AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
THIS AGREEMENT is entered as of the _____ day of March,
1999, by and between the seller or sellers identified on
Schedule 1 attached hereto (herein collectively called "Seller"),
and SGD INVESTMENTS, INC., a Nebraska corporation (herein called
"Buyer"), with offices located at 0000 Xxxxxxxx Xxxxx, Xxxxx, XX
00000.
R E C I T A L S
A. Seller owns one or more certain parcels of land
(collectively, the "Real Property") each located in the City and
State set forth on Schedule 1 attached hereto, as each such Real
Property is more particularly described on Exhibit A attached
hereto, together with all of the improvements (the
"Improvements") and any fixtures (the "Fixtures") presently
existing and located thereon and therein, and the personalty used
exclusively in connection with the management and operation of
the foregoing, as more particularly described on Exhibit B
attached hereto (the "Personalty") (hereinafter said Real
Property, Improvements, Fixtures and Personalty are collectively
called the "Property").
B. Buyer has participated in an auction (the
"Auction") to purchase said Property, and Buyer, being the
selected bidder, has agreed to purchase such Property on the
terms and conditions set forth herein.
C. Pursuant to the terms and conditions of said
Auction and in connection with being selected as the successful
bidder thereat, Buyer has agreed to execute this Agreement.
D. The parties have agreed to the purchase and sale
of the Property as set forth below.
NOW, THEREFORE, in consideration of the foregoing, the
mutual covenants and agreement contained herein, and other good
and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Seller and Buyer hereby mutually
agree that this transaction shall be consummated upon the
following terms, conditions and agreements:
1. Purchase Price. The aggregate purchase price for the
Property is Nine Million Six Hundred Thirty-Five Thousand Dollars
($9,635,000), less an amount equal to all Prepayment Fees (as
hereinafter defined), if any, paid or absorbed by Buyer relating
to the satisfaction of the Mortgage at Closing (the "Purchase
Price"). Except with respect to the reduction in an amount equal
to the Prepayment Fees set forth in the preceding sentence, Buyer
acknowledges and agrees that the Purchase Price shall be in all
respects net of any and all (i) assumption and other fees and all
costs and expenses required to be paid ("Assumption Fees") in
order for the Buyer to assume the mortgage encumbering the
Property, as more particularly referenced on Exhibit C attached
hereto (each a "Mortgage"), in accordance with the terms hereof
in the event Buyer elects to assume the Mortgage, and (ii)
prepayment fees, premiums, penalties or similar charges,
expenses, costs and sums (other than outstanding principal and
accrued and unpaid interest) required to be paid to holder of any
Mortgage pursuant to the related loan documents in order to fully
satisfy such Mortgage ("Prepayment Fees"), all as set forth on a
payoff demand submitted by the holder of such Mortgage and
approved by the Seller. In the event that a Mortgage is not
being assumed by Buyer in accordance with the provisions hereof,
the Buyer shall pay the Prepayment Fees. In the event that a
Mortgage is assumed by Buyer in accordance with the provisions
hereof, the Buyer shall pay the Assumption Fees. Subject to the
prorations and adjustments hereinafter defined, Seller and the
Buyer mutually agree that the Purchase Price for the Property
shall be allocated among Personalty and the remaining Property in
accordance with the allocation set forth on Schedule 2
(collectively, the "Tax Allocations"), which Tax Allocations have
been made in accordance with Section 1060 of the Internal Revenue
Code of 1986 (as amended) and the Treasury Regulations
promulgated thereunder. Each of the Seller and Buyer shall:
(i) be bound by the Tax Allocations for purposes of determining
any taxes, (ii) prepare and file any tax returns on a basis
consistent with the Tax Allocations, (iii) take no position
inconsistent with the Tax Allocations on any applicable tax
return, in any proceeding before any taxing authority or
otherwise, and (iv) be bound by the Tax Allocations in all other
public filings and reports, including but not limited to any
transfer tax declarations. In the event that the mutually
agreed-upon Tax Allocations are disputed by any taxing authority,
the party receiving notice of the dispute shall promptly notify
the other party hereto of the dispute.
The Purchase Price shall be payable by Buyer to Seller
as follows:
1.1 Xxxxxxx Money. In connection with the Auction,
Buyer has delivered to Seller the sum of Nine Hundred Sixty-Three
Thousand Five Hundred Dollars ($963,500) (such sum, together with
any interest earned thereon, the "Xxxxxxx Money") representing
ten percent (10%) of the Purchase Price of Nine Million Six
Hundred Thirty-Five Thousand Dollars ($9,635,000) (prior to
reduction in the amount of Prepayment Fees, if any, paid or
absorbed by Buyer) for deposit with the Title Insurer (as
hereinafter defined), acting as escrow agent (the "Escrow
Agent"). From and after the date the Xxxxxxx Money is delivered
by Buyer, the Escrow Agent shall hold the Xxxxxxx Money in
accordance with the Escrow Agreement attached hereto as Exhibit D
(the "Escrow Agreement") in an interest-bearing account for the
benefit of Buyer pending disposition as hereinafter set forth.
1.2 Assumption of Existing Mortgage Loans. It is
contemplated that Buyer will not elect to assume the Mortgage at
Closing. In the event Buyer elects to assume the Mortgage, and
provided that the Seller receives, at Buyer's expense, (i) the
written consent of the holder of such Mortgage to the assumption
of such Mortgage by Buyer not less than five days prior to the
Closing, and (ii) the Seller Release, the Xxxxxx Release, if
applicable, and the Xxxxxx Mortgage Release, if applicable (each
as defined herein), and copies of any assumption documentation
required by the holder of the Mortgage, at Closing, there shall
be credited against the Purchase Price at Closing an amount equal
to the outstanding principal balance of the loan secured by such
Mortgage (the "Loan"), together with all accrued unpaid interest
thereon as of the Closing Date, and all late charges owing under
the Loan, as evidenced by a payoff demand submitted by such
lender and approved by Seller. In no event shall the Buyer's
ability to obtain a lender's consent to a release required
hereunder, or to assume the Mortgage, be a condition to Buyer's
obligations hereunder.
1.3 Prepayment and Assumption Fees. The Prepayment
Fees and the Assumption Fees, as applicable, shall be deposited
with Escrow Agent on or before the Closing Date (as hereinafter
defined), by wire transfer of immediately available funds to
Escrow Agent's account pursuant to Escrow Agent's instructions.
1.4 Balance of Purchase Price. The balance of the
Purchase Price shall be deposited with Escrow Agent on or before
the Closing Date (as hereinafter defined), by wire transfer of
immediately available funds to Escrow Agent's account pursuant to
Escrow Agent's instructions. In the event Buyer does not assume
the Mortgage, the Prepayment Fees (if any), as well as all other
sums necessary to repay the Loan and satisfy the Mortgage, shall
be disbursed from the sale proceeds on the Closing Date.
