AGREEMENT
FOR PURCHASE AND SALE
OF REAL PROPERTY
THIS AGREEMENT is entered as of the 24th day of
February, 1999, by and between the seller or sellers identified
on Schedule 1 attached hereto (herein collectively called
"Seller"), and General Services Corporation, a Virginia
corporation (herein called "Buyer") with offices located at 0000
Xxxxxxxx Xxxx, Xxxxxxxx, Xxxxxxxx 00000.
R E C I T A L S
A. Seller owns one or more certain parcels of land
(collectively, the "Real Property") each located in the City and
State set forth on Schedule 1, attached hereto, as each such Real
Property is more particularly described on Exhibit A, attached
hereto, together with all of the improvements (the
"Improvements") and any fixtures (the "Fixtures") presently
existing and located thereon and therein, and the personalty used
exclusively in connection with the management and operation of
the foregoing as more particularly described on Exhibit B,
attached hereto (the "Personalty") (hereinafter said Real
Property, Improvements, Fixtures and Personalty are collectively
called the "Property").
B. Buyer has participated in an auction (the
"Auction") to purchase said Property and Buyer, being the
selected bidder, has agreed to purchase such Property on the
terms and conditions set forth herein.
C. Pursuant to the terms and conditions of said
Auction and in connection with being selected as the successful
bidder thereat, Buyer has agreed to execute this Agreement.
D. The parties have agreed to the purchase and sale
of the Property as set forth below.
NOW, THEREFORE, in consideration of the foregoing, the
mutual covenants and agreement contained herein, and other good
and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Seller and Buyer hereby mutually
agree that this transaction shall be consummated upon the
following terms, conditions and agreements:
1. PURCHASE PRICE. The aggregate purchase price for
the Property is Fifty Four Million Four Hundred Five Thousand and
00/100 Dollars ($54,405,000.00) (the "Purchase Price"). Buyer
acknowledges and agrees that the Purchase Price shall be in all
respects net of any and all (i) assumption and other fees and all
costs and expenses required to be paid ("Assumption Fees") in
order for the Buyer to assume the mortgage encumbering each
Property, as more particularly referenced on Exhibit C attached
hereto (each a "Mortgage"), in accordance with the terms hereof,
and (ii) prepayment fees, premiums, penalties or similar charges,
expenses, costs and sums (other than outstanding principal and
accrued and unpaid interest) required to be paid to holder of any
Mortgage pursuant to the related loan documents in order to fully
satisfy such Mortgage ("Prepayment Fees"), all as set forth on a
payoff demand submitted by the holder of such Mortgage and
approved by the Seller (which approval shall not be unreasonably
withheld or delayed), provided Seller has given all appropriate
and timely notices necessary for the holder of such Mortgage to
accept such prepayments at the time of the Closing (as
hereinafter defined). In the event that a Mortgage is not being
assumed by Buyer in accordance with the provisions hereof, the
Buyer shall pay the Prepayment Fees, provided, however, that
Buyer shall be entitled to a credit against the Purchase Price in
the amount of any portion of the two percent (2%) prepayment
premiums under the Loans secured by Rancho Del Sol and Harbor
Pointe which are not waived by the holder of such Loans. In the
event that a Mortgage is assumed by Buyer in accordance with the
provisions hereof, the Buyer shall pay the Assumption Fees. The
portion of the Purchase Price which is allocated to each Property
(each, an "Allocated Purchase Price") is set forth on Schedule 2,
attached hereto. Subject to the prorations and adjustments
hereinafter defined, Seller and the Buyer mutually agree that the
Allocated Purchase Price for each Property shall be further
allocated among Personalty and the remaining Property in
accordance with the allocation set forth on Schedule 2
(collectively, the "Tax Allocations"), which Tax Allocations have
been made in accordance with Section 1060 of the Internal Revenue
Code of 1986 (as amended) and the Treasury Regulations
promulgated thereunder (the Allocated Purchase Prices and the Tax
Allocations hereinafter called, the "Allocations"). Each of the
Seller and Buyer shall: (i) be bound by the Allocations for
purposes of determining any taxes; (ii) prepare and file any tax
returns on a basis consistent with the Allocations; (iii) take no
position inconsistent with the Allocations on any applicable tax
return, in any proceeding before any taxing authority or
otherwise; and (iv) be bound by the Allocations in all other
public filings and reports, including but not limited to any
transfer tax declarations. In the event that the mutually agreed
upon Allocations are disputed by any taxing authority, the party
receiving notice of the dispute shall promptly notify the other
party hereto of the dispute.
The Purchase Price shall be payable by Buyer to Seller
as follows:
1.1. XXXXXXX MONEY. In connection with the Auction,
Buyer has delivered to the Title Insurer (as hereinafter
defined), acting as escrow agent (the "Escrow Agent") the sum of
Two Million Seven Hundred Twenty Thousand Two Hundred Fifty and
00/100 Dollars ($2,720,250.00) (such sum, together with any
interest earned thereon, the "Xxxxxxx Money") representing five
percent (5%) of the Purchase Price of Fifty Four Million Four
Hundred Five Thousand and 00/100 Dollars ($54,405,000.00). From
and after the date the Xxxxxxx Money is delivered by Buyer, the
Escrow Agent shall hold the Xxxxxxx Money in accordance with the
Escrow Agreement attached hereto as Exhibit D (the "Escrow
Agreement") in an interest-bearing account for the benefit of
Buyer pending disposition as hereinafter set forth. The amount
of Xxxxxxx Money allocated to each Property is set forth on
Schedule 2 attached hereto (the "Allocated Xxxxxxx Money").
1.2. ASSUMPTION OF EXISTING MORTGAGE LOANS. Provided
that the Seller receives, at Buyer's expense,(i) the written
consent of the holder of such Mortgage to the assumption of such
Mortgage by Buyer not less than five days prior to the Closing,
and (ii) the Seller Release, the Xxxxxx Release, if applicable,
and the Xxxxxx Mortgage Release, if applicable (each as defined
herein), and copies of any assumption documentation required by
the holder of the Mortgage, at Closing, there shall be credited
against the Purchase Price at Closing an amount equal to the
outstanding principal balance of the loan secured by such
Mortgage (the "Loan"), together with all accrued unpaid interest
thereon as of the Closing Date, and all late charges owing under
the Loan, as evidenced by a payoff demand submitted by such
lender and approved by Seller (which approval shall not be
unreasonably delayed or withheld). In no event shall the Buyer's
ability to obtain a lender's consent to a release required
hereunder, or to an assumption of a Mortgage, be a condition to
Buyer's obligations hereunder.
1.3. PREPAYMENT AND ASSUMPTION FEES. The Prepayment
Fees and the Assumption Fees, as applicable, shall be deposited
with Escrow Agent on or before the Closing Date (as hereinafter
defined), by wire transfer of immediately available funds to
Escrow Agent's account pursuant to Escrow Agent's instructions.
1.4. BALANCE OF PURCHASE PRICE. The balance of the
Purchase Price shall be deposited with Escrow Agent on or before
the Closing Date (as hereinafter defined), by wire transfer of
immediately available funds to Escrow Agent's account pursuant to
Escrow Agent's instructions.
