WELLSFORD REAL PROPERTIES, INC. and
WELLSFORD CAPITAL CORPORATION,
as Seller
and
WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII,
as Purchaser
Purchase and Sale Agreement
Dated as of: September 18, 1997
TABLE OF CONTENTS
Articles Page
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-2-
2. Agreement to Sell and Purchase. . . . . . . . . . . . . . . . . . . .-3-
3. Purchase Price and Payment. . . . . . . . . . . . . . . . . . . . . .-3-
4. Representations and Warranties. . . . . . . . . . . . . . . . . . . .-4-
5. The Closing; Closing Deliveries . . . . . . . . . . . . . . . . . . .-8-
6. Conditions to Seller's Obligation
to Close Title. . . . . . . . . . . . . . . . . . . . . . . . . . . -20-
7. Conditions to Purchaser's
Obligation to Close Title.. . . . . . . . . . . . . . . . . . . . . -21-
8. Damage or Destruction by Fire
or Other Casualty; Condemnation . . . . . . . . . . . . . . . . . . -24-
9. Successors and Assigns. . . . . . . . . . . . . . . . . . . . . . . -26-
10. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -27-
11. Payment of Expenses . . . . . . . . . . . . . . . . . . . . . . . . -28-
12. Access. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -28-
13. Gender and Number . . . . . . . . . . . . . . . . . . . . . . . . . -29-
14. Entire Agreement. . . . . . . . . . . . . . . . . . . . . . . . . . -29-
15. Captions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -29-
16. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
17. Counterparts. . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
18. Exculpation . . . . . . . . . . . . . . . . . . . . . . . . . . . . -30-
19. Limitations on Liability. . . . . . . . . . . . . . . . . . . . . . -31-
Exhibits
Exhibit A-1 -- The Properties
Exhibit A-2 -- Ground Leases
Exhibit A-3 -- Allocation Schedule
Exhibit B -- Assignment and Assumption of Ground
Leases
Exhibit C -- Xxxx of Sale
Exhibit D -- Assignment of Contracts, Intangible
Personal Property and Utility Deposits
Exhibit E -- Assignment and Assumption of Leases
Exhibit F -- Form of Termination Letter
Exhibit G -- Assignment of BPC Litigation
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT (this "Agreement") is made as of
the 18th day of September, 1997 by and between WELLSFORD REAL PROPERTIES,
INC., a Maryland corporation ("WRP"), WELLSFORD CAPITAL CORPORATION, a
Maryland corporation ("WCC"; WRP and WCC being collectively referred to as
"Seller") and WHITEHALL STREET REAL ESTATE LIMITED PARTNERSHIP VII, a
Delaware limited partnership ("Purchaser").
W I T N E S S E T H:
WHEREAS, immediately prior hereto Seller has entered into an
Agreement and Plan of Merger among Value Property Trust, a Maryland real
estate investment trust ("VPT"), WRP and Seller (the "Merger Agreement")
pursuant to which WCC will be merged with and into VPT and VPT shall be the
successor corporation in such merger in accordance with the terms of such
Merger Agreement (the "Merger");
WHEREAS, Purchaser is desirous of acquiring certain assets
currently owned by VPT and certain wholly owned subsidiaries of VPT
(collectively, the "VPT Parties"), which assets are comprised of certain
properties owned in Fee Simple (the "Fee Interests") and certain leasehold
estates (collectively, the "Leasehold Interests" and individually a
"Leasehold Interest") more particularly described in Exhibit A-1 attached
hereto and made a part hereof (any or all of such parcels, as the context may
require, the "Land"), together with the buildings and improvements situated
thereon (the "Improvements") (the Land and the Improvements, with respect to
each parcel, collectively, a "Property," and with respect to all such
parcels, collectively, the "Properties");
WHEREAS, the ground leases creating the Leasehold Interests each as
amended to date (as so amended, collectively, the "Ground Leases") are more
particularly described in Exhibit A-2 annexed hereto and made a part hereof;
WHEREAS, in connection with the consummation of the Merger, Seller
desires to sell and Purchaser desires to purchase, the Fee Interests, the
Leasehold Interests and the Properties (collectively, the "Assets"), upon and
subject to the terms of this Agreement;
NOW, THEREFORE, in consideration of the respective agreements,
covenants, representations, warranties and conditions contained in this
Agreement, and for other good and valuable consideration, the parties hereto
agree as follows:
1. Definitions. All capitalized terms used but not defined
herein shall have the respective meanings ascribed to such terms in the
Merger Agreement. References in this Agreement to the Merger Agreement shall
mean the Merger Agreement as in effect on the date hereof and without giving
regard to any amendments, modifications or waivers relating to the Merger
Agreement entered into or effective after the date of this Agreement unless
otherwise agreed by the Seller and Purchaser.
