AGREEMENT FOR THE PURCHASE AND SALE OF REAL PROPERTY
THIS AGREEMENT, made and entered into as of this 9th day of July, 1999, by
and between XXXXXXXXX'X WHARF XXXXXX L.P. a Maryland Limited Partnership having
the address at 0000 Xxxx Xxxxxx, Xxxxxxxxx, XX (hereinafter referred to as
"Seller"), and XXXXXXXXX'X WHARF MARINA, INC., a Massachusetts corporation,
having a principal place of business at 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000
(hereinafter referred to as "Purchaser").
WITNESSETH
WHEREAS, Seller desires to sell and Purchaser desires to purchase all of
Seller's right, title and interest in and to the real property more particularly
hereinafter described upon the terms and conditions hereinafter set forth; and
NOW, THEREFORE, for and in consideration of the covenants and agreements
hereinafter set forth, the sum of Ten and No/100 Dollars ($10.00) and other
valuable consideration paid by Purchaser to Seller, the receipt and sufficiency
of which is hereby acknowledged, Seller and Purchaser hereby covenant and agree
as follows:
1. Sale of Property. Seller will sell to Purchaser and Purchaser will
purchase from Seller, upon the terms and conditions hereinafter set forth, the
following:
(i) that certain parcel of property (the "Land") containing
approximately 1.92 acres together with a 256 slip marina located at 0000
Xxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx more fully described in Exhibit A
including all right title and interest of Seller in and to all streets,
alleys and rights of way.
(ii) all buildings, structures (including boat docks and slips) and
improvements (collectively the "Improvements") presently owned by Seller,
located on the premises and used by Seller in connection with Seller's
marina business including without limitation, all mechanical systems,
fixtures, equipment, electrical systems and plumbing systems.
(iii) all of Seller's interest as Lessor under leases or rental
agreements covering use of real property including boat slips.
(iv) all of Seller's inventories as of the date of closing.
(v) all of Seller's licenses, permits and other governmental
authorization relating to the operation of a marina at the
land.
2. Purchase Price and Method of Payment. The purchase price for the
Property shall be TWO HUNDRED THOUSAND AND NO/100 ($200,000.00) DOLLARS (the
"Purchase Price"). The Purchase Price shall be paid to Seller at the time of
delivery and recording of the deed (the "Closing") by certified, cashier's,
treasurer or bank check or Federal Reserve wired funds into a bank account
designated by Seller, which designation shall be made not less than 72 hours
prior to the Closing date.
3. Deposit of Xxxxxxx Money. Simultaneously with the execution of this
Agreement, Purchaser shall deliver to Xxxxxxxx X. Xxxx, Esq., 000 Xxxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx ("Escrow Agent"), as "Xxxxxxx Money" the sum of
ONE THOUSAND DOLLARS ($1,000.00). The Xxxxxxx Money shall be held by Escrow
Agent in an interest-bearing escrow account, subject to the terms of this
Agreement, and shall be duly accounted for at the Closing. All interest earned
on the Xxxxxxx Money is to be accounted for and allocated to the Purchaser if
the Closing occurs; or paid to Purchaser if the Xxxxxxx Money is returned to
Purchaser under the terms of this Agreement; or if Seller shall retain the
Xxxxxxx Money under the provisions of Section 3(f) hereof, then the entire
amount of interest earned shall be paid to Seller. Said escrow account shall be
maintained by the Escrow Agent until such time as the Xxxxxxx Money and the
interest thereon have been delivered to the Purchaser, the Seller, or a court of
competent jurisdiction in accordance with the provisions of the Agreement, and
shall terminate on the date of such delivery.
(a) If Purchaser exercised any of Purchaser's options to terminate this
Agreement pursuant to a right expressly granted to Purchaser hereunder to do so,
then the Xxxxxxx Money and all other payments made to Escrow Agent by Purchaser
hereunder shall be promptly refunded in full by Escrow Agent to Purchaser.
(b) The Escrow Agent shall account for the Xxxxxxx Money in accordance
with the terms of this Agreement, or in such other manner as may be directed in
a joint written notice from Seller and Purchaser directing some other
disbursement of the Xxxxxxx Money. If the Escrow Agent received written notice
from either the Purchaser or Seller that the other party has defaulted in the
performance of its obligations under this Agreement or that any condition to the
performance of obligations under this Agreement has not been fulfilled within
the time period stipulated, which notice shall describe in reasonable detail
such default or non-performance, then the Escrow Agent shall (i) promptly give
notice to the party alleged to have defaulted or to have failed to fulfill it
obligation of the Escrow Agent's receipt of such notice from the other party and
shall enclose a copy of such notice from the other party, and (ii) subject to
the provisions of Section 3(c) below which shall apply if a conflict arises, on
the fourteenth (14th) day after the giving of the notice referred to above,
deliver the Xxxxxxx Money and the interest thereon to the party claiming the
right to receive it.