2. INSPECTION, REMEDIES AND CONTINGENCIES.
2.1. BUYER INSPECTION. Buyer acknowledges and
represents that as of the date of execution of this Agreement,
Buyer has had the opportunity to review any engineering reports
made available to potential bidders at the Auction during a due
diligence period prior to the Auction, and has been given the
opportunity to make a full and complete inspection of the
Property, at Buyer's expense, including, but not limited to,
inspection by construction experts, engineers and architects
acceptable to Buyer, examining both obvious and latent conditions
of the Property. Accordingly, Buyer will have made its
investment decision to enter into this Agreement based
exclusively upon its own investigations or inspections with
respect to the Property and has not relied, and will not have
relied upon any express or implied, written or oral,
representation of Seller or Seller's general partners
(collectively, the "Selling Entity") or any of the Selling
Entity's employees, agents, representatives, broker and
attorneys, counsel for the respective plaintiffs in the
litigation captioned In re: Prudential Securities Incorporated
Limited Partnerships Litigation ("Litigation") in the United
States District Court in the Southern District of New York, MDL
Docket No. 1005, M-21-67 (MP), or any affiliates of any of them,
hereinafter designated collectively as the "Protected Group", in
entering into this Agreement. Buyer acknowledges that Seller has
cooperated with Buyer in all requests for inspection or testing
to date, and Seller agrees to continue that cooperation as
provided in Section 2.4.
2.2. ENVIRONMENTAL ASSESSMENT. Buyer acknowledges and
represents that as of the date of execution of this Agreement
Buyer has had the opportunity to review any Phase I and Phase II
environmental reports made available to potential bidders at the
Auction during a due diligence period prior to the Auction, and,
at its expense, to conduct an environmental assessment of the
Property including but not limited to hazardous substances or
waste such as asbestos, chemicals, sewage (raw or treated),
pesticides, petroleum, including crude oil or any fraction
thereof, and any substance identified in any Federal, State, or
other governmental legislation or ordinance. Buyer agrees to
accept the Property "AS IS", including the existence of any
hazardous substance or waste.
2.3. BUYER'S REMEDY. Buyer acknowledges that Seller
has made no representations or warranties whatsoever regarding
the accuracy or completeness of the reports referenced in this
Section 2. Buyer agrees that Buyer has no legal or equitable
remedy or recourse against Seller and the Protected Group, with
respect to any inaccuracies or errors contained in any such
report or arising out of any Property defect, or other adverse
condition of the Property, whether known or unknown to or
concealed or unconcealed by them or any of them.
2.4. BUYER'S FURTHER INSPECTION RIGHTS. Seller agrees
to make the Property available to the Buyer and its agents,
employees, lender and other representatives or inspectors for
additional inspections and testing prior to the Closing Date (as
hereinafter defined) all of which shall be conducted at Buyer's
sole cost and expense. Such investigation shall include, among
other things, inspection of the Property, the review of the
Leases, books and records relating to the Property and its
operation and condition, provided, however, that in no event
shall facts or information which may be discovered by Buyer in so
conducting any investigations, inspections or testing, (i) be the
basis of any claim by Buyer against Seller, or any right of Buyer
to terminate this Agreement or to request an adjustment to the
Purchase Price or a cure by Seller of any condition or matter
discovered by any such additional investigation, testing or
inspection or (ii) otherwise affect or excuse any of Buyer's
covenants, agreements and obligations under this Agreement.
Buyer agrees to promptly repair and restore the Properties to the
condition existing prior to any inspection or testing at the sole
cost of Buyer and to Seller's reasonable satisfaction. Buyer
also agrees not to interfere with any tenants at the Properties
during any inspections or testing. Buyer hereby reaffirms its
obligation to indemnify Seller and the Protected Group pursuant
to the provisions of Section 8.1 hereinafter as a result of the
foregoing right of inspection.
3. CLOSING.
3.1. CLOSING. This transaction shall be closed
("Closing") at the offices of Skadden, Arps, Slate, Xxxxxxx &
Xxxx, LLP 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or such
other place in New York, New York as the parties shall agree as
soon as is practicable after the full execution of this Agreement
but not later than forty-five (45) days therefrom (the "Closing
Deadline"). The date on which the Closing occurs is herein
called the "Closing Date". The Closing for all of the Properties
shall occur simultaneously unless otherwise provided hereunder.
3.2. SELLER'S CLOSING DELIVERABLES. At or prior to
Closing, Seller shall deliver or cause to be delivered to Escrow
Agent, the following items for delivery or recordation upon close
of escrow with respect to each Property:
(a) Quitclaim deed (the "Deed") duly executed and
acknowledged by Seller, conveying fee simple title to the
Real Property to Buyer, or if a quitclaim deed is not a
valid means of conveyance in a particular jurisdiction, a
deed without covenants;
(b) A xxxx of sale (the "Xxxx of Sale") duly executed
by Seller, transferring to Buyer all of the Seller's right,
title and interest in and to the Personalty and any other
personal property owned by Seller which remains on the
Property after the Closing;
(c) Non-recourse assignment of all fully executed
occupancy leases, if applicable, pertaining to the Property
(the "Leases"), duly executed and acknowledged by Seller,
assigning to Buyer the Seller's interest therein, with Buyer
expressly assuming all obligations as landlord under such
leases from and after the Closing Date;
(d) non-recourse assignment, to the extent assignable,
of Seller's rights under the service or maintenance
contracts set forth on Schedule 4 attached hereto
(collectively the "Service Contracts");
(e) non-recourse assignment, to the extent possible,
of any licenses, permits and unexpired warranties, if any,
pertaining to the Property;
(f) certificates and resolutions demonstrating the
authority of the persons executing the documents at the
Closing and reasonably acceptable to counsel to the Buyer;
(g) a rent roll, if applicable, certified as accurate
by the Seller, which shall be current as of two business
days prior to the Closing and which shall also state the
amounts of all tenant security deposits required to be held
by Seller under the terms of the Leases which have not been
applied by Seller in accordance with the terms of such
Leases (and accrued interest owed to tenants thereunder, if
applicable);
(h) originals of all written occupancy leases, if
applicable and to the extent available and, if not
available, photocopies of the balance, for the Property.
All such leases shall be deemed delivered if they are on
premises at the Property as of the Closing Date.; and
(i) a non-foreign status affidavit, 1099 report
filing, recording affidavit (to the extent required),
owner's affidavit in the form attached hereto as Exhibit F,
and such other certificates, affidavits and agreements in
form reasonably acceptable to Seller which are either
customarily and normally required in similar transactions in
the state in which the Property is located or are
specifically and reasonably required by the Title Insurer
(as hereinafter defined).
3.3. BUYER'S CLOSING DELIVERABLES At or prior to
Closing, Buyer shall deliver or cause to be delivered to Escrow
Agent, the following items for delivery or recordation upon close
of escrow:
(a) assumption of the Leases and the Service Contracts
with respect to each Property;
(b) certificates and resolutions demonstrating the
authority of the persons executing the documents at the
Closing and reasonably acceptable to counsel to the Seller;
(c) if a Mortgage is not satisfied at Closing, the
Seller Release, the Xxxxxx Release, if applicable, and the
Xxxxxx Mortgage Release, if applicable;
(d) the Prepayment Fees and the Assumption Fees, as
applicable, by wire transfer; and
(e) balance of the Purchase Price by wire transfer,
subject to the adjustments, prorations and credits described
in this Agreement.
3.4. CONTRACTS NOT BEING ASSIGNED. Seller shall not
assign to Buyer and shall cancel as of the close of escrow:
(a) the property management contract for each Property
set forth on Schedule 3, attached hereto; and
(b) any insurance policies, including but not limited
to hazard insurance policies, then in force affecting any
Property.
Buyer acknowledges that the management contracts shall
terminate automatically on the Closing Date in accordance with
that certain side letter agreement dated October 13, 1998, a copy
of which is attached hereto as Exhibit E and agrees that Seller
has no obligation to deliver any further termination agreement or
notice at Closing.
