EXHIBIT 1
PURCHASE AND SALE AGREEMENT
This Purchase and Sale Agreement ("Agreement") is entered into
as of the 13th day of June, 1997, by and between High River, a
Delaware limited partnership ("Seller"), and Insignia Financial
Group, Inc., a Delaware corporation ("Purchaser").
RECITALS
WHEREAS, Seller and certain of its affiliates and Purchaser
and certain of its affiliates are parties to a series of six
separate settlement agreements (collectively, the "Settlement
Agreements"), each dated as of June 17, 1995 and relating to one of
the six Shelter Partnerships (as defined herein);
WHEREAS, Seller is the record owner of: 1,695 units of limited
partnership interest in Shelter Properties I Limited Partnership
(the "Shelter I Units"); 2,857 units of limited partnership interest
in Shelter Properties II Limited Partnership (the "Shelter II
Units"); 5,398 units of limited partnership interest in Shelter
Properties III Limited Partnership (the "Shelter III Units"); 4,263
units of limited partnership interest in Shelter Properties IV
Limited Partnership (the "Shelter IV Units"); 6,407 units of limited
partnership interest in Shelter Properties V Limited Partnership
(the "Shelter V Units"); and 2,961 units of limited partnership
interest in Shelter Properties VI Limited Partnership (the "Shelter
VI Units");
WHEREAS, the limited partnerships referred to in the preceding
clause are collectively referred to herein as the "Shelter
Partnerships," and the Shelter I Units, Shelter II Units, Shelter
III Units, Shelter IV Units, Shelter V Units and Shelter VI Units
are collectively referred to herein as the "Shelter Units"; and
WHEREAS, Seller desires to sell, and Purchaser desires to
purchase, the Shelter Units on the terms and subject to the
conditions set forth in this Agreement;
AGREEMENT
NOW, THEREFORE, in consideration of the premises and of the
mutual representations, warranties covenants and agreements
contained herein, and intending to be legally bound, the parties
hereto hereby agree as follows:
1. Purchase and Sale. Upon the terms and subject to the
conditions set forth in this Agreement, Seller agrees to sell to
Purchaser, and Purchaser agrees to purchase from Seller, in
exchange for the consideration described in Sections 2, all of the
right, title and interest of Seller in and to the Shelter Units,
free and clear of all liens.
2. Purchase Price. The aggregate purchase price for the
Shelter Units is $15,500,000.00 (the "Purchase Price"), payable in
cash in the manner provided in Section 3. The Purchase Price shall
be allocated between the Shelter I Units, Shelter II Units, Shelter
III Units, Shelter IV Units, Shelter V Units and Shelter VI Units
sold by Seller pursuant hereto as provided on Schedule I attached
hereto.
3. Closing. The closing of the purchase and sale of the
Shelter Units contemplated hereby (the "Closing") will take place
on June 13, 1997 (the "Closing Date"). At the Closing, Purchaser
will pay the Purchase Price by wire transfer of immediately
available funds to the account of Seller designated on Schedule II
attached hereto. Simultaneously, Seller will assign and transfer
to Purchaser good and valid title in and to the Shelter Units, free
and clear of any and all liens, charges and encumbrances (other
than those contained in or resulting from the Settlement
Agreements), by delivering to Purchaser the Assignments of
Partnership Interest attached as Exhibits A F hereto.
4. Representations and Warranties of Seller. Seller hereby
represents and warrants to Purchaser that each of the following
statements is true and correct as of the date hereof and will be
true and correct as of the Closing Date as if made on and as of
such date:
(a) Organization of Seller. Seller is a limited
partnership duly organized, validly existing and in good standing
under the laws of the State of Delaware. Seller has full power and
authority to execute and deliver this Agreement and to perform its
obligations hereunder and to consummate the transactions
contemplated hereby, including without limitation to own, hold,
sell and transfer (pursuant to this Agreement) the Shelter Units.
(b) Authority. The execution and delivery by Seller of
this Agreement, and the performance by Seller of its obligations
hereunder, have been duly and validly authorized by requisite
action on the part of Seller. This Agreement has been duly and
validly executed and delivered by Seller and constitutes a legal,
valid and binding obligation of Seller, enforceable against Seller
in accordance with its terms.
(c) Shelter Units. The Shelter Units are legally and
beneficially owned by Seller. Except as contemplated in this
Agreement and in the Settlement Agreements, there is no option,
warrant, conversion or other right, agreement or commitment of any
kind, contingent or otherwise, obligating Seller to sell any of the
Shelter Units, and no authorization therefor has been given. The
Shelter Units are, and will immediately prior to the Closing be,
free and clear of any assessment, lien, restrictions, pledge,
claim, proxy, security interest, option, rights of others or
encumbrances of any kind, nature or description (other than those
contained in or resulting from the Settlement Agreements). Neither
Seller nor any of its affiliates owns (beneficially or of record)
any units of limited partnership interest in any of the Shelter
Partnerships other than the Shelter Units.
