PURCHASE AND SALE AGREEMENT
by and between
PRUDENTIAL REALTY ACQUISITION FUND II, L.P.,
a Delaware limited partnership
and
DELPHINIDAE/WHITE BIRCH,
a California general partnership
Prudential Property No. PRAF II - 3
00000 Xxxxx Xxxxx Xxxxx, Xxxxxx Xxxxxxxxx, Xxxxxxxxxx
Date: December 11, 1996
TABLE OF CONTENTS
Page
ARTICLE 1 - SALE OF PROPERTY . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Personal Property. . . . . . . . . . . . . . . . . . . . . . . 1
1.3 Other Property Rights. . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 2 - PURCHASE PRICE . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 3 - TITLE MATTERS. . . . . . . . . . . . . . . . . . . . . . . . 2
3.1 Title to Real Property . . . . . . . . . . . . . . . . . . . . 2
3.2 Title Insurance. . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 4 - BUYER'S DUE DILIGENCE/CONDITION OF THE
PROPERTY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4.1 Buyer's Inspections and Due Diligence. . . . . . . . . . . . . 3
4.2 Property Sold "As Is". . . . . . . . . . . . . . . . . . . . . 3
ARTICLE 5 - ADJUSTMENTS AND PRORATIONS . . . . . . . . . . . . . . . . . 7
5.1 Real Estate and Personal Property Taxes. . . . . . . . . . . . 7
5.2 Other Property Operating Expenses. . . . . . . . . . . . . . . 7
5.3 Closing Costs. . . . . . . . . . . . . . . . . . . . . . . . . 8
5.4 Apportionment Credit . . . . . . . . . . . . . . . . . . . . . 8
5.5 Delayed Adjustment . . . . . . . . . . . . . . . . . . . . . . 8
5.6 Lease Expenses . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE 6 - CLOSING. . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.1 Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.2 Title Transfer and Payment of Purchase Price . . . . . . . . . 9
6.3 Seller's Closing Deliveries. . . . . . . . . . . . . . . . . . 9
6.4 Buyer Closing Deliveries . . . . . . . . . . . . . . . . . . . 10
6.5 Delivery of Deed . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE 7 - CONDITIONS TO CLOSING. . . . . . . . . . . . . . . . . . . . 11
7.1 Seller's Obligations . . . . . . . . . . . . . . . . . . . . . 11
7.2 Buyer's Obligations. . . . . . . . . . . . . . . . . . . . . . 11
7.3 Waiver of Failure of Conditions Precedent. . . . . . . . . . . 12
ARTICLE 8 - REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . 12
8.1 Buyer's Representations. . . . . . . . . . . . . . . . . . . . 12
8.1.1 Buyer's Authorization. . . . . . . . . . . . . . . . 12
8.1.2 Buyer's Financial Condition. . . . . . . . . . . . . 12
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8.2 Seller's Representations . . . . . . . . . . . . . . . . . . . 12
8.2.1 Seller's Authorization . . . . . . . . . . . . . . . 12
8.2.2 Other Seller's Representations . . . . . . . . . . . 13
8.3 General Provisions . . . . . . . . . . . . . . . . . . . . . . 13
8.3.1 Definition of "Seller's Knowledge" . . . . . . . . . 13
8.3.2 Seller's Representations Deemed Modified . . . . . . 14
8.3.3 Notice of Breach; Seller's Right to Cure . . . . . . 14
8.3.4 Survival; Limitation on Seller's Liability . . . . . 14
ARTICLE 9 - COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . 15
9.1 Mutual Covenants . . . . . . . . . . . . . . . . . . . . . . . 15
9.1.1 Broker . . . . . . . . . . . . . . . . . . . . . . . 15
9.1.2 Tax Refunds and Credits. . . . . . . . . . . . . . . 15
9.1.3 Survival . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 10 - FAILURE OF CONDITIONS . . . . . . . . . . . . . . . . . . . 16
10.1 To Seller's Obligations. . . . . . . . . . . . . . . . . . . . 16
10.2 To Buyer's Obligations . . . . . . . . . . . . . . . . . . . . 16
ARTICLE 11 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . 16
11.1 Buyer's Assignment . . . . . . . . . . . . . . . . . . . . . . 16
11.2 Designation Agreement. . . . . . . . . . . . . . . . . . . . . 16
11.3 Survival/Merger. . . . . . . . . . . . . . . . . . . . . . . . 17
11.4 Integration; Waiver. . . . . . . . . . . . . . . . . . . . . . 17
11.5 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 17
11.6 Captions Not Binding; Schedules and Exhibits . . . . . . . . . 18
11.7 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . 18
11.8 Severability . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.9 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
11.10 Counterparts. . . . . . . . . . . . . . . . . . . . . . . 19
