EXHIBIT 10.35
PURCHASE AGREEMENT BETWEEN WILSHIRE ENTERPRISES, INC. AND
INTERSTATE EAST MANAGEMENT, INC. DATED MARCH 23, 2005.
[GRAPHIC]
PURCHASE AGREEMENT
PURCHASE AND SALE:
As a result of the efforts of Southeast Apartment Partners LLC ("Broker"), a
licensed real estate broker, the undersigned purchaser ("Purchaser"), agrees to
buy, and the undersigned seller ("Seller"), agrees to sell, as of this date,
March 8th, 2005, subject to the terms and conditions set forth herein, all that
tract of land known as 72 units known as TWELVE OAKS APARTMENTS, 000 Xxx Xxxx
Xxxx, Xxxxxxxxx, XX 00000, Property ID: 13-139a-00b-0022 (See Attached Legal
Description "Exhibit A") attached hereto and by this reference made a part
hereof, together with all improvements now located thereon, including, but not
limited to, all electrical, mechanical, plumbing and other systems and all
fixtures located therein and thereon, and all personal property owned by Seller
used specifically for the use of this property and also all that property that
is used by the tenants and owned by Seller and located therein, as well as
plants, trees and shrubbery thereon and the related tenant leases and all rights
under those leases with respect to the period from and after Closing
(collectively, the "Property").
PURCHASE PRICE AND METHOD OF PAYMENT:
The purchase price of the Property shall be TWO MILLION FOUR HUNDRED SIXTY-EIGHT
THOUSAND SEVEN HUNDRED FIFTY & 00/100 DOLLARS (U.S.) ($2,468,750.00) (the
"Purchase Price"), to be paid in cash or immediately available funds at Closing.
TITLE EXAMINATION:
For purposes of this Agreement, "good and marketable fee simple title" shall
mean such title as is insurable by a title insurance company licensed to do
business in Georgia, under its standard form of ALTA Owner's Policy of Title
Insurance, 1992 Form B, at its standard rates, subject only to the Permitted
Exceptions (defined below). Fee simple title to the Property shall be conveyed
to Purchaser by Seller pursuant to a limited warranty deed executed and
delivered by Seller at the Closing subject to the following (collectively, the
"Permitted Title Exceptions"): (a) taxes for the year in which the Closing shall
occur, the payment of which Purchaser shall assume at the Closing, subject to
the provisions of this Agreement; (b) any and all zoning ordinances, rules and
regulations; (c) those matters set forth in the Title Commitment (defined below)
to be obtained by Purchaser pursuant to the terms of this Agreement, with the
exception of those objections as set forth in Purchaser's Title Notice (defined
below); (d) all matters shown by a current survey of the Property, with the
exception of those objections as set forth in Purchaser's Title Notice (defined
below) to the extent Seller has elected to cure same; and (e) other matters as
disclosed in this Agreement. At Closing, Seller shall also execute usual and
customary documents to facilitate the closing of the transaction, including
without limitation, settlement statements and seller's affidavits.
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Purchaser agrees, during the Financing Contingency, to cause a title examination
of the Property to be conducted by a title company mutually acceptable to both
Purchaser and Seller (the "Title Company") and to cause such title company to
issue an owner's title commitment for the benefit of Purchaser on its standard
form of ALTA Form B owner's policy (the "Title Commitment"). If the Title
Commitment discloses any defects in title or objections, as determined in the
sole discretion of Purchaser or Purchaser's lender, Purchaser shall notify
Seller in writing of such defects or objections no later than the end of
Inspection Period ("Purchaser's Title Notice"). Within FIVE (5) days after
receipt of Purchaser's Title Notice, Seller shall deliver to Purchaser a written
notice specifying which, if any, items contained in Purchaser's Title Notice
Seller shall cure prior to or at Closing (the "Seller's Cure Notice").
Notwithstanding anything contained herein, Seller shall have no obligation or
duty to cure any title objection(s) other than those items that Seller agrees to
cure in Seller's Cure Notice. In the event Seller is unable to cure or unwilling
to cure all objections raised in Purchaser's Title Notice, Purchaser's only
remedy is (i) within two (2) business days after receipt of Seller's Cure
Notice, to terminate this Agreement as provided herein and receive, within five
(5) days of delivery of such termination notice and with or without consent of
the Seller, the return of the Xxxxxxx Money, including all interest thereon,
less $100.00 which shall be paid over to Seller, or (ii) to waive such objection
and close the transaction contemplated by this Agreement. Seller is to pay for
title examination. At closing, purchaser shall reimburse seller for the cost of
the title examination.
