EXHIBIT 10.77
AGREEMENT FOR TRANSFER
OF
PROPERTY
by and among
G & L CORONADO LLC
as Transferor
and
G & L REALTY PARTNERSHIP, L.P.
as Operating Partnership
Dated as of December 30, 1998
AGREEMENT FOR TRANSFER OF PROPERTY
This AGREEMENT FOR TRANSFER OF PROPERTY ("Agreement") is dated the 30th day
of December, 1998, and is by and between G & L REALTY PARTNERSHIP, L.P., a
Delaware limited partnership (the "Operating Partnership") and G & L CORONADO
LLC, a Delaware limited liability company ("Transferor")
RECITALS
A. Transferor owns that certain improved real property commonly known as
Coronado Plaza, Coronado, California, and more particularly described on Exhibit
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"A" attached hereto and incorporated herein by reference (such property,
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together with the buildings, structures and other improvements situated thereon
is referred to herein as the "Coronado Property").
B. Transferor desires to transfer its interest in the Coronado Property to
Operating Partnership, and Operating Partnership desires to acquire the Coronado
Property upon the terms and conditions set forth herein.
NOW THEREFORE, in consideration of the mutual covenants contained in this
Agreement and other good and valuable consideration, the receipt and sufficiency
of which are acknowledged, the parties hereto agree as follows:
TERMS OF AGREEMENT
1. AGREEMENT TO TRANSFER THE CORONADO PROPERTY. Effective upon the Closing,
Transferor shall transfer to Operating Partnership all of Transferor's right,
title and interest and to the Coronado Property, including but not limited to
the land described on Exhibit "A" attached hereto and incorporated herein by
reference, and Transferors interest in:
1.1 Land. The Land, as is described in Exhibit "A".
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1.2 Buildings and Other Improvements. All existing buildings, structures
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and other improvements located upon the Land, including, without limitation,
walkways, parking facilities, and all other improvements of whatever kind which
have previously been made, installed or erected and are now located on any part
of the Land (collectively, the "Improvements").
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1.3 Tangible Personal Property. All right, title and interest in and to
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tangible personal property utilized in the operation of the Land and
Improvements (the "Tangible Personal Property").
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1.4 Water Rights and Mineral Rights. All right, title and interest in and
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to water rights, minerals, oil, gas and other hydrocarbons located in or beneath
the Land, along with all rights to surface and subsurface entry (the "Water
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Rights and Mineral Rights").
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1.5 Appurtenances. All right, title and interest in and to all
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appurtenances, rights, including reversionary rights, easements, and privileges
belonging to or running with the Land, including, without limitation, all right,
title and interest in and to any and all land laying in the bed of any street,
road, cul-de-sac, alley or access way, open or closed, existing, vacated or
proposed, adjoining, adjacent to or contiguous to the Land, all awards for
damage to the Land or taking by eminent domain or the change in the grade of any
street adjoining the Land, all strips and gores of land adjoining or surrounded
by the Land, and all zoning and land use entitlement and development rights
pertaining to the Land (the "Appurtenances").
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1.6 Intangible Personal Property. All intangible personal property now
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owned by Transferor or in which Transferor has any interest on the Closing Date,
which is used in, or which has been acquired for use in, the operation of the
Land, including by way of example and not by limitation, any permits, approvals,
franchises, licenses, trade names, trademarks and logos, commitments, contracts,
warranties, rights to recovery of judgments, books and records and telephone
numbers (the "Intangible Property" and together with the Tangible Personal
Property, the "Personal Property").
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1.7 Leases with Tenant. All of Transferor's right, title and interest as
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Landlord with all tenants of the Coronado Property.
2. TRANSFER CONSIDERATION. In consideration for the transfer by Transferor
of the Coronado Property as set forth above, Operating Partnership shall issue
to new transferor the number of units of Transferor (the "OP Units") set forth
in the column labeled "Consideration" on "Exhibit B" attached hereto, and as set
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forth in the amended Exhibit "A" to the Partnership Agreement of Operating
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Partnership ("OP Agreement").