2. Inspection, Remedies and Contingencies.
2.1 Buyer Inspection. Buyer acknowledges and
represents that as of the date of execution of this Agreement,
Buyer has had the opportunity to review any engineering reports
made available to potential bidders at the Auction during a due
diligence period prior to the Auction, and has been given the
opportunity to make a full and complete inspection of the
Property, at Buyer's expense, including, but not limited to,
inspection by construction experts, engineers and architects
acceptable to Buyer, examining both obvious and latent conditions
of the Property. Accordingly, Buyer will have made its
investment decision to enter into this Agreement based
exclusively upon its own investigations or inspections with
respect to the Property and has not relied, and will not have
relied upon any express or implied, written or oral,
representation of Seller or Seller's general partners
(collectively, the "Selling Entity") or any of the Selling
Entity's employees, agents, representatives, broker and
attorneys, counsel for the respective plaintiffs in the
litigation captioned In re: Prudential Securities Incorporated
Limited Partnerships Litigation ("Litigation") in the United
States District Court in the Southern District of New York, MDL
Docket No. 1005, M-2167 (MP), or any affiliates of any of them,
hereinafter designated collectively as the "Protected Group," in
entering into this Agreement. Buyer acknowledges that Seller has
cooperated with Buyer in all requests for inspection or testing.
2.2 Environmental Assessment. Buyer acknowledges and
represents that as of the date of execution of this Agreement
Buyer has had the opportunity to review any Phase I and Phase II
environmental reports made available to potential bidders at the
Auction during a due diligence period prior to the Auction, and,
at its expense, to conduct an environmental assessment of the
Property including but not limited to hazardous substances or
waste such as asbestos, chemicals, sewage (raw or treated),
pesticides, petroleum, including crude oil or any fraction
thereof, and any substance identified in any Federal, State, or
other governmental legislation or ordinance. Buyer agrees to
accept all risks to the Property and costs of cure arising out of
the existence of any hazardous substance or waste.
2.3 Buyer's Remedy. Buyer acknowledges that Seller
has made no representations or warranties whatsoever regarding
the accuracy or completeness of the reports referenced in this
Section 2. Buyer agrees that Buyer has no legal or equitable
remedy or recourse against Seller and the Protected Group, with
respect to any inaccuracies or errors contained in any such
report or arising out of any Property defect, or other adverse
condition of the Property, whether known or unknown to or
concealed or unconcealed by them or any of them.
2.4 BUYER'S RENT ROLL REVIEW RIGHT. Seller agrees to
make copies of all of the leases reflected on the rent roll
delivered pursuant to Section 3.2(g) hereof available to the
Buyer for the purpose of conducting a review thereof at the
Property during business hours prior to the Closing Date at
Buyer's sole cost and expense for the sole purpose of determining
the accuracy of the prorations contemplated under Sections 3.5
and 3.6 hereof, provided, however, that in no event shall facts
or information which may be discovered by Buyer in so conducting
such review, (i) be the basis of any claim by Buyer against
Seller, or any right of Buyer to terminate this Agreement or to
request an adjustment to the Purchase Price (other than pursuant
to a proration under Section 3.5 and 3.6 hereof) or a cure by
Seller of any matter discovered by any such review or (ii)
otherwise affect or excuse any of Buyer's covenants, agreements
and obligations under this Agreement.
3. Closing.
3.1 Closing. This transaction shall be closed
("Closing") at the offices of Skadden, Arps, Slate, Xxxxxxx &
Xxxx, LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such
other place in New York, New York as the parties shall agree as
soon as is practicable after the full execution of this Agreement
but not later than forty-five (45) days therefrom or such later
date (not to exceed thirty days thereafter) as may be reasonably
appropriate to permit payoff of the Mortgage without Prepayment
Fees if possible (the "Closing Deadline"). The date on which the
Closing occurs is herein called the "Closing Date."
3.2 Seller's Closing Deliverables. At or prior to
Closing, Seller shall deliver or cause to be delivered to Escrow
Agent, the following items for delivery or recordation upon close
of escrow with respect to the Property:
(a) Quitclaim deed (the "Deed") duly executed and
acknowledged by Seller, conveying fee simple title to
the Real Property to Buyer, or if a quitclaim deed is
not a valid means of conveyance in a particular
jurisdiction, a deed without covenants (or, if the use
of such form of deed results in the Title Insurer
raising an exception to coverage, a form of deed
subject to the Permitted Exceptions that would be
insurable by the Title Insurer without such exception);
(b) A xxxx of sale (the "Xxxx of Sale") duly
executed by Seller, transferring to Buyer all of the
Seller's right, title and interest in and to the
Personalty;
(c) Nonrecourse assignment of all fully executed
occupancy leases, if applicable, pertaining to the
Property (the "Leases"), duly executed and acknowledged
by Seller, assigning to Buyer the Seller's interest
therein, with Buyer expressly assuming all obligations
as landlord under such leases from and after the
Closing Date;
(d) Nonrecourse assignment, to the extent
assignable, of Seller's rights under any service or
maintenance contracts ("Service Contracts") pertaining
to the Property, including, but not limited to, waste
removal, guard and security firm contracts, if any;
(e) Nonrecourse assignment, to the extent
possible, of any licenses, permits and unexpired
warranties, if any, pertaining to the Property;
(f) Certificates and resolutions demonstrating
the authority of the persons executing the documents at
the Closing;
(g) A rent roll, certified as accurate by the
Seller, which shall be current as of four business days
prior to the Closing and which shall also state the
amounts of all tenant security deposits in the
possession of Seller; and
(h) Originals of all written occupancy leases, if
applicable and to the extent available, for the
Property. All such leases shall be deemed delivered if
they are on premises at the Property as of the Closing
Date.
3.3 Buyer's Closing Deliverables. At or prior to
Closing, Buyer shall deliver or cause to be delivered to Escrow
Agent, the following items for delivery or recordation upon close
of escrow:
(a) Assumption of the Leases and Service
Contracts with respect to the Property;
(b) Certificates and resolutions demonstrating
the authority of the persons executing the documents at
the Closing;
(c) If a Mortgage is not satisfied at Closing,
the Seller Release, the Xxxxxx Release, if applicable,
and the Xxxxxx Mortgage Release, if applicable;
(d) The Prepayment Fees and the Assumption Fees,
as applicable, by wire transfer; and
(e) Balance of the Purchase Price by wire
transfer.
3.4 Contracts Not Being Assigned. Seller shall not
assign to Buyer and shall cancel as of the close of escrow:
(a) The property management contract for the
Property set forth on Schedule 3, attached hereto; and
(b) Any insurance policies, including but not
limited to hazard insurance policies, then in force
affecting the Property.