WARRANTIES:
Seller represents that to the best of Seller's knowledge, (A) Seller has good
and marketable fee simple title to the Property; (B) The Property will be in
substantially the same condition upon Closing as on the date of Seller's
execution hereof; (C) There is no planned or pending rezoning affecting the
Property; (D) There are no assessments, condemnations, or eminent domain
proceedings or governmental orders pending or threatened against the Property or
any portion thereof; (E) There is no option to purchase, right of first refusal
to purchase or agreement for the sale and purchase of the Property or any
portion thereof to any person or entity; (F) No consent or approval of any other
person or entity is required in order for this Agreement to be legal, valid and
binding upon Seller; (G) There are no pending or threatened suits, proceedings,
judgments, bankruptcies, or liens of claim thereof that might affect the title
to the Property or executions against the present or former owners thereof,
either in the county in which the Property is located or any other county in the
State of GEORGIA that might affect title to the Property; and (H) Seller has not
received any written notice from any tenant at the Property that a tenant has
asserted any defense, set-off, or counterclaim with respect to its tenancy or
its obligation to pay rent and other charges pursuant to its lease. If, prior to
Closing, Seller or Purchaser shall become aware of any past or present matters
that may cause any of the warranties or representations set forth in this
Section 6 to be or become false, inaccurate, or misleading in any material
respect (whether or not Seller has had knowledge thereof), Purchaser shall have
the right to terminate this Agreement without further recourse by Seller and
receive refund of the Xxxxxxx Money. The warranties stated herein shall survive
the Closing for a period of NINETY (90) DAYS. Any claim for a breach of warranty
must be filed during such NINETY (90) DAY period or shall be forever waived.
CONDITION OF PROPERTY:
Purchaser acknowledges and agrees that upon Closing, Seller shall sell and
convey to Purchaser and Purchaser shall accept the Property "AS IS, WHERE IS,
WITH ALL FAULTS," except to the extent expressly warranted or provided otherwise
in this Agreement and any document executed by Seller and delivered to Purchaser
at Closing. Purchaser acknowledges that it will have the opportunity to inspect
the Property during the Inspection Period. Purchaser acknowledges that during
such Inspection Period it will have the opportunity to observe the physical
characteristics and existing conditions of the Property and to conduct such
investigation and study on and of the Property and adjacent areas as Purchaser
deems necessary. It is understood and agreed that Seller has not at any time
made, is not now making and specifically disclaims any warranties or
representations of any kind or character, express or implied, with respect to
the presence or absence of Hazardous Materials, in, on, under or in the vicinity
of the Property. Until Closing, Seller shall, at Seller's expense, maintain in
full force and affect the same fire and extended coverage insurance carried by
Seller on the Property on the date of this Agreement. However, should the
Property be destroyed or substantially damaged before Closing, then at the
election of Purchaser: (A) this Agreement may be immediately canceled by
Purchaser, and Seller shall refund the Xxxxxxx Money within five (5) days of the
notice of cancellation; or (B) Purchaser may consummate this Agreement and
receive such insurance proceeds as are paid on the claim of loss. The election
to terminate or consummate this Agreement, if not earlier terminated, must be
exercised within TEN (10) days after Seller provides Purchaser written notice of
the casualty.
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SURVEY:
Within SIXTY (60) DAYS of acceptance of this Agreement, Purchaser shall update
the Seller's survey to be made by a Georgia Registered Land Surveyor showing
actual boundaries of the Property and all easements, roads, and rights-of-ways
on the ground or evidenced of record (the "Survey"). Seller agrees that
Purchaser must determine prior to the end of the Inspection Period that the
Survey is acceptable to Purchaser, in Purchaser's sole discretion, in order for
Purchaser to have the obligation to close the transaction contemplated herein.
Upon receipt of the Survey, Purchaser shall deliver a copy of the Survey to
Seller. The Survey shall conform as closely as possible to the property lines
and acreage depicted on Exhibit "A". If Purchaser accepts the results of the
Survey, the Survey shall become a part of this Agreement and Seller shall
execute and deliver at Closing a quitclaim deed using said description from the
Survey. Purchaser shall object to any defects on other deficiencies in the
Property shown by the Survey to Seller as part of Purchaser's Title Notice, and
the same notice and termination provisions as stated in Section 5 above shall
apply to this Section 9. In the event Seller does not have a survey of the
Property, Purchaser and Seller shall equally split the cost of the new survey.
AGENCY DISCLOSURE:
Purchaser and Seller acknowledge that Broker has acted as an agent for Seller.