(c) If the Escrow Agent is uncertain as to its duties or actions
hereunder, or receives instructions or a notice from Purchaser or Seller which
are in conflict with instructions or a notice from the other party or which, in
the reasonable opinion of the Escrow Agent, are in conflict with any of the
provisions of this Agreement, the Escrow Agent shall be entitled to take any of
the following courses of action: (i) hold the Xxxxxxx Money as provided above in
Section 3(b) and decline to take any further action until the Escrow Agent
receives a joint written direction from Purchaser and Seller or an order of a
court of competent jurisdiction directing the disbursement of the Xxxxxxx Money,
in which case the Escrow Agent shall then disburse the Xxxxxxx Money in
accordance with such direction; (ii) in the event of litigation between Purchase
and Seller, deliver the Xxxxxxx Money and all interest thereon to the clerk of
any court in which such litigation is pending; or (iii) deliver the Xxxxxxx
Money and all interest thereon to a court of competent jurisdiction and commence
an action for interpleader in such court, whereupon the Escrow Agent shall have
no further duty with respect to the Xxxxxxx Money.
(d) The Escrow Agent shall not be liable for any action taken or omitted
in good faith and may rely upon any directions, instruction, notices,
certificates, instruments, requests, papers or other documents believed by it to
be genuine and to have been made, sent, signed or presented by the proper party
or parties.
(e) Notwithstanding any other provisions of this Agreement, Purchaser and
Seller jointly indemnify and hold harmless the Escrow Agent against any losses,
costs, liabilities, claims and expenses incurred by the Escrow Agent arising out
of or in connection with its services under the terms of this Agreement,
including the costs and expenses of any interpleader action involving the
Xxxxxxx Money or defending itself against any claim or liability. The Escrow
Agent shall be entitled to charge a reasonable fee for its normal services
hereunder as Escrow Agent which fee shall be paid by Purchaser.
(f) If Purchaser shall fail to fulfill its agreements herein on the
Closing date, or any extension thereof, Seller's sole and exclusive remedy shall
be to retain the Xxxxxxx Money and any interest earned thereon as full and
complete liquidated damages, both at law and in equity, whereupon this Agreement
shall terminate without further recourse to either party; provided, however,
that Purchaser shall continue to be obligated under Section 8(a)(i) and (iii).
4. Representations and Warranties of Seller. Seller hereby represents and
warrants to Purchaser that as of the date hereof (and on the Closing date shall
reaffirm all such representations and warranties as of the date) as follows:
(a) Seller holds the entire ownership interest in the Property and all
rights appurtenant thereto, and the signature of no other party is required to
convey any of such interests and rights. Such signature is subject to Seller
obtaining approval from a majority in interest of the limited partners of
Historic Preservation Properties 1990 L.P. Tax Credit Fund (hereinafter referred
to as "HPP 90"). See Section 28 of this agreement
(b) Subject to the release of all mortgages on the Property, Seller has
the legal right, power and authority to enter into this Agreement and to sell
the Property in accordance with the terms hereof, and to perform all of its
obligations hereunder, and Seller has granted no option or contract to any other
person or entity to purchase the Property. This Agreement constitutes the legal,
valid and binding obligation of Seller, enforceable in accordance with its
terms. The execution by the Seller and delivery of this Agreement, and the
performance by Seller of its obligations hereunder, have been duly authorized
and will not conflict with, or result in a breach of any of the terms,
covenants, and provisions of any agreement or instrument to which Seller of its
obligations hereunder, have been duly authorized and will not conflict with, or
result in a breach of any of the terms, covenants, and provisions of any
agreement or instrument to which Seller is a party or by which it is bound, or,
to the best of Seller's knowledge, any regulation, order, judgment, writ,
injunction or decree of any court or governmental authority. The officer signing
this Agreement on behalf of Seller is duly authorized to execute the same on
behalf of Seller and Seller shall provide a copy to Purchaser of the corporate
resolutions to such effect at the closing. Notwithstanding the above, Purchaser
acknowledges that Seller's authority is subject to its obtaining a vote of a
majority in interest of the Limited Partners of HPP 90
(c) Except as disclosed in any of the materials heretofore furnished by
Seller to Purchaser, to the knowledge of the officers and directors of Seller,
without independent inquiry (i) the Property does not fail to comply with any
laws, statutes, ordinances, codes, rules, regulations or requirements of any
governmental authority or agency (local, state or federal) having jurisdiction
over the Property which are applicable to the Property or to any part thereof or
which are applicable to the use or manner of use, occupancy possession, or
operation of the Property, (ii) neither the Property nor any portion thereof
violates any zoning, building, fire, health, traffic, pollution, subdivision,
environmental protection or hazardous waste disposal ordinance, code, law or
regulation applicable thereto, and (iii) there are no violations of any
easement, restrictive covenant or other matter of record affecting the Property
or any thereof, to the extent any such noncompliance or violation under (i),
(ii) or (iii) above would be likely to materially impair the use of the Property
for its intended purpose. Seller shall give prompt notice to Purchaser of any
notice of any such noncompliance or violation which shall be received by Seller
prior to Closing.