11.11 No Recordation. . . . . . . . . . . . . . . . . . . . . . 19
11.12 Additional Agreements; Further Assurances . . . . . . . . 19
11.13 Construction. . . . . . . . . . . . . . . . . . . . . . . 19
11.14 ERISA . . . . . . . . . . . . . . . . . . . . . . . . . . 19
11.15 Business Day. . . . . . . . . . . . . . . . . . . . . . . 20
11.16 Seller's Maximum Aggregate Liability. . . . . . . . . . . 20
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EXHIBITS
Exhibit A Legal Description
Exhibit B List of Contracts
Exhibit C Form of Grant Deed
Exhibit D Form of Transfer Tax Statement
Exhibit E Form of Xxxx of Sale
Exhibit F Form of Assignment of Contracts
Exhibit G Form of Seller's FIRPTA Affidavit
Exhibit H Form of Buyer's ERISA Representation
Exhibit I Litigation Notices, Contract Defaults And
Governmental Violations
Exhibit J List of Tenants
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PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made this
11th day of December, 1996, by and between PRUDENTIAL REALTY
ACQUISITION FUND II, L.P., a Delaware limited partnership ("Seller"), and
DELPHINIDAE/WHITE BIRCH, a California general partnership ("Buyer").
W I T N E S S E T H:
In consideration of the mutual covenants and agreements set forth
herein the parties hereto do hereby agree as follows:
ARTICLE 1 - SALE OF PROPERTY
Seller agrees to sell, transfer and assign and Buyer agrees to purchase,
accept and assume, subject to the terms and conditions stated herein, all
of Seller's right, title and interest in and to the following (herein
collectively called the "Property"):
1.1 Real Property. That certain parcel of real estate located in the
County of San Bernardino, California and legally described in Exhibit A
attached hereto and incorporated herein by this reference, together with
all buildings, improvements and fixtures located thereon and all rights,
privileges and appurtenances pertaining thereto including all of Seller's
right, title and interest in and to all rights-of-way, open or proposed
streets, alleys, easements, strips or gores of land adjacent thereto (herein
collectively called the "Real Property"); and
1.2 Personal Property. All tangible personal property owned by
Seller (excluding any computer or computer equipment and software
owned by Seller or Seller's property manager), located on the Real
Property, and used in the ownership, operation and maintenance of the
Real Property and all nonconfidential books, records and files (excluding
appraisals, budgets, Seller's strategic plans for the Property, internal
analyses, marketing information, submissions relating to Seller's
obtaining of corporate authorization, attorney and accountant work
product, or other information in the possession or control of Seller or
Seller's property manager which Seller deems proprietary) relating to the
Real Property (herein collectively called the "Personal Property"); and
1.3 Other Property Rights. If and to the extent assignable by
Seller, (i) all service, supply, maintenance, and utility agreements
described in Exhibit B attached hereto and incorporated herein by this
reference, and (ii) all licenses, permits and other written authorizations
necessary for the use, operation or ownership of the Real Property or
Personal Property and in Seller's possession or control (the rights and
interests of Seller described in this Section 1.3 being herein collectively
called the "Other Property Rights").
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ARTICLE 2 - PURCHASE PRICE
The total purchase price to be paid by Buyer for the purchase of the
Property is the sum of FIVE MILLION TWO HUNDRED FORTY-FIVE
THOUSAND AND NO/100 DOLLARS ($5,245,000) in immediately available
funds (the "Purchase Price"). Buyer shall pay the Purchase Price on the
Closing Date, subject to the prorations and adjustments set forth in
Article 5 or as otherwise provided under this Agreement, plus any other
amounts required to be paid by Buyer at Closing, in immediately available
funds by wire transfer as more particularly set forth in Section 6.2.
ARTICLE 3 - TITLE MATTERS
3.1 Title to Real Property. Seller has previously delivered to Buyer
(a) Xxxxxxx Title of the Inland Empire's (the "Title Company") commitment
to issue an Owner's Policy of Title Insurance with respect to the Property
(the "Title Report") identified as Title Insurance Commitment File No.
