons, or to search
or examine any files, records, books, correspondence and the like The foregoing
individuals shall not have any personal liability hereunder.
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If
Buyer notifies Seller prior to Closing that any representation or warranty made in Section
4 is not true and correct in any material respect and Seller fails to cure or remedy the
same prior to Closing, Buyer may either (a) terminate this Agreement and the Deposit shall
be returned to Buyer, and neither party shall have further rights or obligations pursuant
to this Agreement; or (b) waive any such representation or warranty and close the
transaction without any reduction in the Purchase Price.
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If
subsequent to Closing Buyer notifies Seller within six (6) months after Closing that Buyer
discovered post-closing that any representation or warranty made in Section 4 was not true
and correct and specifying the breach with particularity, Buyer shall have available all
remedies at law or in equity as a consequence thereof, provided that Seller’s
total liability under this Section 4 shall not exceed Fifty Thousand Dollars ($50,000) in
the aggregate. If Buyer does not notify Seller of the breach of any of its representations
and warranties set forth in this Section 4 and institute a lawsuit therefore in a court of
competent jurisdiction within six (6) months after the Closing, Buyer shall be deemed to
have waived all of its rights to claim and xxx for any breach by Seller of any of its
representations and warranties made in this Section 4.
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SECTION 5
“AS IS”
DEAL
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5.01
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS, IT IS
UNDERSTOOD AND AGREED THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY
WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT
TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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BUYER
ACKNOWLEDGES AND AGREES THAT UPON CLOSING SELLER SHALL, SELL AND CONVEY TO BUYER AND BUYER
SHALL ACCEPT THE PROPERTY “AS IS, WHERE IS, WITH ALL FAULTS”, EXCEPT TO
THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT OR IN ANY CLOSING DOCUMENTS,
BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND BY, ANY
EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION
PERTAINING TO THE PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT
LIMITATION, ANY PROSPECTUS DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR FURNISHED BY
SELLER, THE MANAGERS OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR
PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY
OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT OR IN ANY CLOSING
DOCUMENTS. BUYER ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT
THAT THE PROPERTY IS BEING SOLD “AS-IS”.
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THE
PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING OR ANY TERMINATION OF THIS AGREEMENT.
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SECTION 6
INSURANCE
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6.01
Maintenance of Insurance. Until the Closing, Seller shall maintain its present
insurance on the Property in the amounts as currently insured. Subject, to the provisions
of Section 6,02, the risk of loss in and to the Property shall remain vested in Seller
until the Closing Buyer will obtain its own insurance on the Property at Closing.
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6.02
Casualty or Condemnation. If’ prior to the Closing, the Improvements or any
material portion thereof (having a replacement cost equal to or in excess of Two Hundred
Fifty Thousand Dollars ($250,000) are damaged or destroyed by fire or casualty, or any
part of the Property is taken by eminent domain by any governmental entity, then Buyer
shall have the option, exercisable by written notice given to Seller at or prior to the
Closing, to terminate this Agreement, whereupon all obligations of all parties hereto
shall cease, the Deposit shall be returned to Buyer and this Agreement shall be void and
without recourse to the parties hereto except for provisions which are expressly stated to
survive such termination. If Buyer does not elect to terminate this Agreement or if such
damage or destruction or taking has a replacement cost or is in an amount of less than Two
Hundred Fifty Thousand Dollars ($250,000), Buyer shall proceed with the purchase of the
Property without reduction or offset of the Purchase Price, and in such case, unless
Seller shall have previously restored the Property to its condition prior to the
occurrence of any such damage or destruction, Seller shall pay over or assign to Buyer all
amounts received or due from, and all claims against, any insurance company (including
business interruption and rental loss insurance proceeds to the extent related to any
period after the Closing Date) or governmental entity as a result of such destruction or
taking and Buyer shall receive a credit against the Purchase Price in an amount equal to
the deductible under Seller’s insurance policy.
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SECTION 7
SELLER’S
OBLIGATIONS PRIOR TO CLOSING
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Seller
covenants that between the date of this Agreement and the Closing:
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7.01
No Lease Amendments. Seller shall not, without Buyer’s prior written consent
(a) enter into any new lease for an apartment unit with a first-time tenant unless the
lease is on the Buyer’s standard form, is for a period of no more than one (I) year
and the rent shall be not less than the amount of the rent charged to the most recent
tenant for the respective apartment; or (b) enter into, and, renew or extend any Lease for
an apartment unit with an existing tenant unless the lease is on Buyer’s standard
form, is for a period of not more than one (1) year and that the rent for the amended,
renewal or extension term shall not be less than the amount of rent noted on the Rent Roll
for the respective apartment, or (c) terminate any Lease except by reason of a default by
the tenant hereunder.