(d) Except as otherwise disclosed in written material furnished by Seller
to Purchaser, to the knowledge of the officers and directors of Seller, without
independent inquiry, the Improvements and the Property are free of and there has
been no release of any Hazardous Materials (as that term is defined in Section
6(a)(i) hereof) including hazardous or toxic wastes, substances or materials or
contaminants, oil, pesticides, radioactive or other materials, the removal of
which is required, or the maintenance of which is prohibited or penalized, by
any local, state or federal agency authority or governmental unit. Further,
Seller represents and warrants that Seller has never generated, stored, handled
or disposed of any Hazardous Materials on, in, or under the Property except for
the storage and handling in accordance with applicable laws of Hazardous
Materials used in the ordinary course of Seller's business. If prior to the
Closing, Seller obtains actual knowledge of any such facts or circumstances,
Seller shall promptly notify Purchaser of such fact and Purchaser shall have
seven (7) business days from its receipt of such notice to exercise the rights
afforded it under Section 14.
(e) No officer or director of Seller is aware of, or has received notice
of, any suits, judgments, or violations of any kind relating to the Property; or
of any suit or judgment presently pending or threatened which would create a
lien upon the Property, and Seller shall give prompt notice to Purchaser of any
such suit or judgment filed, entered or threatened prior to Closing.
(f) To the best of Seller's knowledge, there are not presently pending or
contemplated any special assessments or any condemnation or eminent domain
proceedings affecting the Property or any part thereof. Seller shall give prompt
notice to Purchaser of any such proceedings which occur or are threatened with
respect to the Property prior to Closing.
(g) Seller is not aware of nor has Seller received notice of any pending
or contemplated changes in the status of zoning for the Property. Seller has no
agreement currently in effect with any entity, public or private, which would be
binding upon Purchaser and would prevent or limit the use of the Property for
any of the uses allowed by applicable zoning ordinances, including, the Intended
Use. Seller shall give prompt notice to Purchaser of any proposed changes of
zoning of which Seller is aware prior to the Closing.
(h) Unless being contested in a legal proceeding allowed by the laws of
the State of Maryland, all taxes, assessments of any kind, costs associated with
any betterment construction, water charges and sewer charges affecting the
Property or any part thereof due and payable at the time of the Closing shall
have been paid in full by Seller, All special assessments which are or will
become a lien of the Property or any part thereof shall also have been paid in
full by Seller and discharged prior to the date set for Closing, whether or not
(i) confirmed, (ii) payable in installments or (iii) yet constituting a lien
against the Property. If being contested, Seller shall provide such documents
and funds as may be reasonably required by the title company in order to insure
title to the Property without exception to such contested matters.
(i) Except as otherwise disclosed by Seller to Purchaser, there are no
parties in possession of the Property or entitled to possession thereof other
than Seller. Except as otherwise disclosed by Seller to Purchaser, there are no
leases, subleases, licenses or other rental agreements or occupancy agreements
(written or oral) which grant any possessory interest in and to any space
situated on or in the Property or that otherwise give rights to the use of the
Property or portions thereof. Seller represents and warrants that there is not
currently existing any management, maintenance, operating or other agreement
affecting the Property which could bind Purchaser or the Property after the
Closing except such agreement with Xxxx Management.
(j) The amount necessary to discharge all outstanding mortgages and other
monetary liens currently affecting the Property does not exceed the net amount
of the Purchase Price to be received by Seller at the Closing, after deductions
(if any) for the adjustments provided herein and payment of the broker's
commissions and there are no restrictions affecting prepayment contained in any
such mortgage(s). Further, Seller shall not create any new encumbrances or
restrictions affecting the Property.
(k) The Property has direct, indefeasible legal and practical access of
record for ingress and egress to an identified public way.
(l) Seller is familiar with the provisions of Sections 897 and 1445 of the
Internal Revenue Code (the "Code"), Seller is not a "foreign person" as that
term is defined in Section 1445(f)(3) of the Code, and therefore Purchaser is
not required to withhold a tax equal to ten percent (10%) of said Purchase Price
upon the transfer and conveyance of said Property.
5. Representations and Warranties of Purchaser. Purchaser represents and
warrants to Seller that:
(a) Purchaser has the legal right, power and authority to enter into this
Agreement and to perform all of its obligations hereunder; and this Agreement
and Purchaser's performance hereunder will not conflict with or result in a
breach of, any of the terms, covenants and provisions of the Certificate of
Organization or Operating Agreement of Purchaser, as same may have been amended.
(b) The person signing this Agreement on behalf of Purchaser is duly
authorized to execute the same on behalf of Purchaser and Purchaser shall
provide to Seller a copy of the corporate resolutions to such effect at the
Closing.