2. Agreement to Sell and Purchase.
Subject to the terms and conditions contained in this Agreement,
Seller agrees to sell, convey and assign or cause to be sold, conveyed and
assigned to Purchaser, and Purchaser agrees to purchase and accept from
Seller (or the applicable Transferor (as defined in Section 5.2.4), the
following (collectively, the "Premises"): (i) the Assets; (ii) all right,
title and interest, if any, of each Transferor in and to all articles of
personal property, tangible and intangible, attached to or used in connection
with the Properties, other than personal property of independent contractors,
tenants and public utilities (the "Personal Property"); (iii) all right,
title and interest, if any, of each such party in and to all assignable
guaranties, permits and warranties in connection with the construction,
operation, improvement, alteration or repair of the Improvements or in
connection with the purchase, operation or repair of the Personal Property
(the "Intangible Personal Property"); and (iv) all right, title and interest,
if any, of each Transferor in and to any land lying in the bed of any public
street, road or avenue, opened or proposed, in front of or adjoining the
Property, to the center line thereof, together with all of each such
Transferor's title and interest in and to all easements, fixtures and
improvements appurtenant thereto.
3. Purchase Price and Payment.
3.1. The aggregate purchase price (the "Purchase Price") for
the Premises shall be Sixty-Five Million Dollars ($65,000,000.00), which
Purchase Price shall be allocated in accordance with Exhibit A-3 attached
hereto and made a part hereof. Except for those liabilities and obligations
that Purchaser accepts as provided in this Agreement, Purchaser is not
assuming any of the debts, liabilities or other obligations of, or claims
against, Seller of any kind or nature, whether direct or contingent and
whether known or unknown.
3.2. The Purchase Price shall be paid by Purchaser to Seller
and/or its designee(s) by wire transfer of immediately available federal
funds on the Closing to an account or accounts designated by Seller by notice
to Purchaser not less than one (1) business day prior to the Closing.
3.3. If Purchaser is unable to acquire the Premises by reason
of an event giving rise to payment of a Termination Fee under Section 11.3 of
the Merger Agreement and Seller shall receive a Termination Fee and/or other
compensation pursuant to Section 11.3 of the Merger Agreement, Seller shall
promptly pay to Purchaser one-half of such amount received by Seller. The
provisions of this Section 3.3 shall survive the termination of this
Agreement.
^
Representations and Warranties.
4.1. Seller hereby represents and warrants to Purchaser that
as of the date hereof and as of the Closing:
4.1.1 Seller is a corporation duly organized and validly
existing in good standing under the laws of the State of Maryland and is
qualified to do business wherever such qualification is required by the laws
of the jurisdictions where Seller transacts business or where the character
of the properties owned or leased by it makes such qualifications necessary,
except where the failure to be so qualified would not have a material adverse
effect on Seller's ability to perform its obligations hereunder. Seller has
full corporate power and authority to enter into this Agreement, and except
as expressly set forth herein, or in the Merger Agreement, no consents of any
third party are required to execute and deliver this Agreement, the
instruments referred to herein and/or to fully perform its obligations
hereunder;
4.1.2 the signatory hereto on behalf of Seller has full
corporate power and authority to bind Seller and all requisite actions
necessary to authorize Seller to execute and deliver this Agreement and
perform its obligations hereunder have been taken;
4.1.3 the execution and delivery of this Agreement and
the instruments contemplated by this Agreement, the consummation of the
transactions provided for herein and in such instruments, and the fulfillment
of the terms hereof will not conflict with, or result in a breach of, any of
the terms or provisions of, or constitute a default or an acceleration under,
Seller's organizational documents, any agreement to which Seller is a party
or by which Seller, or to the best of Seller's knowledge, any of the
Properties is bound (other than the Merger Agreement), or any judgment,
writ, trust, decree or order of any court or governmental body, or any law,
rule or regulation applicable to Seller, or to the best of Seller's
knowledge, any of the Properties, which breach, default or acceleration would
have a material adverse effect on the Seller's ability to perform its
obligations hereunder or to the best of Seller's knowledge, violate any
restriction, requirement, covenant or condition to which any part of the
Properties is bound;
4.1.4 Seller is not a "foreign person" as defined in
Section 1445(f)(3) of the Internal Revenue Code;
4.1.5 Seller is solvent, has filed no petition in
bankruptcy under any state or Federal bankruptcy laws, has made no assignment
for the benefit of creditors and has no knowledge of any pending filing of a
petition in bankruptcy, whether voluntary or involuntary, against Seller; and
4.1.6 no waivers, consents or approvals from any court,
governmental or quasi-governmental authority or other third party (except as
otherwise provided in the Merger Agreement) are required with respect to the
sale of the Premises to be transferred hereunder.
