STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (the "Agreement") is made and entered into
to be effective as of June 16, 1998 (the "Effective Date") by and between DA
Group Holdings Inc. (the "Seller") and Anterra Property Investors VIII, Inc.
(the "Purchaser").
RECITALS
The Seller currently owns all 1,000 shares of the common stock which
are issued and outstanding at $1.00 par value per share (collectively, the
"Shares") of SM7 Apartment Investors, Inc., a Texas corporation (the
"Company"), which was formerly known as Shearson Apartment Investors XIV,
Inc.
The Purchaser is an affiliate of a general partner of Xxxxxxx
Partners VII, Ltd. ("Xxxxxxx").
The Company, Xxxxxxx and Xxxxxx Realty Investors VII, Inc. ("Xxxxxx")
are general partners of S/M Real Estate Fund VII, LTD., a Texas limited
partnership (formerly known as Xxxxxx Growth Properties VII, Ltd; the
"Partnership"), formed to invest in certain garden apartment complexes in the
Southwestern and Southern areas of the United States (the "Properties").
The Purchaser desires to purchase from the Seller, and the Seller
desires to sell to the Purchaser, the Shares on the terms and conditions set
forth herein. This purchase of the Shares includes the purchase of all
rights, title, and interests of the Seller in the name "SM7 Apartment
Investors, Inc."
AGREEMENT
In consideration of the mutual covenants and agreements here inafter set
forth, the parties to this Agreement agree as follows:
1. Sale and Purchase of the Shares. Subject to the terms and conditions
set forth in this Agreement, the Seller agrees to sell to the Purchaser, and
the Purchaser agrees to purchase from the Seller, the Shares at a price
of $30 per share for total consideration of $30,000 (the "Consideration")
payable at Closing (as herein defined).
2. Closing; Delivery; Voting Rights.
(a) The Closing. The closing of the purchase and sale of the Shares
pursuant to this Agreement (the "Closing") shall be effective as of June 16,
1998 (the "Closing Date").
(b) Delivery. At the Closing, the Seller shall cause to be delivered to
the Purchaser the following documents;
(i) Shares. A certificate or certificates evidencing the Shares
with stock power duly endorsed to the Purchaser as of the Closing Date;
(ii) Certified Resolutions. A certified copy of the resolutions
of the Board of Directors of the Seller authorizing and approving the
consummation of the sale of Shares contemplated by this Agreement;
(iii) Articles; By-Laws. A copy of the By-Laws of the Company
certified by the Secretary of the Company, and a copy of the Articles of
Incorporation of the Company, together with a copy of the amendment
thereto, each with a copy of the certification by the Secretary of
State of Texas, and certified by the Secretary of the Company;
(iv) Incumbency Certificate. Incumbency certificates relating to
each person executing any document executed and delivered to Purchaser
pursuant to the terms hereof; and
(v) Other Documents. All other documents, instruments
or writings required to be delivered to Purchaser at or prior to the Closing
pursuant to this Agreement.
(c) Voting Rights. The Purchaser shall have full voting rights with
respect to the Shares following delivery thereof, and payment by Purchaser of
Consideration therefor.
3. Representations and Warranties .
(a) Title to Shares. The Seller represents that (i) the Seller is
the sole holder of record and beneficial owner of the Shares, and (ii) upon
delivery of the Shares to the Purchaser, and Purchaser's payment of
Consideration therefor, on the Closing Date, the Purchaser shall acquire
full legal and beneficial ownership of the Shares free of all claims.
(b) Sole Owner of All Shares. The Seller represents that (i) the
Seller is the sole holder of record and beneficial owner of all the issued
and outstanding shares of any class or series of the Company, including, but
not limited to, common stock, preferred stock, convertible securities and
options issued and outstanding, (ii) there are no options, rights to
purchase or first refusal rights regarding any shares of any class or series,
and (iii) upon delivery of the Shares to the Purchaser on the Closing Date,
the Purchaser shall own all the issued and outstanding shares of any
class or series of the Company.