3.5. PRORATIONS. The following shall be apportioned on
a per diem basis as of 12:01 a.m. of the Closing Date
("Adjustment Date") and adjusted between the parties on the basis
of the number of days in the month of the Closing with respect to
each Property:
(a) Real estate and other taxes, assessments and
charges, and other municipal and State charges, license and
permit fees, water and sewer rents and charges, if any, on
the basis of the fiscal period for which assessed or
charged;
(b) Water, electric, gas, steam and other utility
charges for service furnished to the Property;
(c) Fuel, if any, and all taxes thereon, on the basis
of a reading taken as close as possible to the Adjustment
Date;
(d) Base rents and any other rental payments (the
"Rents") paid under the terms of the Leases for the month of
Closing (but all prepaid rents for months thereafter shall
be credited to Buyer at Closing);
(e) Any amounts paid or payable under any Service
Contracts being assigned to Buyer, provided, however, that
the "up front" payment received by Seller pursuant to the
cable television contract affecting one or more of the
Properties shall be prorated by giving Buyer a $25,000
credit against the Purchase Price in the aggregate;
(f) All costs associated with telephone directory
listings and any other prepaid advertising; and
(g) Any other customary adjustments made in connection
with the sale of similar type buildings.
All tenant security deposits required to be held under
the Leases and accrued interest owed to tenants thereunder, if
applicable, as shown on the certified rent roll and which have
not been applied in accordance with the terms of the Leases,
shall be credited to Buyer at Closing.
There will be no proration of insurance costs at
Closing. Except as may be otherwise provided herein, all other
expenses which are attributable to the period prior to the
Closing Date shall be the obligation of Seller and those which
are attributable to the period from and after the Closing Date
shall be the obligation of Buyer.
3.6. APPORTIONMENT FORMULA. For purposes of the
foregoing apportionments and adjustments, the following
procedures shall govern with respect to each Property:
(a) Any apportionment of income and expense items
shall be apportioned to the Seller based upon the formula
(the "Apportionment Formula") wherein the numerator is the
number of days in such month that the Property was owned by
the Seller and the denominator is the total number of days
in that month.
(b) If the Closing Date shall occur before the real
estate tax rate is fixed, the apportionment of such taxes
shall be made using the real estate taxes for the
immediately preceding year, with a reapportionment as soon
as the new tax rate and valuation can be ascertained.
(c) If there are water meters on the Property, Seller
shall furnish meter readings to a date not more than thirty
days prior to the Adjustment Date; and the unfixed meter
charges for the intervening time to the Adjustment Date
shall be apportioned based upon estimates using such prior
meter readings, unless final readings therefor as of the
Closing shall have been obtained, in which case such final
readings shall be used for the apportionment. As soon as
the expenses for the period shall be known, Seller and Buyer
shall recalculate the adjustment with the result that Seller
shall pay for those expenses attributable to the period
prior to the Closing Date and Buyer shall pay for those
expenses attributable to the period commencing with the
Closing Date.
(d) The apportionment of utility charges shall be made
upon the basis of charges shown on the latest available
bills for such utilities, unless final meter readings
therefor as of the Closing shall have been obtained, in
which case such final readings shall be used for the
apportionment. The charges shown on such available bills
for periods prior to the Adjustment Date shall be paid by
Seller, and for the period from the date of each such last
available utility xxxx to the Adjustment Date an
apportionment shall be made based upon estimates using such
last available xxxx. As soon as the expenses for the period
shall be known, Seller and Buyer shall recalculate the
adjustment with the result that Seller shall pay for those
expenses attributable to the period prior to the Closing
Date and Buyer shall pay for those expenses attributable to
the period commencing with the Closing Date.
(e) All taxes, water and sewer charges and assessments
for public improvements which are liens upon a Property as
of the Closing Date, will be allowed to Buyer as a credit
against the Allocated Purchase Price for such Property,
subject to apportionment as herein provided, and the
existence of any such lien shall not constitute an objection
to title.
(f) If Buyer collects any non-delinquent Rents after
the Closing Date which are attributable in whole or in part
to the month in which the Closing Date occurs, the Buyer
shall promptly pay to Seller Seller's pro rata share of such
Rents.
(g) If any tenant is delinquent in the payment of
Rents on the Closing Date, Rents received from such tenant
after the Closing Date shall be applied in the following
order of priority: (a) first to the then current month's
rent and to any other sums due Buyer; and (b) then to
delinquent rentals with respect to the period before
Closing. If Rents or any portion thereof received by Seller
or Buyer after the Closing Date are payable to the other
party by reason of this allocation, the appropriate sum
shall be promptly paid to the other party.
Buyer and Seller agree that the provisions of Sections
3.5 and 3.6 shall survive the Closing for a period of ninety (90)
days after the Closing Date ("Adjustment Period"), during which
period Buyer and Seller shall agree on a reconciliation of the
prorations described herein. If the parties cannot agree on a
reconciliation within such ninety (90) day period then such
matter shall be submitted to arbitration in accordance with the
terms of Section 10 below.
3.7. COSTS. The fees of the Escrow Agent, transfer
taxes, recording fees, standard title insurance premiums for
owner's title policies and all other closing and recording costs
shall be borne equally by Seller and Buyer. Each party shall pay
its own professional fees including but not limited to attorneys'
and accountants' fees, and Buyer shall pay for (i) the cost of
any endorsements or affirmative coverage in connection with the
issuance of title policies, and (ii) any further updates or
modifications to the Surveys requested by Buyer or Buyer's
lender.
3.8. CONDITIONS TO SELLER'S AND BUYER'S OBLIGATION TO
CLOSE. The obligations of Seller and Buyer to close under this
Agreement as to a particular Property are subject to the
fulfillment, prior to or at Closing, of the following:
that there shall not be in effect any statute, regulation,
order, decree or judgment of any governmental entity having
jurisdiction which renders illegal or enjoins or prevents in
any material respect the sale of such Property to Buyer.
In no event shall the failure of this condition as to a
particular Property be a condition to Buyer's or Seller's
obligations hereunder with respect to another Property.
3.9. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE. The
obligations of Seller to close under this Agreement are subject
to the fulfillment, prior to or at Closing, of each of the
following (all or any of which may be waived in writing by
Seller):
(a) The representations and warranties of Buyer shall
have been true and correct in all material respects when
made and shall be true and correct in all material respects
as of the Closing Date, as if made at and as of such date
except as otherwise expressly provided herein.
(b) On and as of the Closing Date, Buyer shall have
performed and complied with, in all material respects, all
agreements and covenants required by this Agreement to be
performed or complied with prior to or on the Closing Date.
(c) If a Mortgage is not satisfied at Closing, the
Seller shall have received a duly executed release in form
and substance acceptable to the Seller, pursuant to which
Buyer and the holder of the Mortgage as of the Closing Date
shall release the Seller from any and all obligations and
liabilities under such Mortgage and any other documents
evidencing or securing the underlying loan, whether arising
before, on or after the Closing Date (the "Seller Release").
(d) If a Mortgage is not satisfied at Closing, (i) the
affiliate of Seller which guaranteed the loan evidencing
such Mortgage (the "Xxxxxx Guarantor"), if any, shall have
received a duly executed release in form and substance
acceptable to such affiliate, pursuant to which Buyer and
the holder of the Mortgage as of the Closing Date shall
release the guarantor from any and all obligations and
liabilities under such guaranty, whether arising before, on
or after the Closing Date (the "Xxxxxx Release"), and (ii)
the Seller shall have received a duly executed release in
form and substance acceptable to the Seller, pursuant to
which the Xxxxxx Guarantor shall release of record the
mortgage granted to such Xxxxxx Guarantor, if any, as listed
on Exhibit C attached hereto (the "Xxxxxx Mortgage
Release").
3.10. CONDITIONS TO BUYER'S OBLIGATION TO CLOSE.
The obligations of Buyer to close under this Agreement are
subject to the fulfillment, prior to or at Closing, of each of
the following (all or any of which may be waived in writing by
Buyer):
(a) that the representations and warranties of Seller,
as set forth in Section 7.3 herein, shall have been true and
correct in all material respects when made and shall be true
and correct in all material respects as of the Closing Date,
as if made at and as of such date except as otherwise
expressly provided herein.