4.2. Purchaser hereby represents and warrants to Seller that
as of the date hereof and as of the Closing:
4.2.1 Purchaser is a limited partnership duly organized
and validly existing in good standing under the laws of the State of
Delaware. Purchaser has the full power and authority to enter into this
Agreement and no consents of any third party are required to execute and
deliver the instruments referred to herein and/or to fully perform its
obligations hereunder;
4.2.2 the signatory hereto on behalf of Purchaser has
full power and authority to bind Purchaser and all requisite actions
necessary to authorize Purchaser to execute and deliver this Agreement and
perform its obligations hereunder have been taken;
4.2.3 the execution and delivery of this Agreement, the
consummation of the transactions provided for herein and the fulfillment of
the terms hereof will not result in a breach of any of the terms or
provisions of, or constitute a default or an acceleration under, Purchaser's
organizational documents, any agreement to which Purchaser is a party or by
which Purchaser is bound, or any judgment, writ, trust, decree or order of
any court or governmental body, or any applicable law, rule or regulation,
which breach, default or acceleration would have a material adverse effect on
Purchaser's ability to perform its obligations hereunder;
4.2.4 Purchaser is solvent, has filed no petition in
bankruptcy under any state or federal bankruptcy laws, has made no assignment
for the benefit of creditors and has no knowledge of any pending filing of a
petition in bankruptcy, whether voluntary or involuntary against it;
4.2.5 Purchaser will have available to it at the Closing
unrestricted funds which it may use in its sole discretion to purchase and
pay for the Assets in accordance with the terms of this Agreement; and
4.3. The representations and warranties contained in this
Article 4 shall not survive and shall terminate as of the Closing.
5. The Closing; Closing Deliveries.
5.1. Subject to the terms and conditions hereof, the closing
of the transactions contemplated hereby (the "Closing") will be held
immediately following the closing of the Merger at the time, date and
location determined in accordance with Section 1.2 of the Merger Agreement.
5.1.1 Notwithstanding the provisions of Section 5.1 if
the Merger shall not have occurred on or prior to March 10, 1998, Purchaser
shall have the option, exercisable by notice to Seller (a "Termination
Notice") to terminate this Agreement. If Purchaser shall have delivered a
Termination Notice to Seller, this Agreement shall terminate and be of no
further force and effect, as of the date (the "Termination Date") that is 10
days after the date of Seller's receipt of the Termination Notice unless the
Merger shall have occurred on or prior to the Termination Date.
5.2. It shall be a condition of Purchaser's obligations
hereunder that at the Closing, Seller shall deliver or cause to be delivered
the following to Purchaser:
5.2.1 with respect to the Fee Interests, a quitclaim deed (or
a special warranty deed limiting any warranty solely to Seller's or any
Transferor's, as the case may be, affirmative acts if such special warranty
deed shall be required in the applicable jurisdiction in order for Purchaser
to obtain title insurance) in proper statutory form for recording, duly
executed and acknowledged by the grantor, so as to convey to Purchaser fee
simple title to the applicable Fee Interest, subject only to the Permitted
Exceptions described in Section 7.13 of the Merger Agreement (the "Deeds");
5.2.2 with respect to the Leasehold Interests, an
assignment of all right, title and interest of the tenant thereunder, in the
form attached hereto as Exhibit B and in proper form for recording duly
executed and acknowledged by the tenant, so as to assign and transfer to
Purchaser the Leasehold Interest of such party, subject only to the Permitted
Exceptions described in Section 7.13 of the Merger Agreement (the "Lease
Assignments") and the written consents of each of the ground lessors of the
Ground Leases to the terms and provisions of the Assignment of Lease if such
consent is required under the applicable Ground Lease;
5.2.3 a xxxx of sale duly executed by Seller, or the
Transferor, as the case may be, evidencing the sale of the Personal Property,
substantially in the form attached hereto as Exhibit C;
5.2.4 an assignment duly executed by the entity
conveying fee simple title or the tenant assigning its Ground Lease, as the
case may be (collectively, the "Transferors" and individually a
"Transferor"), of all of such party's right, title and interest in and to
(i) all service contracts listed on Section 7.13 of the VPT Disclosure Letter
affecting the Properties (the "Service Contracts"), and (ii) all Intangible
Personal Property, to the extent assignable, substantially in the form
attached hereto as Exhibit D;
5.2.5 an assignment duly executed and acknowledged by
each Transferor, pursuant to which such party shall assign to Purchaser all
of such party's right, title and interest as landlord, in, to and under (i)
all space and other occupancy leases of all or any part of the Property owned
or leased by such party, including those occupancy leases for the commercial
tenants of the Properties which are listed on the Rent Rolls set forth in
Section 7.13 of the VPT Disclosure Letter (collectively, the "Leases") and
(ii) the balance of any unapplied security and similar deposits, if any, made
by tenants pursuant to the terms of the Leases as of the Closing, all as more
particularly set forth in the form of Assignment and Assumption of Leases
attached hereto as Exhibit D. Seller shall deliver or cause to be delivered
therewith a check to Purchaser's order in the aggregate amount of any cash
security deposits maintained by Seller for the benefit of tenants, including
accrued interest, if any, which would be due to tenants if such deposits were
withdrawn on the Closing or, at the option of Seller, Seller will allow
Purchaser a credit against the Purchase Price in the amount of such deposits.