(c) Corporate Powers. The Seller represents as follows:
(i) Organization. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Texas;
(ii) Power. The Company has all requisite power and authority to
carry on its business as and where such is now being conducted;
(iii) Qualification. The Company is duly licensed or qualified
to do business and is in good standing in New York; and
(iv) Subsidiaries. There are no subsidiaries of the Company.
(d) Organization of the Parties. The Seller represents that the
Seller is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware. The Purchaser represents that the
Purchaser is a corporation duly organized, validly existing and in good
standing under the laws of the State of Texas.
(e) Power of the Parties. The Seller represents that the Seller has
all requisite power and authority (corporate and other), licenses,
registrations, authorizations, consents, notices of intent, and approvals to
own shares of and operate the Company, including, without limitation, to
enter into this Agreement and any other documents and instruments to be
executed and delivered by the Seller pursuant hereto and to carry on the
transactions contemplated hereby and thereby. The Purchaser represents
that the Purchaser has all requisite power and authority, license,
registrations, authorizations, consents, notices of intent, and approvals to
enter into this Agreement and to carry on the transactions contemplated hereby
and thereby.
(f) Capacity of the Parties; Execution of Agreement. The Seller
and Purchaser each represents that (i) the execution and delivery of this
Agreement and any other documents and instruments to be executed and
delivered by the respective parties pursuant hereto and the consummation of
the transaction contemplated hereby and thereby have been duly authorized by
the Board of Directors of such respective parties, (ii) no other or further
corporate act or proceeding on the part of the respective parties is necessary
to authorize this Agreement or any other documents and instruments to be
executed and delivered by such respective parties pursuant hereto or the
consummation of the transaction contemplated hereby and thereby, and
(iii) this Agreement and any and all related instruments have been duly and
validly executed and delivered by respective parties and constitute
the legal, valid and binding agreements of such respective parties.
(g) Disclosure. The Seller and Purchaser each represents that no
representation or warranty made by the respective parties in this Agreement
contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements and facts contained
herein, in light of the circum stances in which they were made, not false or
misleading.
(h) Other Operations. The Seller represents that the Company's
only business is acting as a general partner for the Partnership.
(i) Litigation. The Seller represents that, except for that certain
litigation filed in the State of Delaware in which the Company, among
others, is named as defendant relating to actions or omissions to act of
Company or its affiliates (other than the Partnership) in its capacity as
general partner in violation of fiduciary duties and/or applicable common
law, and as selling agent in violation of any applicable securities laws
with respect to the offer and sale of the limited partnership interests of
the Partnership (the "Delaware Litigation"), there is no action, suit,
arbitration, proceeding or investigation pending or, to the best of the
Seller's knowledge, threatened against the Seller, the Company or any
parent, subsidiary or affiliate thereof, including, but not limited to, any
partnership or limited partnership (the "Affiliates") which would, in any
adverse way affect or encumber the Shares, including, but not limited to,
any action, suit, proceeding or investigation, pending or, to the best of
Seller's knowledge, threatened, which questions the validity of this
Agreement or the right of the Seller to enter into it, or which might
result in any adverse affect to the Seller's good and marketable title to the
Shares.
(j) Financial Statements. The Seller represents that attached as
Exhibit A are (i) the financial statements of the Company consisting of
balance sheets of the Company as of November 30, 1995, 1996, 1997 and the
Closing Date prepared in accordance with GAAP (the "Company Balance Sheets"),
which fairly represent the assets, liabilities and financial position and the
results of operations of the Company as of the respective dates indicated
therein; (ii) statements of income and expense of the Company for the years
ended November 30, 1995, 1996 and 1997 (the "Company I/E") (collectively,
the "Company Financial Statements"); (iii) the financial statements of the
Partnership consisting of balance sheet of the Partnership as of December 31,
1997 prepared in accordance with GAAP (the "Partnership Balance Sheet"),
which fairly represent the assets, liabilities and financial position and
the results of operations of the Partnership as of the date indicated
therein; and (iv) statements of income and expense of the Partnership for
the years ended December 31, 1997 (the "Partnership I/E") (collectively,
the "Partnership Financial Statements");
(k) Liabilities. Except as disclosed herein, the Seller represents
that the Company has no liabilities or obligations joint or individual
(whether absolute, accrued or contingent, and whether or not determined or
determinable), of a character which should be accrued, shown or disclosed on
the Company Financial Statements.
