SECURITIES PURCHASE AGREEMENT
THIS SECURITIES PURCHASE AGREEMENT (the "AGREEMENT) between LF
Strategic Realty Investors II L.P., a Delaware limited partnership (the
"SELLER"), and LFSRI II-CADIM Alternative Partnership L.P., a Delaware limited
partnership (the "PURCHASER").
RECITALS
A. The Seller owns the assets listed on Schedule A (the
"SECURITIEs").
B. The Purchaser is willing to purchase from the Seller, and the
Seller is willing to sell to the Purchaser, the Securities, on the terms set
forth herein.
AGREEMENT
In consideration of the foregoing, and the representations,
warranties, covenants and conditions set forth herein, the parties hereto,
intending to be legally bound, agree as follows:
I. PURCHASE OF SECURITIES
1.1. Purchase of Securities. Subject to all of the terms
and conditions of this Agreement, the Seller agrees to sell, convey, transfer,
assign and deliver to the Purchaser, and the Purchaser agrees to purchase and
accept from the Seller, all of the Securities, free and clear of any and all
claims, liens, pledges, options, charges, encumbrances or other rights or
interests of third parties of any kind (collectively, "ENCUMBRANCES").
1.2. Consideration for Securities. As consideration for the
purchase of the Securities, the Purchaser shall pay to the Seller the purchase
price listed on Schedule A (the "PURCHASE PRICE").
II. PURCHASER'S REPRESENTATIONS AND WARRANTIES
The Purchaser makes the following representations and warranties to
the Seller:
2.1. Organization. The Purchaser is a limited partnership
duly formed, validly existing and in good standing under the laws of the State
of Delaware.
2.2. Authorization. The Purchaser has the necessary
partnership power and authority to enter into this Agreement and has taken all
partnership action necessary to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to perform its obligations
hereunder, and no other partnership proceedings on the part of the Purchaser are
necessary to authorize the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby. This Agreement has
been duly executed
and delivered by the Purchaser and is a valid and binding obligation of the
Purchaser, enforceable against it in accordance with its terms, except to the
extent that enforcement may be limited by (a) the effect of bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium or other similar
laws now or hereafter in effect relating to or affecting the rights and remedies
of creditors and (b) the effect of general principles of equity, whether
enforcement is considered in a proceeding in equity or at law, and the
discretion of the court before which any proceeding therefor may be brought.
2.3. Consents and Approvals. No consent, approval or
authorization of, or declaration, filing or registration with, any United States
federal or state governmental or regulatory authority is required to be made or
obtained by the Purchaser in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
2.4. No Conflict or Violation. Neither the execution,
delivery and performance of this Agreement, nor the consummation of the
transactions contemplated hereby, by the Purchaser will (a) violate the
organizational documents of the Purchaser or (b) violate any applicable law,
rule, regulation, judgment, injunction, order or decree binding upon or
applicable to the Purchaser.
III. SELLER'S REPRESENTATIONS AND WARRANTIES
The Seller makes the following representations and warranties to the
Purchaser:
3.1. Ownership. The Seller owns (of record and
beneficially) the Securities free and clear of all Encumbrances.
3.2. Organization. The Seller is a limited partnership duly
formed, validly existing and in good standing under the laws of the State of
Delaware.
3.3. Authorization. The Seller has the necessary
partnership power and authority to enter into this Agreement and has taken all
partnership action necessary to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to perform its obligations
hereunder, and no other partnership proceedings on the part of the Seller are
necessary to authorize the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby. This Agreement has
been duly executed and delivered by the Seller and is a valid and binding
obligation of the Seller, enforceable against it in accordance with its terms,
except to the extent that enforcement may be limited by (a) the effect of
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other
similar laws now or hereafter in effect relating to or affecting the rights and
remedies of creditors and (b) the effect of general principles of equity,
whether enforcement is considered in a proceeding in
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equity or at law, and the discretion of the court before which any proceeding
therefor may be brought.
3.4. Consents and Approvals. No consent, approval or
authorization of, or declaration, filing or registration with, any United States
federal or state governmental or regulatory authority is required to be made or
obtained by the Seller in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
3.5. No Conflict or Violation. Neither the execution,
delivery and performance of this Agreement, nor the consummation of the
transactions contemplated hereby, by the Seller will (a) violate the
organizational documents of the Seller or (b) violate any applicable law, rule,
regulation, judgment, injunction, order or decree binding upon or applicable to
the Seller.
IV. COVENANTS
4.1. Agreement to Comply. The parties agree that they shall
use all reasonable efforts to take, or cause to be taken, all actions and to do,
or cause to be done, all things necessary or advisable to consummate and make
effective the transactions contemplated hereby in accordance with the terms
hereof, including, without limitation, such actions or things as may be required
pursuant to the terms of the respective parties organizational documents.