Broker shall not owe any duty to Seller greater than what is set forth in the
Brokerage Relationships in Real Estate Transaction Act, Official Code of Georgia
Annotated Section 10-6A-1 et seq.
REAL ESTATE COMMISSION:
In negotiating this Agreement, Broker has rendered a valuable service and shall
be paid a Commission in cash at Closing by Seller per a separate agreement.
DISCLAIMER:
Seller and Purchaser acknowledge that they have not relied upon the advise or
representations, if any, of Brokers, or their associate brokers or salespersons,
concerning: (A) the legal and tax consequences of this Agreement in the sale of
the Property: (B) the terms and conditions of financing; (C) the purchase and
ownership of the Property; (D) the structural condition of the Property (E) the
operating condition of any business; (F) the operating condition of the
electrical, heating, air conditioning, plumbing, water heating systems and
appliances on the Property; (G.) the availability of utilities to the Property;
(H) the investment potential or resale value of the Property; (I) the financial
ability of Purchaser, (J) any conditions existing off the Property which may
affect the Property; or (K) any matter which could have been revealed through a
survey, title search or inspection of the Property. Seller and Purchaser both
acknowledge that if such matters have been a concern to them, they have sought
and obtained independent advice relative thereto.
ASSIGNMENT:
This Agreement and the rights and obligations hereunder may be assigned by
Purchaser to an entity owned by Purchaser or under Purchaser's control, but not
otherwise. Notwithstanding anything contained herein to the contrary, any such
assignee shall assume in writing all of the obligations and liabilities of
Purchaser hereunder, and a copy of such assignment shall be provided to Seller
in writing within two (2) days after it is signed by Purchaser and assignee.
BINDING EFFECT:
THIS AGREEMENT SHALL BIND AND INURE TO THE BENEFIT OF SELLER, PURCHASER AND
BROKERS, AND THEIR RESPECTIVE HEIRS, EXECUTORS, LEGAL REPRESENTATIVES,
SUCCESSORS AND ASSIGNS.
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RESPONSIBILITY TO COOPERATE:
SELLER AND PURCHASER AGREE THAT SUCH DOCUMENTATION AS IS REASONABLY NECESSARY TO
CARRY OUT THE TERMS OF THIS AGREEMENT SHALL BE PRODUCED, EXECUTED AND/OR
DELIVERED BY SUCH PARTIES WITHIN THE TIME REQUIRED TO FULFILL THE TERMS AND
CONDITIONS OF THIS AGREEMENT.
DEFAULT; REMEDIES:
In the event the sale is not closed because of Seller's inability, failure or
refusal to perform any of Seller's obligations herein, and if Seller fails to
cure any default within TEN (10) days after Seller's receipt of written notice
of such default from Purchaser, then Purchaser may elect to either terminate
this Agreement, in which event Escrow Agent shall return the Xxxxxxx Money to
Purchaser and the parties shall have no further rights or obligations hereunder
except for any provisions of this Agreement surviving termination, or to seek
specific performance of Seller's obligations under this Agreement, Purchaser
specifically acknowledging that the remedy at law for damages is excluded and
Purchaser hereby specifically waives any right to xxx for damages. Purchaser
agrees that if the sale is not closed because of Purchaser's inability, failure
or refusal to perform any of Purchaser's obligations herein, and if Purchaser
fails to cure any default within ten (10) days after Purchaser's receipt of
written notice of such default from Seller, Seller may elect to terminate this
Contract in which event the Xxxxxxx Money shall be paid to Seller as liquidated
damages and Seller's sole and exclusive remedy for such default, the parties
hereby acknowledging that the actual damages of Seller would be difficult if not
impossible to ascertain and the amount of the Xxxxxxx Money constitutes a
reasonable estimate of such damages. Notwithstanding anything in this Agreement
to the contrary, in the event that the transaction contemplated by the Agreement
does not close for any reason whatsoever, Broker shall not be entitled to
receive any commission with respect to the purchase and sale of the Property,
and in such event neither Seller nor Purchaser shall be obligated to pay any
commission to Broker.
NOTICES:
Except as may otherwise be provided for in this Agreement, all notices required
or permitted to be given hereunder shall be in writing and shall be deemed
delivered either (A) in person, (B) by overnight delivery service prepaid, (C)
by facsimile (FAX) transmission, or (D) US. Postal Service, postage prepaid,
registered or certified, return receipt requested, to the party being given such
notice at the appropriate address set forth below.