6. Conditions to Purchaser's Obligations to Purchase the Property. In
addition to the other conditions to be satisfied hereunder, Purchaser's
obligations hereunder are expressly contingent upon fulfillment of all of the
following:
(a) Purchaser may make or cause to be made all site assessments. Tests,
borings, and inspections it deems necessary to determine if there are any
"hazardous wastes", "hazardous substances", "oil" or "hazardous materials" (as
all those terms are defined under applicable governmental regulations), or any
medical wastes, radioactive materials, lead, asbestos, urea formaldehyde, or
radon ("Hazardous Materials"), in, on, about, under or in the area of the
Property, and shall be satisfied in its sole and absolute discretion with the
results of all such site assessments, tests, borings and inspections. Purchaser
agrees that its agents and representatives shall, prior to entering the
Property, report to Seller's manager or other designated representative, and
shall not interfere with the conduct of Seller's business while performing any
test or inspection hereunder. No borings or other invasive actions shall be made
or taken by Purchase's representatives without the prior written approval of
Seller, such approval not to be unreasonable withheld.
(b) Purchase may make or cause to be made an instrument survey of the
Property and such survey shall disclose no matters affecting the Property which
are reasonable determined by Purchaser to adversely affect the title or value of
the Property or the use of the Property for the Existing Use.
(c) Purchaser shall have obtained surveys, engineering reports,
percolation tests, commitment letters and other evidence satisfactory to
Purchaser indicating that : (i) the Property contains or is service by adequate
water supplies, and (ii) adequate utilities are available adjacent to the Land
without the need for any third party easements not already unconditionally
appurtenant to the Property.
(d) Purchaser shall conduct such surveys, analyses, inspections, and tests
of the Property as reasonable deemed necessary by Purchaser.
(e) Purchaser shall have obtained a commitment from a title insurance
company selected by Purchaser pursuant to which such company agrees to insure
title to the Property, at normal premium rates, in an ALTA form, which
commitment shall delete the printed exceptions for mechanics' and materialmen's
liens, parties in possession and surveys, shall include a so-called
Comprehensive Endorsement, and shall: (i) affirmatively insure that there will
be no violations of any applicable restrictions pertaining to the Property if
used, operated, leased and/or sold as contemplated herein, (ii) insure that the
Property has legal and actual access to an identified public roadway, (iii)
provide that all such affirmative coverages will be available to future
purchasers and their mortgagees at normal premium rates, and (iv) provide such
other affirmative coverages as Purchaser may reasonably require.
(f) Purchaser shall review and be satisfied with all zoning, land use and
environmental laws, codes, ordinances, and regulations affecting the Property
and shall have obtained all zoning, subdivision, and environmental permits and
approvals and other applicable permits, approvals, consents or licenses as may
be necessary for the Existing Use.
If the conditions of subsection (a) above are not fully satisfied in a
manner which is acceptable to Purchaser in its sole and absolute discretion on
or before thirty (30) days from the date of this Agreement, (Purchaser's
satisfaction therewith to be evidenced by written notice to Seller) or if any of
the other conditions precedent specified above are nor fully satisfied in a
manner which is acceptable to Purchaser in its sole and absolute discretion on
or before thirty (30) days from the date of this Agreement, (Purchaser's
satisfaction again to be evidenced by written notice to Seller) then this
Agreement shall be terminated and the Xxxxxxx Money together with all interest
earned thereon shall be immediately refunded to Purchaser, whereupon all
obligations of the parties hereto shall cease and this Agreement shall be void
without recourse to the parties hereto. In the event that the afore-mentioned 30
day time period expires without Purchaser having communicated in writing with
Seller as to the satisfaction of the conditions of this Section6, then it shall
be presumed that the applicable conditions have been fully satisfied in a manner
acceptable to Purchaser.
7. Effect of Presence of Hazardous Material on the Property. If
Purchaser's inspection of the Property during its due diligence period as
provided for in Section 6 above shall reveal the presence of Hazardous Materials
therein, Purchaser shall promptly notify Seller in writing of such condition. In
such event Seller and Purchaser shall proceed to negotiate in good faith a
resolution to the matter. In the event that the parties fail to find a
resolution within 30 days of Purchaser's notice to Seller, then either party may
elect to terminate this Agreement in which event Purchaser shall have the right
to the return of any and all Xxxxxxx Money, interest thereon, held by the Escrow
Agent.
8. Covenants of Seller.
(A) Seller covenants that between the date of this Agreement and the
Closing:
(i) Purchaser and its representatives, agents, contractors, engineers and
architects, and each of their respective officers, directors, agents, employees,
representatives, and designees shall have reasonable access to the Property at
any time and from time to time, following reasonable notice to Seller at
Purchaser's sole cost and expense: (A) to show the Property to third parties
(including without limitation, contractors, engineers, architects, attorneys,
insurers, banks, and other lenders or investors) and (B) to perform any and all
tests, borings, inspections, environmental site assessments and measurements
which Purchaser reasonable deems necessary or appropriate hereunder, including,
without limitation, for purposes of locating all utility conduits serving the
Property, making soil borings, performing soil compaction tests, performing
mechanical or structural inspections, and making such surveys and other
topographical and engineering studies and other tests, surveys and studies as
Purchaser or Purchase's lender mat deem necessary to appropriate. Purchaser's
representatives shall not interfere with the conduct of Seller's business while
performing any test or inspection hereunder, and shall obtain Seller's prior
written approval before making any soil borings or taking other invasive
actions, such approval not to be unreasonable withheld. Promptly following such
tests and surveys, Purchaser shall restore any disturbed Property to its
condition prior to such tests and surveys. Purchaser does hereby indemnify and
hold harmless Seller from any and all claims, actions and judgments asserted
against Seller resulting from the entry upon the Property by Purchaser and its
representatives, agents, contractors, engineers and architects for the purpose
of conducting any test, borings, inspections, environmental site assessments,
surveys engineering studies and other testing and studies desired by Purchaser
or Purchaser's lender, including damage to the Property or injury to persons.