(l) No Violation of Agreement of the Partnership. The Purchaser and
the Seller represent that this Agreement, when duly executed and delivered
by the Purchaser and the Seller, respectively, and the consummation
of the transaction contemplated herein, shall not constitute a violation
of any portion of the Agreement of Limited Partnership of the
Partnership, amended as of June 6, 1983 and any subsequent amendments
thereto (collectively, the "Partnership Agreement"), including, but not
limited to Article XII-Retirement, Registration, Removal, Bankruptcy,
Insolvency, Dissolution, Insanity or Death of a General Partner. To be valid
and binding, the Purchaser and the Seller each represents that this Agreement
does not require the approval of the limited partners or any other general
partners of the Partnership.
(m) Conflicts. Except as disclosed herein, if any, the Seller
represents that, neither the execution and delivery of this Agreement, nor
the performance of the transaction contem plated hereby by the Seller, will
(i) result in the creation or imposition of any liens in favor of any third
party or entity upon any of the Shares or the Company; (ii) to the best
of Seller's knowledge, violate any law, statute, judgment, decree, order,
rule or regulation of any federal, state or local governmental entities
or municipality or subdivision thereof or any authority, department,
commission, board, bureau, agency, court or instrumentality applicable to
the Seller, the Company, or the Partnership; (iii) violate any corporate
document of the Company, including but not limited to the Articles
of Incorporation and the By-Laws; (iv) constitute an event which, to the best
of the Seller's knowledge, after notice or lapse of time or both, would
result in such violation, conflict, default, acceleration or creation or
imposition of any adverse claim with respect to the Shares, the Company,
or the Partnership; or (v) violate the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Securities Act of 1933 (the "Securities
Act") or applicable state securities and "Blue Sky" laws
(collectively, "Securities Laws").
(n) Tax Matters. Except as otherwise set forth herein, the Seller
represents that (i) all federal, state, foreign, county, local and other
tax returns required to be filed by or on behalf of Company have been timely
filed and the taxes thereon fully paid, directly or indirectly; (ii) the
Company has duly withheld and paid all taxes, if any, which they are
required to withhold and pay relating to salaries and other compensation
heretofore paid to the employees of the Company; (iii) to the best of its
knowledge, the Company and the Partnership have not received any notice of
underpayment of taxes or other deficiency which has not been paid and there
are outstanding no agreements or waivers extending the statutory period
of limitations applicable to any tax return or report required to have
been filed by the Company; and (iv) no deficiency or adjustment in respect
of any tax that was assessed against the Company or, to the best of its
knowledge, the Partnership that might result in a lien on any assets of the
Company or the Partnership, as applicable, remains unpaid and no claim,
assessment or audit is pending or threatened with respect to any tax whose
assessment might result in a lien on any of the assets of the Company or the
Partnership.
(o) Securities and Management Duties. The Purchaser will be solely
responsible for all filings and disclosures as required by Securities Laws or
other applicable laws as a result of and following these transactions with
respect to the Company, Partnership or the Properties, and Seller
shall have no responsibility relating thereto, including, without
limitation, filing any tax returns. In addition, Seller shall have no
further responsibility for any administrative or management duties with
respect to the Company, Partnership or the Properties subsequent to the
Closing Date, which shall be assumed by the Purchaser or its Affiliate.
Without limiting the generality of the foregoing, Seller shall have no
obligation with respect to any deficit of Company's general partner's
capital account relating to the Partnership whether accrued prior to, on
or following the Closing Date.