3. CLOSING.
3.1 Conditions Precedent. The obligations of Transferor to effect the
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transactions contemplated hereby shall be subject to the following additional
conditions:
(a) Each of the obligations of Operating Partnership to be performed by
it shall have been duly performed by it on or before the Closing Date:
(b) Concurrently with the Closing, Operating Partnership shall have
executed and delivered to each Transferor the documents required to be delivered
pursuant to Section 3.3 hereof;
(c) Operating Partnership shall not have breached any of its covenants
contained herein in any material respect;
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(d) No order, statute, rule, regulation, executive order, injunction,
stay, decree or restraining order shall have been enacted, entered, promulgated
or enforced by any court of competent jurisdiction or governmental or regulatory
authority or instrumentality that prohibits the consummation of the transactions
contemplated hereby, and no litigation or governmental proceeding seeking such
an order shall be pending or threatened; and
(e) There shall not have occurred between the date hereof and the
Closing Date any material adverse change in Operating Partnership's business:
The foregoing conditions may be waived by Transferor in its sole and
absolute discretion.
The obligations of Operating Partnership to effect the transactions
contemplated hereby shall be subject to the following additional conditions:
(i) The representations and warranties of Transferor contained in this
Agreement shall have been true and correct in all material respects on the date
such representations and warranties were made, and shall be true and correct in
all material respects on the Closing Date as if made at and as of such date;
(ii) Each of the obligations of Transferor to be performed by it shall
have been duly performed by such Transferor on or before the Closing Date;
(iii) Concurrently with the Closing, Transferor shall have executed and
delivered to the Operating Partnership the documents required to be delivered
pursuant to Section 3.3 hereof;
(iv) Transferor shall not have breached any of its covenants contained
herein in any material respect;
(v) No order, statute, rule, regulation, executive order, injunction,
stay, decree or restraining order shall have been enacted, entered, promulgated
or enforced by any court of competent jurisdiction or governmental or regulatory
authority or instrumentality that prohibits the consummation of the transactions
contemplated hereby, and no litigation or governmental proceeding seeking such
an order shall be pending or threatened; and
(vi) There shall not have occurred between the date hereof and the
Closing Date any material adverse change in the Coronado Property or the
business of Transferor.
The foregoing conditions may be waived by Operating Partnership in its
sole and absolute discretion.
3.2 Time and Place. Provided that all conditions precedent set forth
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in Section 3.1 hereof are satisfied in full (or waived by Transferor, as to its
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conditions precedent, and/or Operating Partnership, as to its conditions
precedent), the Closing shall occur on December 31, 1996 (the "Closing Date").
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3.3 Closing Items. With respect to the Coronado Property, the following
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documents:
(a) A grant deed by Transferor for the Coronado Property, in
substantially the form of Exhibit "C" attached hereto (the "Deed").
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(b) A Xxxx of Sale by Transferor for all of the Personal Property with
respect to the Coronado Property in substantially the form of Exhibit "D"
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attached hereto.
(c) A commitment to issue an ALTA Owner's 1970 form Extended Coverage
policy of title insurance to be issued as of the Closing Date for the Coronado
Property, which Transferor shall cause to be issued to Operating Partnership in
form acceptable to Operating Partnership (the "Title Policy").
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(d) Books and records of the Coronado Property
(e) An affidavit from Transferor, stating under penalty of perjury,
Transferor's United States Taxpayer Identification Number and that Transferor is
not a foreign person pursuant to Section 1445(b)(2) of the United States
Internal Revenue Code of 1986, as amended (the "Code").
(f) An assignment of all of Transferor's interest in the Leases.
3.4 Failure of Closing to Occur. If, for any reason, the Closing does not
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occur on or before January 15, 1999, this Agreement will terminate, and any and
all rights or obligations hereunder shall cease and no longer be binding on the
parties hereto and no party shall thereafter have any liability or obligation
hereunder to any other party.