(d) Shelter Partnerships. Seller hereby expressly
acknowledges that it understands that certain affiliates of the
Purchaser are the general partners of the Shelter Partnerships,
and, accordingly, the Purchaser may possess or have access to non-public
information concerning the Shelter Partnerships and their
respective properties and operations. Seller has taken the
foregoing into account in making its decision to sell the Shelter
Units to Purchaser and in determining the Purchase Price therefor.
In addition, Seller has been given the opportunity to ask questions
of each Purchaser and the Shelter Partnerships and the general
partners thereof, and of their respective managements, in
connection with the sale of the Shelter Units, and has received
satisfactory answers to all such questions.
(e) Brokers' and Finders' Fees. Neither Seller nor any
agent or representative of Seller has employed any broker or finder
or incurred any liability for any brokerage fees or commission in
connection with the transactions contemplated by this Agreement.
5. Representations and Warranties of Purchaser. Purchaser
hereby represents and warrants to Seller that each of the following
statements is true and correct as of the date hereof and will be
true and correct as of the Closing Date as if made on and as of
such date:
(a) Organization. Purchaser is a corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware. Purchaser has full corporate power and
authority to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions
contemplated hereby and thereby.
(b) Authority. The execution and delivery by Purchaser
of this Agreement, and the performance by Purchaser of its
obligations hereunder, have been duly and validly authorized by
requisite corporate action on the part of Purchaser. This
Agreement has been duly and validly executed and delivered by
Purchaser and constitutes a legal, valid and binding obligation of
Purchaser, enforceable against Purchaser in accordance with its
terms.
(c) Brokers' and Finders' Fees. Neither Purchaser nor
any agent or representative of Purchaser has employed any broker or
finder or incurred any liability for any brokerage fees or
commission in connection with the transactions contemplated by this
Agreement.
6. Closing Conditions.
(a) Conditions to Obligations of Purchaser. The
obligations of Purchaser hereunder are subject to the fulfillment,
at or before the Closing, of each of the following conditions (all
or any of which may be waived in whole or in part by Purchaser in
its sole discretion):
(i) Representations and Warranties. Each of the
representations and warranties made by Seller in this Agreement
shall be true and correct in all material respects on and as of the
Closing Date as though such representation or warranty was made on
and as of the Closing Date.
(ii) Performance. Seller shall have performed and
complied with, in all material respects, each agreement, covenant
and obligation required by this Agreement to be so performed or
complied with by Seller at or before the Closing.
(b) Conditions to Obligations of Seller. The
obligations of Seller hereunder are subject to the fulfillment, at
or before the Closing, of each of the following conditions (all or
any of which may be waived in whole or in part by Seller in its
sole discretion):
(i) Representations and Warranties. Each of the
representations and warranties made by Purchaser in this Agreement
shall be true and correct in all material respects on and as of the
Closing Date as though such representation or warranty was made on
and as of the Closing Date.
(ii) Performance. Purchaser shall have performed
and complied with, in all material respects, each agreement,
covenant and obligation required by this Agreement to be so
performed or complied with by Purchaser at or before the Closing.
7. Settlement Agreements. Notwithstanding the sale of the
Shelter Units pursuant to this Agreement, the parties agree, and
Seller expressly confirms and acknowledges, that the provisions of
Articles III and IV of each of the Settlement Agreements shall
continue to apply to the Icahn Entities and their Affiliates (each
as defined in the Settlement Agreements) in full force and effect
for the respective terms thereof, unaffected by the sale of the
Shelter Units pursuant hereto, but the restrictions contained in
such Articles shall no longer apply to the Insignia Entities and
their Affiliates (each as defined in the Settlement Agreements);
provided, however, that if and to the extent that any of the terms
and conditions of the sale of the Shelter Units pursuant to this
Agreement, or the mechanics of such sale, are inconsistent with the
provisions of Article IV of the Settlement Agreements, such
inconsistent provisions are hereby waived by Purchaser.
8. Indemnification.
(a) Survival of Representations, Warranties, Covenants
and Agreements. All representations, warranties, covenants and
agreements contained or made in this Agreement shall survive for a
period of three years from the date hereof, notwithstanding any
investigation conducted with respect thereto or any knowledge
acquired as to the accuracy or inaccuracy of any such
representation or warranty or any breach or non-performance of any
such covenant or agreement.
(b) Losses. For purposes of this Section 8, the terms
Losses shall mean any and all losses, damages, liabilities
(including punitive or exemplary damages and fines or penalties and
any interest thereon), costs, and expenses, claims liens or other
obligations of any nature whatsoever, including without limitation
the costs of investigation and defense and reasonable attorneys'
and other professional fees and expenses.
(c) Indemnification by Seller. Seller shall indemnify,
defend and hold harmless Purchaser from, against and in respect of
any and all Losses asserted against, or paid, suffered or incurred
by, Purchaser which, directly or indirectly, arise out of, result
from, are based upon or relate to (i) the inaccuracy, untruth, or
incompleteness, as of the date made (or deemed made), of any
representation or warranty of Seller contained herein or (ii) any
breach by Seller of any covenant or agreement of Seller contained
herein.