(b) that on and as of the Closing Date, Seller shall
have performed and complied with, in all material respects,
all agreements and covenants required by this Agreement to
be performed or complied with prior to or on the Closing
Date including, without limitation, the execution and
delivery of all of the Seller's closing deliveries under
Section 3.2 of this Agreement.
(c) that on the Closing Date, the Title Insurer
(hereinafter defined) shall be unconditionally obligated and
prepared, subject to the payment of the applicable title
insurance premium and other related charges, to issue to
Buyer an owner's title insurance policy for each Property in
compliance with the Title Commitments (hereafter defined),
subject only to the Permitted Exceptions (as hereinafter
defined) and matters granted by Buyer.
4. POSSESSION AND RISK OF LOSS PRIOR TO CLOSING.
4.1. CASUALTY. In the event of physical damage to a
Property or destruction thereof due to a casualty (a "Casualty"),
affecting all or any part of a Property, without fault of Buyer,
prior to the Closing Date, Seller and Buyer agree as follows with
respect to such damage or destruction, specifically exclusive of
non-physical losses such as business losses incidental thereto:
(a) If, prior to the Closing Date, a Property is
damaged due to a Casualty and the cost of repairing such
damage, as is determined by an independent engineer and
appraiser selected by Seller (the "Repair Cost") is less
than One Million and 00/100 Dollars ($1,000,000.00), then
Seller and Buyer shall proceed to close the sale of all of
the Property without any abatement of the Purchase Price,
provided however that Seller shall, at Seller's election,
either: (i) repair the Casualty to such Property prior to
Closing at Seller's expense or (ii) assign to Buyer at
Closing, without recourse or warranty of any nature
whatsoever, all of Seller's right, title and interest in and
to any casualty insurance policies covering such Casualty
with respect to the Property (an "Assignment of Proceeds"),
provided Buyer receives a copy of such policies (which must
be in form and substance sufficient for Buyer to be made
whole for such Casualty, except for the amount of the
deductible), and a letter from the insurer confirming that
such policies are valid and in full force and effect,
without offsets or defenses of the insurer, and Seller shall
pay to Buyer all payments theretofore made by such insurers
as a result of such loss after deducting therefrom the costs
of collection thereof, and the amount of any deductible and
any other sums that may be necessary to supplement payments
received, or to be received, from the insurer to make the
Buyer whole from such Casualty. Seller agrees to maintain
sufficient casualty insurance policies to cover any Casualty
(subject to its customary deductible). Notwithstanding
anything herein to the contrary, Seller shall not have the
right to adjourn the Closing Date to repair any such
Casualty unless Buyer consents thereto.
(b) If, prior to the Closing Date, any Property is
damaged due to a Casualty and the Repair Cost equals or
exceeds One Million and 00/100 Dollars ($1,000,000.00), then
Seller shall be deemed to have elected clause (ii) in
subparagraph (a) above but, notwithstanding such election,
Buyer may elect (if such Casualty exceeds 10% of the
Purchase Price or Allocated Purchase Price, as applicable)
to terminate this Agreement in its entirety, upon which
termination, provided that Buyer is not in default
hereunder, Buyer's Xxxxxxx Money shall be returned to Buyer.
(c) If more than one Property is to be acquired
pursuant to this Agreement and the Repair Cost as to a
particular Property equals or exceeds One Million and 00/100
Dollars ($1,000,000.00) or 10% of the Purchase Price,
whichever is greater, such damaged Property may, at Buyer's
election, be removed from this Agreement and this Agreement
terminated as to such Property, upon written notice from
Buyer to Seller. In the event of such a termination,
provided that Buyer is not in default hereunder, Buyer's
Allocated Xxxxxxx Money as to such Property shall be
returned to Buyer at Closing.
4.2. CONDEMNATION. If, prior to the Closing Date, all
or any portion of the Property is condemned or taken by eminent
domain, then this Agreement shall nevertheless remain in full
force and effect without any abatement of the Purchase Price. In
such event, Seller shall convey the Property to Buyer at the
Closing in its then condition, and Buyer shall be entitled to
receive all net or condemnation awards otherwise payable to
Seller as a result of such loss or damage and, in full
satisfaction of any claims by Buyer against Seller, Seller shall
assign to Buyer at Closing, without recourse or warranty of any
nature whatsoever, all of Seller's right, title and interest in
and to any claims Seller may have to any condemnation awards, as
well as all rights or pending claims of Seller with respect to
such condemnation or taking of the Property, and Seller shall pay
to Buyer all payments theretofore made by such condemning
authorities as a result of such loss after deducting therefrom
the costs of collection thereof.
5. TITLE.
5.1. PRELIMINARY TITLE REPORT, COMMITMENT AND SURVEY.
Seller has provided or otherwise made available to Buyer with
respect to each Property: a copy of a preliminary title report
or a commitment for an ALTA (or the equivalent in the applicable
jurisdiction) policy of Owner's title insurance (each a "Title
Commitment", collectively, the "Title Commitments") issued by
First American Title Insurance Company or a comparable national
title insurance company selected by Seller (the "Title Insurer")
and a copy of the current survey(s) prepared by licensed public
land surveyors according to ALTA standards (each a "Survey",
collectively, the "Surveys"). Buyer has agreed to accept each
Property subject to any and all exceptions to title insurance
coverage contained on the related Title Commitment, including,
but not limited to any exceptions to coverage based upon matters
shown on the related Survey, (collectively, the "Initial
Exceptions"). However, Initial Exceptions shall not include, and
Seller agrees to satisfy, as an additional condition to Buyer's
obligation to close under Section 3.10 above, all of the Schedule
B, Part II (or Section 2) General Exceptions of the Title
Commitments (except for real estate taxes not yet due and
payable, tenants in possession under unrecorded leases, matters
that are shown or would be shown on a current plat of survey,
adverse claim created by artificial means of accretion, rights of
upper and lower riparian owners, laws, ordinances or regulations
relating to occupancy, use or enjoyment, eminent domain or police
powers, matters created, suffered, assumed or agreed to by Buyer
and any other General Exceptions which the Title Insurer is not
permitted to remove under applicable law or which are not
customarily removed by the Title Insurer upon delivery of the
owner's affidavit attached hereto as Exhibit F). Upon Closing,
each said Title Commitment shall show fee simple title to the
related Property as vested in Seller subject to (i) all of the
Initial Exceptions previously shown in such Title Commitment at
time of execution of this Agreement (excluding Mortgages, which
are addressed in clause (iii) below, (ii) any New Title
Exceptions (defined herein) which are not identified as Title
Defects by Buyer in accordance with the provisions hereof, (iii)
if a Mortgage is assumed by Buyer in accordance with the
provisions hereof, the Mortgage and any related loan
documentation appearing of record, including, but not limited to
assignments of leases and rents and uniform commercial code
financing statements identified on Exhibit C attached hereto, and
(iv) any Title Defects which are waived in writing by Buyer
(clauses (i), (ii), (iii) and (iv) collectively, the "Permitted
Exceptions").