4. REPRESENTATIONS AND WARRANTIES
4.1 Represenations and Warranties of Operating Partnership to Transferor.
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Operating Partnership hereby represents and warrants to and covenants with
Transferor that:
(a) Operating Partnership has been duly formed and is validly existing
with requisite power to enter into this Agreement and all agreements
contemplated hereby;
(b) Operating Partnership is not a foreign corporation, foreign
partnership, foreign trust or foreign estate (as defined in the Code), and is,
therefore, not subject to the provisions of Sections 897(a) or 1445 of the Code
related to the withholding of sales proceeds to foreign persons. Operating
Partnership shall execute at Closing such certificates or affidavits reasonably
necessary to document the inapplicability of the Code sections referred to
above;
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(c) The Persons and entitles executing this Agreement and all
agreements contemplated hereby or, behalf of Operating Partnership have the
power and authority to enter into this Agreement and such other contemplated
agreements; and
(d) The execution, delivery end performance by Operating Partnership of
its obligations under this Agreement and all agreements contemplated hereby will
not contravene any provision of applicable law, the Partnership Agreement of
Operating Partnership, charter, declaration or trust or other constituent
document of Operating Partnership, or any agreement or other instrument binding
upon Operating Partnership or any judgment, order or decree of any governmental
body, agency or court having jurisdiction over Operating Partnership, and no
consent, approval, authorization or order of or qualification with any
governmental body or agency is required for the performance by Operating
Partnership of its obligations under this Agreement and all other agreements
contemplated hereby.
4.2 Representations and Warranties of Transferor. Transferor represents and
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warrants to, and covenants with, Operating Partnership as provided in Exhibit
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"E" attached hereto, and acknowledges and agrees to be bound by the
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indemnification provisions contained therein.
5. COVENANTS OF TRANSFEROR.
(a) Transferor hereby covenants for the benefit of Operating Partnership
that, from the date hereof through the Closing, Transferor shall conduct the
business of the Coronado Property in the ordinary course, consistent with past
practice, and shall not:
(i) Enter into any material transaction not in the ordinary course of
business with respect to the Coronado Property;
(ii) Sell or transfer all or any portion of the Coronado Property;
(iii) Mortgage, pledge or encumber (or permit to become encumbered) all
or any portion of the Coronado Property, except (w) liens incurred in the
ordinary course of Transferor's business, (x) liens for taxes not due, (y)
purchase money security interests and (z) mechanic's liens being disputed by
Transferor in good faith and by appropriate proceedings; or
(iv) Amend, modify or terminate any material agreements or other
instruments relating to the Coronado Property
(b) Transferor hereby covenants for the benefit of Operating Partnership
that such Transferor shall use its best efforts to obtain any approvals,
waivers, or other consents of third parties required to effect the transactions
contemplated by this Agreement.
6. CONSENT OF LENDER. Transferor and Operating Partnership hereby agree to
take all actions reasonably necessary to obtain the consent of GMAC Commercial
Mortgage
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Corporation ("Lender") to the transactions described herein, including but not
limited to the execution by Operating Partnership or its general partner of
guaranties sufficient in form and content to cause Lender to release Xxxxxx
Xxxxxxxx and Xxxxxx X. Xxxxxxxx from their personal liabilities with respect to
Lender's loan. Operating Partnership further agrees to pay all costs and
expenses of Transferor in connection with the processing and obtaining of the
consent and to reimburse Transferor of costs incurred by Transferor in obtaining
the loan from Lender in an amount not exceeding one hundred thousand Dollars
($100,000).
7. FURTHER ASSURANCES. Transferor shall take such other actions and execute
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such other documents following the Closing as Operating Partnership may
reasonably request in order to effect the transactions contemplated hereby.
8. HOLD HARMLESS. Operating Partnership hereby agrees to indemnify, defend,
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protect and hold harmless Transferor from and after the Closing Date with
respect to any and all claims, liabilities, causes of action, damages, costs and
expenses, including without limitation, reasonable attorneys' fees, incurred by
a Transferor as a result of any claims pertaining to the ownership or operation
of the Property by Operating Partnership after the Closing Date.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of
the day and year first above written.
OPERATING PARTNERSHIP: TRANSFEROR:
G&L REALTY PARTNERSHIP, L.P. G&L CORONADO LLC
a Delaware limited partnership a California limited liability company
By: G&L REALTY CORP. By: CORONADO MANAGERS CORP.