Purchaser further agrees to promptly pay any and all judgments obtained against
Seller and to promptly pay or reimburse Seller for any and all costs, expenses
and attorney's fees incurred by Seller in the defense of any and all such
claims, actions, and judgments resulting from the entry granted to Purchaser to
Seller's Property under the terms hereof. This provision shall survive
termination of this Agreement or Closing.
(ii) Promptly upon the execution hereof, Seller will furnish to Purchaser
for Purchaser's review and approval complete and accurate copies of any surveys,
drawings, agreements running with Property and any other documents reasonably
requested by Purchaser concerning the ownership and condition of the Property
(for informational purposes, without warranty or representation regarding
accuracy thereof) which are in the possession of Seller or its counsel. Seller
shall also furnish to Purchaser copies of any leases Seller is a party to, or
easements in favor of Seller, concerning any and all properties adjacent to the
Premises.
(iii) Except with respect to leases or agreements made in the ordinary
course of Seller's business, Seller shall not permit any new occupancy of, or
enter into any new lease for, space in or on the Property, or any portion
thereof, or enter into or renew any management, maintenance or other agreement
affecting the Property which could bind Purchaser or the Property after the
Closing, unless Purchaser has previously approved such occupancy, lease or
agreement in writing.
(iv) From and after the date hereof and continuing until the Closing date,
Seller, at Seller's sole cost and expense, shall maintain in full force and
effect its present hazard and public liability insurance policies, or reasonable
equivalent substitute policies.
(v) Seller shall not execute any new mortgages on the Property or modify
the existing mortgage(s) on the Property, or otherwise encumber the Property.
(vi) Seller shall not modify or alter the property in any material
respect.
(vii) Seller shall operate, maintain and manage the Property in
substantially the same manner as it is presently being operated, such that at
the Closing date, the Property shall be in substantially the same physical
condition as on the date of execution hereof, normal were and tear and damage or
destruction by fire or other casualty excepted. Notwithstanding the above the
property when transferred is sold "as is", "where is" and "with all faults."
(viii) Seller shall provide Purchaser with a certificate dated the date of
Closing confirming that all of the statements in Section 4 hereof and all other
warranties and representations of Seller contained herein are true, correct and
complete as of the date of Closing. Seller agrees to indemnify and hold
Purchaser harmless from and against any and all claims, losses. Liabilities,
damages, expenses and fees, including without limitation, reasonable attorney's
fees, incurred by Purchaser as a result of the failure of any of Seller's
warranties and representations contained in this Agreement. The provisions of
this Section (viii) shall survive delivery of the deed hereunder or the
termination of this Agreement for a period of 3 years from the date of Closing.
(B) In the event that Seller shall: (i) receive notice or have actual
knowledge of any violation of any zoning, building, fire, health, pollution,
environmental protection or waste disposal ordinance, code, law or regulation
applicable to the Property, which may have a material adverse impact upon the
use of the Property for its Intended Use, or (ii) receive notice of any suit or
judgment which would create a lien upon the Property in the hands of Purchaser
after Closing, then at the option of Purchaser, Purchaser shall have the right
in its sole discretion to terminate this Agreement. Upon such termination,
Escrow Agent shall refund the Xxxxxxx Money with interest thereon to Purchaser
and this Agreement and all rights and obligations hereunder shall immediately
terminate.
9. Closing. Subject to extension by mutual agreement or pursuant to
Section 7 hereof, the Closing shall be held contemporaneous with, that is at the
same time and place, as the Closing between Xxxxxxxxx'x Wharf Baltimore, LLC and
Xxxxxxxxx'x Wharf Baltimore L.P. pursuant to an agreement of even date for the
purchase of the Property at 0000 Xxxx Xxxxxx, Xxxxxxxxx. At the closing, Seller
and Purchaser will execute and deliver all deeds and other documents necessary
to consummate the transaction contemplated by this Agreement pursuant to the
terms of this Agreement. In the event that the Closing does not occur within the
period provided for in this Section 9, either party shall have the right to
terminate this Agreement upon notice to the other, specifying the effective date
of termination, whereupon the Xxxxxxx Money with interest shall be returned to
the Purchaser and all rights and obligations hereunder shall immediately
terminate. Notwithstanding the above, either party may obtain one 30 day
extension of the closing upon written request delivered to the other.