AS TO PURCHASER: AS TO SELLER:
Name: Interstate East Management, Inc. Name: Wilshire Enterprises, Inc
Address: 0000 Xxxxxxxxxx Xxxxx, XX Address: 000 Xxxxxx Xxxxxx
Xxxx, Xxxxx, XXX: Xxxxxxx, XX 00000 City, State, ZIP: Xxxxxx Xxxx, XX 00000
Attn: Xxxx Xxxx Attn: Xxxxxx Xxxxx, President/COO
Fax No: 000-000-0000 Fax No.: 000-000-0000
Telephone No.: 000-000-0000 Telephone No.: 000-000-0000
E-mail: xxxxxxxx@xxxxxxx.xxx
AS TO BROKER: AS TO ESCROW AGENT:
Name: Southeast Apartment Partners, LLC Name: Xxxxxxxx Title and Escrow
Address: 0000 Xxxxxxxxx Xxxx, Xxxxx 000 Address: 0000 Xxxxx Xxxxx Xxxx, X-000
Xxxx, Xxxxx, XXX: Xxxxxxx, XX 00000 City, State, Zip: Xxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx Attn: Xxxxxx Xxxxxxxx
Fax No: 000-000-0000 Fax No.: 000-000-0000
Telephone No.: 000-000-0000 Telephone No.: 000-000-0000
E-mail: xxxxxxxxx@xxxxxxxxxxxxx.xxx E-mail: XxxxxxX@xxxxxxxx.xxx
Such notices shall be deemed to have been given as of the date and time actually
received by the receiving party. In the event no address for purpose of notice
is specified with respect to a particular party as required by this paragraph,
any other party may direct notices to such party at any business or resident
address known to such other party. Any such notice to an unspecified address
shall be effective when delivered personally or with respect to mailed notices,
upon actual receipt by the party to whom such notice is directed, as shown on
the return receipt therefore.
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TIME:
TIME IS OF THE ESSENCE OF THIS AGREEMENT.
ENTIRE AGREEMENT; AMENDMENT; SURVIVAL:
THIS AGREEMENT CONSTITUTES THE SOLE AND ENTIRE AGREEMENT BETWEEN THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND NO MODIFICATION OF THIS
AGREEMENT SHALL BE BINDING UNLESS SIGNED BY ALL PARTIES TO THIS AGREEMENT. NO
REPRESENTATION, PROMISE OR INDUCEMENT NOT INCLUDED IN THIS AGREEMENT SHALL BE
BINDING UPON ANY PARTY HERETO. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NONE OF THE
PROVISIONS OF THIS AGREEMENT SHALL SURVIVE THE CLOSING OF THE TRANSACTION
CONTEMPLATED HEREIN.
MISCELLANEOUS/CLOSING:
Real estate taxes and utilities, including all sanitary taxes and charges
applicable to the Property, for the calendar year in which the sale is closed
shall be prorated as of the date of Closing. Seller shall provide the Purchaser
a Rent Roll listing the tenant's names, unit numbers, the commencement date of
the lease, the amount of the monthly rent, and the termination date of the lease
within five (5) days after the execution date of this Agreement. Collected Rents
shall be prorated as of the date of Closing. Any uncollected rents will be
transferred to Purchaser and any rents collected by Purchaser from those tenants
will first go to the payment of current rents due and only after all current
rents are paid will the payments be applied to rents due to seller and shall be
paid to Seller. All tenant security deposits shall be delivered by Seller to
Purchaser at Closing. Seller shall provide to the extent they exist or can be
obtained with reasonable effort, Tenant Estoppel Certificates like the ones
attached hereto as Exhibit B from all Tenants in addition to the originals of
all associated leases at or prior to the Closing.
A. Seller shall pay the State of Georgia property transfer tax
and, where applicable, Purchaser shall pay the Georgia
intangible taxes, title examination fees and title insurance
premiums, cost of survey and recording fees. Each party shall
pay its own attorneys' fees.
B. Seller agrees to provide a standard termite clearance letter
at Closing.
C. The sale of the Property shall be closed (the "Closing") on or
before SIXTY (60) DAYS from the execution of purchase
agreement, at a time and location acceptable to Purchaser and
Seller. If required by the lender, Closing can be extended an
additional THIRTY (30) days. If the time period by which any
right, option or election provided under this Agreement must
be exercised, or by which any act required hereunder must be
performed, or by which the Closing must be held, expires on a
Saturday, Sunday or legal holiday, then such time period shall
be automatically extended to the close of business on the next
regular business day.
D. Conditions precedent to the obligation of either party to
close hereunder, if any, are for the benefit of such party
only, and any and all of said conditions may be waived in the
discretion of the party benefited thereby.