Buyer acknowledges that the management contracts shall
terminate automatically on the Closing Date in accordance with
that certain side letter agreement dated October 13, 1998, a copy
of which is attached hereto as Exhibit E, and agrees that Seller
has no obligation to deliver any further termination agreement or
notice at Closing.
3.5 Prorations. The following shall be apportioned on
a per diem basis as of 12:01 a.m. of the Closing Date
("Adjustment Date") and adjusted between the parties on the basis
of the number of days in the month of the Closing with respect to
the Property:
(a) Real estate and other taxes, assessments and
charges, and other municipal and State charges, license
and permit fees, water and sewer rents and charges, if
any, on the basis of the fiscal period for which
assessed or charged;
(b) Water, electric, gas, steam and other utility
charges for service furnished to the Property;
(c) Fuel, if any, and all taxes thereon, on the
basis of a reading taken as close as possible to the
Adjustment Date;
(d) Base rents and any other rental payments (the
"Rents") paid under the terms of the Leases for the
month of Closing or thereafter;
(e) Any amounts paid or payable under any Service
Contracts being assigned to Buyer;
(f) All costs associated with telephone directory
listings and any other prepaid advertising;
(g) All tenant security deposits in Seller's
possession which have not been applied in accordance
with the terms of the Leases; and
(h) Any other customary adjustments made in
connection with the sale of similar type buildings.
There will be no proration of insurance costs at
Closing. Except as may be otherwise provided herein, all other
expenses, liabilities and claims which are attributable to the
period prior to the Closing Date shall be the obligation of
Seller and those which are attributable to the period from and
after the Closing Date shall be the obligation of Buyer.
3.6 Apportionment Formula. For purposes of the
foregoing apportionments and adjustments, the following
procedures shall govern with respect to the Property:
(a) Any apportionment of income and expense items
shall be apportioned to the Seller based upon the
formula (the "Apportionment Formula") wherein the
numerator is the number of days in such month that the
Property was owned by the Seller and the denominator is
the total number of days in that month.
(b) If the Closing Date shall occur before the
real estate tax rate is fixed, the apportionment of
such taxes shall be made using the real estate taxes
for the immediately preceding year, with a
reapportionment as soon as the new tax rate and
valuation can be ascertained.
(c) If there are water meters on the Property,
Seller shall furnish meter readings to a date not more
than thirty days prior to the Adjustment Date; and the
unfixed meter charges for the intervening time to the
Adjustment Date shall be apportioned based upon
estimates using such prior meter readings, unless final
readings therefor as of the Closing shall have been
obtained, in which case such final readings shall be
used for the apportionment. As soon as the expenses
for the period shall be known, Seller and Buyer shall
recalculate the adjustment with the result that Seller
shall pay for those expenses attributable to the period
prior to the Closing Date and Buyer shall pay for those
expenses attributable to the period commencing with the
Closing Date.
(d) The apportionment of utility charges shall be
made upon the basis of charges shown on the latest
available bills for such utilities, unless final meter
readings therefor as of the Closing shall have been
obtained, in which case such final readings shall be
used for the apportionment. The charges shown on such
available bills for periods prior to the Adjustment
Date shall be paid by Seller, and for the period from
the date of each such last available utility xxxx to
the Adjustment Date an apportionment shall be made
based upon estimates using such last available xxxx.
As soon as the expenses for the period shall be known,
Seller and Buyer shall recalculate the adjustment with
the result that Seller shall pay for those expenses
attributable to the period prior to the Closing Date
and Buyer shall pay for those expenses attributable to
the period commencing with the Closing Date.
(e) All taxes, water and sewer charges and
assessments for public improvements which are liens
upon a Property as of the Closing Date, will be allowed
to Buyer as a credit against the Purchase Price for the
Property, subject to apportionment as herein provided,
and the existence of any such lien shall not constitute
an objection to title.
(f) If any tenants are required to pay Rents
which are collected by Buyer after the Closing Date and
which are attributable in whole or in part to any
period before the Closing Date, the Buyer shall
promptly pay to Seller the amount of such payment
attributable to periods during which Seller owned the
Property.
(g) If any tenant is in arrears in the payment of
Rents on the Closing Date, Rents received from such
tenant after the Closing Date shall be applied in the
following order of priority: (i) first to any months
preceding the month in which the Closing occurred,
(ii) then to the month in which the Closing occurred,
and (iii) then to any months following the month in
which the Closing occurred. If Rents or any portion
thereof received by Seller or Buyer after the Closing
Date are payable to the other party by reason of this
allocation, the appropriate sum shall be promptly paid
to the other party.
Buyer and Seller agree that the provisions of Sections
3.5 and 3.6 shall survive the Closing for a period of ninety (90)
days after the Closing Date ("Adjustment Period"), during which
period Buyer and Seller shall agree on a reconciliation of the
prorations described herein. If the parties cannot agree on a
reconciliation within such ninety (90) day period then such
matter shall be submitted to arbitration in accordance with the
terms of Section 10 below.
3.7 Costs. The fees of the Escrow Agent, transfer
taxes, recording fees, standard title insurance premiums for
owner's title policies and all other closing and recording costs
shall be borne equally by Seller and Buyer. Each party shall pay
its own professional fees including but not limited to attorneys'
and accountants' fees, and Buyer shall pay for (i) the cost of
any endorsements or affirmative coverage in connection with the
issuance of title policies, and (ii) any further updates or
modifications to the Surveys requested by Buyer or Buyer's
lender.
3.8 Conditions to Seller's and Buyer's Obligation to
Close. The obligations of Seller and Buyer to close under this
Agreement are subject to the fulfillment, prior to or at Closing,
of the following:
that there shall not be in effect any statute,
regulation, order, decree or judgment of any
governmental entity having jurisdiction which renders
illegal or enjoins or prevents in any material respect
the sale of the Property to Buyer.
3.9 Conditions to Seller's Obligation to Close. The
obligations of Seller to close under this Agreement are subject
to the fulfillment, prior to or at Closing, of each of the
following (all or any of which may be waived in writing by
Seller):
(a) The representations and warranties of Buyer
shall have been true and correct in all material
respects when made and shall be true and correct in all
material respects as of the Closing Date, as if made at
and as of such date except as otherwise expressly
provided herein.
(b) On and as of the Closing Date, Buyer shall
have performed and complied with, in all material
respects, all agreements and covenants required by this
Agreement to be performed or complied with prior to or
on the Closing Date.
(c) If a Mortgage is assumed by Buyer and
therefore not satisfied at Closing, the Seller shall
have received a duly executed release in form and
substance acceptable to the Seller, pursuant to which
Buyer and the holder of the Mortgage as of the Closing
Date shall release the Seller from any and all
obligations and liabilities under such Mortgage and any
other documents evidencing or securing the underlying
loan, whether arising before, on or after the Closing
Date (the "Seller Release").