If prior to the time of Closing, said Title Commitments
are updated to include any new exceptions which were not
previously shown therein, including, but not limited to, any new
exceptions based upon Survey updates, Buyer shall deliver to
Seller within 10 business days of its receipt of said updated
Title Commitments and Surveys written notice setting forth its
objections to any new matter encumbering any Property (each a
"New Title Exception") which, taken alone or collectively,
materially impairs such Property's current use or value (each a
"Title Defect"). Seller shall have the option to: (i) cure any
Title Defect prior to Closing (unless such Title Defect was
created or granted pursuant to one or more instruments executed
by Seller ("Voluntary Liens"), in which event Seller shall pay
the same at or before Closing) or (ii) terminate this Agreement
in its entirety, upon which termination, provided that Buyer is
not in default hereunder, Buyer's Xxxxxxx Money shall be returned
to Buyer together with Buyer's Reimbursable Expenses (as
hereinafter defined). Notwithstanding anything herein to the
contrary, Seller shall have the right to postpone the Closing
Date for such reasonable period as shall be necessary to cure any
Title Defect (other than Voluntary Liens), not to exceed thirty
(30) days. If more than one Property is to be acquired pursuant
to this Agreement and Seller elects, as permitted above, not to
cure a Title Defect with respect to a Property, such Property may
be removed from this Agreement and this Agreement terminated as
to such Property. In the event of such a termination, provided
that Buyer is not in default hereunder, Buyer's Allocated Xxxxxxx
Money as to such Property shall be returned to Buyer at Closing,
together with Buyer's Reimbursable Expenses allocable to such
Property. If Seller elects to terminate this Agreement in its
entirety or with respect to a particular Property due to a Title
Defect as permitted under this paragraph, then Buyer shall have
the option to waive such Title Defect and accept the Property
subject to the applicable Title Defect provided however that
Buyer exercises such option in writing within ten (10) business
days of Seller's notice of said election.
5.2. PERMITTED EXCEPTIONS. Buyer agrees to accept each
Property subject to the Permitted Exceptions. Notwithstanding
anything herein to the contrary, in no event or circumstances
shall a Title Defect include any title exception or matter
encumbering the Real Property (other than Voluntary Liens) the
cost of which to cure is less than or equal to Fifty Thousand and
00/100 Dollars ($50,000.00), provided however that should the
cost to cure the New Title Exceptions with respect to a
particular Property, in the aggregate ("Aggregate Curative
Cost"), be greater than Fifty Thousand and 00/100 Dollars
($50,000.00) then: Buyer may send a written notice setting forth
its objections to such exceptions or matters pursuant to the same
notice requirements provided in Section 5.1 above and if Seller
elects to cure such New Title Exceptions pursuant to Section 5.1
(i) above, Seller shall be obligated to cure only such New Title
Exceptions such that the resulting Aggregate Curative Cost for
the uncured New Title Exceptions objected to by Buyer will be an
amount less than or equal to Fifty Thousand and 00/100 Dollars
($50,000.00). Notwithstanding the foregoing, Seller shall not be
obligated, under any circumstances, to cure any exception or
matter encumbering the Property except Voluntary Liens.
5.3. RESOLUTION OF TITLE ISSUES. Buyer and Seller
shall make reasonable efforts to agree as to the existence of any
Title Defect. If the Seller and Buyer do not agree on the
foregoing within fifteen (15) days after Seller's receipt of
Buyer's notice described in Section 5.1 above, then the Parties
shall submit the matter to binding arbitration in accordance with
the terms of Section 10 below.
5.4. TITLE INSURANCE POLICY. Seller's obligations to
deliver title to the Property shall be satisfied by the issuance
of a standard coverage owner's title insurance policy with
respect to each Property issued by the Title Insurer, insuring
Buyer in the amount of the Allocated Purchase Price for such
Property and showing the Property to be subject only to the
Permitted Exceptions.
6. BROKER. Each of the parties warrants to the other
that no broker, salesman or agent has been engaged or used in
connection with this transaction. To the fullest extent
permitted by law, each party agrees to indemnify the other party
against any and all loss, claims, liability, and expense,
including reasonable attorneys' fees, arising out of any claim
for commission or fee incurred or allegedly incurred by the
indemnifying party.
The provisions of this Section 6 shall survive the
Closing.
7. SELLER'S DISCLAIMERS; REPRESENTATIONS,
COVENANTS AND WARRANTIES.
7.1. PROPERTY SOLD "AS IS" WITHOUT WARRANTY. Buyer
agrees and acknowledges that Buyer is purchasing the Property "AS
IS", in its existing condition and subject to its present
defects, in reliance on Buyer's own investigation and that no
representations or warranties of any kind whatsoever, written or
oral, express or implied, have been made by Seller or the
Protected Group, including without limitation representations
relating to zoning, site and physical conditions, toxic and
hazardous materials or waste, soils content, or any matter
affecting the ability of the Buyer to use the Property or the
suitability of the Property to Buyer's purposes. Buyer further
acknowledges and agrees that as of the Closing Date, Buyer shall
have investigated, inspected, and made itself aware of all zoning
regulations, other governmental requirements, site and physical
conditions, the existence or nonexistence of toxic or hazardous
materials or waste, soil conditions, and other matters affecting
the use and condition of the Property.
Additionally and specifically, Seller makes no
representation whatsoever, express or implied: (a) that the
Property is in good or any other condition; (b) that the
buildings and other Improvements, if any, were built or are
currently in compliance with plans and/or specifications; (c)
that the buildings and other Improvements, if any, were built in
accordance with either good or acceptable construction and/or
engineering practices; (d) that the buildings and other
Improvements, if any, were built or are currently in compliance
with applicable zoning or building code requirements including,
but not limited to applicable safety codes or laws and the
Americans with Disabilities Act or any State or local law
concerning disabled persons; (e) that the Property is free of
major or minor, latent or patent defects; (f) that the Property
has no hazards; (g) that the Property complies with Federal,
State or local laws or any other standards regarding toxic,
hazardous or unhealthful materials; (h) that the Property
complies with Federal, State and local environmental laws; (i) as
to the existence of soil instability, past soil repairs, soil
additions or conditions of soil fill, or susceptibility to
landslides; and (j) as to any other matter affecting the
stability or integrity of the land or any buildings or
improvements situated on or part of the Property.
Without limiting the generality of the foregoing, Buyer
agrees to purchase the Property subject to any and all notices of
violations of law or municipal ordinances, orders or requirements
whatsoever noted in or issued by any federal, state, municipal or
other governmental department, agency or bureau having
jurisdiction over the Property (collectively, "Violations"), or
any lien, fine or penalty imposed in connection with any of the
foregoing, or any condition or state of repair imposed in
connection with any of the foregoing, or any condition or state
of repair or disrepair or other matter or thing, whether or not
noted, which, if noted, would result in a Violation being placed
on the Property. Seller shall have no duty to remove or comply
with or repair any such Violations, liens or other conditions and
Buyer shall accept the Property subject to all such Violations
and liens, the existence of any conditions at the Property which
would give rise to such Violations or liens, if any, and any
governmental claims arising from the existence of such Violations
and lien, in each case without any abatement of or credit against
the Purchase Price.
7.2. SELLER UNDER NO DUTY TO DISCLOSE CONDITION. Buyer
acknowledges and agrees that Seller and the Protected Group shall
have no duty to disclose to Buyer any information known to them,
or any of them, concerning the condition of the Property, defects
in the Property, failure of the Property to comply with plans,
specifications, building codes, life safety codes, safety laws,
hazardous materials, environmental laws or any other laws or
codes or construction standards affecting the Property. If any
duty to disclose exists, Buyer expressly waives that duty as to
all of the above-referenced persons and entities. Without
limiting the foregoing if any information is disclosed to Buyer,
Seller makes no representation or warranties whatsoever with
respect to the accuracy or completeness of any information
provided to Buyer. Buyer has conducted its own independent
investigation.
7.3. SELLER'S REPRESENTATIONS. Seller represents,
covenants and warrants to the Buyer that:
(a) Seller has good, valid and insurable title to the
Real Property together with the Improvements subject only to
the Permitted Exceptions.
(b) All those matters represented by Buyer to Seller
in subparagraph 7.4(a), (b), (c), (d) and (g) are likewise
represented by Seller to Buyer and, as modified to reflect
the change from Buyer to Seller, are incorporated herein by
this reference.