E. Seller and Purchaser agree to comply with and to execute and
delivery such certifications, affidavits and statements as are
required at the Closing in order to meet the requirements of
Internal Revenue Code Section 1445 (Foreign/Non-Foreign
Sellers).
F. This Agreement shall be construed under the laws of the State
of Georgia.
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G. The Seller shall grant possession of the Property to Purchaser
no later than the Closing Date, subject to the Permitted Title
Exceptions and the rights of the tenants occupying the
Property.
H. Personal Property: A Xxxx of Sale containing only a limited
warranty of title for all air conditioners, water heaters,
ovens, stoves, refrigerators, washers, dryers, office
furniture, fixtures, bank operating account, and any and all
other personal property owned by the Seller which is located
and used as a part of the business of the operation of the
property will be conveyed to Buyer. The price of these items
are included in the Purchase Price for the Property, and Buyer
agrees to accept all such personal property in "as is"
condition.
LEAD-BASED PAINT DISCLOSURE
Every purchaser of any interest in residential real property built prior to 1978
is notified that such property may present exposure to lead from lead-based
paint that may place young children at risk of developing lead poisoning. Lead
poisoning also poses a particular risk to pregnant women. A risk assessment or
inspection for possible lead-based hazards is recommended prior to purchase.
Purchaser and Seller agree to execute a "Lead-Based Paint Disclosure Addendum"
that will be annexed to this Agreement.
SPECIAL STIPULATIONS:
THE FOLLOWING SPECIAL STIPULATIONS SHALL, IF CONFLICTING WITH THE FOREGOING,
CONTROL:
A. Tax-Free Exchange. Both Seller and Purchaser shall have the right to
cause the Closing to occur as part of a "like-kind" exchange pursuant
to the provisions of Section 1031 of the Internal Revenue Code of 1986,
as amended, and the regulations thereunder. Seller and Purchaser agree
to cooperate with each other in effecting a qualifying like-kind
exchange; provided, however, if either party (the "Electing Party")
elects to affect a qualifying like-kind exchange:
(1) The other party shall not be obliged to incur any
costs, expenses, losses, liabilities or damages
greater than such party would have incurred had the
Electing Party not elected to effect a like-kind
exchange, subject to any provisions contained in this
Agreement, and the Electing Party shall indemnify the
other party against same;
(2) In no event shall the other party be required to
acquire title to any other property, whether by deed
or contract right, for the benefit of the Electing
Party or it assignee.
(3) The Closing shall not be delayed as a result of such
like kind exchange.
(4) Agreement is subject to Purchaser obtaining
satisfactory financing.
Seller and Purchaser make no representations to each other that the sale or
purchase, respectively, of the Property will qualify for tax-free exchange
treatment.
B. Once this Agreement becomes effective, (a) Seller agrees not
to enter into any new service contracts on the Property which
Purchaser will be required to assume without Purchaser's
consent, and (b) Seller agrees not enter into any leases with
tenants with an expiration date greater than one year, without
Purchaser's consent.
C. Purchaser's obligation to consummate the transaction
contemplated herein shall be subject to Purchaser's lender's
approval of Purchaser's financial ability to qualify for a
loan, subject property financial information, and the
environmental conditions on the Property on or before the end
of the Inspection Period. If Purchaser's lender shall fail to
approve any of the aforementioned on or before the expiration
of the Inspection Period, Purchaser may terminate this
Agreement by delivery of a written notice of termination to
Seller prior to the end of such period in which event the
Xxxxxxx Money shall be delivered to Purchaser and the parties
shall have no further rights or obligations hereunder except
for these that survive termination as set forth herein.
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This instrument shall be regarded as an offer by the first party to sign it and
is open for acceptance by the other party until 5:00 O'CLOCK P.M. ON
_________________, 2005, by which time written acceptance of such offer must
have been actually received by Broker, who shall promptly notify the other party
of such acceptance.
Purchaser acknowledges that Purchaser has read and understood the terms of this
Agreement and has received a copy of it. The date of this Agreement shall be
deemed the date that this Agreement has been fully executed by Purchaser and
Seller.
IN WITNESS WHEREOF, Purchaser, Seller and Broker have hereunto set
their hands and seals as of the date indicated below.
PURCHASER: SELLER:
--------- ------
Xxxx Xxxx Xxxxxx X. Xxxxx
__________________________(SEAL)
____________________________(SEAL) Wilshire Enterprises, Inc.
Interstate East Management, Inc.
Date: __________________ Date:__________________
BROKER:
Xxxxxx Xxxxxxxx
By: __________________________(SEAL)
Southeast Apartment Partners, LLC
Date: __________________
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