a Maryland Corporation a Delaware Corporation
General partner Manager
By /s/ Xxxxxx X. Xxxxxxxx By /s/ Xxxxxx X. Xxxxxxxx
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Name Name
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Title Title
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EXHIBIT "A"
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LEGAL DESCRIPTION OF REAL PROPERTY
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Exhibit A
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All or Block 10 of Coronado Beach, South Island, in the City of Coronado,
County of San Diego, State of California, according to Map thereof No. 376,
filed in the Office of the County Recorder of San Diego County, November 12,
1886, more particularly described as follows:
Beginning at the most northerly corner of said Block 10, said corner being on
the arc of a curve concave northwesterly and having a radius of 508.34 feet, a
radial line to said point bears South 63(degree)33'48" East; thence
southwesterly, along the northwesterly line of Block 10, along the arc of said
curve, through a central angle of 38(degree)28'18", 341.33 feet to a point on a
curve concave northerly and having a radius of 925.37 feet, a radial line to
said point bears South 4(degree)16'0l" East; thence easterly, along the
southerly line of Block 10, along the arc of said curve, through a central angle
of 14(degree)31'58", 234.72 feet to a point of reverse curve with a curve
concave southerly and having a radius of 508.34 feet, a radial line to said
point bears North 18(degree)47'59" West; thence easterly along the southerly
line of Block 10, along the arc of said curve, through a central angle of
13(degree)44'01", 121.85 feet to a point on a curve concave northeasterly, and
having a radius of 548.34 feet, a radial line to said point bears Xxxxx
00(xxxxxx)00'00" Xxxx; thence northwesterly, along the northeasterly line of
Block 10, along the arc of said curve, through a central angle of
20(degree)30'10", 196.22 feet to the point of beginning.
EXHIBIT "B"
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CONSIDERATION
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G&L Realty Corporation
Calculation of Units to be Issued for Coronado Purchase
As of December 31, 1998
OP Unit Price 14.87000
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G&L Consideration $ 2,000,000.00
Divided by OP Unit Price 14.87000
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Total Number of Units to be Issued 134,499
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OP Unit Allocation
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G&L Coronado Managers Corp. (1%) 1,345
Xxxxxx X. Xxxxxxxx (29.7%) 39,946
Xxxxxx X. Xxxxxxxx (69.3%) 93,208
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Total Number of Units to be Issued 134,499
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G&L Coronado Managers Corp. Allocation
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Xxxxxx X. Xxxxxxxx (30%) 403
Xxxxxx X. Xxxxxxxx (70%) 941
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Total 1,345
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Total Units for Xxx & Xxxxx
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Xxxxxx X. Xxxxxxxx 40,350 14.87000 600,000.00
Xxxxxx X. Xxxxxxxx 94,149 14.87000 1,400,000.00
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Total 134,499
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EXHIBIT "C"
GRANT DEED
RECORDING REQUESTED BY |
|
AND WHEN RECORDED MAIL THIS DEED AND, |
UNLESS OTHERWISE SHOWN BELOW, MAIL TAX |
STATEMENTS TO: |
|
NAME |
ADDRESS |
|
CITY & |
STATE |
ZIP |
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GRANT DEED
* The undersigned Grantor
declares that Documentary
Transfer Tax is not part of
the public records.
The undersigned declares that the documentary transfer tax is $_______ * and is
[ ] computed on the full value of the interest or property conveyed, or is
[ ] computed on the full value less the value of liens or encumbrances remaining
thereon at the time of sale.
The land, tenements or realty is located in [_] unincorporated area [X] the
City of _____________, and
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged
_____________________________
hereby GRANT(S) to
_____________________________
the following described real property in the county of _____________, State of
California:
SEE EXHIBIT "A" ATTACHED HERETO AND INCORPORATED HEREWITH
Dated _______________________ _______________________________________
State of California )
) ss.
County of Los Angeles )
On ___________ 1998, before me, the undersigned Notary Public, personally
appeared _________________, personally known to me (or proved to me on the basis
of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized capacity(ies), and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
_______________________________________
(Signature of Notary)
(Seal of Notary)
EXHIBIT "D"
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XXXX OF SALE
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This XXXX OF SALE is made as of December 31, 1998, by G&L CORONADO LLC, a
Delaware limited liability company ("Transferor") in favor of G&L CORONADO
(1998) LLC, a Delaware limited liability company ("Transferee").
FOR VALUE RECEIVED, receipt of which is hereby acknowledged, Transferor
does hereby sell, convey, assign, transfer and set over unto Transferee,
absolutely and not as security, free and clear of all liens and encumbrances,
all of Transferor's right, title and interest in and to the personal property
and equipment located on the property described on Exhibit A attached hereto and
incorporated herein by reference. The foregoing sale, conveyance, assignment,
transfer and setting over of the personal property by Transferor to Transferee
is made without any representation or warranty with respect to the condition
thereof. TRANSFEREE ACKNOWLEDGES THAT THE PERSONAL PROPERTY AND EQUIPMENT
DESCRIBED HEREIN IS DELIVERED IN ITS AS, WHERE IS CONDITION WITHOUT WARRANTY OF
FITNESS OR MERCHANTABILITY, EXPRESS OR IMPLIED.