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7.02
Continuation of Contracts. Seller shall not modify or amend any Service Contract or
enter into any new service contract for the Property, without the prior written consent of
Buyer which consent shall not be required if the same is terminable without payment or
penalty by the then owner of the Property upon not more than thirty (30) days’
notice.
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7.03
Maintenance of Improvements and Replacement of Personal Property .Seller shall
maintain all buildings and other improvements, including the apartment units, in the same
condition and repair as of the date of this Agreement, reasonable wear and tear excepted.
Seller shall maintain inventories of supplies, building materials, etc. at the same levels
it has maintained them during its period of ownership.. Seller will not remove any
Personal Property except as may be required for necessary repair or replacement, and
replacements shall be of equal quality and quantity as existed as of the time of its
removal. |
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7.04
Access. Seller shall allow Buyer or Buyer’s representatives access to the
Property, the Leases and other documents required to be delivered under this Agreement
upon reasonable prior notice at reasonable times; provided Buyer agrees that the original
leases and all other original documents shall remain on-site at the Property. |
SECTION 8
CONDITIONS TO
AGREEMENT
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8.01 Buyer's Conditions Precedent. Buyer's obligation to purchase the Property or otherwise to perform any obligation
provided in this Agreement shall be conditioned upon the fulfillment of the following conditions precedent:
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(a)
On or before the respective dates provided for herein, Seller shall have, in a
timely fashion, substantially performed each and every covenant, undertaking and
agreement to be performed by Seller pursuant to this Agreement; |
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(b)
Seller’s representations and warranties contained herein shall be true and
correct in all material respects as of the date of this Agreement and the
Closing Date, without giving effect to any knowledge based qualifications. |
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8.02
Seller’s Conditions Precedent. Seller’s obligation to sell the Property
or otherwise to perform any obligation provided in this Agreement shall be conditioned
upon the fulfillment of the following condition precedent. On or before the respective
dates provided for herein, Buyer shall have, in a timely fashion, substantially performed
each and every covenant, undertaking and agreement to be performed by Buyer pursuant to
this Agreement.
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8.03
Termination- In the event of the failure of any of the foregoing conditions, the
party in whose favor such condition is stated shall have the right, at its option, to
terminate this Agreement by delivery of written notice to the other xxxxx prior to the day
on which such condition is to have been satisfied. In the event of any termination of this
Agreement for failure of an express condition stated in this Agreement, (a) Buyer and
Seller shall be released from all obligations under this Agreement (except for those
obligations which expressly survive termination hereunder), (b) the Deposit, including all
interest accrued thereon, shall be returned immediately to Buyer and (c) all documents
deposited with the Title Company by Buyer or Seller shall be returned to the depositing
party.
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SECTION 9
SELLER’S
CLOSING OBLIGATIONS
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9.01 Closing, Deliveries and Obligations. At the Closing, Seller shall deliver the following to
Buyer:
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(a) Deed. The Deed, in form reasonably satisfactory to Buyer’s and
Seller’s counsel, duly executed and
acknowledged, which conveys the Land and Improvements to Buyer, subject only to the
Permitted Exceptions. |
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(b)
Xxxx of Sale. A xxxx of sale, in form reasonably satisfactory to
Buyer’s and Seller’s counsel, which conveys all of Seller’s
right, title and interest in and to the tangible and intangible personal
property without representation, warranty or recourse. |
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(c)
Assignment of Leases and Security Deposits. An assignment and assumption
of the leases and security deposits with respect thereto, including mutual
indemnities, in form reasonably satisfactory to Buyer’s and Seller’s
counsel. |
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(d)
Lease Records. Original copies of all Leases, and related documents in
the possession or under the control of Seller. Such records shall include a
schedule of all cash security deposits and a check to Buyer or credit against
the Purchase Price in the amount of such security deposits held by Seller at the
Closing under the Leases together with appropriate instruments of transfer or
assignment with respect to any lease securities which are other than cash and a
schedule updating the Rent Roll and setting forth all arrears in rents and all
prepayments of rents. |
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(e)
Permits. Seller shall deliver, to the extent in the possession of Seller:
original copies of all certificates, licenses, permits, authorizations and
approvals issued for or with respect to the Property by governmental authorities
having jurisdiction, except that photocopies may be substituted if the originals
are posted at the Property. |
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(f)
Assignment of Service Contracts. Air assignment and assumption of all
Service Contracts in form reasonably satisfactory to Buyer’s and
Seller’s counsel. |
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(g) Assignment
of Intangible Property. An assignment and assumption of all Intangible Property in
form reasonably satisfactory to Buyer’s and Seller’s counsel.
