Due to higher average cash balances in resulting from the loan repayments in , interest on short-term investments decreased during as compared to The Partnership's loans generally bear interest at contractually-fixed interest rates. Participation income was recognized during in connection with the prepayment of the Club Wildwood, Four Seasons and Point West mobile home parks loans.
Additionally, participation income was recognized on the Glen and Meadow Run Apartments loans during and Prepayment premiums were received in in connection with the prepayments on the Club Wildwood, Four Seasons and Point West mobile home park loans. Participation in joint ventures with affiliates represents the Partnership's share of the property operations at the Whispering Hills Apartments and the 45 West 45th Street Office Building.
Primarily as a result of the recognition of a provision for losses related to a change in the estimate of the fair value of the 45 West 45 Street Office Building in the third quarter of , the Partnership recognized participation in income of joint ventures with affiliates during as compared to participation in loss during Provisions are charged to income when the General Partner believes an impairment has occurred to the value of its properties or in a borrower's ability to repay a loan or in the value of the collateral property.
Determinations of fair value are made periodically on the basis of performance under the terms of the loan agreement and assessments of property operations. Determinations of fair value represent estimations based on many variables which affect the value of real estate, including economic and demographic conditions. The Partnership did not recognize any provisions during the nine months ended September 30, related to its loans receivable or real estate held for sale.
As a result of the sale of the Comerica Office Building in and the full amortization of the related deferred expenses, amortization expense decreased during the nine months ended September 30, as compared to the same period in The Partnership incurred higher consulting, legal, postage and printing costs in connection with its response to a tender offer and related litigation during As a result, administrative expenses increased during as compared to This increase was partially offset by a decrease in legal fees related to the foreclosure of the 45 West 45th Street Office Building.
The Partnership classifies the cash flow performance of its properties as either positive, a marginal deficit or a significant deficit. The Partnership defines cash flow generated from its properties as an amount equal to the property's revenue receipts less property related expenditures. None of the properties have any underlying debt.
During and , all of the Partnership's properties generated positive cash flow. In addition, the properties in which the Partnership holds minority joint venture interests with affiliates, the Whispering Hills Apartments and the 45 West 45th Street Office Building, generated positive cash flow during and However, significant leasing costs were incurred at the 45 West 45th Street Office Building in These costs were not included in classifying the cash flow performance of the property in since they were nonrecurring expenditures.
Had these costs been included, the 45 West 45th Street Office Building would have generated a significant cash flow deficit for the nine months ended September 30, Many rental markets continue to remain extremely competitive; therefore, the General Partner's goals are to maintain high occupancy levels, while increasing rents where possible, and to monitor and control operating expenses and capital improvement requirements at the properties.
The General Partner believes that the market for multifamily housing and office properties has become increasingly favorable to sellers of these properties. During November , the General Partner sold the 45 West 45th Street Office Building in which it held a minority joint venture interest.
The Partnership also is actively marketing the remaining property in its portfolio. The General Partner examines each property individually by property type and market in determining the optimal time to sell each property. The 45 West 45th Street Office Building was owned by a joint venture consisting of the Partnership and three affiliates.
See Note 5 of Notes to Financial Statements for additional information. The wrap-around mortgage loan matured in February The Partnership extended the loan until April 1, to allow the borrower additional time to secure alternate financing. The loan was repaid in full in April The conditions in this Paragraph 5 are specifically stated and for the sole benefit of Purchaser. Purchaser in its discretion may unilaterally waive conditionally or absolutely the fulfillment of any one or more of the conditions, or any part thereof, by notice to Seller, without any offset against the Purchase Price or claim against Seller.
Seller shall not take or authorize, directly or indirectly, any action that modifies or changes the circumstances upon which the conditions set forth in this Paragraph 5 were deemed satisfied or waived by Purchaser without Purchaser's consent. Damage and Casualty. Except as provided in the indemnity provisions contained in Paragraph 7. Seller shall promptly notify Purchaser in writing of any such fire or other casualty and Seller's determination of the cost to repair the damage caused thereby.