(p) Absence of Certain Changes. Except as otherwise set forth herein,
the Seller represents that (i) there has not been any material change in
the Company's accounting principles, practices or methods during the periods
covered in the attached Company Financial Statements, and (ii) the Company
has conducted its business only in the ordinary course of such business as set
forth Section 3 (h) above. The Seller and the Purchaser represent to
each other that, to the best of their respective knowledge, (1) there has
not been any material change in the Partnership Balance Sheet from the date
thereof till the Closing Date, (2) there has not been any material
change in the Partnership I/E from the date thereof till the Closing Date,
and (3) there has not been any material change in the Partnership's
liabilities from those represented in the Partnership Financial Statements.
(q) Books and Records. The Seller represents that the books of
account and other financial records of the Company are in all material
respects true, complete and correct, have been maintained in accordance with
good business practices and are accurately reflected in all material
respects in the Company Financial Statements.
(r) Partnership Cash. The Purchaser acknowledges that it has inspected
and accepted the books of account and other financial records of the
Partnership, including, without limitation, the level of unrestricted and
restricted cash and cash equivalents.
(s) Labor Matters. The Seller represents that the Company is not
party to, or bound by, any collective bargaining agreement, contract or
other agreement or understanding with a labor union or labor union
organization, there is no unfair labor practice or labor arbitration
proceeding pending or, to the knowledge of the Seller, threatened against
the Company relating to its business, and the employees of the Company, if
any, will not be employed by the Company after the sale of Shares to the
Purchaser.
(t) Related Party Transactions. The Seller represents that, to
the best of Seller's knowledge, there are no arrangements, agreements
or contracts entered into by the Company with (i) any consultant, and (ii)
any person who is an officer, director, partner or Affiliate of the Company,
any relative of any of the foregoing or any entity of which any of the
foregoing is an affiliate.
(u) Contracts and Commitments. The Seller represents that, except
as noted in Exhibit B, (i) there are no notes or other material obligations
of the Company ; (ii) there are no notes, debentures, bonds and other
evidence of indebtedness which are secured or collateralized by mortgages,
deeds of trust or other security interests in the assets of the Company; and
(iii) there are no commitments entered into by the Company which may result
in total payments or liability in excess of $100.
(v) Consents. The Seller and Purchaser each represents that (i) it
has obtained all consents required for this transaction to be duly and
validly executed and delivered by the respective parties and to constitute the
legal, valid and binding agreements of the each such party, enforceable against
said party in accordance with their respective terms; (ii) there are no
consents required for these Representations and Warranties of the respective
parties contained in this Section 3 to be true and correct in all material
respects; and (iii) it is not aware of any consents required under the
Partnership Agreement in connection with the sale of Shares hereunder.
(w) Investment Intent. The Purchaser represents and warrants to
Seller that the Shares are being acquired by the Purchaser solely for its
own account, for investment purposes only, and with no present intention of
distributing, selling or otherwise disposing of the Shares except in
accordance with applicable federal and state securities laws.
(x) Sophistication. The Purchaser represents and warrants to Seller
that the Purchaser is able to bear the economic risk of an investment in the
Shares and can afford to sustain a total loss on such investment, and
that the Purchaser has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of the
proposed investment and therefore has the capacity to protect its own
interests in connection with the purchase of the Shares.
(y) Illiquidity. The Purchaser understands that there is no public
market for the Shares and that there may never be such a public market, and
that even if a market develops, it may never be able to sell or dispose of
the Shares and may thus have to bear the risk of its investment for a
substantial period of time, or forever.
(z) Waiver by Xxxxxx Xxx ("FMNA"). The Purchaser represents
and warrants to Seller that Purchaser has obtained waiver by FMNA of any
fees regarding any loan to the Partnership which may otherwise result from
the transaction covered hereby ("FMNA Waiver").
(aa) Broker's and Finder's Fee. The Seller and Purchaser each
represents and warrants that it has not employed any broker, finder, advisor
or intermediary in connection with the transaction contemplated by this
Agreement that would be entitled to a broker's, finder's or similar fee
or commission in connection therewith.