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(h)
Title Affidavits. Such affidavits as the Title Insurer may reasonably
require in order to omit from its title insurance policy all exceptions for (i)
parties in possession other than under the rights to possession granted under
the Leases; and (ii) mechanics’ liens. |
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(i)
Files. Seller shall make all of its files and records relating to the Property
available to Buyer at the Property upon reasonable prior notice for copying,
which obligation shall survive the Closing. |
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(j)
Notices of Sales. Sufficient letters, executed by Seller, advising the
tenants under the Leases of the sale of the Property to Buyer and directing that
all rents and other payments thereafter becoming due under the Leases be sent to
Buyer or as Buyer may direct. |
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(k)
Non-Foreign Affidavit. Seller shall execute and deliver to Buyer and
Buyer’s counsel, at Closing such evidence as may be reasonably required by
Buyer to show compliance by Seller with the Foreign Investment and Real Property
Tax Act, IRC Section 1445(b)(2), as amended. |
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(l)
Authority. In addition to the foregoing, no later than two (2) business
days before Closing, Seller shall provide Buyer with the following: (i) copies
of good standing certificates documenting the valid existence and the
authorization to transact business in the state of formation of such party, and
its constituent managing or general partner entities, (ii) copies of the
relevant provisions of the partnership agreement, articles of incorporation,
limited liability company agreement or other organizational documentation for
such party, and its managing or general partner constituent entities, as
necessary to demonstrate all entities and persons whose consent is a
prerequisite to Closing, and (iii) full authorizing resolutions evidencing
authority to assume and perform obligations hereunder by such party, and its
managing/general partner constituent entities. |
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9.02
Seller’s Expenses. Seller shall pay (a) its own counsel fees ; (b) title
insurance premiums for the owner’s title insurance policy to be issued in favor of
Buyer exclusive of endorsements, affirmative insurance, and survey deletion; (c) recording
fees for any title clearing documents; and (d) one half of any escrow fees.
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SECTION 10
BUYER’S CLOSING
OBLIGATIONS
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At the Closing, Buyer shall:
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10.01
Payment of Purchase Price. Deliver to Seller the Purchase Price, as adjusted for
(a) apportionments under Section 11, and (b) any adjustments thereto required pursuant to
the express provisions this Agreement.
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10.02
Lease, Security Deposit and Service Contract Assumption. Deliver to Seller
assumption agreements signed by Buyer with respect to the performance by Buyer of the
landlord’s obligations under the Leases, Security Deposits and the Service Contracts
and intangible property assumed by Buyer, in each case in respect of the period from and
after the Closing.
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10.03
Buyer’s Expenses. Pay (a) its own counsel fees; (b) all costs relating to any
mortgage financing obtained by Buyer, (c) survey costs, (d) recording fees; and (e) one
half of any escrow fees.
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SECTION 11
APPORTIONMENTS AND
ADJUSTMENTS TO PURCHASE PRICE
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Seller
and Buyer shall cooperate to produce, prior to the Closing Date, a schedule of prorations
to be made on and after the Closing Date as complete and accurate as reasonably possible.
All prorations which can be liquidated accurately or reasonably estimated shall be made at
and as of Closing. All other prorations, and adjustments to initial estimated prorations,
shall be made by Buyer and Seller with due diligence and cooperation within sixty (60)
days following the Closing Date, or such later time as may be required to obtain necessary
information for proration, by immediate cash payment to the party due a net credit from
such prorations from the other party. Notwithstanding any terms herein to the contrary,
for purposes of calculating prorations, Buyer shall be deemed to be in title to the
Property, and therefore entitled to the income and responsible for the expenses, for the
entire day upon which the Closing occurs.