In the event that Purchaser does not exercise the option set forth in the preceding sentence, the Closing shall take place on the Closing Date and Seller shall assign and transfer to Purchaser on the Closing Date all of Seller's right, title and interest in and to all insurance proceeds paid or payable to Seller on account of the fire or casualty and in addition, Seller shall pay to Purchaser the amount of any deductible maintained by Seller under any insurance policy covered by such fire or casualty.
Seller represents, warrants and covenants that it will maintain property damage insurance insuring the Property for its full replacement cost during the executory period of this Agreement. If between the date of this Agreement and the Closing Date, any condemnation or eminent domain proceedings are initiated which might result in the taking of any part of the Property or the taking or closing of any right of access to the Property, Seller shall immediately notify Purchaser of such occurrence, which notice shall specifically call Purchaser's attention to this Paragraph 6.
In the event that the taking of any part of the Property shall: i materially impair access to or parking on the Property; ii cause any material non-compliance with any applicable law, ordinance, rule or regulation of any federal, state or local authority or governmental agencies having jurisdiction over the Property or any portion thereof; or iii materially and adversely impair the use of the Property as it is currently being operated hereinafter referred to as a "Material Event" , Purchaser may: 6.
Purchaser shall notify Seller, within fifteen 15 business days after Purchaser's receipt of Seller's notice, whether Purchaser elects to exercise its rights under Paragraph 6. Closing shall be delayed, if necessary, until Purchaser makes such election. If Purchaser fails to make an election within such fifteen 15 business day period, Purchaser shall be deemed to have elected to exercise its rights under Paragraph 6. If between the date of this Agreement and the Closing Date, any condemnation or eminent domain proceedings are initiated which do not constitute a Material Event, Purchaser shall be required to proceed with the Closing, in which event Seller shall assign to Purchaser all of Seller's right, title and interest in and to any award made in connection with such condemnation or eminent domain proceedings.
Inspection Period. During the period commencing on January 22, and ending at p. Chicago time on April 8th, said period being herein referred to as the "Inspection Period" , Purchaser and the agents, engineers, employees, contractors and surveyors retained by Purchaser may enter upon the Property, at any reasonable time and upon reasonable prior notice to Seller, to inspect the Property, and to conduct and prepare such studies, tests and surveys as Purchaser may deem reasonably necessary and appropriate.
In connection with Purchaser's review of the Property, Seller has delivered to Purchaser complete and accurate copies of the following: the Leases, the Contracts, the Permits in Seller's possession, the Warranties in Seller's possession, the Records in Seller's possession, the current rent roll for the Property, the most recent tax and insurance bills, utility account numbers, and year end and year end operating statements, and plans and specifications for the Improvements in Seller's possession.
All of the foregoing tests, investigations and studies to be conducted under this Paragraph 7. Purchaser shall defend, indemnify and hold Seller and any affiliate, parent of Seller, and all shareholders, employees, officers and directors of Seller or Seller's affiliate or parent hereinafter collectively referred to as "Affiliates of Seller" harmless from any and all liability, cost and expense including without limitation, reasonable attorney's fees, court costs and costs of appeal suffered or incurred by Seller or Affiliates of Seller for injury to persons or property caused by Purchaser's investigations and inspection of the Property.
Purchaser shall undertake its obligation to defend set forth in the preceding sentence using attorneys selected by Purchaser and reasonably acceptable to Purchaser. Prior to commencing any such tests, studies and investigations, Purchaser shall furnish to Seller a certificate of insurance evidencing comprehensive general public liability insurance insuring the person, firm or entity performing such tests, studies and investigations and listing Seller and Purchaser as additional insureds thereunder.