7.4. BUYER'S REPRESENTATIONS. In consideration of
Seller's entering into this Agreement and as an inducement to
Seller to sell the Property, Buyer makes the following covenants,
representations, and warranties, each of which is material and is
being relied upon by Seller, and each shall survive the Closing:
(a) Buyer's Authority. Buyer has the legal power,
right and authority to enter into this Agreement and to
consummate the transactions contemplated by this Agreement;
(b) Buyer's Action. All requisite action (corporate,
partnership, trust or otherwise) has been taken by Buyer in
connection with entering into this Agreement and the
consummation of the transactions contemplated by this
Agreement;
(c) Individual Authority. The individual(s) executing
this Agreement on behalf of Buyer has the legal power,
right, and actual authority to bind Buyer to the terms and
conditions of this Agreement;
(d) Lender Authorization. Neither the execution and
delivery of this Agreement, nor the occurrence of the
obligations set forth in this Agreement, nor the
consummation of the transactions contemplated by this
Agreement, nor compliance with the terms of this Agreement
will conflict with or result in a breach of any of the
terms, conditions, or provisions of, or constitute a default
under, any bond, note or other evidence of indebtedness or
any contract, indenture, mortgage, deed of trust, loan,
agreement, lease or other agreement or instrument to which
Buyer is a party or by which any of Buyer's properties may
be bound, which, in the aggregate, would have a material
adverse effect on Buyer's ability to perform its obligations
hereunder;
(e) Adequate Funds. Buyer has adequate funds or
available credit resources to pay the Purchase Price at the
Closing Date as provided hereunder;
(f) Sophisticated Buyer. Buyer is an experienced and
sophisticated real property purchaser; and
(g) Representation by Counsel. Buyer has had the
opportunity to confer with counsel of Buyer's choice for a
complete explanation of the meaning and significance of each
provision of this Agreement.
8. INDEMNIFICATION.
8.1. INDEMNIFICATION. To the fullest extent provided
by law, Buyer agrees to indemnify and hold Seller and the
Protected Group harmless from and against all claims, damages,
liabilities, obligations, costs, damages, injuries, losses and
expenses arising (i) out of the Buyer's inspection of the
Property prior to or as of the Closing Date, or (ii) after the
Closing Date as a result of the operation or management of the
Property. Buyer further agrees to defend, with counsel
reasonably satisfactory to Seller, Seller and the Protected Group
pertaining to the foregoing indemnification rights, and if Buyer
fails to do so, then Seller and the Protected Group may do so, at
Buyer's expense, with attorneys of Seller's choice and of the
Protected Group's choice.
The provisions of this Section 8.1 shall survive the
Closing Date or termination of this Agreement.
9. DEFAULT; TERMINATION; LIQUIDATED
DAMAGES AND OTHER REMEDIES.
9.1. IF BUYER FAILS TO COMPLY WITH ITS OBLIGATIONS
UNDER THIS AGREEMENT AND COMPLETE THE TRANSACTION CONTAINED IN
THIS AGREEMENT IN VIOLATION OF THE TERMS HEREOF, AND SUCH FAILURE
IS NOT CURED BY THE EARLIER OF (A) THE CLOSING DATE OR (B) THE
DATE WHICH IS TEN (10) DAYS AFTER NOTICE OF SUCH FAILURE FROM
SELLER TO BUYER, THE PARTIES AGREE THAT SELLER SHALL BE PAID OR
RETAIN A SUM EQUAL TO THE XXXXXXX MONEY DEPOSIT REQUIRED
HEREUNDER, AS LIQUIDATED AND AGREED UPON DAMAGES, AND AS ITS SOLE
REMEDY, WHEREUPON THIS AGREEMENT SHALL BE NULL AND VOID, AND
NEITHER SELLER NOR BUYER NOR ANY OF THEIR RESPECTIVE
REPRESENTATIVES SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER. ANY DAMAGE AMOUNT TO BE PAID PURSUANT TO THIS SECTION
9.1 IS PRESUMED TO BE THE AMOUNT OF DAMAGES SUSTAINED BY A
BREACH, AS IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX
THE ACTUAL AMOUNT OF DAMAGES. IN PLACING THEIR INITIALS AT THE
PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF
THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS
REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS
DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE.
AUTHORIZED REPRESENTATIVE
OF SELLER'S INITIALS
BUYER'S OR AUTHORIZED REPRESENTATIVE
OF BUYER'S INITIALS
9.2. IF SELLER FAILS TO COMPLY WITH ITS OBLIGATIONS
UNDER THIS AGREEMENT AND COMPLETE THE TRANSACTION CONTAINED IN
THIS AGREEMENT IN VIOLATION OF THE TERMS HEREOF, AND SUCH FAILURE
IS NOT CURED BY THE EARLIER OF (A) THE CLOSING DATE OR (B) THE
DATE WHICH IS TEN (10) DAYS AFTER NOTICE OF SUCH FAILURE FROM
BUYER TO SELLER, THEN AND IN SUCH EVENT BUYER, AS ITS SOLE REMEDY
THEREFOR MAY EITHER (1) TERMINATE THIS AGREEMENT UPON WRITTEN
NOTICE TO SELLER WHEREUPON SELLER SHALL INSTRUCT THE ESCROW AGENT
TO REFUND TO BUYER THE XXXXXXX MONEY DEPOSIT REQUIRED HEREUNDER,
PLUS THE ACTUAL AND REASONABLE OUT-OF-POCKET COSTS AND EXPENSES
INCURRED BY BUYER ON OR AFTER JANUARY 15, 1999 (INCLUDING, BUT
NOT LIMITED TO, REASONABLE ATTORNEY'S FEES), UP TO AN AGGREGATE
MAXIMUM OF ONE HUNDRED FIFTY THOUSAND AND 00/100 DOLLARS
($150,000.00) ("BUYER'S REIMBURSABLE EXPENSES"), AS LIQUIDATED
AND AGREED UPON DAMAGES, WHEREUPON THIS AGREEMENT SHALL BE NULL
AND VOID, AND NEITHER SELLER NOR BUYER NOR ANY OF THEIR
RESPECTIVE REPRESENTATIVES SHALL HAVE ANY FURTHER RIGHTS OR
OBLIGATIONS HEREUNDER AT LAW OR IN EQUITY FOR DAMAGES OR
OTHERWISE OR (2) BUYER MAY XXX FOR SPECIFIC PERFORMANCE OF
SELLER'S OBLIGATIONS HEREUNDER, WITHOUT ABATEMENT, CREDIT AGAINST
OR REDUCTION OF THE PURCHASE PRICE EXCEPT AS EXPRESSLY PROVIDED
FOR HEREIN. ANY DAMAGE AMOUNT TO BE PAID PURSUANT TO CLAUSE 1 OF
THIS SECTION 9.2 IS PRESUMED TO BE THE AMOUNT OF DAMAGES
SUSTAINED BY A BREACH, AS IT WOULD BE IMPRACTICAL OR EXTREMELY
DIFFICULT TO FIX THE ACTUAL AMOUNT OF DAMAGES. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN, IN NO EVENT SHALL SELLER OR THE
PROTECTED GROUP HAVE ANY PERSONAL LIABILITY UNDER THIS AGREEMENT
WHATSOEVER AND BUYER SHALL UNDER NO CIRCUMSTANCES INITIATE ANY
ACTION IN COURT OR BY ARBITRATION AGAINST THE PROTECTED GROUP
(OTHER THAN SELLER). IN PLACING THEIR INITIALS AT THE PLACES
PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE ACCURACY OF THE
STATEMENTS MADE ABOVE AND THE FACT THAT EACH PARTY WAS
REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES OF THIS
DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE.