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The
following apportionments shall be made between the patties at the Closing as of the close
of the business day prior to the Closing:
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(a)
Buyer shall receive from Seller a credit for any rent and other income under
Leases collected by Seller before Closing that applies to any period after
Closing Uncollected rent and other uncollected income shall not be prorated at
Closing. After Closing, Buyer shall apply all rent and income collected by Buyer
from a tenant, first to the month in which Closing occurred, then to such
tenant’s current monthly rental and then to arrearages in the reverse order
in which they were due, remitting promptly to Seller, any balance properly
allocable to Seller’s period of ownership. Buyer shall xxxx and use
commercially reasonable efforts to collect such rent anrearages in the ordinary
course of business, but shall not be obligated to engage a collection agency or
take legal action to collect any rent arrearages. Any rent or other income
received by Seller after Closing which are owed to Buyer shall be remitted to
Buyer promptly after receipt for allocation and disbursement as provided herein; |
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(b)
security deposits; it is tire intent of the parties that all security deposits
shown on the Rent Roll shall be transferred by Seller to Buyer at Closing; on
the Closing, Buyer will assume all obligations with respect to the security
deposits transferred to Buyer and be directly accountable to the residents of
the Property with respect thereto; |
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(c)
there shall be no adjustment for wages, vacation pay, pension and welfare
benefits and other fringe benefits of all persons employed by Seller at the
Property; it being the intent of the parties that simultaneously with the
Closing, Seller shall terminate any existing management agreement and Buyer
shall have no liability or obligation with respect to any employee of Seller or
its management company prior to Closing provided thereafter, Buyer may, at
Buyer’s option, reemploy all or any of said employees from and after the
Closing; |
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(d)
real estate and personal property taxes, water charges, sewer rents and vault
charges, if any, on the basis of the fiscal period for which assessed, except
that if there is a water meter on the Property, apportionment at the Closing
shall be based on the last available reading, subject to adjustment after the
Closing on a per diem basis, when the next reading is available; |
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(e)
Seller shall receive a credit for utility deposits for any utility accounts
which are transferred to Buyer; |
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(f)
Prepayments paid by or paid to Seller under assigned Service Contracts; and |
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(g)
In the event that any portion of the Purchase Price shall be allocated as or
deemed to be consideration for the purchase of the Personal Property, pursuant
to application of law, or as a result of a requirement by any court,
governmental agency or administrative department, then Buyer shall promptly pay
all sales, use or other taxes or assessments charged in connection with the sale
of the Personal Property hereunder, including all related interests, penalties
and fines, whether assessed at or after Closing. Buyer’s obligations under
the foregoing sentence shall survive Closing. |
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If
the Closing shall occur before a new real property tax rate is fixed, the apportionment of
real property taxes at the Closing shall be upon the basis of the old tax rate for the
preceding period applied to the latest assessed valuation. Promptly after the new real
property tax rate is fixed, the apportionment of real property taxes shall be recomputed.
Any discrepancy resulting from such recomputation and any errors
or omissions in computing apportionments at the Closing shall be promptly corrected. If
any operating expenses or other prorations cannot conclusively be determined as of the
date of Closing, then the same shall be adjusted at Closing based upon the most recently
issued bills thus far and shall be re-adjusted the provisions of this Section 11 shall
survive Closing within sixty (60) days after the Closing occurs or as soon thereafter as
practicable. |
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The
provisions of this Section 11 shall survive Closing. |
SECTION 12
FAILURE TO PERFORM
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12.01
Buyer’s Election. If Seller is unable to satisfy all of Seller’s
obligations as set forth in this Agreement, Buyer shall have the right to elect, in its
sole discretion, at tire Closing, to accept such title as Seller can deliver to the
Property in its then condition and to pay therefor the Purchase Price without reduction or
offset, in which case Seller shall convey such title for such price.
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12.02
Seller’s Default. If at the Closing, Seller fails to satisfy all of
Seller’s obligations as set forth in this Agreement, and Buyer does not elect to take
title as provided in Section 12 01, Seller shall be in default under this Agreement and
Buyer shall have the right to elect one of the following remedies as its sole and
exclusive remedy on account of such default; (a) to terminate this Agreement, in which
event all Deposits made hereunder shall be forthwith returned to Buyer, or (b) if Buyer
desires to purchase the Property in accordance with the terms of this Agreement, Buyer, at
its option, shall have the right to compel specific performance by Seller hereunder.