(d) Indemnification by Purchaser. Purchaser shall
indemnify, defend and hold harmless Seller from, against and in
respect of any and all Losses asserted against, or paid, suffered
or incurred by, Seller which, directly or indirectly, arise out of,
result from, are based upon or relate to (i) the inaccuracy,
untruth, or incompleteness, as of the date made (or deemed made),
of any representation or warranty of Purchaser contained herein or
(ii) any breach by Purchaser of any covenant or agreement of
Purchaser contained herein.
9. Notices. All notices, requests, demands and other
communications required or permitted to be given hereunder shall be
in writing and shall be delivered personally, sent by facsimile
transmission, or sent next-day delivery via Federal Express or a
similar overnight courier, as follows:
(a) If to Seller:
High River Limited Partnership
000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxx
Telephone:
Facsimile:
(b) If to Purchaser:
Insignia Financial Group, Inc.
000 Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Insignia Financial Group, Inc.
One Insignia Financial Plaza
Greenville, South Carolina 29602
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
A notice shall be deemed given for purposes of this Agreement (i)
on the date of delivery, if delivered personally or sent by
facsimile transmission, and (ii) on the first business day
following the date of dispatch if sent next-day delivery via
Federal Express or similar a overnight courier. Any party may
change the address to which notices are to be sent by giving
written notice of such change of address to the other parties in
the manner above provided for giving notice.
10. Miscellaneous Provisions.
(a) Fees and Expenses. Except as otherwise specifically
provided in this Agreement, each of the parties hereto shall pay
its own expenses (including, without limitation, attorneys' fees
and out-of-pocket expenses) incident to this Agreement and the
transactions contemplated hereby.
(b) Amendment. This Agreement may not be amended,
modified, superseded, canceled, renewed or extended except by a
written instrument signed by each of the parties hereto.
(c) Waiver; Effect of Waiver. No provision of this
Agreement may be waived except by a written instrument signed by
the party waiving compliance. No waiver by any party hereto of any
of the requirements hereof or of any of such party's rights
hereunder shall release the other parties from full performance of
their remaining obligations stated herein. No failure to exercise
or delay in exercising on the part of any party hereto any right,
power or privilege of such party shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or
privilege preclude any other or further exercise thereof or the
exercise of any other right, power or privilege by such party.
(d) Assignment. This Agreement and the rights and
obligations hereunder shall not be assigned or transferred by any
party without the prior written consent of the other party hereto.
Any purported assignment or transfer made in violation of the
provisions of this Agreement shall be void and of no effect.
(e) Entire Agreement. Except as provided in Section 7,
this Agreement (including the Schedules and Exhibits hereto)
constitutes the entire agreement among the parties with respect to
the transactions described herein, and supersedes all prior and
purportedly contemporaneous agreements, understandings,
representations and warranties, written and oral, among the parties
with respect to the subject matter hereof.
(f) Binding Effect. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective
successors and permitted assigns.
(g) No Third-Party Beneficiary. The terms and
provisions of this Agreement are intended solely for the benefit of
each party hereto and their respective successors or permitted
assigns, and it is not the intention of the parties to confer
third-party beneficiary rights upon any other person.
(h) Time of Essence. Time is of the essence in this
Agreement.
(i) Governing Law. This Agreement shall be governed by
and construed in accordance with the internal laws of the State of
New York, without regard to principles of conflicts of law.
(j) Interpretation. Each of the parties hereto
acknowledges that this Agreement has been reviewed by such party
and its counsel prior to its execution and that changes were made
to this Agreement based upon the comments of such party and its
counsel. If any dispute arises with respect to the interpretation
of any provision of this Agreement, such provision shall be deemed
to have been drafted by all of the parties hereto and shall not be
construed against any party on the basis that such party was
responsible for drafting such provision.
(k) Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, each of the parties hereto, intending to
be legally bound, has executed this Purchase and Sale Agreement as
of the date first above written.
HIGH RIVER LIMITED PARTNERSHIP
By: Riverdale, L.L.C.,
its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx Xxxxxxx
Title: Manager
INSIGNIA FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Title: Senior Vice President
SCHEDULE I
to
PURCHASE AND SALE AGREEMENT
$1,665,607 of the Purchase Price is allocated to the Shelter I
Units sold by Seller
and
$2,220,503 of the Purchase Price is allocated to the Shelter II
Units sold by Seller
and
$2,166,740 of the Purchase Price is allocated to the Shelter III
Units sold by Seller
and
$2,936,582 of the Purchase Price is allocated to the Shelter IV
Units sold by Seller
and
$4,551,598 of the Purchase Price is allocated to the Shelter V
Units sold by Seller
and
$1,958,970 of the Purchase Price is allocated to the Shelter VI
Units sold by Seller
SCHEDULE II
to
PURCHASE AND SALE AGREEMENT
Bank: Fleet Bank
ABA No.: 000000000
Beneficiary: High River L.P.
Account No.: 2182015997
Attention: Xxx Xxxxx
