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PURCHASE CONTRACT
THIS AGREEMENT made and entered into this 25th day of September 1997,
between CORNERSTONE REALTY GROUP INC. OR ITS nominee, (hereinafter called
"Purchaser") and BARRINGTON PARC LIMITED PARTNERSHIP, (hereinafter called
"SELLER").
ARTICLE I
THE PROPERTY
1.1 SALE OF PROPERTY. Seller agrees to sell and convey, and Purchaser
agrees to purchase, Seller's real property known as BARRINGTON PARC APARTMENTS
located in ATLANTA, GA, with all buildings and improvements located thereon, as
more particularly described in the attached legal description in EXHIBIT A
including, but not limited to 188 individually heated and air conditioned
apartment units, with all appurtenances, together with all appliances, drapes,
carpeting, shrubbery and all other personal property used in connection with the
premises, including, the inventory of personal property to be supplied by Seller
and attached hereto as EXHIBIT B (all such real and personal property
hereinafter collectively referred to as the "Property" unless the context
clearly indicates otherwise).
ARTICLE II
PAYMENT OF PURCHASE PRICE
2.1 PURCHASE PRICE. The total purchase price shall be SEVEN MILLION
EIGHT HUNDRED FIFTY THOUSAND ($7,850,000) DOLLARS as evidenced by cash or cash
equivalent at closing.
2.2 DEPOSITE. ONE HUNDRED THOUSAND ($100,000) DOLLARS to be placed in
escrow within forty-eight (48) hours after the execution of this Agreement by
both parties. Said deposit shall be placed in escrow with Chicago Title
Insurance Corporation or its authorized agent as an xxxxxxx money deposit which
may be credited against the purchase price or applied as per Article XI below.
ARTICLE III
TITLE MATTERS
3.1 MARKETABLE TITLE. Seller, shall convey good and marketable title
by Limited Warranty Deed in the form attached hereto as EXHIBIT C, subject only
to general taxes for the current fiscal year (as it is the local custom) not yet
due and payable and those matters of record accepted by Purchaser in ACCORDANCE
with paragraphs 3.2 and 3.3 below.
(A) Title shall be free from any and all liens or mortgages and Seller
shall be responsible for any prepayment penalties necessary to deliver such free
title.
3.2 TITLE DEFECTS; ELECTION TO CURE. Purchaser has ordered a
commitment for Title Insurance, (the commitment). if title is not marketable,
except as stated above in the preceding paragraph, Purchaser shall give written
notice of any defects in title to Seller's counsel within ten (10) days after
Purchaser's receipt of a title report which report shall include copies of
backup documents relating to any title exceptions, a current survey, a flood
zone certification letter and a Surveyor's Certification letter. Seller may
within five (5) days after receipt of Purchaser's objections to title, if any,
at its option, elect whether to cure said defects or by written notice to
Purchaser indicate its intention not to cure.
3.3 ELECTION NOT TO CURE DEFECTS. Should Seller elect not to cure
title defects, this Agreement, at Purchaser's option, exercised by written
notice to Seller within five (5) days after receipt of Seller's notice, shall be
void; each party shall thereupon be released from all obligations hereunder
(except those that expressly survive pursuant to the terms of this Agreement);
and all deposits shall be immediately returned to Purchaser.
3.4 TITLE AND SURVEY. Purchaser shall have the obligation to review
the title report and survey as part of its "Inspection Period" described in
Article VI below.
ARTICLE IV
PRORATIONS
4.1 INCOME AND EXPENSE ALLOCATION. The following shall be prorated,
on a calendar-month basis, to the 1st day of the month of the closing as of
12:01 p.m. on the date of closing: rents and other income from the Property;
operating expenses (on such service contracts and other obligations as Purchaser
assumes) ; and general and real property taxes and personal and business
property taxes for the year of closing (based on the most recent assessment and
the most recent levy).