(d) If a Mortgage is assumed by Buyer and
therefore not satisfied at Closing, (i) the affiliate
of Seller which guaranteed the loan evidencing such
Mortgage (the "Xxxxxx Guarantor"), if any, shall have
received a duly executed release in form and substance
acceptable to such affiliate, pursuant to which Buyer
and the holder of the Mortgage as of the Closing Date
shall release the guarantor from any and all
obligations and liabilities under such guaranty,
whether arising before, on or after the Closing Date
(the "Xxxxxx Release"), and (ii) the Seller shall have
received a duly executed release in form and substance
acceptable to the Seller, pursuant to which the Xxxxxx
Guarantor shall release of record the mortgage granted
to such Xxxxxx Guarantor, if any, as listed on
Exhibit C attached hereto (the "Xxxxxx Mortgage
Release").
3.10 Conditions to Buyer's Obligation to Close. The
obligations of Buyer to close under this Agreement are subject to
the fulfillment, prior to or at Closing, of the following (all or
any of which may be waived in writing by Buyer):
(a) That the representations and warranties of
Seller, as set forth in Section 7.3 herein, shall have
been true and correct in all material respects when
made and shall be true and correct in all material
respects as of the Closing Date, as if made at and as
of such date except as otherwise expressly provided
herein.
(b) If the Mortgage is not to be assumed by
Buyer, that the Title Insurer shall be prepared,
subject to payment of the applicable title premium and
fees, to issue an owner's title insurance policy which
does not list the Mortgage (or any related assignment
of rents or UCC filings) as an exception to coverage.
4. Possession and Risk of Loss Prior to Closing.
4.1 Casualty. In the event of physical damage to a
Property or destruction thereof due to a casualty (a "Casualty")
affecting all or any part of a Property, without fault of Buyer,
prior to the Closing Date, Seller and Buyer agree as follows with
respect to such damage or destruction, specifically exclusive of
nonphysical losses such as business losses incidental thereto:
(a) If, prior to the Closing Date, a Property is
damaged due to a Casualty and the cost of repairing
such damage, as is determined by an independent
engineer and appraiser selected by Seller (the "Repair
Cost"), is less than One Million and 00/100 Dollars
($1,000,000.00), then Seller and Buyer shall proceed to
close the sale of all of the Property without any
abatement (except as provided in subsection (ii) below)
of the Purchase Price; provided, however, that Seller
shall, at Seller's election, either: (i) reasonably
repair the Casualty to the Property prior to Closing at
Seller's expense, or (ii) assign to Buyer at Closing,
without recourse or warranty of any nature whatsoever,
all of Seller's right, title and interest in and to any
casualty insurance policies covering such Casualty with
respect to the Property, and Seller shall pay to Buyer
all payments theretofore made by such insurers as a
result of such loss after deducting therefrom the costs
of collection thereof (an "Assignment of Proceeds"),
and Buyer shall be entitled to a Purchase Price
reduction at Closing in an amount equal to any
deductible or co-payment applicable under such
policies.
(b) If, prior to the Closing Date, the Property
is damaged due to a Casualty and the Repair Cost equals
or exceeds One Million and 00/100 Dollars
($1,000,000.00), then Seller shall have the option to:
(i) reasonably repair the Casualty to the Property
prior to Closing, or (ii) terminate this Agreement,
upon which termination, provided that Buyer is not in
default hereunder, Buyer's Xxxxxxx Money shall be
returned to Buyer. Notwithstanding anything herein to
the contrary, Seller shall have the right to adjourn
the Closing Date for such reasonable period as shall be
necessary to repair any such Casualty.
(c) If Seller elects to terminate this Agreement
due to a Casualty as described in this Section 4.1,
then Buyer shall have the option, to be exercised by
delivering written notice to Seller of such election
within ten days after Buyer's receipt of written notice
of Seller's election, to accept the Property together
with an Assignment of Proceeds with respect thereto.
4.2 Condemnation. If, prior to the Closing Date, all
or any portion of the Property is condemned or taken by eminent
domain, then this Agreement shall nevertheless remain in full
force and effect without any abatement of the Purchase Price. In
such event, Seller shall convey the Property to Buyer at the
Closing in its then condition, and Buyer shall be entitled to
receive all net or condemnation awards otherwise payable to
Seller as a result of such loss or damage and, in full
satisfaction of any claims by Buyer against Seller, Seller shall
assign to Buyer at Closing, without recourse or warranty of any
nature whatsoever, all of Seller's right, title and interest in
and to any claims Seller may have to any condemnation awards, as
well as all rights or pending claims of Seller with respect to
such condemnation or taking of the Property, and Seller shall pay
to Buyer all payments theretofore made by such condemning
authorities as a result of such loss after deducting therefrom
the costs of collection thereof.
5. Title.
5.1 Preliminary Title Report, Commitment and Survey.
Seller has provided or otherwise made available to Buyer with
respect to the Property: (a) a copy of a preliminary title
report or a commitment for an ALTA (or the equivalent in the
applicable jurisdiction) policy of Owner's title insurance (each
a "Title Commitment," collectively, the "Title Commitments")
issued by First American Title Insurance Company or a comparable
national title insurance company selected by Seller (the "Title
Insurer") and (b) a copy of the current survey(s) prepared by
licensed public land surveyors according to ALTA standards (each
a "Survey," collectively, the "Surveys") with respect to the
Property. Buyer has agreed to accept the Property subject to any
and all exceptions to title insurance coverage contained on the
related Title Commitment, including, but not limited to any
exceptions to coverage based upon matters shown on the related
Survey, other than exceptions relating to the Mortgage (and any
related assignment of rents and UCC filings) (collectively, the
"Initial Exceptions"). Upon Closing, each said Title Commitment
shall show fee simple title to the related Property as vested in
Seller, subject to (i) all of the Initial Exceptions previously
shown in such Title Commitment at time of execution of this
Agreement, (ii) any New Title Exceptions (defined herein) which
are not identified as Title Defects by Buyer in accordance with
the provisions hereof, (iii) if a Mortgage is assumed by Buyer in
accordance with the provisions hereof, the Mortgage and any
related loan documentation appearing of record, including, but
not limited to assignments of leases and rents and uniform
commercial code financing statements identified on Exhibit C
attached hereto, and (iv) any Title Defects which are waived in
writing by Buyer (clauses (i), (ii), (iii) and (iv) collectively,
the "Permitted Exceptions").