If any security deposits shall be maintained in the form of a letter of
credit, Seller (and/or the applicable Transferor) shall cause delivery of all
such letters of credit at Closing and an assignment to Purchaser of all of
such party's right, title and interest as landlord thereto, and/or shall
cooperate with Purchaser to cause the reissuance or endorsement of each such
letter of credit for the benefit of Purchaser promptly after the Closing (it
being understood that Seller's obligations under this sentence shall survive
the Closing);
5.2.6 a letter from such Transferor to the manager of
each of the Properties in the form attached hereto as Exhibit F, terminating
the management agreements relating to each of the Properties, without cost,
liability or penalty to Purchaser;
5.2.7 executed originals, if in possession of the Seller
(or the applicable Transferor, or under the control of Seller or such
Transferor), of the following documents, copies of which have been delivered
to Purchaser, the receipt of which is hereby acknowledged: (i) the Ground
Leases and (ii) all Leases;
5.2.8 an affidavit executed on behalf of each Transferor
providing each such party's taxpayer identification number and a statement
that such party is not a foreign person within the meaning of
Section 1445(f)(3) of the Internal Revenue Code, as amended;
5.2.9 the keys to the Properties to the extent in the
possession of Seller (or the applicable Transferor, or under the control of
Seller or such Transferor) or, if not in such possession and control, a
direction in the form attached hereto as Exhibit F to each manager of a
Property directing it to deliver keys to the Purchaser;
5.2.10 a letter, addressed to each tenant and ground
lessor and executed by each Transferor advising of the sale of the Property
and of the transfer of security and similar deposits, if any, to Purchaser,
directing it to pay rent hereafter due and/or deliver notices to a person and
at an address designated by Purchaser and containing such other information
as may be required in accordance with applicable law;
5.2.11 a direction to each property manager in the form
attached hereto as Exhibit F to deliver to Purchaser originals or copies of
(a) all licenses and permits, authorizations and approvals which are
currently in force pertaining to the Properties, and (b) all guarantees and
warranties which are currently in force in connection with any work or
services performed or equipment installed in and to the Improvements;
5.2.12 to the extent in Seller's possession (or the
possession of the applicable Transferor, or under the control of Seller or
such Transferor) the originals or copies of the Service Contracts which are
being assigned to Purchaser;
5.2.13 to the extent the following exist and are in
Seller's possession (or the possession of the applicable Transferor, or under
the control of Seller or such Transferor): true, correct and complete copies
of operating expense statements, calculations of escalations and tenant
leasing files and records relating to the Properties;
5.2.14 reasonable evidence of the corporate authority of
Seller's signatories;
5.2.15 an assignment in the form attached hereto as
Exhibit G of all of Seller's and the applicable Transferor's rights in the
action entitled Building Profit Corporation v. Borneo International Furniture
Corporation, et al., No. LA 221224, Superior Court of California, Riverside
County (the "BPC Litigation);
5.2.16 an assignment, without recourse, representation
or warranty of Seller's or the applicable Transferor's right, title and
interest, if any in the "Special Declarant Rights" referred to in the
Condominium Declaration for the Six Sentry Parkway Condominium, to the extent
such rights are in effect as of the Closing.
5.2.17 such reasonable and customary affidavits and
other instruments and documents, limited to knowledge as appropriate, as
Purchaser's title insurer shall reasonably require in order to issue owner's
policies of title insurance in respect of each Property and/or to delete the
standard pre-printed exceptions for mechanics' liens attributable to labor,
services or materials furnished to the Property and parties in possession
other than the tenants under the Leases; and
5.2.18 a closing statement between Seller and Purchaser,
duly executed by Seller, setting forth the prorations and adjustments to the
Purchase Price respecting the Premises to be made pursuant to Sections 5.5
and 5.6.
5.3. At the Closing, Purchaser will deliver to Seller the
following:
5.3.1 the Purchase Price as provided in subsection 3.2
hereof;
5.3.2 a counterpart of each assignment described in
subsection 5.2.2 hereof, duly executed and acknowledged by Purchaser, in
which Purchaser assumes and agrees to observe and perform all the obligations
arising on and after the Closing of the assignor under the applicable Ground
Lease;
5.3.3 a counterpart of the assignment described in
subsection 5.2.4 hereof, duly executed and acknowledged by Purchaser, in
which Purchaser assumes and agrees to observe and perform all of the
obligations of Seller (and/or the applicable Transferor's) under the Service
Contracts which are being assigned to Purchaser arising on and after the
Closing;
5.3.4 a counterpart of the assignment described in
subsection 5.2.5 hereof, duly executed and acknowledged by Purchaser, in
which Purchaser assumes and agrees to observe and perform all of the
obligations of Seller (and/or the applicable Transferor's) under the Leases
which arise from and after the Closing;
5.3.5 reasonable evidence of the authority of
Purchaser's signatories;
5.3.6 a counterpart of the assignment described in
subsection 5.2.15 hereof, duly executed and acknowledged by Purchaser agrees
to indemnify and hold Seller and the applicable Transferor harmless from any
claim, loss, liability cost and expenses arising out of the BPC Litigation;
5.3.7 a counterpart of the Closing Statement between
Seller and Purchaser to be delivered under subsection 5.2.18 hereof, duly
executed by Purchaser; and
5.3.8 all other instruments and documents required to be
delivered by Purchaser hereunder. Purchaser shall also make any other
payments required by this Agreement to be paid by Purchaser.