4.2 CLOSING COSTS. Purchaser and Seller shall pay their customary
share of all taxes, recording fees, if any, imposed on the Deed, or any other
documents executed in connection with the transfer of the Property. Purchaser
agrees to pay cost of title insurance and Survey. Seller shall pay any
prepayment penalty charged by the holders of any existing notes.
4.3 ALLOCATION OF RENTS. Rents collected by Seller prior to Closing
shall be prorated as agreed in 4.1 above. Purchaser shall apply rents received
after Closing first to payment of the current rent due to Purchaser, then to
delinquent rents due to Purchaser, and last to rents due to Seller as of the
closing but
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uncollected prior to settlement. Purchaser agrees to use its best efforts in
good faith to collect the amount of any rental arrears from tenants and
Purchaser agrees to remit promptly to Seller any such arrears actually paid by
such tenants to Purchaser. Seller shall retain the right to commence legal
action against a tenant for any delinquent rent apportioned to the Seller.
4.4 PRIOR LEASE CONCESSIONS. If Seller has committed to give any
future monetary concessions to tenants under existing leases to which Purchaser
would become liable, then Seller shall pay to Purchaser said amount in a lump
sum at closing.
ARTICLE V
POSSESSION OF THE PROPERTY
5.1 POSSESSION. Possession of the Property shall be delivered to
Purchaser at closing, subject to the rights of the tenants under existing leases
and rental agreements.
ARTICLE VI
CONDITIONS PRECEDENT TO CLOSING
6.1 CONDITIONS PRECEDENT. Purchaser's obligation to purchase shall be
subject to and contingent upon the satisfaction of the following conditions
precedent:
(A) Receipt by Purchaser of an engineering report of building and site
conditions, satisfactory to Purchaser in its sole discretion, said report to
include in part, a description of any hazardous waste sites, hazardous wastes
and/or hazardous materials affecting the property. Purchaser shall have the
Inspection Period (as defined herein) in -which to review the reports set forth
herein and exercise its right to reject the Property based thereon or the right
hereunder shall be deemed waived.
(B) The receipt by Purchaser of Seller documents described in 7.2
below.
(C) On the condition that Sellers representations and warranties
described in ARTICLE VIII BELOW remain true AND correct in all material
respects.
(D) On the condition that there have been no material adverse changes
to the property or to the terms of the leases.
(E) Seller acknowledges that Purchaser is a public entity and that it
is required to furnish financial statements to the securities and Exchange
Commission in connection with this acquisition. Seller agrees to make the
information in its possession available for Purchaser to audit the last 12
months of
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operation of the Property so that a report can be generated that is in
compliance with accounting Regulation S-X of the Securities and Exchange
commission.
(F) Survey which shall show no encroachments onto the Land from any
adjacent property, no encroachments by or from the Land onto adjacent property
and no violation of or encroachments upon any recorded building lines,
restrictions or easements affecting the Property. If the survey discloses any
such encroachment or violation during the Inspection Period, Purchaser shall
notify Seller and Seller shall have thirty (30) days from the date of delivery
of the Survey (with a commensurate extension of the closing date) to have the
Title Insurer issue its endorsement insuring against damage caused by such
encroachment or violation and to provide evidence thereof to Purchaser, and if
Seller fails to or is unable to have the same insured against within such thirty
(30) day period, Purchaser may elect, on or before the Closing Date, to (i)
terminate this Agreement (in which case the Xxxxxxx Money shall be returned to
Purchaser) and neither party shall have any further liability or obligation to
the other hereunder, except as stated in Paragraph 6.2.2, or (ii) accept the
property subject to any such encroachment or violation.
6.2 INSPECTION. This Agreement shall be further subject to and
contingent upon Purchaser's satisfactory inspection as follows herein below.
6.2.1 PREPARATION FOR INSPECTION. At the execution of this Agreement,
Seller shall deliver to Purchaser copies of the following: The current rent roll
for the Property; detailed statements of income and expenses with respect to the
Property for the past two years; the most recent tax bills for the Property;
utility bills for the Property for the twelve (12) months previous to the date
hereof; all contracts; all loss runs dealing with all information of insurance
for the last five (5) years, if available, but no less than three (3) years;
Plans and Specifications for the Property, service contracts, Certificates of
Occupancy, to the extent reasonably available; a copy of the title policy and
most recent survey for the Property. A copy of any environmental or engineering
reports on the property. The Seller warrants that all these items were those
actually relied upon by the Seller and were prepared or received in the ordinary
course of business.