If prior to the time of Closing, said Title Commitments
are updated to include any new exceptions which were not
previously shown therein, including, but not limited to, any new
exceptions based upon the Survey updates, Buyer shall deliver to
Seller within 10 business days of the delivery of said updated
Title Commitments written notice setting forth its objections to
any new matter affecting the Property (each a "New Title
Exception") which, taken alone or in the aggregate, materially
impairs the Property's current use or value (each a "Title
Defect"). Seller shall have the option to: (i) cure any Title
Defect prior to Closing, or (ii) terminate this Agreement in its
entirety, upon which termination, provided that Buyer is not in
default hereunder, Buyer's Xxxxxxx Money shall be returned to
Buyer. Notwithstanding anything herein to the contrary, Seller
shall have the right to postpone the Closing Date for such
reasonable period as shall be necessary to cure any Title Defect.
If Seller elects to terminate this Agreement due to a Title
Defect as described in this paragraph, then Buyer shall have the
option to waive such Title Defect and accept the Property subject
to the applicable Title Defect; provided, however, that Buyer
exercise such option in writing within ten (10) business days of
Seller's notice of said election.
5.2 Permitted Exceptions. Buyer agrees to accept the
Property subject to the Permitted Exceptions. Notwithstanding
anything herein to the contrary, in no event or circumstance
shall a Title Defect which arises after the Commitment Date of
the Title Commitment (other than a mortgage, lien or other
encumbrance which secures an obligation to pay indebtedness or
liability) include any title exception or matter encumbering the
Real Property the cost of which to cure is less than or equal to
ten percent (10%) of the Purchase Price for the Property;
provided, however, that should the cost to cure the New Title
Exceptions in the aggregate ("Aggregate Curative Cost"), be
greater than ten percent (10%) of the Purchase Price for the
Property then: (a) Buyer may send a written notice setting forth
its objections to such exceptions or matters pursuant to the same
notice requirements provided in Section 5.1 above, and (b) if
Seller elects to cure such New Title Exceptions pursuant to
Section 5.1(i) above, Seller shall be obligated to cure only such
New Title Exceptions such that the resulting Aggregate Curative
Cost for the uncured New Title Exceptions objected to by Buyer
will be an amount less than or equal to ten percent (10%) of the
Purchase Price. Notwithstanding the foregoing, Seller shall not
be obligated, under any circumstances, to cure any exception or
matter encumbering the Property. Notwithstanding anything to the
contrary contained in this Agreement, in no event shall the
Mortgage (or any related assignment of rents or UCC filings) be
deemed to be a Permitted Exception unless Buyer elects to assume
the Mortgage.
5.3 Resolution of Title Issues. Buyer and Seller
shall make reasonable efforts to agree as to the existence of any
Title Defect. If the Seller and Buyer do not agree on the
foregoing within fifteen (15) days after Seller's receipt of
Buyer's notice described in Section 5.1 above, then the parties
shall submit the matter to binding arbitration in accordance with
the terms of Section 10 below.
5.4 Title Insurance Policy. Seller's obligations to
deliver title to the Property shall be satisfied by the issuance
of a standard coverage owner's title insurance policy with
respect to the Property issued by the Title Insurer, insuring
Buyer in the amount of the Purchase Price for the Property and
showing the Property to be subject to the Permitted Exceptions.
6. Broker. Each of the parties warrants to the other that
no broker, salesman or agent has been engaged or used in
connection with this transaction. To the fullest extent
permitted by law, each party agrees to indemnify the other party
against any and all loss, claims, liability, and expense,
including reasonable attorneys' fees, arising out of any claim
for commission or fee incurred or allegedly incurred by the
indemnifying party.
The provisions of this Section 6 shall survive the
Closing.
7. Seller's Disclaimers; Representations, Covenants and
Warranties.
7.1 Property Sold "As Is" Without Warranty. Buyer
agrees and acknowledges that Buyer is purchasing the Property "AS
IS," in its existing condition and subject to its present
defects, in reliance on Buyer's own investigation and that no
representations or warranties of any kind whatsoever, written or
oral, express or implied, have been made by Seller or the
Protected Group, including without limitation representations
relating to zoning, site and physical conditions, toxic and
hazardous materials or waste, soils content, or any matter
affecting the ability of the Buyer to use the Property or the
suitability of the Property to Buyer's purposes. Buyer further
acknowledges and agrees that as of the Closing Date, Buyer shall
have investigated, inspected, and made itself aware of all zoning
regulations, other governmental requirements, site and physical
conditions, the existence or nonexistence of toxic or hazardous
materials or waste, soil conditions, and other matters affecting
the use and condition of the Property.
Additionally and specifically, Seller makes no
representation whatsoever, express or implied: (a) that the
Property is in good or any other condition, (b) that the
buildings and other Improvements, if any, were built or are
currently in compliance with plans and/or specifications,
(c) that the buildings and other Improvements, if any, were built
in accordance with either good or acceptable construction and/or
engineering practices, (d) that the buildings and other
Improvements, if any, were built or are currently in compliance
with applicable zoning or building code requirements including,
but not limited to applicable safety codes or laws and the
Americans with Disabilities Act or any State or local law
concerning disabled persons, (e) that the Property is free of
major or minor, latent or patent defects, (f) that the Property
has no hazards, (g) that the Property complies with Federal,
State or local laws or any other standards regarding toxic,
hazardous or unhealthful materials, (h) that the Property
complies with Federal, State and local environmental laws, (i) as
to the existence of soil instability, past soil repairs, soil
additions or conditions of soil fill, or susceptibility to
landslides, and (j) as to any other matter affecting the
stability or integrity of the land or any buildings or
improvements situated on or part of the Property.
Without limiting the generality of the foregoing, Buyer
agrees to purchase the Property subject to any and all notices of
violations of law or municipal ordinances, orders or requirements
whatsoever noted in or issued by any federal, state, municipal or
other governmental department, agency or bureau having
jurisdiction over the Property (collectively, "Violations"), or
any lien, fine or penalty imposed in connection with any of the
foregoing, or any condition or state of repair imposed in
connection with any of the foregoing, or any condition or state
of repair or disrepair or other matter or thing, whether or not
noted, which, if noted, would result in a Violation being placed
on the Property. Seller shall have no duty to remove or comply
with or repair any such Violations, liens or other conditions and
Buyer shall accept the Property subject to all such Violations
and liens, the existence of any conditions at the Property which
would give rise to such Violations or liens, if any, and any
governmental claims arising from the existence of such Violations
and lien, in each case without any abatement of or credit against
the Purchase Price.
7.2 Seller Under No Duty to Disclose Condition. Buyer
acknowledges and agrees that Seller and the Protected Group shall
have no duty to disclose to Buyer any information known to them,
or any of them, concerning the condition of the Property, defects
in the Property, failure of the Property to comply with plans,
specifications, building codes, life safety codes, safety laws,
hazardous materials, environmental laws or any other laws or
codes or construction standards affecting the Property. If any
duty to disclose exists, Buyer expressly waives that duty as to
all of the above-referenced persons and entities. Without
limiting the foregoing if any information is disclosed to Buyer,
Seller makes no representation or warranties whatsoever with
respect to the accuracy or completeness of any information
provided to Buyer. Buyer has conducted its own independent
investigation.