5.4. The following items of expense shall be adjusted as of
midnight of the day immediately preceding the Closing:
Real estate and personal property taxes with respect
to the Assets and the Personal Property. Assessments, if any, for
improvements completed prior to the Closing, whether assessment therefor has
been levied or not, shall be paid by Seller on the Closing. If the Closing
shall occur before the tax rate or assessment is fixed for a Property, for
the tax year in which the Closing occurs, the apportionment of taxes for such
Property shall be upon the basis of the tax rate or assessment for the next
preceding year applied to the latest assessed valuation and Seller and
Purchaser shall readjust real estate taxes promptly upon the fixing of the
tax rate or assessment for the tax year in which the Closing occurs.
Fuel, water and sewer service charges, and charges for
gas, electricity, telephone and all other public utilities other than those
which tenants are required to pay pursuant to the Leases. If there are
meters on a Property measuring the consumption of water, gas or electric
current, other than those which tenants are required to pay pursuant to the
Leases, Seller shall, prior to the Closing, cause such meters to be read and
shall pay promptly all utility bills for which Seller or the applicable
Transferor (and not any tenant) is liable upon receipt of statements
therefor. Purchaser shall be liable for and shall pay all utility bills for
services rendered after the Closing. At or promptly after the Closing,
Purchaser shall post such security deposits as are required by the utility
companies in order to continue service to the Properties in replacement of
the security deposits previously deposited by Seller with such utility
companies.
Other items customarily apportioned in sales of real
property in the jurisdictions in which the Properties are located. If the
amount of any of the adjustments described in clauses (i) and (ii) cannot be
determined on the Closing, the adjustment therefor shall be made within ten
(10) days after the amount of such adjustment has been determined. In making
the adjustments required by clauses (i) through (iii), Seller shall be given
credit for all amounts prepaid for any period after the Closing, and Seller
shall be charged with any unpaid charges for the period prior to the Closing.
The rent and percentage rents payable by tenants under
the Leases shall be adjusted, and any such rent prepaid to Seller or any
Transferor (including a pro rata portion of the rent paid for the month in
which the Closing occurs) shall be paid to Purchaser at Closing. Rent which
is due but uncollected as of the Closing shall not be adjusted at the
Closing. On the Closing, Seller shall deliver or cause to be delivered to
Purchaser a schedule of past due but uncollected rent owed by tenants.
Purchaser agrees to cause the amount of such rental arrears to be included in
the first bills thereafter submitted by Purchaser to such tenants after the
Closing. Any rents collected from a tenant after the Closing who owes
delinquent rent as of the Closing shall be applied first to any arrearage
owed by such tenant subsequent to the Closing, not exceeding thirty (30)
days, next to any rents payable by such tenant for the month in which the
Closing occurs (to be apportioned as provided herein), next to any rents
payable prior to the Closing, not exceeding thirty (30) days, next to any
arrearage owed by such tenant after the Closing in inverse order of maturity,
and thereafter to rents payable by such tenant prior to the Closing.
Additional rent payments (and estimated additional rent payments) actually
paid by tenants prior to Closing attributable to real estate taxes and
operating costs shall be adjusted as of the Closing. Additional rent
payments (and estimated additional rent payments) attributable to real estate
taxes and operating costs to be paid by tenants after the Closing shall be
adjusted upon receipt by Purchaser. The adjustments of additional rent
payments shall be based upon the number of days in the period for which such
payment relates that are before or after the Closing.
If any security deposit is in the form of a letter of
credit, then Seller shall cooperate with Purchaser in obtaining a replacement
letter of credit to be issued and delivered to Purchaser promptly after the
Closing upon the same terms and conditions as the original letter of credit.
If replacement letters of credit cannot be issued and delivered to Purchaser
then Seller shall execute or cause to be executed appropriate transfer
documents in the form prescribed by the issuers of the Letter of Credit.
If any of the items described in this Section 5.4
cannot be apportioned at the Closing because of the unavailability of the
amounts which are to be apportioned or otherwise, or are incorrectly
apportioned at Closing or subsequent thereto, such items shall be apportioned
or reapportioned, as the case may be, as soon as practicable after the
Closing or the date such error is discovered, as applicable. Any dispute
with respect to adjustments shall not delay or hinder the Closing but shall
be resolved by the Seller and Purchaser subsequent to the Closing, or if not
resolved by Seller and Purchaser subsequent to the Closing, by a court of
competent jurisdiction. The provisions of this Section 5.4 shall survive the
Closing.
5.5. Seller shall pay the cost of all tenant improvement
work, tenant allowances, unpaid leasing commissions and other leasing costs
(collectively, the "Leasing Costs") required to be paid under Leases executed
or in effect on or prior to July 31, 1997 (other than (A) an obligation set
forth in a Lease that is applicable only in the event that the tenant
exercises any option to extend or renew the Lease or expand its demised
premises, or (B) with respect to and to the extent of any Lease that is
signed after the date of this Agreement and approved by Purchaser). If any
Leasing Costs which Seller is obligated to pay pursuant to the provisions of
this Section 5.5 have not been paid on or prior to the Closing, Purchaser
shall be entitled to a credit against the Purchase Price for the amount of
such unpaid Leasing Costs. The provisions of this Section 5.5 shall survive
the Closing.