6.2.2 INSPECTION OF BOOKS AND RECORDS; ACCESS* Upon execution of this
Agreement and receipt of fully executed copies by both parties or their
attorneys, Purchaser, its employees, agents and contractors shall have thirty
(30) days (the "inspection Period") to enter upon the Property subject to the
rights of the tenants during normal business hours and upon reasonable prior
notice to Seller for the purpose of making physical inspections thereof,
including but not limited to roofs, heating, COOLING, electrical and plumbing
systems, swimming pool, appliances, and
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structural elements of the buildings. In the event any invasive tests shall be
used by the Purchaser, then the Purchaser shall give notice to the Seller for
approval (not to be unreasonably withheld) prior to the commencement of said
testing. In any event, the Purchaser shall be responsible for any actual damages
to the Property as a result thereof and Purchaser shall carry insurance to hold
Seller harmless from any claims as a result of the inspection. Where insurance
does not provide coverage and Purchaser is liable, the Purchaser agrees to hold
Seller harmless over and above insurance. Purchaser shall also be permitted to
review all original leases, expense records, tenant cards and occupancy data
available. Upon the conclusion of the Inspection Period this contract shall be
deemed to be a firm agreement of purchase and sale binding the parties hereto,
except as it may be terminated by other provisions and conditions contained
herein, including but not limited to the condition imposed by Paragraph 6.1(A)
above.
6.2.3 RIGHT OF TERMINATION DURING INSPECTION PERIOD . If Purchaser is
not satisfied, in its sole and exclusive discretion, with the state of
maintenance and repair of the Property or the rents, occupancy or expenses of
the Property, then notwithstanding anything contained herein to the contrary,
Purchaser shall have the right to terminate this Agreement by giving written
notice to Seller before the end of the Inspection Period, and no party hereto
shall have any further liability to any other party hereto, and all deposits
shall be returned to Purchaser.
6.2.4 TERMINATION OF INSPECTION PERIOD. Notwithstanding anything to
the contrary set forth herein, the Inspection Period shall expire thirty (30)
days from the date of full execution of this Agreement by both parties or such
other date as the parties may agree to in writing.
6.2.5 "RENT READY". During the "Inspection Period", both Seller and
Purchaser will inspect an apartment unit at the Property and mutually agree that
said apartment shall be representative of a "rent ready" unit by which all other
units shall be judged for "rent ready" condition at closing. All vacant
apartment units, are to be in a "rent ready" condition (as defined above), at
the time of closing, containing, but not limited to the following amenities,
i.e., carpet, refrigerator, range, garbage disposal, heating, plumbing and
electrical systems.
6.2.6 CONDITION OF PERSONAL PROPERTY AT CLOSING. All personal property
included in the sale and all mechanical, electrical, heating, air conditioning,
sewer, water and plumbing systems will be in the same working order at the time
of closing and in the same condition as at the time of the initial inspection by
Purchaser. If Seller fails to make reasonable efforts to conserve the property,
Purchaser shall have the option of waiving such requirement, in writing, and
proceeding to closing, or
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Purchaser may void this Agreement and obtain a prompt return of its deposit.
ARTICLE VII
CLOSING
7.1 Closing. Closing will be held on or before ten (10) days after the
completion of the Inspection Period, at such place and at such time as the
parties may agree.
7.2 SELLER'S DELIVERIES. At closing, Seller shall execute and deliver
to Purchaser the Limited Warranty Deed referred to in Paragraph 3 hereof and
shall also execute, where necessary, and deliver to Purchaser, the following:
(A) A Xxxx of Sale, with warranty of title transferring the personal
property (as shown in Exhibit B) to Purchaser free of all liens, charges and
encumbrances.