10. Conveyance of the Property. At the Closing, Seller shall convey to the
Purchaser, or Purchaser's nominee, good and clear record and marketable fee
simple title to the Property insurable as provided in Section 6(e) above, which
title will be free and clear of all liens, encumbrances, tenancies and
restrictions (including condemnation proceedings) of any kind and nature. Seller
will warrant that the title to the Property is free and clear of all liens,
encumbrances, tenancies and restrictions whatsoever. At Closing, Seller will
deliver to Purchaser such surveys, final plans and specifications for the
Improvements in possession of or in control of Seller or Seller's counsel and
all warranties with respect to the Property. At Closing, also, Seller shall
execute and deliver (i) a mechanics lien affidavit in the form generally used in
the State of Maryland, but which affidavit shall provide that all work done or
material furnished on or at the Property have been completed and paid for in
full; (ii) an assignment of Seller's entire interest in any permits, licenses or
approvals affecting the Property (provided, however, in the absence of an
express assignment, delivery of the deed will conclusively be deemed to
constitute the assignment of all such permits, licenses and approvals to
Purchaser); (iii) originals of all site plans, surveys, soil and substrata
studies, architectural drawings, plans and specifications, engineering plans and
studies, floor plans, landscape plans and other plans or studies of ant kind
that relate to the Property which are in the possession of Seller or its
counsel; (iv) affidavits to Purchaser's title insurer as to parties in
possession or with a right to possession of, and mechanic's liens with respect
to the Property, which affidavits shall be sufficient to have the normal printed
exceptions with respect to such matters, deleted from Purchaser's and
Purchaser's lender's title insurance policy(ies); (v) an affidavit certifying
that Seller is not a "foreign person" as of the Closing date, as provided in
Section 4(m) hereof; (vi) a certificate by Seller to the effect that all of the
representations and warranties set forth in Section 4 remain true and correct as
of the Closing Date; (vii) a 1099-B form; (viii) a W-9 form stating that no
backup withholding is necessary to disburse Seller's share, if any, of the
interest earned with Xxxxxxx Money; (ix) such documents, certificates and
instruments reasonable deemed necessary or appropriate by Purchaser's counsel to
effectuate the transaction which is the subject of this Agreement; (x) all other
documents expressly required by this Agreement to be delivered by Seller; and
(xi) a xxxx of sale to all personlty and personal property located at the
Property.
To enable Seller to make the conveyance as herein provided, at the time of
delivery of the deed, Seller shall use the Purchase Price or any portion thereof
to clear title to the Property of any or all encumbrances, and all instruments
so procured shall be recorded simultaneously with the delivery of the deed, or
provisions reasonably satisfactory to Purchaser's counsel or Purchaser's title
insurance company shall be made prior to the Closing date for recording thereof
as soon as practicable after the Closing date.
11. Closing Costs. Seller shall pay the State and local real estate
transfer taxes and documentary stamps assessed in connection with the Closing,
the legal fees of its own counsel and the cost of obtaining and rendering any
"title clearance" documents, including, but not limited to, recording fees
relating to the discharge of all outstanding mortgages or other liens of record,
as well as the cost of title curative matters, if any. The premiums for owner's
title insurance policies, Purchaser's legal fees and recording fees for the
deed, shall be paid by the Purchaser.
12. Possession of Property. The Property shall be delivered to Purchaser
in the same condition as it is as of the date hereof, reasonable wear and tear
to the date of delivery of the deed excepted, and in compliance with all zoning
laws and any other encumbrances expressly permitted by this Agreement. Purchaser
shall be permitted to inspect the property prior to the Closing in order to
determine whether the condition thereof complies with the terms of this Section
12. Property shall be delivered subject only to the leases for boat slips in
effect through the normal course of operations.
13. Brokers. Seller hereby represents and warrants and will represent and
warrant at Closing to Purchaser that is has not engaged any broker or agent in
regard hereto or to the sale and purchase of the Property, or both, and Seller
agrees to indemnify Purchaser and hold Purchaser harmless against all liability,
loss, cost, damage, claims and expense (including but not limited to, attorneys
fees and cost of litigation) the Purchaser shall ever suffer, incur, or be
threatened with because of any claim by any broker or agent, for any said fee,
commission or other Compensation with respect to the sale and purchase of the
Property. Purchaser hereby represents and warrants and will represent and
warrant at Closing to Seller that it has not engaged any broker or agent in
regard hereto or to the purchase of the Property, or both, and Purchaser agrees
to indemnify Seller and hold Seller harmless against all liability, loss, loss
cost, damage, claims and expense (including, but not limited to, attorneys' fees
and all costs and expenses of litigation) the Seller shall ever suffer, incur,
or be threatened with because of any claim by any broker or agent purported to
be engaged by Purchaser, for any fee, commission or other compensation with
respect to the sale and purchase of the Property.
14. Termination. In addition to Purchaser's rights as set forth in Section
6 hereof, Purchaser, at Purchaser's sole election, may cancel and terminate this
Agreement by written notice to the Seller, if any one or more of the following
conditions or state of facts shall exist at the time of Closing.