"TRANSFEROR"
G&L CORONADO LLC
a California limited liability company
By: CORONADO MANAGERS CORP.,
A Delaware corporation
Manager
By________________________________
Xxxxxx X. Xxxxxxxx, Secretary
"TRANSFEREE"
G&L CORONADO (1998) LLC
a Delaware limited liability company
By: CORONADO MANAGEMENT CORP.
a California corporation
Manager
By________________________________
Xxxxxx Xxxxxx, Secretary
EXHIBIT "E"
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REPRESENTATIONS AND WARRANTIES
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Transferor represents and warrants to Operating Partnership ("Transferee")
that the following matters are true and correct as of the execution of this
Agreement and will also be true and correct as of the Closing as if made on the
date thereof.
1.1 Organization: Authority. Transferor is duly formed, validly existing
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and in good standing (to the extent applicable) under the laws of its
jurisdiction of formation, and qualified to do business under the laws of the
State of California.
1.2 Due Authorization. The execution, delivery and performance of this
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Agreement by Transferor has been duly and validly authorized by all necessary
action of such party. This Agreement has been duly executed and delivered by
Transferor and constitutes a legal, valid and binding obligation of such party,
enforceable against each such party in accordance with its terms, as such
enforceability may be limited by bankruptcy or the application of equitable
principles.
1.3 Consents and Approvals. No consent, waiver, approval or authorization
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of any third party is required to be obtained by Transferor in connection with
the execution, delivery and performance of this Agreement and the transactions
contemplated hereby, except any of the foregoing that shall have been satisfied
prior to the Closing Date.
1.4 No Violation. None of the execution, delivery or performance of this
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Agreement and the transactions contemplated hereby does or will, with or without
the giving of notice, lapse of time, or both, (i) violate, conflict with, result
in a breach of, or constitute a default under or give to others any right of
termination or cancellation of (A) the organizational documents, including the
charters any bylaws, if any, of Transferor, (B) any material agreement, document
or instrument to which any Transferor is party or by which they or the Property
are bound or (C) any term or provision of any judgment, order, writ, injunction,
or decree of any governmental or regulatory authority binding on Transferor or
by which they or any of their assets or properties are bound or subject or (ii)
result in the creation of any lien upon the Property other than permitted liens.
1.5 Ownership of the Property. Tranferor is the sole lawful owner of record
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and beneficial owner of the Property or portion thereof identified on Exhibit
"A" to the Agreement and has good, valid and marketable title to such Property
free and clear of all liens other than permitted liens.
1.6 Non-foreign Status. Tranferor is not a foreign corporation, foreign
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partnership, foreign trust or foreign estate (as defined in the Code), and is,
therefore, not subject to the provisions of Sections 897(a) or 1445 of the Code
related to the withholding of sales proceeds to foreign persons. Transferor
shall execute at Closing such certificates or affidavits reasonably necessary to
document the inapplicability of the Code sections referred to above.
1.7 Investment Purposes. Transferor understands that the offering and sale
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of the OP Units to be acquired pursuant to this Agreement are intended to be
exempt from registration under
the Securities Act of 1933, as amended (the "Act"). In furtherance thereof,
Transferor represents and warrants to Transferee as follows:
1.7.1 Investment. Transferor is acquiring the OP Units solely for
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Transferor's own account for the purpose of investment and not as a nominee
or agent for any other person and not with a view to, or for offer or sale
in connection with, any distribution of any thereof except to its member.
Except as otherwise provided in the OP Agreement, Transferor agrees and
acknowledges that Transferor will not, directly or indirectly, offer,
transfer, sell, assign, pledge, hypothecate or otherwise dispose of
(hereinafter, "Transfer") any of the OP Units unless such Transfer complies
with the OP Agreement and either (i) the Transfer is pursuant to an
effective registration statement under the Act and the rules and
regulations in effect thereunder and qualification or other compliance
under applicable blue sky or state securities laws, or (ii) counsel for
Transferor (which counsel shall be reasonably acceptable to Operating
Partnership) shall have furnished Operating Partnership with an opinion,
reasonably satisfactory in form and substance to Operating Partnership, to
the effect that such registration is required because of the availability
of an exemption from registration under the Act and qualification or other
compliance under applicable blue sky or state securities laws.