7.3 Seller's Representations. Seller represents,
covenants and warrants to the Buyer that:
(a) Seller has good, valid and insurable title to
the Real Property together with the Improvements
subject to the Permitted Exceptions.
(b) Seller has legal power, right and authority
and has taken necessary requisite action to enter into
this Agreement and to consummate the transactions
contemplated by this Agreement. (The provisions of
this Section 7.3(b) shall survive the Closing Date.)
7.4 Buyer's Representations. In consideration of
Seller's entering into this Agreement and as an inducement to
Seller to sell the Property, Buyer makes the following covenants,
representations, and warranties, each of which is material and is
being relied upon by Seller, and each shall survive the Closing:
(a) Buyer's Authority. Buyer has the legal
power, right and authority to enter into this Agreement
and to consummate the transactions contemplated by this
Agreement;
(b) Buyer's Action. All requisite action
(corporate, partnership, trust or otherwise) has been
taken by Buyer in connection with entering into this
Agreement and the consummation of the transactions
contemplated by this Agreement;
(c) Individual Authority. The individual(s)
executing this Agreement on behalf of Buyer has the
legal power, right, and actual authority to bind Buyer
to the terms and conditions of this Agreement;
(d) Lender Authorization. Neither the execution
and delivery of this Agreement, nor the occurrence of
the obligations set forth in this Agreement, nor the
consummation of the transactions contemplated by this
Agreement, nor compliance with the terms of this
Agreement will conflict with or result in a breach of
any of the terms, conditions, or provisions of, or
constitute a default under, any bond, note or other
evidence of indebtedness or any contract, indenture,
mortgage, deed of trust, loan, agreement, lease or
other agreement or instrument to which Buyer is a party
or by which any of Buyer's properties may be bound,
which, in the aggregate, would have a material adverse
effect on Buyer's ability to perform its obligations
hereunder;
(e) Adequate Funds. Buyer has adequate funds or
available credit resources to pay the Purchase Price at
the Closing Date as provided hereunder;
(f) Sophisticated Buyer. Buyer is an experienced
and sophisticated real property purchaser; and
(g) Representation by Counsel. Buyer has had the
opportunity to confer with counsel of Buyer's choice
for a complete explanation of the meaning and
significance of each provision of this Agreement.
8. Indemnification.
8.1 Indemnification. To the fullest extent provided
by law, Buyer agrees to indemnify and hold Seller and the
Protected Group harmless from and against all claims, damages,
liabilities, obligations, costs, damages, injuries, losses and
expenses arising (i) out of the Buyer's inspection of the
Property prior to or as of the Closing Date, or (ii) after the
Closing Date as a result of the condition, operation or
management of the Property attributable to Buyer's acts or
omissions. Buyer further agrees to pay for Seller's and the
Protected Group's costs of defense, including attorney fees and
expert fees, pertaining to the foregoing indemnification rights,
to be provided by attorneys (reasonably acceptable to Buyer) of
Seller's choice and of the Protected Group's choice.
The provisions of this Section 8.1 shall survive the
Closing Date and any termination of this Agreement.
9. Default; Termination; Liquidated Damages and Other
Remedies.
9.1 IF BUYER FAILS TO COMPLY WITH ITS OBLIGATIONS
UNDER THIS AGREEMENT AND COMPLETE THE TRANSACTION CONTAINED IN
THIS AGREEMENT IN VIOLATION OF THE TERMS HEREOF, THE PARTIES
AGREE THAT SELLER SHALL: (A) BE PAID OR RETAIN A SUM EQUAL TO
THE XXXXXXX MONEY DEPOSIT REQUIRED HEREUNDER, AS LIQUIDATED AND
AGREED-UPON DAMAGES, WHEREUPON THIS AGREEMENT SHALL BE NULL AND
VOID AND NEITHER SELLER NOR BUYER NOR ANY OF THEIR RESPECTIVE
REPRESENTATIVES SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER, OR (B) PURSUE SUCH RIGHTS AND REMEDIES AS SELLER MAY
HAVE AT LAW OR IN EQUITY. ANY DAMAGE AMOUNT TO BE PAID PURSUANT
TO CLAUSE (A) OF THIS SECTION 9.1 IS PRESUMED TO BE THE AMOUNT OF
DAMAGES SUSTAINED BY A BREACH, AS IT WOULD BE IMPRACTICAL OR
EXTREMELY DIFFICULT TO FIX THE ACTUAL AMOUNT OF DAMAGES. IN
PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH PARTY
SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE
AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO
EXPLAINED THE CONSEQUENCES OF THIS DAMAGES PROVISION AT THE TIME
THIS AGREEMENT WAS MADE.
AUTHORIZED REPRESENTATIVE
OF SELLER'S INITIALS: _________
BUYER'S OR AUTHORIZED
REPRESENTATIVE OF BUYER'S INITIALS: _________
9.2 IF SELLER FAILS TO COMPLY WITH ITS OBLIGATIONS
UNDER THIS AGREEMENT AND COMPLETE THE TRANSACTION CONTAINED IN
THIS AGREEMENT IN VIOLATION OF THE TERMS HEREOF, THE PARTIES
AGREE THAT, AT BUYER'S ELECTION: (A) SELLER SHALL REFUND TO
BUYER THE XXXXXXX MONEY DEPOSIT REQUIRED HEREUNDER, PLUS THE SUM
OF $1,000, AS LIQUIDATED AND AGREED-UPON DAMAGES, WHEREUPON THIS
AGREEMENT SHALL BE NULL AND VOID AND NEITHER SELLER NOR BUYER NOR
ANY OF THEIR RESPECTIVE REPRESENTATIVES SHALL HAVE ANY FURTHER
RIGHTS OR OBLIGATIONS HEREUNDER, OR (B) BUYER MAY XXX FOR
SPECIFIC PERFORMANCE. ANY DAMAGE AMOUNT TO BE PAID PURSUANT TO
THIS SECTION 9.2 IS PRESUMED TO BE THE AMOUNT OF DAMAGES
SUSTAINED BY A BREACH, AS IT WOULD BE IMPRACTICAL OR EXTREMELY
DIFFICULT TO FIX THE ACTUAL AMOUNT OF DAMAGES. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN, IN NO EVENT SHALL SELLER OR THE
PROTECTED GROUP HAVE ANY PERSONAL LIABILITY UNDER THIS AGREEMENT
WHATSOEVER AND BUYER SHALL UNDER NO CIRCUMSTANCES INITIATE ANY
ACTION IN COURT OR BY ARBITRATION AGAINST THE PROTECTED GROUP
(OTHER THAN SELLER). IN PLACING THEIR INITIALS AT THE PLACES
PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE
STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS
REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS
DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE.