(B) originals or copies of all signed leases and rental agreements in
effect with tenants of the Property.
(C) All security and cleaning deposits made by such tenants. Seller
will give the tenants the required notice of such transfer in compliance with
the laws of Georgia.
(D) An affidavit of Seller in such form as will cause the Title
Company to omit from the title insurance policy the exclusion relating to
unrecorded mechanic's and materialmen's liens.
(E) A rent roll certified by Seller to be true and correct as of the
date of closing showing the name of, and the amount of monthly rental payable,
by each tenant of the Property, the apartment occupied by the tenant, the date
to which rent has been paid, any advance payment of rent, and the amount of any
escrow, or security deposit of tenant.
(F) An affidavit of Seller that to the best of its information and
belief there are, on the date of closing, no unsatisfied judgments, creditor's
claims, tax liens, or pending bankruptcies involving Seller.
(G) Assignments of all Seller's interest in the following: (1) all
assignable licenses, and permits relating to the operation of the Property, (2)
the leases and rental agreements with tenants of the Property, (3) the existing
Property telephone number and (4) the business and trade name as set forth in
Par. 1.1.
(H) Assignments of all warranties and guarantees to the extent such
are still in effect and provide Purchaser with
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copies of all such warranties and guarantees without limitation for all
appliances, dishwashers, disposals, refrigerators, heating and air conditioning
units, washers and dryers.
(I) Seller's affidavit that it is authorized to execute this Agreement
and to complete the sale without any further action on its behalf.
(J) Provide documents for the transfer of the telephone, electric,
water and sewer, and gas utilities, as may be required by the utility, for
execution at closing.
(K) Satisfactory evidence of the power and authority of Seller to
enter into and consummate this agreement.
(L) Seller shall provide a satisfactory and valid written termination
of the management agreement executed by the existing management and rental agent
for the Property, without cost to the Purchaser.
(M) A notice letter to all the residents of the apartment complex as
to change of ownership in the form prepared by the Purchaser and reasonably
acceptable to Seller.
(N) All such other documents as are normally transferred at settlement
in the jurisdiction in which the property is located or are reasonably requested
by Purchaser or its counsel.
(0) A representation letter as normally required by auditors for a
public company in the form attached hereto as EXHIBIT E.
(P) Purchaser hereby waives any claim it may have against Seller as a
result of seller's compliance with the above Paragraph 0, and further agrees to
indemnify and hold harmless Seller and its property manager from a claim,
damage, loss or liability to which Seller or its property manager are at any
time subject by any person not a party to this Agreement as a result of Seller's
compliance with this paragraph.
7.3 PURCHASER'S DELIVERIES. At closing and contemporaneously with the
Seller's compliance with the provisions of Section 7.2, Purchaser shall:
(A) Pay to Seller the cash portion of the purchase price, adjusted for
the prorations herein provided for in Article IV.
(B) Execute and deliver an assumption of obligations under leases,
securities, any Contracts which may be accepted by the purchaser and any other
obligations specifically set forth herein.
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(C) Deliver to the Seller a resolution of the purchaser that:
(i) This Agreement has been duly authorized, executed and
delivered by the Purchaser and is a valid and binding agreement of Purchaser,
and
(ii) Purchaser has complete unrestricted power to buy the
Property from the Seller and to execute any documents required to effectuate the
transfer.
ARTICLE VIII
SELLER'S REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 REPRESENTATIONS OF THE PARTIES. Seller warrants (which warranties
shall not survive settlement unless designated to the contrary) that as of the
date of closing hereof:
(A) That Seller, is the owner in fee simple of the Property and has
the power to convey same.
(B) That Seller is not subject to any other agreements or
arrangements, with the exception of those contained in any existing mortgage
documents which would prevent Seller from selling the Property to Purchaser.
(C) All necessary action has been taken by Seller to authorize the
execution of this Agreement and the performance of the obligations contemplated
hereunder, which are not excluded elsewhere in existing mortgage documents.