1.7.2 Knowledge. Transferor is knowledgeable sophisticated and
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experienced in business and financial matters; Transferor, or its members,
has previously invested in OP Units and fully understands the limitations
on transfer described in this Agreement and the OP Agreement. Transferor is
able to bear the economic risk of holding investment in the OP Units;
Transferor has received and reviewed the Company's registration statement
filed with the Securities and Exchange Commission on Form 5-11, and has
been given the opportunity to obtain any additional information or
documents and to ask questions and receive answers about such documents,
Operating Partnership and the Company and the business and prospects of
Operating Partnership and the Company which Transferor deems necessary to
evaluate the merits and risks related to his, her or its investment in the
OP Units; and Transferor understands and has taken cognizance of all risk
factors related to the purchase of the OP Units.
1.7.3 Holding Period. Transferor acknowledges that he, she or it has
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been advised that (i) the OP Units must be held indefinitely, and
Transferor must continue to bear the economic risk of the investment in the
OP Units unless they are subsequently registered under the Act or an
exemption from such registration is available, (ii) it is not anticipated
that there will be any public market for the OP Units, (iii) Rule 144
promulgated under the Act is not available with respect to the sale of any
securities of Operating Partnership, and Operating Partnership has made no
covenant to make such Rule available, (iv) a restrictive legend in the form
hereafter set forth shall be placed on the certificates or instruments
representing the OP Units, and (vi) a notation shall be made in the
appropriate records of Operating Partnership indicating that the OP Units
are subject to restrictions on transfer.
1.7.4 Exchange for Common Stock. Transferor also acknowledges that (i)
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the exchange of OP Units into shares of Common Stock, and the put of OP
Units to the
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Company for cash, are subject to certain substantial restrictions contained
in the Op Agreement; and (ii) the Common Stock which may be received upon
such an exchange may, under certain circumstances, be restricted securities
and be subject to limitations as to transfer, and therefore subject to the
risks referred to in paragraph 1.7.2 above.
1.7.5 Accredited Investor. If Transferor is an individual, such
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Transferor is an "accredited investor" (as such term is defined in Rule
501(a) of Regulation D under the Act) and as such:
(i) has an individual net worth, or Joint net worth with his
spouse, in excess of $1,000,000; or
(ii) had an Individual annual adjusted gross income in excess of
$200,000 in each of the two most recent years and reasonably expects
to have annual adjusted gross income In excess of $200,000 in the
current year; or
(iii) had a joint income with his spouse in excess of $300,000 in
each of the two most recent years and reasonably expects to have an
annual adjusted gross income, with his spouse, in excess of $300,000
in the current year.
If Transferor is not an individual, Transferor is an "accredited
investor" (as such term is defined in Rule 501(a) of Regulation D under the
Act).
1.7.6 Legending. Each certificate or Instrument representing OP Units
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shall bear the following legend:
"THE OP UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE
TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE
DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF A
PARTNERSHIP AGREEMENT AS OF NOVEMBER 15, 1993 (A COPY OF WHICH IS ON
FILE WITH THE OPERATING PARTNERSHIP). EXCEPT AS OTHERWISE PROVIDED IN
SUCH AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION
OR OTHER DISPOSITION OF THE OP UNITS REPRESENTED BY THIS CERTIFICATE
MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT), OR (B) IF THE
OPERATING PARTNERSHIP HAS BEEN FURNISHED WiTh A SATISFACTORY OPINION
OF COUNSEL FOR THE HOLDER THAT SUCH TRANSFER, SALE, ASSIGNMENT PLEDGE,
HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF
SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS IN EFFECT
THEREUNDER."
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1.8 No Other Right to Acquire the Property. Transferor is not a party to
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any contract or agreement other than this Agreement whereby it has granted to
anyone an absolute or contingent right to purchase, obtain or acquire any rights
in any of the Property.
1.9 Brokers or Finders. There is no broker or finder involved on behalf of
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Transferor in connection with the purchase of the Property contemplated by this
Agreement.