If Purchaser is dissatisfied with the results of the tests, studies or investigations performed or information received pursuant to this Paragraph 7. If written notice is not received by Seller pursuant to this Paragraph 7. If Purchaser terminates this Agreement by written notice to Seller prior to the expiration of the Inspection Period: i Purchaser shall promptly deliver to Seller copies of all studies, reports and other investigations obtained by Purchaser in connection with its due diligence during the Inspection Period; and ii the Earnest Money deposited by Purchaser shall be immediately paid to Purchaser, together with any interest earned thereon, and neither Purchaser nor Seller shall have any right, obligation or liability under this Agreement, except for Purchaser's obligation to indemnify Seller and restore the Property, as more fully set forth in this Paragraph 7.
Notwithstanding anything contained herein to the contrary, the terms of this Paragraph 7. Without limiting the foregoing, Purchaser acknowledges that, except as may otherwise be specifically set forth elsewhere in this Agreement, neither Seller nor its consultants, brokers or agents have made any representations or warranties of any kind upon which Purchaser is relying as to any matters concerning the Property or the Personal Property, including, but not limited to, the Land or the Improvements, the existence or non-existence of Hazardous Materials as hereinafter defined , economic projections or market studies concerning the Property, any development rights, taxes, bonds, covenants, conditions and restrictions affecting the Property, water or water rights, topography, drainage, soil, subsoil of the Property, the utilities serving the Property or any zoning or building laws, rules or regulations or "Environmental Laws" hereinafter defined affecting the Property.
Except as specifically set forth herein, Seller makes no representation or warranty that the Property complies with Title III of the Americans with Disabilities Act or any fire code or building code. Purchaser hereby releases Seller and the Affiliates of Seller from any and all liability in connection with any claims which Purchaser may have against Seller or the Affiliates of Seller relating directly or indirectly to the existence of asbestos or Hazardous Materials on, or environmental conditions of, the Property, whether known or unknown; provided, however, that Purchaser may assert claims for contribution or cost recovery against Seller or the Affiliates of Seller, relating directly or indirectly to the existence of asbestos or Hazardous Materials on, or environmental conditions of, the Property, whether known or unknown, only in the event that Purchaser is sued by a third party in connection therewith.
As used herein, "Environmental Laws" means all federal, state and local statutes, codes, regulations, rules, ordinances, orders, standards, permits, licenses, policies and requirements including consent decrees, judicial decisions and administrative orders relating to the protection, preservation, remediation or conservation of the environment or worker health or safety, all as amended or reauthorized, or as hereafter amended or reauthorized, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act "CERCLA" , 42 U.
Section et seq. Section f et seq. As used herein, "Hazardous Materials" means: 1 "hazardous substances," as defined by CERCLA; 2 "hazardous wastes," as defined by RCRA; 3 any radioactive material including, without limitation, any source, special nuclear or by-product material, as defined by AEA; 4 asbestos in any form or condition; 5 polychlorinated biphenyls; and 6 any other material, substance or waste to which liability or standards of conduct may be imposed under any Environmental Laws.
Seller has provided to Purchaser certain unaudited historical financial information regarding the Property relating to certain periods of time in which Seller owned the Property. Seller and Purchaser hereby acknowledge that such information has been provided to Purchaser at Purchaser's request solely as illustrative material.
Except as expressly set forth herein, Seller makes no representation or warranty that such material is complete or accurate or that Purchaser will achieve similar financial or other results with respect to the operations of the Property, it being acknowledged by Purchaser that Seller's operation of the Property and allocations of revenues or expenses may be vastly different than Purchaser may be able to attain.
Purchaser acknowledges that it is a sophisticated and experienced purchaser of real estate and further that Purchaser has relied upon its own investigation and inquiry with respect to the operation of the Property and releases Seller and the Affiliates of Seller from any liability with respect to such historical information.
Seller makes no representation or warranty concerning the accuracy or completeness of the Existing Report, except as expressly set forth herein. Furthermore, Purchaser acknowledges that it will be purchasing the Property with all faults disclosed in the Existing Report. The closing of this transaction the "Closing" shall be on April 30, the "Closing Date" , at the office of Seller's attorney, Chicago, Illinois at which time Seller shall deliver possession of the Property to Purchaser.