AUTHORIZED REPRESENTATIVE
OF SELLER'S INITIALS: _________
BUYER'S OR AUTHORIZED
REPRESENTATIVE OF BUYER'S INITIALS: _________
9.3 Termination. Notwithstanding anything contained
herein, this Agreement may be terminated as follows:
(a) By Seller, if any reductions or adjustments
to the Purchase Price result in the Purchase Price
being reduced to an amount which is less than the
purchase price that would be produced by the final bid
submitted by the Xxxxxx Defendants, as such term is
defined in the Stipulation of Settlement with Xxxxxx
Defendants pertaining to the Litigation;
(b) By Seller or Buyer in accordance with any
rights of termination expressly conferred under the
terms of this Agreement; and
(c) By Seller or Buyer if a court of competent
jurisdiction or arbitrator issues a binding and final
order permanently preventing the sale of the Property
to Buyer.
In the event this Agreement is terminated pursuant to
any of the foregoing provisions, this Agreement shall thereupon
become null and void and neither Seller nor Buyer nor any of
their respective representatives shall have any further rights or
obligations hereunder; provided, however, that the
Confidentiality Agreement (as defined herein) shall remain in
full force and effect and the Xxxxxxx Money shall be refunded to
Buyer if Buyer is not in breach of this Agreement.
10. Arbitration.
10.1 Arbitration of Disputes. The parties agree that
any controversy or claim arising out of or related to this
Agreement, whether claimed under the law of tort or the law of
contract or any other laws, shall be submitted to the American
Arbitration Association (the "Association") (or any successor
organization) for arbitration and settlement. All arbitration
shall be finally determined in New York City and shall be
governed in accordance with the Rules for Commercial Arbitration
of the Association (or any successor thereto), and the judgment
or the award rendered may be entered in any court having
jurisdiction, provided that the judgment or award is based upon
the proper interpretation and application of New York law. Each
party shall pay 50% of the fees and expenses of the Association.
The Closing Date shall be adjourned pending resolution of the
matter in dispute. Upon resolution of such dispute, the parties
shall take whatever action is required to be taken pursuant to
this Agreement or the final determination of an arbitrator.
10.2 Limitation on Discovery. In a mutual effort to
expedite the arbitration and limit the cost of dispute
resolutions, the parties agree that there shall be no discovery,
including no depositions, interrogatories, requests for
admissions, demands for production or inspection of records,
plans, reports, or documents of any kind, except that if a party
intends to call its own expert witness or adduce expert
testimony, then that party must notify the other party of the
name, address and all educational background of that witness and
provide a complete (complete means no subsequent data, references
or opinions may be added, referred to or testified to) report
describing all of such expert's investigations, findings and
conclusions not later than sixty (60) days before arbitration.
Each party shall, on written demand, make its expert available
for deposition not later than twenty (20) days before the
arbitration hearing. Failure to make the expert available for
deposition shall permanently preclude the arbitrator(s) from
considering the expert's testimony. The deposition may not be
admitted or used as a substitute for the live testimony of the
expert at the hearing under any circumstances. The arbitrator(s)
shall not have the power to subpoena any documents, records,
reports or writings of either party.
11. Conduct of Business. During the period from the date
hereof to the Closing Date, except (a) as Buyer shall otherwise
agree, (b) as necessary in connection with the transactions
contemplated herein, or (c) as otherwise permitted under Article
4 hereof, Seller shall operate the Property in the ordinary and
usual course, consistent with past practice.
12. Reasonable Efforts; Public Announcements. Each party
hereto will use all reasonable efforts to perform all acts
required to consummate the transactions contemplated hereby as
promptly as practicable. Such acts shall include, without
limitation, the provision of any information to and submission of
any filing with any governmental entity having jurisdiction. The
foregoing notwithstanding, except as may be required to comply
with the requirements of any applicable laws or of the court with
respect to the Litigation and the rules and regulations of each
stock exchange upon which the securities of one of the parties is
listed (including, but not limited to, the filing of a form 8-K
by Seller) and except communications by Seller to holders of
limited partnership interests in Seller (copies of which will be
made available to employees of the general partners of Seller or
their affiliates), no press release or similar public
announcement or communication shall, if prior to the Closing, be
made or caused to be made concerning the execution or performance
of this Agreement, unless the parties shall have consulted in
advance with respect thereto. Buyer shall keep such information
confidential, subject to the terms and conditions of the
Confidentiality Agreement dated October 30, 1998, by and between
the parties (the "Confidentiality Agreement").
13. General Provisions.
13.1 Time. Time shall be of the essence of this
Agreement. If any expiration or deadline date falls on a
Saturday, Sunday or legal holiday, it shall be extended to the
next following business day.
13.2 Effect of Waiver of Provision or Remedy. No
waiver by a party of any provision of this Agreement shall be
considered a waiver of any other provision or any subsequent
breach of the same or any other provision, including the time for
performance of any such provision. The exercise by a party of
any remedy provided in this Agreement or at law shall not prevent
the exercise by that party of any other remedy provided in this
Agreement or at law.
13.3 Integrated Entire Agreement. This Agreement and
the attached exhibits, along with the Confidentiality Agreement
and the Escrow Agreement, constitute the entire agreement between
the parties relating to the sale of the Property. Any prior
agreements, promises, negotiations, or representations not
expressly set forth in this Agreement in writing are of no force
and effect and may not be relied upon for any purpose whatsoever
by any party to this Agreement. Any amendment to this Agreement
shall be of no force and effect unless it is in writing and
signed by Buyer and Seller. Any statements or representations
made by any person, whether or not a party to the Agreement or
not an employee or other representative of Seller or Buyer, shall
not be relied upon by either Seller or Buyer and shall not be of
any force and effect for any purpose whatsoever.
13.4 No Representation Regarding Legal Effect of
Document. No representation, warranty, or recommendation is made
by Seller or the Protected Group, or their brokers, respective
agents, employees, or attorneys regarding the legal sufficiency,
legal effect, or tax consequences of this Agreement or the
transaction, and each signatory has had the opportunity to submit
this Agreement to its qualified legal and/or financial advisor
before signing it.
13.5 Counterparts. This Agreement and all amendments
and supplements to it may be executed in any number of
counterparts, at different places and times, all of which taken
together shall constitute one and the same instrument, which
shall be deemed dated as of the day and year first above written.
Buyer and Seller shall each receive one duplicate original.
13.6 Binding on Successors. This Agreement inures to
the benefit of, and is binding on, the parties and, without
affecting the limitations of paragraph 9, their respective heirs,
personal representatives, successors, and assigns.