4. Conditions to Obligations of the Purchaser. The obligation of the
Purchaser to purchase and pay for the Shares and the other obligations of the
Purchaser under this Agreement are subject to the fulfillment at or prior
to the Closing of the following conditions, any of which may be waived in
whole or in part in a writing executed by the Purchaser:
(a) Representations and Warranties. On the Closing Date, the
representations and warranties of the Seller set forth in this Agreement
shall be true and correct in all material respects.
(b) Performance. The Seller shall have performed and complied in
all respects with all material agreements, obligations and conditions
contained herein which were required to be performed or complied with by the
Seller prior to or at the Closing, including the delivery of the closing
documents specified in Section 2(b).
(c) Contemporaneous Transactions. Prior to or contemporan eously with
the Closing, the Seller shall sell the Shares to the Purchaser.
(d) Company Financial Statements. The Company Financial Statements
shall reflect $0 of total cash, assets, liabilities and equity as of the
Closing Date.
5. Conditions to the Obligations of the Seller. The obliga tions of the
Seller under this Agreement are subject to the fulfillment by the Purchaser,
at or prior to the Closing, of the following conditions, any of which may be
waived in whole or in part in a writing executed by the Seller:
(a) Representations and Warranties. On the Closing Date, the
representations and warranties of the Purchaser set forth in this Agreement
shall be true and correct in all material respects, which shall be
deemed reaffirmed as of such date, unless otherwise disclosed in writing to
Seller prior thereto.
(b) Performance. The Purchaser shall have performed and complied in
all respects with all material agreements, obliga tions and conditions
contained herein which were required to be performed or complied with by the
Purchaser prior to the Closing, and delivered a duly executed FMNA Waiver to
Seller prior to the Closing.
(c) Contemporaneous Transactions. Prior to or
contemporaneously with the Closing, the Purchaser shall have delivered the
Consideration to Seller.
6. Indemnification
(a) Indemnification by Seller. The Purchaser and the Seller agree
that the Seller shall promptly indemnify, defend and hold harmless the
Purchaser and the Company, all stockholders, officers and directors thereof
(collectively, the "Investor Group"), from and against all damages, losses
and reasonable out-of-pocket expenses (including, but not limited to,
attorneys' fees, court costs, statutory damages, pecuniary damages,
exemplary damages, penalties and any other obligations)
(collectively, "Losses") caused by or arising out of any breach or inaccuracy
of any of the representations, warranties or agreements of the Seller
contained in this Agreement or in any exhibit, schedule or closing document
delivered pursuant hereto. Further, Seller will indemnify the Company and
Purchaser for all Losses resulting from any act or omission, whether known
or unknown, of the Company that accrued in whole or in part prior to the
Closing Date, including, but not limited to, the Delaware Litigation;
provided that in no event shall Seller have any obligation to indemnify
the Company or Purchaser for any liabilities of Purchaser and/or any of
its Affiliates accruing or existing on or prior to the Closing Date, and
provided further that Seller retain all rights, if any, outside the provisions
of this Agreement, to seek and obtain contribution and indemnity from
Purchaser or the Partnership.
(b) Existing Litigation. Seller agrees to continue the obligation of
defending and/or settling, at its sole control, direction, cost and expense
the Delaware Litigation. Upon written request of the Purchaser, the Seller
agrees to use all commercially reasonable efforts to notify the Purchaser
within thirty (30) days of receipt of such notice, as to any material events
or developments occurring within the Delaware Litigation which may have a
material impact on the Partnership or the Purchaser.