This transaction shall be closed through an escrow with Title Insurer, in accordance with the general provisions of the usual and customary form of deed and money escrow for similar transactions in Michigan, or at the option of either party, the Closing shall be a "New York style" closing at which the Purchaser shall wire the Purchase Price to Title Insurer on the Closing Date and prior to the release of the Purchase Price to Seller, Purchaser shall receive the Title Policy or marked up commitment dated the date of the Closing Date.
In the event of a New York style closing, Seller shall deliver to Title Insurer any customary affidavit in connection with a New York style closing. All closing and escrow fees shall be divided equally between the parties hereto. Closing Statement.
On or prior to the Closing Date, Seller and Purchaser shall execute and deliver to one another a joint closing statement. In addition, Purchaser shall deliver to Seller the balance of the Purchase Price, an assumption of the documents set forth in Paragraph 9. Seller's Deliveries. On the Closing Date, Seller shall deliver to Purchaser the following: 9.
Prorations Generally. Rents exclusive of delinquent rents, but including prepaid rents ; refundable security deposits which will be assigned to and assumed by Purchaser and credited to Purchaser at Closing ; water and other utility charges; fuels; prepaid operating expenses; management fees payable to Insignia Management Co. Assessments payable in installments which are due subsequent to the Closing Date shall be paid by Purchaser.
Where the Leases impose on tenants obligations for taxes, common area expenses, operating expenses or additional charges of any other nature, and where Seller shall have collected any portion thereof in excess of amounts incurred by Seller for such items for the period prior to the Closing Date, then there shall be an adjustment and credit given to Purchaser at the Closing for such excess amounts collected.
In addition, prorations shall be made at Closing as required pursuant to Paragraph 26 hereof. If the amount of any of the items to be prorated is not then ascertainable, the adjustments thereof shall be on the basis of the most recent ascertainable data. All prorations will be final except as to delinquent rent referred to in Paragraph Post-Closing Receipts. In the event that any rentals for any of the Leases remain unpaid at the Closing Date, Purchaser shall use reasonable efforts after the Closing Date to collect such rentals and promptly deliver all rentals so collected "Post-Closing Receipts" to Seller; provided, however, that Purchaser shall not be required to institute any legal actions as a means of attempting to collect such rentals.
In the event that any tenant's legal right to possession has been terminated prior to the end of the Inspection Period, Seller retains all rights to any delinquent rent from such tenant, including the right to institute any legal actions as a means of attempting to collect such rentals. In the event that any tenant is delinquent in the payment of rent by more than 60 days as of the end of the Inspection Period, but such tenant's legal right to possession has not been terminated, all such delinquent rent received by Purchaser after Closing shall belong to Purchaser.
All other delinquent rentals received by Purchaser prior to November 30, shall be applied first to amounts owing Seller, and then to pay any current obligations of the tenant s in question, and Seller waives the right to institute any legal actions as a means of attempting to collect such rentals. Seller retains the right to conduct an audit, at reasonable times and upon reasonable notice, but not after December 31, , of Purchaser's books and records to verify the accuracy of the Post-Closing Receipts reconciliation statement and upon the verification of additional funds owing to Seller, Purchaser shall pay to Seller said additional Post-Closing Receipts and the cost of performing Seller's audit.
Paragraph Percentage Rent. Percentage rent payable under the Leases shall be prorated as of the Closing Date as follows: Any percentage rent attributable to a specified period "Percentage Rent Period" ending prior to the Closing Date shall be promptly paid over to the Seller if and when collected. Seller shall be entitled to all percentage rent attributable to the period prior to Closing Date for any Percentage Rent Period ending prior to Closing Date.