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12.03
Buyer’s Default. The parties acknowledge that in the event of Buyer’s
failure to fulfill its obligations hereunder it is impossible to compute exactly the
damages which would accrue to Seller in such event. The parties have taken these facts
into account in setting the amount of the Deposit, required pursuant to Section 2.03(a),
and hereby agree that: (a) such amount together with the interest earned thereon is the
pre-estimate of such damages which would accrue to Seller; (b) such amount represents
damages and not any penalty against Buyer; and (c) if this Agreement shall be terminated
by Seller by reason of Buyer’s failure to fulfill Buyer’s obligations hereunder,
the Deposit together with the interest thereon shall be Seller’s full and liquidated
damages in lieu of all other rights and remedies which Seller may have against Buyer at
law or in equity.
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SECTION 13
BROKERAGE FEES
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13.01
Brokerage Fees. Seller and Buyer mutually represent and warrant that neither Seller
nor Buyer knows of any broker who has claimed or may have the right to claim a commission
in connection with this purchase and sale. Seller and Buyer shall indemnify and defend
each other against any costs, claims or expenses, including attorneys’ fees, arising
out of the breach on their respective parts
of any representations, warranties or agreements contained in this Section. The
representations and obligations under this Section shall survive the Closing or, if’
the Closing does not occur, the termination of this Agreement. |
SECTION 14
NOTICES
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14.01
Effective Notices. All notices under this Agreement shall be in writing and shall
be delivered personally or shall be sent by Federal Express or other comparable overnight
delivery courier, addressed as set forth at the beginning of this Agreement or by
telecopier to the telecopier number as set forth at the beginning of this Agreement.
Notices shall be deemed effective, when so delivered. Copies of all such notices to Seller
shall be sent to Xxxxx X. Xxxxx, Esq., Goulston & Stows, P.C, 000 Xxxxxxxx Xxxxxx,
Xxxxxx, XX 00000 Telecopier No. 000 0000000, and copies of all such notices to Buyer shall
be sent to Xxxxxxx X Xxxxxx, Esq., Xxxxxxx XxXxxxxxx 112, 000 Xxxxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000, Telecopier No. 000-000-0000.
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SECTION 15
LIMITATIONS ON
SURVIVAL
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15.01
Representations and Warranties Except as otherwise expressly provided in this
Agreement, no representations, warranties, covenants or other obligations of Seller set
forth in this Agreement shall survive the Closing, and no action based thereon shall be
commenced after Closing. The representations, warranties, covenants and other obligations
of Seller which are expressly provided to survive the Closing shall survive until six (6)
months after the Closing, and no action based thereon shall be commenced more than six (6)
months after the Closing. Notwithstanding anything to the contrary contained in this
Agreement, in no event shall either party hereto be liable for any consequential, special,
indirect or punitive damages and in no event shall damages for which Seller is responsible
hereunder exceed the net Purchase Price received by Seller at Closing.
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15.02
Merger. The delivery of the Deed by Seller, and the acceptance and recording
thereof by Buyer, shall be deemed the full performance and discharge of each and every
obligation on the part of Seller to be performed hereunder and shall be merged in the
delivery and acceptance of the Deed, except as provided in Section 15.01. The provisions
of this Section 15.02 shall survive the Closing.
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SECTION 16
MISCELLANEOUS
PROVISIONS
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16.01
Assignment. Buyer shall be entitled to assign this Agreement and its rights
hereunder to a corporation, general partnership, limited partnership, limited liability
company or other lawful entity entitled to do business in the state in which the Property
is located provided such entity, shall be controlled by, controlling or under the common
control with Buyer (“Assignee”) In the event of such an assignment
of this Agreement to Assignee (a) Buyer shall notify Seller promptly, (b) Buyer shall be
released from all liability under this Agreement from and after such assignment, (c)
Assignee shall assume all obligations of Buyer under this Agreement and (d) from and after
any such assignment the term “Buyer” shall be deemed to mean the Assignee under
any such assignment. Except as provided above, Buyer may not assign this Agreement. |
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16.02
Limitation of Seller’s Liability. No shareholders, partners or members of
Seller; nor any of its or their respective officers, directors, agents, employees, heirs,
successors or assigns shall have any personal liability of any kind or nature for or by
reason of any matter or thing whatsoever under, in connection with, arising out of or in
any way related to this Agreement and the transactions contemplated herein, and Buyer
hereby waives for itself and anyone who may claim by, through or under Buyer any and all
rights to xxx or recover on account of any such alleged personal liability. Further,
Seller’s liability under this Agreement and the documents delivered in connection
herewith shall be limited, as applicable, to its interest in the Property (including the
proceeds of the sale thereof’ contemplated hereunder) and Seller shall have no
personal liability hereunder nor shall any other assets of Seller be available to satisfy
Seller’s obligations hereunder The provisions of this Section 16, 02 shall survive
closing.