5.6. Seller agrees that it will, at any time and from time to
time after the Closing, upon request of Purchaser, execute, acknowledge and
deliver, or will cause to be done, executed, acknowledged and delivered, all
such further acts, deeds, assignments, transfers, conveyances and assurances
as may reasonably be required for the assigning, transferring, granting,
assuring and confirming to Purchaser, or to its successors and assigns, or
for aiding and assisting in collecting and reducing to possession, any or all
of the Assets or property being sold to Purchaser pursuant to this Agreement,
provided that the same do not impose any additional material liability or
cost on Seller beyond that provided in this Agreement or any document
required to be executed by Seller pursuant to this Agreement. The provisions
of this Section 5.6 shall survive the Closing.
6. Conditions to Seller's Obligation
to Close Title.
6.1. The obligation of Seller to close title under this
Agreement is expressly conditioned upon the fulfillment by and as of the
Closing of each of the conditions listed below, provided that Seller, at its
election, may waive all or any of such conditions in writing:
6.1.1 Purchaser shall have paid to Seller or Seller's
designee the Purchase Price as provided in Article 3 hereof, less any credits
granted to Purchaser and together with other amounts payable by Purchaser to
Seller, if any, pursuant to the terms of this Agreement as of such date.
6.1.2 Purchaser shall have delivered or caused to be
delivered at Closing all of the documents and instruments required by this
Agreement to be delivered by Purchaser and shall have taken all other action
required of Purchaser under this Agreement in all material respects.
6.1.3 All representations and warranties of Purchaser
set forth in Section 4.2 shall be true and correct in all material respects
on and as of the date hereof and on and as of the Closing as if made on and
as of such date.
6.1.4 The Merger shall have been consummated in
accordance with the Merger Agreement.
7. Conditions to Purchaser's
Obligation to Close Title.
7.1. The obligation of Purchaser to purchase the Assets under
this Agreement and to perform the other covenants and obligations to be
performed by it on the Closing is conditioned upon the fulfillment by and as
of the Closing of each of the conditions listed below, provided that
Purchaser, at its election, may waive all or any of such conditions in
writing:
7.1.1 Seller shall have delivered or caused to be
delivered at Closing all of the documents and instruments to be delivered by
Seller pursuant to this Agreement and shall have taken all other action
required of Seller under this Agreement in all material respects.
7.1.2 The representations and warranties of Seller set
forth in Section 4.1 shall be true and correct in all material respects on
and as of the date hereof and on and as of the Closing as if made on and as
of such date.
7.1.3 The Merger shall have been consummated.
7.1.4 Seller shall have delivered to Purchaser any
estoppel certificate which is delivered by VPT to Seller pursuant to Section
9.1(b)(xii) of the Merger Agreement.
7.1.5 The representations and warranties of VPT in
Sections 7.1, 7.2, 7.6, 7.8, 7.9, 7.12, 7.13, 7.14, 7.23 and 7.24 of the
Merger Agreement, insofar as such representations and warranties relate to
the Assets shall be true and correct as of the Closing, except to the extent
that any changes, circumstances or events making such representations and
warranties not true or correct would not, individually or in the aggregate,
constitute a "Material Adverse Effect". As used in this Agreement the term
"Material Adverse Effect" shall mean any negative circumstances, changes or
effects, when considered in conjunction with any positive circumstances,
changes or effects that have resulted in or are reasonably likely to result
in, an aggregate decrease in the value of the Assets, taken as a whole of
$2,000,000 or more.
7.1.6 Seller shall have delivered to Purchaser a copy of
the certificate delivered to Seller under Section 10.3(a) of the Merger
Agreement.
7.1.7 From the date of this Agreement through the
Effective Time and, except as otherwise disclosed in the VPT Disclosure
Letter or in the VPT SEC Reports filed prior to the date of this Agreement,
since June 30, 1997 there shall not have occurred any change, circumstance or
event concerning any of the Assets, excluding, however, any change,
circumstance or event concerning VPT or any VPT Subsidiary, that has had or
could be reasonably likely to have a Material Adverse Effect and Seller shall
deliver a copy of the certificate delivered to Seller under Section 10.3(c)
of the Merger Agreement to such effect.
7.1.8 VPT shall have performed or complied in all
material respects with its obligations under Sections 9.1(a)(iii),
9.1(a)(vi), 9.1(a)(vii), 9.1(a)(viii), 9.1(b)(i), 9.1(b)(v), 9.1(b)(x),
9.1(b)(xii) and Section 9.2 of the Merger Agreement insofar as such
obligations relate to the Assets and Seller shall have delivered to the
Purchaser a copy of the certificate delivered to Seller pursuant to and
satisfying the terms of Section 10.3(b) of the Merger Agreement.