(c) Indemnification by Purchaser. The Purchaser shall promptly
indemnify, defend and hold harmless the Seller, its affiliated entities,
and all stockholders, officers and directors of each of the foregoing
(collectively, the "Seller's Investor Group") from and against all Losses
caused by or arising out of any breach or inaccuracy of any of the
representations, warranties or agreements of the Purchaser contained in
this Agreement or in any exhibit, schedule or closing document
delivered pursuant hereto. Further, Purchaser will indemnify the Seller's
Investor Group for all Losses resulting from any act or omission, whether
known or unknown, of the Company or the Partnership or arising out of
the Properties that accrued in whole or in part on or subsequent to the
Closing Date, provided that in no event shall Purchaser have any obligation to
indemnify the Seller Investor Group for any liabilities of Seller or
Company accruing or existing on or prior to the Closing Date, and provided
further that Purchaser retain all rights, if any, outside the provisions
of this Agreement, to seek and obtain contribution and indemnity from Seller
or the Partnership.
(d) Cure Period. Prior to Seller or Purchaser being obligated to
indemnify (the "Indemnifying Party") another party hereunder (an "Indemnified
Party") with respect to breach or inaccuracy of a warranty, representation
or a covenant of the Indemnifying Party, the Indemnified Party shall provide
notice to the Indemnifying Party stating in reasonable detail the nature of the
asserted breach or inaccuracy of representation, warranty or covenant,
whereupon the Indemnifying Party shall have 90 days in which to cure such
breach or inaccuracy. The Indemnifying Party shall not be deemed to have
breached or made an inaccurate representation, warranty or covenant if same
is cured within such period of time.
(e) Indemnified Claims. Subject to Section 6 (d) above, any claim
for indemnity under this Section 6 shall be made by a written notice from
the Indemnified Party to the Indemnifying Party specifying in reasonable
detail the basis of such claim. The Indemnifying Party shall thereafter
assume the sole defense and/or settlement of such claim, and the Indemnified
Party agrees to reasonably cooperate with the Indemnifying Party in connection
therewith, including, without limitation, the Delaware Litigation.
In the event the Indemnified Party shall incur any out-of-pocket expenses at
the request of or with the approval of the Indemnifying Party in connection
with an indemnified claim hereunder, the Indemnifying Party shall promptly
pay the Indemnified Party for such expenses upon receipt of supporting
documents therefor.
(f) Books and Records of the Partnership. During and until the
conclusion of any litigation subject to indemnification provisions above,
including, but not limited to, the Delaware Litigation, where Seller or
any of its Affiliates (including, without limitation, LB I Group or Xxxxxx
Brothers Inc.) are defendants, Seller or such Affiliate, their respective
counsel, accountants and agents shall have reasonable access during normal
business hours upon advance notice to the records of the Partnership
for the purposes of defending such litigation. Except in connection with
such litigation, Seller agrees not to interfere with the operations of the
Partnership or the Purchaser, nor disclose or use any confidential
information with respect to any confidential information with respect to
the Partnership. In addition, prior to transferring or destroying any books
and records of the Partnership within Purchaser's (or any of its
Affiliates') control, the Purchaser agrees to first notify Seller or its
Affiliate in each instance, and upon request of Seller of its Affiliate, the
Purchaser will (i) in the case where such notice contemplates destroying such
books and records, transfer same to Seller or its Affiliate, and (ii) in the
case where such notice contemplates transferring such books and records
to an unrelated entity of Purchaser, photocopy same at the expense of
Seller and forward them to Seller or its Affiliate.
7. Miscellaneous Provisions.
(a) Notices. All notices, demands or other communications hereunder
shall be in writing and shall be deemed to have been duly given (i) on the
day of delivery, if delivered in person, or (ii) three business days after
mailed, if sent by United States mail, certified or registered, with return
receipt requested:
(1) if to the Purchaser to:
Xxxxxxx X. Xxxxxxxx
Anterra Property Investors VIII, Inc.
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
(2) if to the Seller to:
Xxxxx X. Xxxxxxxx
Vice President
D.A. Group Holdings, Inc.
Three World Financial Center
Xxx Xxxx, XX 00000
or at such other address as may have been furnished by such party in writing to
the other party.