(D) Seller has no actual knowledge and has not been advised in writing
that it is in default under any lease, rental agreement, service or equipment
contract, or mortgage or other encumbrances relating to the Property.
(E) Seller has no actual knowledge of any existing or threatened
litigation which relates to or which would affect the Property, except for
actions against tenants for rent, none of which having a counterclaim.
(F) Seller has no actual knowledge that any part of the Property or
the operation of the Property, is in violation or may violate any governmental
statute, regulation, ordinance or building code or of any private restriction,
that any governmental authority requires any work to be done an or affecting the
Property, or that any governmental authority has expressed an intent to condemn
or to make special improvements for the benefit of the Property or any part
thereof.
(G) That Seller is not a "foreign person" within the meaning of the
Internal Revenue Code of 1986, as amended (the
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"Code") , and that Seller will furnish to Purchaser prior to closing an
affidavit in form satisfactory to Purchaser confirming the same.
(H) To Seller's knowledge, during the period of Seller's ownership, no
portion of the Property has ever been used by Seller as a landfill or as a dump
to receive garbage, refuse, waste or fill material whether or not hazardous.
Seller, to Seller's knowledge, during the period of Seller's ownership, has not
stored, handled, installed or disposed of any Hazardous Substances (as
hereinafter defined) in, on or about the Property or any other location within
the vicinity of the Property; and, to Seller's knowledge, there are no Hazardous
Substances on the Property. As used in this Agreement, the terms "Hazardous
Substances means asbestos, polychlorinated biphenyl and such materials, waste,
contaminants or other substances defined as toxic, dangerous to health or
otherwise hazardous by cumulative reference to the following sources as amended
from time to time: (i) the Resource and Recovery Act of 1976, 42 USC Section
690l et. seq. ("RCRA"); (ii) the Hazardous Materials Transportation Act, 49 USC
Section 1801, et. seq.; (iii) the Comprehensive Environmental Response
Compensation and Liability Act of 1980, 42 USC Section 9601 et. seq. ("CERCLA");
(iv) applicable laws of the jurisdiction where the Property is located, and (v)
any federal, state or local statues, regulations, ordinances, rules or orders
issued or promulgated under or pursuant to any of those laws or otherwise by
agency or other administrative, regulatory or The term "Hazardous Substances"
does not include usual and customary cleaning and other supplies necessary for
the normal, maintenance and/or occupancy of the Property.
(I) Seller covenants and agrees that, between this date and the date
of closing, Seller shall continue to maintain, operate and manage the Property
in a manner consistent with its prior practices, making every reasonable effort
to do nothing which might damage the reputation of the Property or the
relationships with the tenants. Seller shall not permit the modification,
extension or cancellation of any tenant lease (except in accordance with the
terms of such lease) or any dealing with any tenant other than the ordinary
course of managing the Property, without the unreasonably withheld or delayed.
If the leases of any tenants expire before thirty (30) days after the date of
closing, Seller shall, up to the date of closing and without cost to the
Purchaser, continue its normal course of operation with respect to causing
tenants to be obtained for apartments which are unrented.
(J) The representations and warranties of Seller contained in this
Agreement will survive the Closing for a period of one (1) year after the
Closing; and any claim based upon any alleged breach thereof must be alleged (in
writing) within such one year period. Failure to give notice on any alleged
breach within the time period specified herein shall constitute a waiver of any
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such claim. In addition.. and notwithstanding any other provision of this
Agreement, if Purchaser has actual knowledge of any misrepresentation or breach
of Seller on or prior to the Closing, and nevertheless proceeds to close on the
Closing Date, then Purchaser shall be deemed to waive, and hereby waives, any
such misrepresentation and breach.
8.2 CONTINUATION OF REPRESENTATIONS, WARRANTIES AND COVENANTS TO THE
DATE OF CLOSING . IF each of the warranties set forth in this section does not
remain true up to and including the time of closing as to any material matters,
this Agreement, at Purchaser's election, shall be terminated, Seller shall
return all payments made by Purchaser, or Purchaser may elect to close the sale
and waive failure of the warranties.