7.1.9 On the Closing Date, First American Title
Insurance Company or any other nationally recognized title insurance company
(the "Title Company") shall be unconditionally obligated and prepared,
subject to the payment of applicable title insurance premiums and other
related charges, to issue an ALTA owner's title insurance policy covering
each Property, subject to no exceptions other than (i) exceptions set forth
in the pro-forma policies for such Property attached as Section 8.5 to the
Buyer Disclosure Letter (but not including any standard or preprinted
exceptions other than exceptions for the rights of tenants in possession, as
tenants only and matters which would be shown by a current survey) and (ii)
exceptions for matters arising after the date appearing on such pro-forma
policies (other than liens, encumbrances or other restrictions voluntarily
entered into or assented to by VPT or any VPT Subsidiary) which would not
have a Material Adverse Effect insuring Purchaser or its designee's title to
the Properties. Such policies of title insurance shall also include such
endorsements as may be reasonably or customarily requested by buyers of
similar properties (specifically excluding zoning endorsements), to the
extent such endorsements are available and customarily obtained in the state
and jurisdiction in which each Property is located.
7.1.10 The litigation entitled Value Property Trust v.
Zim Company shall have been dismissed with prejudice.
7.1.11 If any of the foregoing conditions of this
Article 7 have not been fully satisfied by Seller on or before the Closing as
to any one of the Properties, but all other conditions of this Article 7 have
been satisfied or waived by Purchaser, Purchaser shall have the option, in
its sole discretion, to close on all the Properties (except the one or more
Properties for which conditions have not been satisfied or waived) with a
reduction of the Purchase Price based on the amount or amounts allocated to
such Property in accordance with Exhibit A-3.
8. Damage or Destruction by Fire
or Other Casualty; Condemnation.
8.1. Except as otherwise provided in Section 7.1.5 or Section
7.1.7, if all or any portion of any Property is damaged or destroyed by fire
or other casualty or is taken in condemnation or by eminent domain, such
occurrence shall not result in a reduction in the Purchase Price or limit
Seller's or Purchaser's obligation to close title hereunder.
8.2. In the event of any casualty prior to Closing, Seller
shall cause the appropriate party to assign, transfer and convey to Purchaser
all of such party's right, title and interest in and to any insurance
proceeds (and insurance policies to the extent necessary to enforce its
rights to proceeds), including proceeds, if any, of insurance covering loss
of rental income (but only to the extent of the proceeds thereof attributable
to rents accruing subsequent to the Closing), that may be paid or payable to
such party for the portion of the Improvements so damaged or destroyed free
and clear of any liens, claims or security interests of third parties and
shall pay to Purchaser at Closing the amount of any deductible under such
party's casualty insurance coverage. If all or any portion of such insurance
proceeds has already been received which would otherwise be due to Purchaser
hereunder, then the amount so received which would otherwise be due to
Purchaser hereunder (less the reasonable costs of collection, if any), shall
be paid or allowed to Purchaser at the Closing, without interest.
8.3. In the event of any taking in or in lieu of condemnation
or by eminent domain prior to Closing, Seller shall cause the appropriate
party to assign, transfer and convey to Purchaser all of its right, title and
interest in and to any and all awards payable as the result of such taking,
free and clear of any liens, claims or security interests of third parties.
If all or any portion of such award has already been received by Seller or
such party, then the amount so received (net of costs of collection, if any)
shall be paid or allowed to Purchaser at the Closing, without interest.
9. Successors and Assigns.
9.1. This Agreement shall be binding upon and shall inure to
the benefit of Seller and Purchaser and their respective successors and
assigns; provided, that Purchaser shall not assign this Agreement or its
rights hereunder at any time prior to the Closing without first obtaining the
prior consent of Seller. Purchaser shall have the right to designate by
written notice to Seller at least (3) days prior to the Closing that the
grantee under the deeds of conveyance and the party receiving the benefit of
all bills of sale, assignments and transfer documents and the party executing
and delivering on the Closing all documents as Purchaser be such entity that
is so designated by Purchaser (the "Transferee"). Purchaser shall have the
right from and after the Closing to assign this Agreement and its rights
hereunder to such Transferee, and if such Transferee assumes all of the
obligations of Purchaser under this Agreement pursuant to an instrument of
assumption which shall be in form and substance reasonably satisfactory to
Seller, Purchaser shall be relieved of all liabilities and obligations under
this Agreement.
10. Notices.
10.1. All elections, notices and other communications
(collectively, "Notices") to be given hereunder by either party to the other
shall be in writing and shall be sent by facsimile transmission (confirmed by
any of the methods that follow), courier service (with proof of service) hand
delivery or certified or registered mail (return receipt requested) addressed
as follows:
If to Seller:
Wellsford Real Properties, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Mr. Xxxxxxx Xxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx X. Xxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
If to Purchaser:
Whitehall Street Real Estate Limited
Partnership VII
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Mr. Xxxxxxx Xxxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Arent Fox Xxxxxxx Xxxxxxx & Xxxx
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attn.: Xxxx X. Xxxx, Esq.