13.7 Interpretation. Titles and headings of sections
of this Agreement are for convenience of reference only and shall
not affect the construction of any provision of this Agreement.
All recitals set forth at the beginning of this Agreement are, by
this reference, fully incorporated into this Agreement. All
exhibits referred to in this Agreement are deemed fully
incorporated herein, whether or not actually attached. As used
herein: (a) the singular shall include the plural (and vice
versa) and the masculine or neuter gender shall include the
feminine gender (and vice versa) as the context may require,
(b) locative adverbs such as "herein," "hereto" and "hereunder"
shall refer to this Agreement in its entirety and not to any
specific section or paragraph, and (c) the terms "include,"
"including" and similar terms shall be construed as though
followed immediately by the phrase "but not limited to." All
parties have jointly participated in the negotiation and drafting
of this Agreement, upon advice of their own independent counsel
or have had an opportunity to do so, and this Agreement shall be
construed fairly and equally as to all parties as if drafted
jointly by them. Except as otherwise expressly set forth herein,
none of the certifications, representations, warranties,
covenants and indemnifications contained in this Agreement or in
Seller's certification of any rent roll shall survive the Closing
Date.
13.8 Acknowledgments. Every fact acknowledged in this
Agreement is agreed to be a recital and to be conclusively and
irrefutably true. Buyer's acknowledgments made as of the date of
the execution of this Agreement are agreed, reaffirmed and
binding by virtue of Buyer's election to close this transaction.
13.9 Notices. All elections, notices and demands
required or permitted hereunder shall be given in writing and
shall be delivered either by: personal service or a national
overnight delivery service such as Federal Express. Facsimile
transmission is acceptable; provided, however, that such
transmission shall be followed by next day delivery via one of
the foregoing means of delivery. Notices shall be addressed or
transmitted as appears below for each party, provided that if any
party gives notice of a change of name or address, notices to the
giver of that notice shall thereafter be given as set forth in
that notice. Notice shall be deemed delivered and effective upon
actual receipt at the following addresses or such other addresses
as the parties may notify each other by similar notice:
If to Seller, to:
Prudential-Bache Properties, Inc.
One Seaport Plaza
000 Xxxxx Xxxxxx 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxx Xxxxx
Facsimile No.: (000) 000-0000
If to Buyer, to:
SGD Investments, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Attn: Xxxxx Xxxxx
Facsimile No.: (000) 000-0000
With a copy to:
McGill, Gotsdiner, Xxxxxxx & Xxxx, P.C.
00000 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
13.10 Punitive Damages. Each party waives any
claims it may now have or may in the future have arising out of
this transaction for exemplary, punitive and/or penalty damages.
13.11 Insurance. Buyer shall be responsible for
obtaining casualty and liability insurance on the Property as of
the Closing Date.
13.12 Assignment. Buyer may not assign this
Agreement without Seller's prior written consent except that
Buyer may assign this Agreement to an entity under common control
with Buyer, provided that Buyer provides Seller with a copy of
such assignment and any additional information with respect to
such assignee reasonably requested by Seller not less than ten
(10) days prior to the Closing Date. The valid assignment of
this Agreement shall not relieve Buyer of liability under this
Agreement.
13.13 Time Limitation of Actions. Save and except
for Buyer's obligations to indemnify or hold Seller harmless, no
action or claim or demand for arbitration with respect to a
provision hereof which expressly survives the Closing hereunder
shall be brought by either party after the expiration of six (6)
months from the Closing Date. The purpose of this clause
reflects the desire of both Seller and Buyer to compel the
settlement of all surviving claims between them as soon as
possible.
13.14 Severability. In the event that any
provision of this Agreement, including the arbitration
provisions, is determined to be unlawful then that provision
shall be deemed stricken and the balance of the Agreement shall
be enforceable. If the stricken provision relates to the
arbitration procedure, then the stricken provision shall be
replaced by such provision as is statutorily required.
13.15 Attorneys' Fees, Costs and Prejudgment
Interest. Each party waives any right to claim attorneys' fees,
costs or prejudgment interest in connection with any dispute or
award concerning this transaction, except as expressly provided
for herein.
13.16 Governing Law. This Agreement and the legal
relations between the parties shall be governed by and construed
in accordance with the substantive laws of the State of New York.
13.17 Further Assurances. Each of the parties
hereto shall, at the request of the other party, execute,
acknowledge and deliver any further instruments, and take such
further actions, as the requesting party may reasonably request,
to carry out effectively the intent of this Agreement.
13.18 No Assumption of Liability. Buyer shall not
assume, agree to pay or otherwise become liable for any
liability, damage, obligation or expense of Seller relating to or
arising out of the Litigation or Seller's ownership or operation
of the Property, except only (i) the Mortgage Loans, if Buyer
elects to assume such liability under Article 1 hereof,
(ii) obligations from and after Closing arising under assigned
Service Contracts and occupancy leases, (iii) prorations pursuant
to Section 3.5, and (iv) as may be expressly provided in this
Agreement or any of the documents required to be delivered by
Buyer hereunder at the Closing.
13.19 THIS AGREEMENT SHALL NOT BE BINDING AND
EFFECTIVE UNTIL EXECUTED BY BOTH BUYER AND SELLER.
IN WITNESS WHEREOF, this Agreement is executed by the
parties on the date first above written.
BUYER:
SGD Investments, Inc.
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------
SELLER(S):
PRUDENTIAL-BACHE/X.X. XXXXXX
REALTY PARTNERS L.P., I
By: Prudential-Bache Properties, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------
By: X.X. Xxxxxx Realty Partners, L.P., a
California limited partnership,
General Partner
By: AGS Financial Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxx
--------------------------
By: X.X. Xxxxxx Realty Capital, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxx
--------------------------
Schedule 1
PROPERTY NAMES AND LOCATIONS/SELLERS
PROPERTY NAME AND LOCATION SELLER(S)
Silver Springs, Tempe, AZ Prudential-Bache/X.X. Xxxxxx
Realty Partners L.P., I
Schedule 2
PURCHASE PRICE AND XXXXXXX MONEY
ALLOCATIONS/TAX ALLOCATIONS
A. The following sets forth the Purchase Price and the Xxxxxxx Money
for the Property:
Silver Springs, Tempe, AZ
$9,635,000, less an
amount equal to
Prepayment Fees, if
any, paid or absorbed
by Buyer relating to
the Mortgage
$963,500
B. The following sets forth the portion of the Purchase Price allocated
to Personalty for the Property:
Silver Springs, Tempe, AZ
$148,500
Schedule 3
PROPERTY MANAGEMENT CONTRACTS
Silver Springs, Tempe, AZ
November 18, 1988