(a) Failure of Seller to deliver to Purchaser at the Closing the
instruments described in Section 10 hereof, or required elsewhere by the terms
of this Agreement.
(b) The failure of Seller to comply with any other provision of this
Agreement or
the fact that any representation or warranty of Seller set forth in this
Agreement was materially inaccurate at the time made.
(c) Any notice shall have been given or proceeding filed or commenced by
governmental authority having the power to rezone the Property proposing to
rezone the Property so as to preclude the Existing Use thereof.
In the event Purchaser elects to cancel this Agreement pursuant to the
terms of this Section 14, Escrow Agent shall pay the Xxxxxxx Money with all
interest accumulated thereon, to Purchaser, and this Agreement shall be of no
further force or effect.
15. Notices. All notices, demands, or requests required or permitted to be
given pursuant to this Agreement shall be in writing and shall be deemed to have
been properly given or served and shall be effective upon either (I) hand
delivery, (ii) being deposited in the United States mail, postpaid and
registered or certified with return receipt requested, (iii) electronically
transmitted or (iv) being deposited with a reputable overnight delivery service,
provided, however, the time period in which a response to any notice, demand, or
request must be given shall commence on the date of receipt by the addressee
thereof. Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice has been given shall constitute receipt of
the notice, demand, or request sent. Any such notice, demand or request if given
to Seller shall be addressed as follows:
Xxxxxxxx X. Xxxxxxxx
Historic Preservation Properties
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Xxxxxx Xxxx
Xxxx Financial, Inc.
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
And to:
Xxxxxxxx X. Xxxx, Esquire
Abrams, Roberts, Klickstein & Levy
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Phone: (000) 000-0000
Fax: (000) 000-0000
Either party shall have the right to change its address for notice
hereunder by giving notice thereof to the other party in the manner hereinabove
set forth.
16. Successors and Assigns. This Agreement shall apply to, inure to the
benefit of and be binding upon and enforceable against the parties hereto and
their respective successors and permitted assigns, to the same extend as if
specified at length throughout his Agreement. This Agreement may be assigned by
Purchaser without Seller's prior consent, provided Purchaser shall remain liable
for the obligations of Purchaser made hereunder.
17. Counterparts. This Agreement may be executed in several counterparts,
each of which shall be deemed an original, and all of such counterparts together
shall constitute one and the same instrument.
18. Governing Law. This Agreement shall be governed by the laws of the
Commonwealth of Massachusetts.
19. Prior Discussion and Amendments. This Agreement supersedes all prior
discussion and agreements between Seller and Purchaser with respect to the
conveyance of the Property and all other matters contained herein and
constitutes the sole and entire agreement between Seller and Purchaser with
respect thereto. This Agreement may not be modified or amended unless such
amendment is set forth in writing an signed by both Seller and Purchaser.
20. Judicial Interpretation. Should any provision of this Agreement
require judicial interpretations, it is agreed that that court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against one party by reason of the rule of construction
that a document is to be construed more strictly against the party who itself or
through its agent prepared the same, it being agreed that the agents of all
parties have participated in the preparation hereof.
21. Survival of Contract. All agreements, representations and warranties
made herein shall be impaired by any investigation or other act by Purchaser,
shall survive the Closing for a period of three years, and shall not be merged
into the documents executed and delivered at Closing. In the event that, prior
to Closing, Purchaser discovers that any Seller's representations or warranties
made herein are materially untrue or incomplete, Purchaser shall promptly notify
Seller thereof. In the event that Purchaser has such knowledge prior to Closing
either (a) does not so notify Seller, or (b) accepts title to the Property
following disclosure to Seller, Purchaser shall have no claim against Seller
hereunder with respect to such untrue or incomplete representation or warranty.
22. Defaults. If on the Closing date, Seller (a) shall be unable to convey
title or deliver possession of the Property as required by this Agreement or to
satisfy any of the terms and conditions precedent to closing set forth herein,
or (b) the Property does not then conform to the provisions hereof, or (c) any
of Seller's representations and warranties contained herein are not fully
accurate as of the Closing date, the Closing date shall be extended for such
period, not to exceed sixty (60) all of Seller's obligations hereunder. If, at
the expiration of such extended time for performance, despite having used such
diligent efforts, Seller shall remain unable to satisfy and perform all of
Seller's obligations, then Purchaser shall have the option, at Purchaser's sole
discretion: (i) to terminate this Agreement by notice given to Seller, whereupon
the Xxxxxxx Money, together with all interest thereon and all other sums, if
any, paid by Purchaser to Seller hereunder shall be promptly refunded to the
Purchaser and all obligations of the parties hereto, excluding, however, those
provisions which are expressly provided herein to survive termination of the
Agreement, or (ii) to accept title to the Property, subject to the matters set
forth in clauses (a)-(c) and without recourse against Seller for or with respect
to such matters, provided that Purchaser and Seller first agree in writing to an
adjustment of the Purchase Price. Purchaser shall have the right to obtain
specific performance of this Agreement, as well as the benefit of any other
rights or remedies provided herein by applicable law.