8.3 BREACH OF REPRESENTATIONS, WARRANTIES AND COVENANTS.
Notwithstanding the provisions of 8.2 above, Seller shall indemnify Purchaser
for all reasonable costs incurred as a result of the failure of any of Seller's
representations, warranties or covenants contained herein to remain true as of
the date of closing.
8.4 Purchaser represents, warrants and agrees that (i) except as, and
solely to the extent, specifically set forth in this Agreement, neither Seller
nor any of the employees, agents or attorneys of Seller make any verbal or
written representations, warranties, promises or guaranties whatsoever to
Purchaser, whether express or implied, of any sort or nature relating to the
condition (physical, financial or otherwise) or operation of the Property, the
access, fitness for any specific use, merchantability, habitability, or the lie
and topography, of all or any portion of the Property, the existence, location
or availability of utility lines for water, sewer, drainage, electricity or any
other utility, the income-producing potential of the Property, the competition
or market of the Property or the actual or projected revenue and expenses of the
Property, the laws, regulations and rules applicable to the Property or the
compliance (or non-compliance) of the Property therewith, any environmental
laws, regulations and rules (or other laws relative to Hazardous Materials)
applicable to the Property or the compliance (or non-compliance) of the Property
therewith, the quantity, quality or condition of the articles of personal
property included in the transactions contemplated hereby, the use or occupancy
of the Property or any part thereof or any other matter or thing affecting or
relating to the Property or the transactions contemplated hereby, and Purchaser
has not relief upon any such representations, warranties, promises or guarantees
or upon any statements made in any informational brochure with respect to the
Property, and (ii) upon the expiration of the Inspection Period and provided
Purchaser does not elect to terminate this Agreement as provided for herein the
Purchaser will have examined the Property, and based upon such examination, will
be familiar with the physical condition thereof, and will have conducted such
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investigations of the financial affairs and management of the Property as
Purchaser considered appropriate, and elected to proceed with the transaction
having made and relied solely on Purchaser's own independent investigation,
inspection, analysis, appraisal, examination and evaluation of the facts and
circumstances except as, and solely to the extent, specifically set forth in
this Agreement.
Except as specifically provided for in this Agreement, Purchaser
agrees to accept the Property "as is" in its present condition, subject to
reasonable use, wear, tear and natural deterioration of the Property between the
date of this Agreement and the Closing.
ARTICLE IX
CONDEMNATION; RISK OF LOSS
9.1 PROPERTY DAMAGE. If, prior to closing, any part of the Property is
damaged by fire or other casualty, the Seller agrees to assign all of its
insurance covering said loss, tender its deductible under its policy as a
closing adjustment, and further compensate Purchaser for lost rent collection to
the extent of the insurance proceeds. Seller shall promptly notify Purchaser in
writing upon the occurrence of any such damage and Purchaser shall have the
right to review the insurance, the damages and other relevant data. The
Purchaser shall, within thirty (30) days, either accept the premises pursuant to
the terms of this paragraph or send a notice of cancellation. In the event of
cancellation, all funds paid by Purchaser under this Agreement shall be returned
to the Purchaser and this Agreement shall become null and void and the parties
shall be released of all obligations hereunder.
9.2 CONDEMNATION. IN the event of any actual or threatened taking,
pursuant to the power of eminent domain, all or any part thereof, or any actual
or proposed sale in lieu thereof, the Seller shall give written notice thereof
to the Purchaser promptly after Seller learns or receives notice thereof. Upon a
taking of a material part of the Property (any part of the building or more than
5% of the parking area), Purchaser may elect to either (a) terminate this
Agreement, in which event the Deposit shall be immediately returned to Purchaser
and all other rights and obligations of the parties hereunder shall terminate
immediately, or (b) to waive its right to terminate this Agreement and proceed
to closing, in which event all proceeds, awards and other payments arising out
of such condemnation or sale (actual or threatened) shall be paid to the
Purchaser at closing, if such payment has been received or Seller shall assign
to Purchaser the rights to such payments.