Tel.: (000) 000-0000
Fax: (000) 000-0000
10.2. Seller shall promptly deliver or cause to be delivered
to Purchaser a copy of any notices or other communications which Seller
receives from VPT or any VPT Party under the Merger Agreement to the extent
that such notices or other communications relate to a Property or the
Properties.
11. Payment of Expenses.
Purchaser shall pay at the Closing all real property transfer taxes
payable by reason of the delivery of the Deeds, and the Lease Assignments.
Purchaser shall pay at the Closing all other recording and filing fees and
charges, and all title insurance charges pertaining to the Properties.
Seller and Purchaser agree that no part of the Purchase Price hereunder will
be deemed paid by Purchaser for the Personal Property transferred hereunder.
If, however, any part of the Purchase Price is deemed by any governmental or
administrative body to have been paid for such Personal Property, Purchaser
will be solely responsible for the sales tax (if any) payable in connection
therewith and will indemnify Seller therefor and against any claim, liability
or damage resulting from any obligations arising from Purchaser's failure to
pay the amount of any such sales tax. Each party shall pay the fees and
disbursements of its own counsel. The provisions of this Article shall
survive the Closing.
12. Access. Seller shall use commercially reasonable efforts to
give Purchaser, and its agents, representatives, employees and designees, at
Purchaser's expense, access to the books, records, files, financial reports,
plans and specifications that are made available to Seller under Section
9.1(a)(v) of the Merger Agreement that relate to any of the Properties during
normal business hours and after reasonable prior notice for the purpose of
reviewing the same in preparation of the Closing. Purchaser shall have no
right to conduct any tests or otherwise conduct physical diligence or
investigations at any of the Properties after the date of this Agreement;
provided, that if VPT consents, Buyer shall have the right, subject to such
conditions as may be imposed by VPT, to inspect the Properties.
13. Gender and Number.
Wherever the context so requires, references herein to the neuter
gender shall include the masculine and/or feminine gender, and the singular
number shall include the plural.
14. Entire Agreement.
This Agreement, its Exhibits and the instruments referred to herein
embody the entire agreement and understanding between the parties relating to
the subject matter hereof and may not be amended, waived or discharged except
by an instrument in writing executed by the party against whom enforcement of
such amendment, waiver or discharge is sought.
15. Captions.
The captions in this Agreement are for convenience only and are not
to be deemed part of this Agreement.
16. Governing Law.
This Agreement is made pursuant to, and shall be governed by, the
laws of the State of New York.
17. Counterparts. This Agreement may be executed and delivered in
counterpart copies, all of which together will constitute one executed
original agreement.
18. Exculpation. Purchaser acknowledges that Seller is not the
present owner of any of the Properties and may not have knowledge of any
matter or thing as it pertains to the Properties. Purchaser agrees that
Seller is not liable in any manner for any express or implied warranties or
guaranties pertaining to the Assets, their physical condition, existence
of hazardous materials, size, zoning, expenses or operation thereof.
Purchaser also acknowledges that Seller is not liable for any statements or
representations made to Purchaser regarding any Property or the Assets
(specifically including, without limitation, the Federal "CERCLA", "RCRA" and
"XXXX" acts). Seller shall have no liability whatsoever by reason of any
condition of any Property or, except as otherwise provided in this Agreement,
failure of Purchaser to obtain any document or thing pertaining to a
Property. Upon payment of the Purchase Price by Purchaser to Seller, Seller
and Purchaser shall be deemed to have fully complied with all of their
respective obligations under this Agreement and Seller and Purchaser
shall thereafter have no liability to Purchaser except with respect to those
provisions of this Agreement and the Exhibits hereto which are expressly
stated to survive.
19. Limitations on Liability. In the event of any breach or
default by Seller or Purchaser under this Agreement, neither Seller nor
Purchaser, as the case may be, shall be liable for consequential or punitive
damages.
IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the day and year first above written.
SELLER:
WELLSFORD REAL PROPERTIES, INC.
By:/s/ Xxxxxxx X. Xxxxxx
____________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
WELLSFORD CAPITAL CORPORATION
By:/s/ Xxxxxxx X. Xxxxxx
__________________________
Name: Xxxxxxx X. Xxxxxx
Title: Chief Financial Officer
PURCHASER:
WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP VII
By: WH ADVISORS, L.P., VII,
its General Partner
By: WH ADVISORS, INC. VII,
its General Partner
By:/s/ Xxxxxxx Xxxxxxxx
______________________
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
EXHIBITS OMITTED
Exhibit A-1 -- The Properties
Exhibit A-2 -- Ground Leases
Exhibit A-3 -- Allocation Schedule
Exhibit B -- Assignment and Assumption of Ground
Leases
Exhibit C -- Xxxx of Sale
Exhibit D -- Assignment of Contracts, Intangible
Personal Property and Utility Deposits
Exhibit E -- Assignment and Assumption of Leases
Exhibit F -- Form of Termination Letter
Exhibit G -- Assignment of BPC Litigation
Wellsford Real Properties, Inc. agrees to supplementally furnish
such omitted exhibits to the Securities and Exchange Commission upon
request.