Percentage rent payable with respect to a Percentage Rent Period a portion of which occurs prior to the Closing Date and a portion of which occurs subsequent to the Closing Date shall be apportioned between Purchaser and Seller on the basis of their respective period of ownership during the applicable Percentage Rent Period and shall be calculated in the following manner.
Purchaser shall be entitled to the remainder of such percentage rent. Notwithstanding the foregoing, Seller shall not receive any proration of percentage rent pursuant to this paragraph This percentage rent proration will obviate the need to perform a future reconciliation. Neither this Agreement nor a memorandum thereof shall be recorded and the act of recording by Purchaser shall be an act of default hereunder by Purchaser and subject to the provisions of Paragraph 10 hereof.
The Purchaser shall not have the right to assign its interest in this Agreement without the prior written consent of the Seller. Notwithstanding the foregoing, Purchaser shall have the right to assign its interest in this Agreement without the prior written consent of the Seller to any entity which, directly or indirectly, controls, is controlled by or is under common control with Purchaser or Cargill Financial Services Corporation, but such assignment shall not release Purchaser from its obligations hereunder.
If any assignee of Purchaser under this Agreement petitions or applies for relief in bankruptcy or said assignee is adjudicated as a bankrupt or insolvent, or said assignee files any petition, application for relief or answer-seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law, code or regulation relating to bankruptcy, insolvency, or other relief for debtors collectively, a "Bankruptcy Filing" on or before the Closing Date, said Bankruptcy Filing shall be a default under this Agreement and Purchaser shall indemnify Seller for all costs, attorney's fees and expenses of Seller resulting from Seller's efforts to obtain the Earnest Money as liquidated damages and to clear title to the Property from any encumbrance resulting from the Bankruptcy Filing.
The parties hereto represent and warrant that no broker commission or finder fee is due and payable in connection with this transaction other than to Insignia Mortgage and Investment Company, Inc. Purchaser and Seller shall indemnify, defend and hold the other party hereto harmless from any claim whatsoever including without limitation, reasonable attorney's fees, court costs and costs of appeal from anyone claiming by or through the indemnifying party any fee, commission or compensation on account of this Agreement, its negotiation or the sale hereby contemplated other than to Insignia Mortgage and Investment Company, Inc and Schostak Brokerage.
The indemnifying party shall undertake its obligations set forth in this Paragraph 15 using attorneys selected by the indemnifying party and reasonably acceptable to the indemnified party. The provisions of this Paragraph 15 will survive the Closing and delivery of the Deed. Any reference herein to Seller's knowledge or notice of any matter or thing shall only mean such knowledge or notice that has actually been received by Michael Conter the asset manager responsible for the Property or Seller's property manager responsible for the management of the Property the "Seller's Representative" , and any representation or warranty of the Seller that is qualified by Seller's knowledge is based upon those matters of which the Seller's Representative has actual knowledge.
Any knowledge or notice given, had or received by any of Seller's agents, servants or employees shall not be imputed to Seller, the general partner or limited partners of Seller, the subpartners of the general partner or limited partners of Seller or Seller's Representative. Seller hereby covenants to deliver a copy of this Agreement to Seller's property manager, and to instruct such property manager to review the Agreement and notify Seller's Representative of any and all information known to such property manager regarding the representations and warranties contained herein.
Subject to the limitations set forth in Paragraph Seller has not entered into any contracts for the sale of any of the Property other than this Agreement. Seller has received no notice of and has no knowledge of any rights of first refusal or first offer, options to purchase any of the Property or any other rights or agreements which may delay or prevent this transaction. To Seller's knowledge, there has been no labor or material of any kind furnished to or for the benefit of the Property at Seller's request for which payment in full has not been made, except in connection with tenant improvements as set forth on Exhibit N attached hereto.
No person or entity is entitled to possession of any of the Property, other than Seller, the tenants under the Leases or otherwise pursuant to a recorded instrument. Seller has received no notice of and has no knowledge of any pending or threatened condemnation or transfer in lieu thereof affecting any of the Property, nor has Seller agreed or committed to dedicate any of the Property. Seller has received no notice of and has no knowledge of any pending or threatened action which would impair access to the Property.