9.3 RISK OF LOSS. Prior to closing, all risks of loss or damage by
every casualty shall be borne by the Seller.
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ARTICLE X
BROKER'S COMMISSION
10.1 COMMISSION. Seller agrees to pay a brokerage fee to APARTMENT
REALTY ADVISORS, pursuant to a separate agreement between Seller and Brokers.
Said brokerage fee shall be deemed earned if, and only if, settlement occurs
hereunder, and shall not be deemed earned even if Purchaser and/or Seller
wrongfully fail(s) to consummate the purchase and sale herein contemplated.
Purchaser shall not be obligated for any brokerage fees to any broker, and
Seller agrees to hold Purchaser harmless in connection with such fees. Seller
and Purchaser represent and warrant to each other that no other brokerage fees
are or shall be owing in connection with this transaction or in any way with the
Apartments and Seller and Purchaser hereby indemnify and hold the other harmless
from any and all claims of any other person so claiming.
ARTICLE XI
DEFAULT
11.1 DEFAULT DEFINED. Default for the purpose of this Agreement shall
mean any failure by Seller or Purchaser to fulfill all the terms, conditions and
covenants contained herein, however, it shall not be an event of default for
either party to exercise its rights to terminate this contract as contained in
other provisions herein.
11.2 SELLER'S DEFAULT. Upon Seller's default, the Purchaser, at its
option, may elect (a) to terminate this Agreement whereupon the Title Company
shall return the Xxxxxxx Money to Purchaser and Seller shall pay Purchaser
Twenty Five Thousand ($25,000) Dollars under this Agreement as agreed-upon
liquidated damages and not as a penalty, it being otherwise difficult or
impossible to estimate Purchaser's actual damages, and which liquidated damages
shall be in lieu of any other damages or the right to specific performance; or
(b) be entitled to xxx Seller for specific performance of this Agreement,
provided, however, Seller shall not be required to expend in excess of Twenty
Five Thousand ($25,000) Dollars under this Agreement to correct any matter
Seller did not deliberately cause, except for monetary liens, including but not
limited to taxes, mortgages, Mechanic's Liens, etc.; or (c) Purchaser may
commence an injunction proceeding to stop conveyance contrary to this Agreement.
Seller shall indemnify Purchaser for any and all expenses incurred if Purchaser
elects to pursue its option under (b) or (c) above, including reasonable
attorneys' fees.
11.3 PURCHASER'S DEFAULT. upon Purchaser's default, this Agreement
shall be terminated and both parties released from all obligations hereunder,
and the deposit shall be retained by the Seller as liquidated damages. Seller
shall have no other remedy against Purchaser in the event of Purchaser's
default.
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ARTICLE XII
MISCELLANEOUS PROVISIONS
12.1 ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding between the parties; it supersedes all previous agreements and
representations which are deemed merged herein and may not be modified except in
writing.
12.2 ASSIGNMENT. Purchaser may assign this Agreement without the
consent of Seller once to Cornerstone Realty Income Trust, Inc.
12.3 SEVERABILITY. If any provision, sentence, phrase or word of this
Agreement or the application thereof to any person or circumstance shall be held
invalid, the remainder of this Agreement or the application of such provision,
sentence, phrase, or word to persons or circumstances, other than those as to
which it is held invalid, shall remain in full force and effect.
12.4 BINDING EFFECT. The parties to the Agreement mutually agree that
it shall be binding upon and inure to the benefit of their respective heirs,
representatives, successors in interest and assigns.
12.5 CONTROLLING LAW. it is the intent of the parties hereto that all
questions with respect to the construction of this Agreement and the rights and
liabilities of the parties shall be determined in accordance with the provisions
of the laws of the State set forth in Par. 1.1.
12.6 COUNTERPARTS. To facilitate execution, this Agreement may be
executed in as many counterparts as may be required. It shall not be necessary
that the signature on behalf of both parties hereto appear in each counterpart
hereof, and it shall be sufficient that the signature on behalf of both parties
hereto appear on one or more such counterparts. All counterparts shall
collectively constitute a single contract.