AUTHORIZED REPRESENTATIVE
OF SELLER'S INITIALS
BUYER'S OR AUTHORIZED REPRESENTATIVE
OF BUYER'S INITIALS
9.3. TERMINATION. Notwithstanding anything contained
herein, this Agreement may be terminated as follows:
(a) By Seller, if any reductions or adjustments to the
Purchase Price result in the Purchase Price being reduced to
an amount which is less than the purchase price that would
be produced by the final bid submitted by the Xxxxxx
Defendants, as such term is defined in the Stipulation of
Settlement with Xxxxxx Defendants pertaining to the
Litigation (unless Buyer is willing to waive such reductions
or adjustments which cause the Purchase Price to be so
reduced, which the Parties agree Buyer has the right to do
within two (2) business days after advice from Seller that
such reductions or adjustments permit Seller the right to
terminate this Agreement);
(b) By Seller or Buyer in accordance with any rights
of termination expressly conferred under the terms of this
Agreement; and
(c) By Seller or Buyer as to all of the Properties, if
a court of competent jurisdiction or arbitrator issues a
binding and final order permanently preventing the sale of
any Property to Buyer.
In the event this Agreement is terminated in its
entirety or as to a particular Property pursuant to any of the
foregoing provisions, this Agreement shall thereupon become null
and void in its entirety or as to such Property, as applicable,
and neither Seller nor Buyer nor any of their respective
representatives shall have any further rights or obligations
hereunder, provided, however, that the Confidentiality Agreement
AND THE Indemnification Agreement (each as defined herein) shall
remain in full force and effect.
10. ARBITRATION.
10.1. ARBITRATION OF DISPUTES.
The parties agree that any controversy or claim arising
out of or related to this Agreement, whether claimed under the
law of tort or the law of contract or any other laws, shall be
submitted to the American Arbitration Association (the
"Association") (or any successor organization) for arbitration
and settlement. All arbitration shall be finally determined in
New York City and shall be governed in accordance with the Rules
for Commercial Arbitration of the Association (or any successor
thereto) and the judgment or the award rendered may be entered in
any court having jurisdiction provided that the judgment or award
is based upon the proper interpretation and application of New
York law. Each party shall pay 50% of the fees and expenses of
the Association. The Closing Date shall be adjourned pending
resolution of the matter in dispute. Upon resolution of such
dispute the parties shall take whatever action is required to be
taken pursuant to this Agreement or the final determination of an
arbitrator.
10.2. LIMITATION ON DISCOVERY.
In a mutual effort to expedite the arbitration and
limit the cost of dispute resolutions, the parties agree that
there shall be no discovery, including no depositions,
interrogatories, requests for admissions, demands for production
or inspection of records, plans, reports, or documents of any
kind, except that if a party intends to call its own expert
witness or adduce expert testimony, then that party must notify
the other party of the name, address and all educational
background of that witness and provide a complete (complete means
no subsequent data, references or opinions may be added, referred
to or testified to) report describing all of such expert's
investigations, findings and conclusions not later than sixty
(60) days before arbitration. Each party shall, on written
demand, make its expert available for deposition not later than
twenty (20) days before the arbitration hearing. Failure to make
the expert available for deposition shall permanently preclude
the arbitrator(s) from considering the expert's testimony. The
deposition may not be admitted or used as a substitute for the
live testimony of the expert at the hearing under any
circumstances. The arbitrator(s) shall not have the power to
subpoena any documents, records, reports or writings of either
party.
11. CONDUCT OF BUSINESS. During the period from the
date hereof to the Closing Date, except (a) as Buyer shall
otherwise agree, (b) as necessary in connection with the
transactions contemplated herein, or (c) as otherwise permitted
under Article 4 hereof, Seller shall operate the Property in the
ordinary and usual course, consistent with past practice.
12. REASONABLE EFFORTS; PUBLIC ANNOUNCEMENTS. Each
party hereto will use all reasonable efforts to perform all acts
required to consummate the transactions contemplated hereby as
promptly as practicable. Such acts shall include, without
limitation, the provision of any information to and submission of
any filing with any governmental entity having jurisdiction. The
foregoing notwithstanding, except as may be required to comply
with the requirements of any applicable laws or of the court with
respect to the Litigation and the rules and regulations of each
stock exchange upon which the securities of one of the parties is
listed (including, but not limited to, the filing of a form 8-K
by Seller) and except communications by Seller to holders of
limited partnership interests in Seller (copies of which will be
made available to employees of the general partners of Seller or
their affiliates), no press release or similar public
announcement or communication shall, if prior to the Closing, be
made or caused to be made concerning the execution or performance
of this Agreement, unless the parties shall have consulted in
advance with respect thereto. Buyer shall keep such information
confidential, subject to the terms and conditions of the
Confidentiality Agreement dated November 30, 1998, by and between
the parties (the "Confidentiality Agreement").
13. GENERAL PROVISIONS.
13.1. TIME. Time shall be of the essence of this
Agreement. If any expiration or deadline date falls on a
Saturday, Sunday or legal holiday, it shall be extended to the
next following business day.
13.2. EFFECT OF WAIVER OF PROVISION OR REMEDY. No
waiver by a party of any provision of this Agreement shall be
considered a waiver of any other provision or any subsequent
breach of the same or any other provision, including the time for
performance of any such provision. The exercise by a party of
any remedy provided in this Agreement or at law shall not prevent
the exercise by that party of any other remedy provided in this
Agreement or at law.
13.3. INTEGRATED ENTIRE AGREEMENT. This Agreement
and the attached exhibits, along with the Confidentiality
Agreement and the Escrow Agreement, constitute the entire
agreement between the parties relating to the sale of the
Property. Any prior agreements, promises, negotiations, or
representations not expressly set forth in this Agreement in
writing are of no force and effect and may not be relied upon for
any purpose whatsoever by any party to this Agreement. Any
amendment to this Agreement shall be of no force and effect
unless it is in writing and signed by Buyer and Seller. Any
statements or representations made by any person, whether or not
a party to the Agreement, whether or not an employee or other
representative of Seller or Buyer, shall not be relied upon by
either Seller or Buyer and shall not be of any force and effect
for any purpose whatsoever.
13.4. NO REPRESENTATION REGARDING LEGAL EFFECT OF
DOCUMENT. No representation, warranty, or recommendation is made
by Seller or the Protected Group, or their brokers, respective
agents, employees, or attorneys regarding the legal sufficiency,
legal effect, or tax consequences of this Agreement or the
transaction, and each signatory has had the opportunity to submit
this Agreement to its qualified legal and/or financial advisor
before signing it.
13.5. COUNTERPARTS. This Agreement and all
amendments and supplements to it may be executed in any number of
counterparts, at different places and times, all of which taken
together shall constitute one and the same instrument, which
shall be deemed dated as of the day and year first above written.
Buyer and Seller shall each receive one duplicate original.
13.6. BINDING ON SUCCESSORS. This Agreement inures
to the benefit of, and is binding on, the parties and, without
affecting the limitations of paragraph 9, their respective heirs,
personal representatives, successors, and assigns.
13.7. INTERPRETATION. Titles and headings of
sections of this Agreement are for convenience of reference only
and shall not affect the construction of any provision of this
Agreement. All recitals set forth at the beginning of this
Agreement are, by this reference, fully incorporated into this
Agreement. All exhibits referred to in this Agreement are deemed
fully incorporated herein, whether or not actually attached. As
used herein: (a) the singular shall include the plural (and vice
versa) and the masculine or neuter gender shall include the
feminine gender (and vice versa) as the context may require; (b)
locative adverbs such as "herein", "hereto", and "hereunder"
shall refer to this Agreement in its entirety and not to any
specific section or paragraph; and (c) the terms "include",
"including", and similar terms shall be construed as though
followed immediately by the phrase "but not limited to". All
parties have jointly participated in the negotiation and drafting
of this Agreement, upon advice of their own independent counsel
or have had an opportunity to do so, and this Agreement shall be
construed fairly and equally as to all parties as if drafted
jointly by them. Except as otherwise expressly set forth herein,
none of the certifications, representations, warranties,
covenants and indemnifications contained in this Agreement or in
Seller's certification of any rent roll shall survive the Closing
Date.