V. MISCELLANEOUS
5.1. Notices. All notices and other communications required
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been given if delivered personally or sent by certified mail,
return receipt requested, postage prepaid, to the parties to this Agreement at
the following address or to such other address as either party to this Agreement
shall specify by notice to the other:
if to Seller, to it in care of:
c/o Lazard Freres Real Estate Investors L.L.C.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
if to Purchaser, to it in care of:
c/o Lazard Freres Real Estate Investors L.L.C.
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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with a copy to:
Xxxxxx & Xxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
All such notices and communications shall be deemed to have been received on the
date of delivery or on the third business day after the mailing thereof.
5.2. Binding Effect; Benefits. This Agreement shall be
binding upon and inure to the benefit of the parties to this Agreement and their
respective successors and assigns. Nothing in this Agreement, express or
implied, is intended or shall be construed to give any person other than the
parties to this Agreement or their respective successors or assigns any legal or
equitable right, remedy or claim under or in respect of any agreement or any
provision contained herein.
5.3. Waiver. Any party hereto may by written notice to the
other parties (a) extend the time for the performance of any of the obligations
or other actions of the other under this Agreement; (b) waive compliance with
any of the conditions or covenants of the other contained in this Agreement; and
(c) waive or modify performance of any of the obligations of the other parties
under this Agreement. Except as provided in the preceding sentence, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained herein. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any preceding or -succeeding breach and no failure by
any party to exercise any right or privilege hereunder shall be deemed a waiver
of such party's rights or privileges hereunder or shall be deemed a waiver of
such party's rights to exercise the same at any subsequent time or times
hereunder.
5.4. Amendment. This Agreement may be amended, modified or
supplemented only by a written instrument executed by each of the parties
hereto.
5.5. Assignability. Neither this Agreement nor any right,
remedy, obligation or liability arising hereunder or by reason hereof shall be
assignable by any party hereto without the prior written consent of the other
parties.
5.6. Limited Liability of Partners. Notwithstanding any
other provision of this Agreement, (a) the obligations of the Purchaser and the
Seller under this Agreement shall be without recourse to their respective
general and/or limited partners and shall be limited in all events to the assets
of the Purchaser and the Seller, respectively, and (b) neither the general
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partners nor the limited partners nor any future general or limited partner of
the Purchaser or the Seller shall have any personal liability for performance of
any obligation of the Purchaser or the Seller, respectively, under this
Agreement.
5.7. Applicable Law. This Agreement shall be governed by
and construed in accordance with the laws of New York.
5.8. Section and Other Headings. The section and other
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.
5.9. Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original and all
of which together shall be deemed to be one and the same instrument.
5.10. Effective Date. This Agreement shall be deemed
effective as of March 24, 1998 as if the transactions contemplated hereby
occurred on that date. Notwithstanding the previous sentence, the purchase of
American Apartment Communities III, Inc. shall be effective as of March 24, 1998
upon (a) the Purchaser's assumption of its PRO RATA share (based on its
percentage of American Apartment Communities III, Inc. listed on Schedule A) of
all of the obligations and liabilities of Seller under (i) the Agreement to Make
Capital Contributions, dated as of December 22, 1997, by Seller to American
Apartment Communities III, L.P. and AAC Management LLC and (ii) the Consent and
Agreement, dated as of December 22, 1997, between Seller and Nations Bank, N.A.,
and (b) NationsBank N.A. consent to such assumption.
[signature page follows]
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IN WITNESS WHEREOF, the following parties have executed this
Agreement.
Dated: August 1, 1998 LF Strategic Realty Investors II L.P.
By: Lazard Freres Real Estate Investors L.L.C.,
its general partner
By: /s/ Xxxxx Xxxxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxxx
Principal
LFSRI II-CADIM Alternative Partnership L.P.
By: Lazard Freres Real Estate Investors L.L.C.,
its general partner
By: /s/ Xxxxx Xxxxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxxx
Principal
SCHEDULE A
Securities Purchased
Purchase Price
(Dated as of March 24, 1998)
1. Prometheus Southeast Retail LLC 3.4602% Membership Interest
2. Prometheus Homebuilders LLC 3.4602% Membership Interest
3. Prometheus Senior Quarters LLC 3.4602% Membership Interest
4. Prometheus Assisted Living LLC 3.4602% Membership Interest
5. American Apartment Communities III, Inc. 3.4602% of Common Shares
6. Prometheus Mid-Atlantic Investors Trust 1.7301% of Common Shares
Purchase Price $11,177,666
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