12.7 INCORPORATION BY REFERENCE. All of the Exhibits referred to
herein and/or attached hereto shall be deemed to constitute a part of the
AGREEMENT.
12.8 HEADINGS. The headings of the Articles and sections hereof are
inserted for convenience only and shall not be deemed to constitute a part of
the Agreement.
12.9 CONSTRUCTION OF CONTRACT. Each party hereto have reviewed and
revised (or requested revisions of) this Agreement, and therefore the normal
rule of construction that any ambiguities are to be resolved against a
particular party shall not be applicable in the construction and interpretation
of this Contract or any amendments or exhibits hereto.
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12.10 CONFIDENTIALITY. The parties shall keep confidential the
existence of this Agreement, the transactions described herein, and all
information obtained from the other party both during and subsequent to the
transaction. However, the covenants contained in this paragraph shall not apply
in respect to any information which (a) was already known to either party when
such information was received from the other, (b) was readily available to the
general public at the time of such receipt, (c) subsequently becomes known to
the general public through no fault or omission by the other party, (d) is
subsequently disclosed by a third party which has the bona fide right to make
such disclosure, or (e) is required to be disclosed by law or a governmental
agency. This clause shall survive closing.
12.11 EXHIBITS. The following exhibits are attached to this Agreement
and are incorporated into this Agreement by this reference and made a part
hereof for all purposes:
(a) EXHIBIT A, the legal description of the Land.
(b) EXHIBIT B, list of personal property.
(c) EXHIBIT C, the form of Deed.
(d) EXHIBIT D, the form of the Assignment and Assumption of Personal
Property, Service Contracts, Warranties and Leases.
(e) EXHIBIT E, the form of the Representation Letter.
ARTICLE XIII
NOTICE
13.1 NOTICE. All notices required or permitted to be given under this
Agreement shall be in writing, signed by the party giving the same or its
attorney, and shall be sent or delivered to the address set forth below (or such
other address as may be hereafter specified in writing):
To Seller: Xxxxx X.X. Xxxxx
c/o Winthrop Financial Associates
0 Xxxxxxxxx Xxxxxx - 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Fax: (000) 000-0000
With a copy to
Seller's Attorneys: Xxxxxxx Post, Esq.
Post & Xxxxxxx
000 Xxxxxxx Xxxxxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
To Purchaser: Xx. Xxx Xxxxxxxx
Cornerstone Realty Group, Inc.
000 X. Xxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
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With a copy to
Purchaser's Attorneys: Xxxxx X. Xxxxxxxxxx, Esq.
Xxxxxxxxxx & Taubenfeld
000 Xxxxxxxx Xx., X.X. Xxx 000
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
-and-
Xxxxxxx Xxxxx, Esq.
Xxxxxxxx Xxxxx Xxxxxxxx & Xxxxxxx, LLP
0000 Xxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Fax: (000) 000-0000
13*2 DELIVERY OF NOTICE. Notices sent either by Registered or
Certified Mail, Return Receipt Requested, or by overnight express mail shall be
deemed given when deposited in the United States Mail, postage prepaid,
delivered to a reliable overnight courier or by facsimile transmission (provided
receipt of the notice is confirmed and the original follows by one of the other
methods of delivery described herein). Notices sent in any other manner shall be
deemed given only when actually delivered at the specified address.
IN WITNESS WHEREOF, the Seller and the Purchaser have caused this
Agreement to be executed this day and date first written above.
SELLER:
BARRINGTON PARC LIMITED PARTNERSHIP
By: BARRINGTON PARC CORPORATION
Its General Partner
By: /s/ Xxxxx X.X. Xxxxx
-----------------------
Its: Vice President
-----------------------
Date: 9-24-97
----------------------
PURCHASER:
CORNERSTONE REALTY GROUP, INC.
By: X.X. Xxxxxxx
----------------------
its: S.V.P
---------------------
Date: 10-14-97
---------------------
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