13.8. ACKNOWLEDGEMENTS. Every fact acknowledged in
this Agreement is agreed to be a recital and to be conclusively
and irrefutably true. Buyer's acknowledgements made as of the
date of the execution of this Agreement are agreed, reaffirmed
and binding by virtue of Buyer's election to close this
transaction.
13.9. NOTICES. All elections, notices and demands
required or permitted hereunder shall be given in writing and
shall be delivered either by personal service or a national
overnight delivery service such as Federal Express. Facsimile
transmission is acceptable provided however that such
transmission shall be followed by next day delivery via one of
the foregoing means of delivery. Notices shall be addressed or
transmitted as appears below for each party; provided, that if
any party gives notice of a change of name or address, notices to
the giver of that notice shall thereafter be given as set forth
in that notice. Notice shall be deemed delivered and effective
upon actual receipt at the following addresses or such other
addresses as the parties may notify each other by similar notice:
If to Seller, to:
Prudential-Bache Properties, Inc.
One Seaport Plaza
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn.: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn.: Xxx Xxxxx
Facsimile No.: (000) 000-0000
If to Buyer, to:
General Services Corporation
0000 Xxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxx, Xxxxxxxx 00000
Attn.: Xx. Xxxxxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Xxxxxxx X. Xxxxxx, Esq.
McGuire, Woods, Battle & Xxxxxx LLP
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Facsimile No.: (000) 000-0000
13.10. PUNITIVE DAMAGES. Each party waives any
claims it may now have or may in the future have arising out of
this transaction for exemplary, punitive and/or penalty damages.
13.11. INSURANCE. Buyer shall be responsible for
obtaining casualty and liability insurance on the Property as of
the Closing Date.
13.12. ASSIGNMENT. Buyer may not assign this
Agreement without Seller's prior written consent except to an
entity or entities directly or indirectly controlling, controlled
by or under common control with Buyer and in each of which Buyer,
its sole beneficial owner or trusts for the benefit of family
members and descendants of its sole beneficial owner directly or
indirectly own a greater than fifty percent (50%) interest.
Buyer shall provide Seller with a copy of any such assignment
with such additional information regarding the assignee as Seller
may reasonably request not less than ten (10) days prior to
Closing. The valid assignment of this Agreement shall not
relieve Buyer of liability under this Agreement.
13.13. TIME LIMITATION OF ACTIONS. Save and except
for Buyer's obligations to indemnify or hold Seller harmless, no
action or claim or demand for arbitration with respect to a
provision hereof which expressly survives the Closing shall be
brought by either party after the expiration of six (6) months
from the Closing Date. The purpose of this clause reflects the
desire of both Seller and Buyer to compel the settlement of all
surviving claims between them as soon as possible.
13.14. SEVERABILITY. In the event that any
provision of this Agreement, including the arbitration
provisions, is determined to be unlawful then that provision
shall be deemed stricken and the balance of the Agreement shall
be enforceable. If the stricken provision relates to the
arbitration procedure, then the stricken provision shall be
replaced by such provision as is statutorily required.
13.15. ATTORNEYS' FEES, COSTS AND PRE-JUDGMENT
INTEREST. Each party waives any right to claim attorneys' fees,
costs or pre-judgment interest in connection with any dispute or
award concerning this transaction, except as expressly provided
for herein.
13.16. GOVERNING LAW. This Agreement and the legal
relations between the parties shall be governed by and construed
in accordance with the substantive laws of the State of New York.
13.17. FURTHER ASSURANCES. Each of the parties
hereto shall, at the request of the other party, execute,
acknowledge and deliver any further instruments, and take such
further actions, as the requesting party may reasonably request,
to carry out effectively the intent of this Agreement.
13.18. LIKE-KIND EXCHANGE. In order to facilitate
a tax-free exchange by Buyer (the "Exchange"), Buyer may use a
Qualified Intermediary for this transaction as that term is used
in Regulation 1.1031(k)-1(g)(4) under the Internal Revenue Code
of 1986, as amended (the "Code") and/or a Qualified Escrow
Account as that term is used in Regulation 1.1031(k)-1(g)(3)
under the Code. The Qualified Intermediary shall be nominated,
or the Qualified Escrow Account shall be selected, by Buyer, and
Buyer shall notify Seller of the nomination or selection no later
than ten (10) days prior to the Closing. Seller agrees
reasonably to cooperate with Buyer and any such Qualified
Intermediary, provided there is no adverse effect upon Seller.
Buyer shall pay all costs and expenses associated with such
Exchange, including, but not limited to, all fees and expenses
charged by the Qualified Intermediary and any out-of-pocket
third-party costs and expenses incurred by Seller as a result of
the use of a Qualified Intermediary or Qualified Escrow Account.
In addition, Buyer shall indemnify Seller and the Protected Group
from and against any and all liability arising out of such
Exchange and any of the actions taken pursuant to this Section
13.18. Seller makes no representation to Buyer regarding
qualification of the Exchange under Section 1031 of the Code and
shall not be liable to Buyer in any manner whatsoever if the
Exchange should not qualify for any reason under Section 1031 of
the Code and shall not be responsible for compliance with the
Code. In no event shall Buyer be entitled to extend the Closing
Date pursuant to the provisions of this Section. If Buyer is
unable, for any reason, to close under such Exchange
simultaneously with the Closing hereunder, Buyer shall proceed
with the Closing pursuant to the terms of this Agreement without
participating in an Exchange. Any assignment of the rights or
obligations of the Buyer hereunder shall not relieve, release or
absolve Buyer from its obligations under this Agreement. The
provisions of this Section 13.18 shall survive the Closing.
13.19. THIS AGREEMENT SHALL NOT BE BINDING AND
EFFECTIVE UNTIL EXECUTED BY BOTH BUYER AND SELLER.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement is executed by the parties on
the date first above written.
BUYER:
GENERAL SERVICES CORPORATION
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------
SELLER(S):
PRUDENTIAL-BACHE/X.X. XXXXXX
REALTY PARTNERS L.P., I
By: Prudential-Bache Properties, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------
By: X.X. Xxxxxx Realty Partners, L.P., a
California limited partnership,
General Partner
By: AGS Financial Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxx
--------------------------
By: X.X. Xxxxxx Realty Capital, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxx
--------------------------
SCHEDULE 1
PROPERTY NAMES AND LOCATIONS/SELLERS
PROPERTY NAME AND LOCATION SELLER(S)
Regency Square, Chamblee, GA Prudential-Bache/X.X. Xxxxxx Realty
Partners L.P., I
Harbor Pointe, Dunwoody, GA Prudential-Bache/X.X. Xxxxxx Realty
Partners L.P., I
Rancho del Sol, Las Vegas, NV Prudential-Bache/X.X. Xxxxxx Realty
Partners L.P., I
SCHEDULE 2
PURCHASE PRICE AND XXXXXXX MONEY ALLOCATIONS/
TAX ALLOCATIONS
A. The following sets forth the Allocated Purchase Price and
the Allocated Xxxxxxx Money for each of the Properties:
Regency Square, Chamblee, GA
$14,358.000
$ 000,000
Xxxxxx Xxxxxx, Xxxxxxxx, XX
$21,052,000
$1,052,600
Rancho del Sol, Las Vegas, NV
$18,995,000
$ 949,750
B. The following sets forth the portion of the Allocated
Purchase Price allocated to Personalty for all of the
Properties:
Regency Square, Chamblee, GA
$207,000
Harbor Pointe, Dunwoody, GA
$274,500
Rancho del Sol, Las Vegas, NV
$282,000
SCHEDULE 3
PROPERTY MANAGEMENT CONTRACTS
Regency Square, Chamblee, GA
November 18, 0000
Xxxxxx Xxxxxx, Xxxxxxxx, XX
November 18, 0000
Xxxxxx xxx Xxx, Xxx Xxxxx, XX
November 18, 1988
SCHEDULE 4
SERVICE CONTRACTS