(b) Severability and Governing Law. Should any Section or
any part of a Section within this Agreement be rendered void, invalid or
unenforceable by any court of law for any reason, such invalidity or
unenforceability shall not void or render invalid or unenforceable any other
Section or part of a Section in this Agreement and such invalid term,
clause or provision shall be deemed to have been deleted from this
Agreement. The parties hereto agree, however, to agree upon an equitable
amendment to this Agreement if a substantive provision is so affected. This
Agreement shall be deemed to be made and entered into in the State of
Delaware, and the laws of the State of Delaware shall govern the validity and
interpretation hereof and the performance by the parties hereto of their
respective duties and obligations hereunder.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
(d) Captions and Section Headings. Section titles or captions
contained in this Agreement are inserted as a matter of convenience and for
reference purposes only, and in no way define, limit, extend or describe
the scope of this Agreement or the intent of any provision hereof.
(e) Singular and Plural, Etc. Whenever a singular number is
used herein and where required by the context, the same shall include the
plural, and the neuter gender shall include the masculine and feminine genders.
(f) Costs and Attorneys' Fees. In the event that any action, suit,
or other proceeding is instituted concerning or arising out of this
Agreement, the prevailing party shall recover from the non-prevailing party
all of such party's costs and attorneys' fees incurred in each and every
such action, suit, or other proceeding, including any and all appeals or
petitions therefrom. As used herein, "prevailing party" shall mean the
party entitled to recover its cost of such action, suit or proceeding,
whether or not the suit proceeds to final judgment, and as used herein,
"attorneys' fees" shall mean the full and actual costs of any legal
services actually rendered in connection with the matters involved,
calculated on the basis of the usual fee charged by the attorneys performing
such services, and shall not be limited to "reasonable attorneys' fees" as
defined by any statute or rule of court.
(g) Successors and Assigns. All rights, covenants and agreements of
the parties contained in this Agreement shall, except as otherwise provided
herein, be binding upon and inure to the benefit of their respective successors
and assigns.
(h) Amendments and Waivers. Neither this Agreement nor any term
hereof may be changed, waived, discharged or terminated orally or in
writing, except that any term of this Agreement may be amended and the
observance of any such term may be waived (either generally or in a
particular instance and either retroactively or prospectively) with (but
only with) the written consent of all of the parties to this Agreement.
(i) Survival of Representations and Warranties. All
representations and warranties of each party contained herein shall survive
for a period of one (1) year after the Closing Date. All indemnification
provisions and other terms which should by their nature survive the
Closing shall survive the Closing Date to the extent permitted by applicable
law.
(j) Entire Agreement. This Agreement contains the entire
understanding of the parties and there are no further or other agreements or
understandings, written or oral, in effect between the parties relating to
the subject matter hereof unless expressly referred to herein or therein.
(k) Exhibits and Schedules. Exhibits A and B attached hereto are
incorporated herein by reference.
(l) Delays or Omissions. No delay or omission to exercise any
right, power or remedy accruing upon any breach or default under this
Agreement shall impair any such right, power or remedy nor shall it be
construed to be a waiver of any such breach or default, or an acquiescence
therein, or in any similar breach or default thereafter occurring, nor shall
any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring. Any waiver,
permit, consent or approval of any kind or character of any breach or default
under this Agreement, or any waiver of any provisions or conditions of this
Agreement, shall be in writing and shall be effective only to the extent
specifically set forth in such writing.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the Effective Date.
PURCHASER: SELLER:
ANTERRA PROPERTY INVESTORS VIII, INC. DA GROUP HOLDINGS INC.
_________________________________ ________________________________
Name: Name:
Title: Title:
Date: May ___, 1998 Date: May ___, 1998
Exhibit A
(to be attached)
(i) financial statements of the Company consisting of balance sheets of
the Company as of December 31, 1995, 1996, 1997 and the Closing Date;
(ii) statements of income and expense of the Company for the years
ended December 31, 1995, 1996 and 1997;
(iii) financial statements of the Partnership consisting of balance sheet
of the Partnership as of December 31, 1997; and
(iv) statements of income and expense of the Partnership for the years
ended December 31, 1997.
Exhibit B
(to be attached)
Company Contracts