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16.03
Integration. This Agreement embodies and constitutes the entire understanding
between the parties with respect to the transaction contemplated herein, and all prior
agreements, understandings, representations and statements, oral or written, are merged
into this Agreement Neither this Agreement nor any provision hereof may be waived,
modified, amended, discharged or terminated except by an instrument signed by the party
against whom the enforcement of such waiver, modification, amendment, discharge or
termination is sought, and then only to the extent set forth in such instrument.
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16.04
Governing Law. This Agreement shall be governed by, and construed in accordance
with the laws of the State of Texas.
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16.05
Captions. The captions in this Agreement are inserted for convenience of reference
only and in no way define, describe or limit the scope or intent of this Agreement or any
of the provisions hereof.
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16.06
Bind and Inure. This Agreement shall be binding upon and shall inure to the benefit
of the parties hereto and their respective successors and permitted assigns.
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16.07
Number and Gender. As used in this Agreement, the masculine shall include the
feminine and neuter, the singular shall include the plural and the plural shall include
the singular, as the context may require.
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16.08
Construction. If any provision of this Agreement shall be determined to be illegal,
void or unenforceable, such determination shall not affect any other provision of this
Agreement and all such other provisions shall remain in full force and effect.
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16.09 Counterparts. This Agreement may be executed in one or more counterparts, by original signature or facsimile, each of
which shall be an original, but all
of which shall constitute one contract, binding on Buyer and Seller, notwithstanding that
both parties are not signatory to the same counterpart.
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16.10
Time. Time is of the essence in the performance of the parties’ respective
obligations set forth in this Agreement. If the Closing Date, or any other deadline
hereunder should fall on a Saturday, Sunday or legal holiday, such date shall
automatically be extended to the next normal business day. For purposes of this Agreement
a “business day” shall mean any calendar day not a Saturday, Sunday or legal
holiday
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16.11
Attorney's Fees. In the event any dispute between the parties to this Agreement should
result in litigation or other proceeding, the prevailing party shall be reimbursed by the
nonprevailing party for all actual costs and expenses, including, without limitation,
reasonable attorneys’ fees, incurred by the prevailing party in connection with such
litigation or other proceeding and any appeal thereof Such costs, expenses and fees shall
be included in and made a part of the judgment recovered by the prevailing party, if any.
The provisions of this Section 16.11 shall survive the Closing or the termination of thus
Agreement.
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16.12
Attachments . If the provisions of any schedule or rider to this Agreement are
inconsistent with the provisions of this Agreement, the provisions of such schedule or
rider shall prevail The Schedules attached are hereby incorporated as integral parts of
this Agreement.
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(REMAINDER Of PAGE INTENTIONALLY BLANK)
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement under seal as of the date
first above written.
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SELLER:
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| WITNESS: |
BMF ACQUISITION LIMITED PARTNERSHIP, |
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a Delaware limited partnership
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By: BMF Acquisition, L.L.C., its general partner
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By: /s/ Xxxxx Xxxxx |
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Name: Xxxxx Xxxxx |
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Title: Senior Vice President
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BUYER:
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| WITNESS: |
BIR XXXXXX XXXXX LIMITED PARTNERSHIP, |
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a Delaware limited partnership
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By: BIR Xxxxxx Xxxxx, L.L.C., its general partner
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By: /s/ Xxxxx X. Xxxxx |
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Name: Xxxxx X. Xxxxx |
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Title: President |
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RECEIPT
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The Purchase and Sale Agreement, together with Buyer's Initial Deposit, has been received
by the Escrow Agent on this 30th day of March, 2004, and the Escrow Agent acknowledges the
terms thereof and agrees to perform as Escrow Agent in accordance therewith. |
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ESCROW AGENT:
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LAWYERS TITLE INSURANCE CORPORATION
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By: |
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Name: |
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Title: |