Seller has received no notice and has no knowledge of any actual or threatened curtailment, cancellation or suspension of any utilities serving the Property. Seller has received no notice of and has no knowledge of any action, litigation, investigation or proceeding of any kind pending or threatened against Seller or any of the Property which materially and adversely affect the value of the Property.
Seller has received no notice of and has no knowledge of any uncured default under any easement agreement or joint operation agreement affecting the Property, and Seller has no knowledge of any amendment or modification to such agreements except as of record. Seller has not received written notice of any violation of any Environmental Laws, statute, rule, law, obligation, ordinance, or other legal regulation or requirement pertaining to the use, maintenance, ownership, or operation of the Property, which such violation has not been cured without waiver or variance of the applicable Environmental Laws.
To Seller's knowledge, there are no leases or possessory rights in favor of any party, service or maintenance contracts, equipment leases or other contracts regarding any of the Property except for the Leases, the Contracts and any matters of record. To Seller's knowledge, Seller has delivered to Purchaser true, correct and complete copies of each Contract and their respective amendments. Seller has received no notice and has no knowledge that either Seller or any other party under a Contract is in default of their respective obligations and liabilities thereunder.
To Seller's knowledge, except for the Contracts, there are no other service or maintenance contracts, equipment leases or other contracts regarding any of the Property which will not be terminated on or before the Closing Date.
To Seller's knowledge, Seller has delivered to Purchaser true, correct and complete copies of the Records. To Seller's knowledge, Seller has delivered to Purchaser true, correct and complete copies of each Lease and their respective amendments. To Seller's knowledge, the information regarding the Leases contained in the rent roll attached as Exhibit M is true, correct and complete as of the date set forth therein.
Seller has received no notice and has no knowledge that either Seller or the applicable tenant is in default of their respective obligations and liabilities under any of the Leases, including those provisions relating to bankruptcy or insolvency. To Seller's knowledge, Seller has delivered to Purchaser true, correct and complete copies of each Permit in Seller's possession and their respective amendments.
Seller has received no notice and has no knowledge a that Seller is in default of its obligations and liabilities under any of the Permits, or b of any actual or threatened cancellation or suspension of any Permit, or c that any additional licenses or permits are required under applicable law to operate the Property as it is now operated.
To Seller's knowledge, Seller has delivered to Purchaser true, correct and complete copies of each Warranty in Seller's possession and their respective amendments. Seller has received no notice that either Seller or the applicable warrantor is in default of their respective obligations and liabilities under any of the Warranties.
No management, leasing or maintenance personnel or agents employed in connection with the operation of the Property have the right to continue such employment after Closing except pursuant to a Contract. No person or entity is entitled to claim any brokerage or leasing commissions or other payments with respect to any of the Property, including regarding any of the Leases, except as set forth in Exhibit N.
Seller has been duly formed under the laws of the State of Michigan and is in good standing under the laws of the jurisdiction in which the Property is located, is duly qualified to transact business in the jurisdiction in which the Property is located, and has the requisite power and authority to enter into and perform this Agreement and the document sand instruments required to be executed and delivered by Seller pursuant hereto. This Agreement has been duly executed and delivered by Seller and is a valid and binding obligation of Seller enforceable in accordance with its terms.
Seller has not i made a general assignment for the benefit of creditors, ii filed any involuntary petition in bankruptcy or suffered the filing of any involuntary petition by its creditors, iii suffered the appointment of a receiver to take possession of all or substantially all of its assets, iv suffered the attachment or other judicial seizure of all or substantially all of its assets, v admitted in writing its inability to pay its debts as they come due, or vi made an offer of settlement, extension or composition to its creditors generally.
Seller is not a "foreign person", "foreign partnership", "foreign trust" or "foreign estate" as those terms are defined in Section of the Internal Revenue Code.
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