23. Title and Objections to Title. Promptly after execution of this
Agreement, Purchaser shall cause to be issued a title insurance commitment by a
title insurance company acceptable to Purchaser agreeing to insure Purchaser as
the owner of the Property upon recordation of the limited warranty deed. Seller
shall, at or prior to Closing, pay all taxes and assessments of whatever kind,
nature or description which constitute a lien upon the Property (other than
those not then due and payable) and shall pay all indebtedness secured by the
Property. Within 30 days after its receipt of the title insurance commitment,
Purchaser may object by written notice to Seller to any other exceptions
disclosed in the commitment which Purchaser is not willing to accept. Any and
all exceptions to which Purchaser does not so object (other than those described
in the second sentence of this section) shall be considered "Permitted Title
Exceptions". In the event Purchaser objects to any exceptions as provided above,
Seller shall have a period of 30 days from receipt of Purchaser's written
objection within which to notify Purchaser by written notice whether Seller
commits, at or prior to Closing, to eliminate the exceptions to which Purchaser
objects. Unless Seller gives notice that it intends to eliminate all of the
objectionable exceptions, Purchaser shall have the right, to be exercised by
written notice to Seller within ten days after Purchaser's receipt of Seller's
notice, to terminate this Agreement and receive a refund of the Xxxxxxx Money,
together with all interest earned thereon. If Purchaser fails to terminate this
Agreement as provided in the preceding sentence, Purchaser, notwithstanding its
objection, shall take title to the Property subject to all exceptions other than
those described in the second sentence of this section and those which Seller
commits in writing to remove, and such additional exceptions to which Purchaser
shall take subject shall be considered "Permitted Title Exceptions".
24. Condemnation. If any action or proceeding is filed (or notice of such
action or proceeding given) under which all of the Property or a material
portion thereof may be taken under the right of eminent domain, then Seller
shall promptly give notice thereof to Purchaser and Purchaser shall have ten
(10) days after such receipt of notice in which to either (a) terminate this
Agreement by giving written notice to such effect to Seller, and upon giving of
such notice by Purchaser, Escrow Agent shall refund the Xxxxxxx Money and all
interest accumulated thereon to Purchaser and thereafter the parties shall have
no further rights or obligations under this Agreement other than the surviving
obligations, or (b) accept title to the Property subject to such condemnation or
eminent domain proceeding, by giving written notice to Seller, in which event at
Closing, Seller shall assign to Purchaser all condemnation awards for such
condemnation with no reduction or abatement in the Purchase Price. In the event
such taking is not material purchaser shall receive am assignment of any award
for such taking.
25. Casualty. If, prior to Closing, all or a material portion of Property
is damaged by fire or other casualty and the cost of repairing some exceeds 5%
of the purchase price Seller shall promptly give notice thereof to Purchaser.
Purchaser shall have ten (10) days after such receipt of notice in which to
either: (a) terminate the Agreement by giving written notice to such effect to
Seller, and upon the giving of such notice by Purchaser, Escrow Agent shall
refund the Xxxxxxx Money and all interest accumulated thereon to Purchaser and
thereafter the parties shall have no further rights or obligations under this
Agreement other than the surviving obligations, or (b) accept title to the
Property in its destroyed or damaged condition by giving written notice thereof
to Seller, in which event at Closing, Seller shall assign to Purchaser all
proceeds of insurance awards for such damages with no reduction or abatement in
the Purchase Price. In the event the cost of repair is less than 5% of the
purchase price Seller shall assign to Purchase all rights to and proceeds of
insurance awards and the closing shall take place as set forth herein.
26. Time is of the Essence. Time is of the essence of this Agreement.
27. Escrow Agent and the Settlement Agent. Escrow Agent shall and is
hereby designated by Seller and Purchaser as the party responsible for closing
the transaction contemplated in this Agreement, and, as such, shall file all
necessary information, reports, returns and statements regarding this
transaction as required by the Internal Revenue Code of 1986, as amended (the
"Code"), including, without limitations, all reports, returns, and statements
required pursuant to Section 6045 of the Code.
28. Seller Approval. In order to fulfill its obligations hereunder, Seller
must obtain approval of a majority in interest of the limited partners of HPP
90. Seller warrants that it will use its best efforts to obtain such approval
and will commence the process immediately upon notification from the Buyer that
the financing contingency in Section 6 (g) above has been satisfied. Seller
expects that such approval will obtained by September 30, 1999. If such approval
is not obtained by said date, Buyer, in is sole discretion, may extend the
closing date thirty (30) days.
IN WITNESS WHEREOF, the parties have executed this Agreement under
seal as of the date first written above.
SELLER
Xxxxxxxxx'x Wharf Xxxxxx L. P.
Historic Preservation Properties 1990 L.P. Tax Credit Fund
General Partner
By: _____________________________________
Xxxxxxxx X. Xxxxxxxx
PURCHASER
Xxxxxxxxx'x Wharf Xxxxxx Inc.
By: ______________________________________
Xxxxxx Xxxx, President