1.10 Hazardous Substances. To the best of Transferor's actual knowledge,
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the Property (including the improvements and land) is free of any and all
Hazardous Substances and Transferor has not knowingly disposed of any Hazardous
Substances on the Property. A "Hazardous Substance", for purposes of this
Agreement is defined as any substance whose nature or quantity of existence,
use, manufacture, disposal or effect, renders it subject to Federal, State or
local regulation, investigation, remediation, or removal as potentially
injurious to public health or welfare.
1.11 Documents. The documents and materials to be delivered by Transferor
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to Operating Partnership pursuant to this Agreement are true and correct and the
information contained therein is accurate.
1.12 Compliance with Laws. Transferor has no actual notice of a condition
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on the Property or any part of it which fails to comply with any applicable
laws, building codes or zoning regulations and which has not been cured, nor
does Transferor have any actual knowledge of any unfulfilled order or directive
of any applicable governmental agency or casualty insurance company that any
work of investigation, remediation, repair, maintenance or improvement is to be
performed on the Property.
1.13 Pending Litigation. There are no actions, suits or proceedings pending
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or threatened before any commission, board, bureau, agency, instrumentality,
arbitrator, court or tribunal that would adversely affect the Property or the
right to occupy or utilize same.
1.14 Fee Title. Transferor is the fee owner of the Property and has good
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and marketable title thereto, free and clear of all liens, claims, and mortgagee
whatsoever, except only the mortgages, easements, agreements, liens, and
encumbrances set forth in the preliminary title report, and the tenancies and
occupancies disclosed herein. Currently, there are not any encroachments onto
the Property or by the improvements onto any adjoining property, except as may
be shown on the ALTA survey.
1.15 Tenant Leases. The Property shall be sold subject to existing
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tenancies, leaseholds and occupancies. Transferor shall be deemed to have
warranted that the tenant leases are in full force and effect, there exists no
event of default thereunder and Transferor knows of no fact or event that, with
the giving of notice and/or the passage of time, would render it in default as
landlord thereunder. In addition, the tenant leases will not, as of the Closing,
have been modified or amended verbally, by course of conduct, or in writing.
There are no prepayments of rent under the tenant leases other than security
deposits for the account of tenants and there are no agreements, written or
oral, with any of such tenants to purchase the Property.
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1.16 Service Agreements. No notice of default has been received from any of
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the parties to the service agreements and to the best of Transferor's knowledge
no event has occurred that, with notice or lapse of time, or both, would
constitute any such default, and each of such agreements is in full force and
effect. Such agreements constitute all agreements affecting the leasing,
management operation, maintenance, and repair of the Property.
1.17 Occupancy Right. There are no leases, licenses, or other agreements
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permitting, nor has Transferor entered into any course of conduct that would
permit, any person or entity to occupy any portion of the Property or otherwise
affecting the Property or any part thereof other than as permitted under the
tenant leases.
1.18 Commitments. Transferor has made no commitment to any tenant,
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governmental, or quasi-governmental entity or other person or entity which
commitment relates to the Property or imposes upon Transferor or the successors
or assigns of Transferor any obligation to pay or contribute property or money
or to construct, install, or maintain any Improvements on or off the Property.
1.19 Utilities. All utilities necessary to service the Property will be
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available to the Property at the Closing without the consent of any other person
firm, or corporation and without expanses (other than normal end usual security
deposits or bonds) to Operating Partnership, and Transferor has complied with
all laws, ordinances, and regulations relating to the delivery of such services
and payment therefor.
1.20 Access. To the best of Transferor's knowledge, there are no facts or
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conditions that will result in the termination of the present access from the
Property to any utility services or to existing highways and roads.
1.21 Employees. Except for persons Who shall remain employees of Transferor
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after the Closing, them are no other persons employed either full-time or
part-time exclusively or primarily to service the Property, and Transferor is
not a party to, or otherwise bound by, any other collective bargaining agreement
or multi-employer pension fund covering employees who service the Property.
1.22 Condition of Property. To the best of Seller's knowledge, there are no
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latent or structural defects, hidden or otherwise, in the construction of the
improvements, or in the heating, ventilating, air-conditioning, electrical, end
plumbing systems, and the same are in good and proper working order, the
improvements are in good physical condition, and there is no subsurface soil
condition that has caused, or is currently causing, material structural damage
to the improvements.
1.23 Survival of Representations and Warranties. The representations and
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warranties of Seller shall survive the Closing and the delivery of the Grant
Deed.
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