111328532, with an effective date of September 10, 1996, and (b) copies
of all recorded documents referred to on Schedule B of the Title Report
as exceptions to coverage (the "Title Documents"). Buyer hereby
confirms its approval of the Title Report, subject to the Title Company's
removal of items 8, 11 and 12 identified on Schedule B thereof. Seller
shall convey and Buyer shall accept title to the Property, subject to (i)
applicable zoning and building ordinances and land use regulations, (ii)
such exceptions to title as are listed on Schedule B of the Title Report
(excluding items 8, 11 and 12 thereof), including the Title Company's
standard printed exceptions, (iii) such state of facts as would be
disclosed by an ALTA/ACSM survey of the Property, (iv) such state of
facts as would be disclosed by a physical inspection of the Property, (v)
the lien of taxes not yet due and payable, (vi) any exceptions caused by
Buyer, its agents, representatives or employees, and (vii) such other
exceptions as the Title Company shall commit to insure over, without any
additional cost to Buyer, whether such insurance is made available in
consideration of payment, bonding, indemnity of Seller or otherwise, (the
foregoing exceptions described in clauses (i) through (vii) being herein
collectively called the "Permitted Exceptions").
3.2 Title Insurance. At Closing, the Title Company shall issue to
Buyer, at Seller's sole cost and expense, a CLTA Owner's Form of title
insurance policy in the form of the Title Report (the "Owner's Title
Policy"), in the amount of the Purchase Price, insuring that fee simple
title to the Real Property is vested in Buyer subject only to the Permitted
Exceptions. Buyer shall be entitled to request that the Title Company
provide, at Buyer's sole cost and expense, such endorsements (or
amendments) to the Owner's Title Policy as Buyer may reasonably
require, provided that (a) such endorsements (or amendments) shall be at
no cost or additional liability to Seller, (b) Buyer's obligations under this
Agreement shall not be conditioned upon Buyer's ability to obtain such
endorsements and, if Buyer is unable to obtain such endorsements,
Buyer shall nevertheless be obligated to proceed to close the transaction
contemplated by this Agreement (the "Transaction") without reduction of
or set off against the Purchase Price, and (c) the Closing shall not be
delayed as a result of Buyer's request.
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ARTICLE 4 - BUYER'S DUE DILIGENCE/CONDITION OF THE
PROPERTY
4.1 Buyer's Inspections and Due Diligence.
(a) Buyer acknowledges that, prior to Buyer's execution of
this Agreement:
(i) Buyer has conducted all such inspections,
investigations, tests, analyses, appraisals and evaluations of the Property
(including for Hazardous Materials (as defined in Subsection 4.2(e)) as
Buyer considers necessary or appropriate (all of such inspections,
investigations and reports being herein collectively called the
"Investigations"); and
(ii) Seller has made available to Buyer and otherwise
allowed Buyer access to, copies of certain documents in Seller's
possession applicable to the Property, including, but not limited to, the
Title Report, the Title Documents, the Contracts (as defined in
Subsection 6.3(c)), the Property Documents (as defined in
Subsection 6.3(f)), and such other non-proprietary, non-privileged reports,
documents, books and records which pertain to the Property as Buyer
has deemed necessary or appropriate (all of the foregoing documents
described in this clause (ii) being herein collectively called the
"Documents").
Buyer has reviewed, examined, evaluated and verified all
Documents and the results of the Investigations to the extent it deems
necessary or appropriate with the assistance of such experts as Buyer
deemed appropriate. In particular, Buyer has determined to its
satisfaction the assignability of any Documents to be assigned
hereunder. Seller shall cooperate with Buyer (but shall not be obligated)
to obtain any consents required in connection with the assignment to
Buyer of the Contracts. Buyer acknowledges and agrees that it (A) is
familiar with the physical condition of the Property, (B) has completed its
due diligence with respect to the Property and the Documents to its
satisfaction, (C) is acquiring the Property based exclusively upon its own
investigations and inspections of the Property and the Documents, and
(D) shall have no additional period after the date hereof to conduct
further physical due diligence regarding the Property.
4.2 Property Sold "As Is".
(a) BUYER ACKNOWLEDGES AND AGREES THAT (i) THE
PROPERTY SHALL BE SOLD, AND BUYER SHALL ACCEPT
POSSESSION OF THE PROPERTY ON THE CLOSING DATE, "AS IS,
WHERE IS, WITH ALL FAULTS", WITH NO RIGHT OF SETOFF OR
REDUCTION IN THE PURCHASE PRICE; (ii) EXCEPT FOR SELLER'S
REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 8.2
AND THE LIMITED WARRANTY OF TITLE TO BE GIVEN IN THE DEED
(AS DEFINED IN SECTION 6.3(a)) (HEREIN COLLECTIVELY CALLED THE
"SELLER'S WARRANTIES"), NONE OF SELLER, ITS COUNSEL,
XXXXXXX & XXXXXXXXX ("BROKER"), ITS SALES AGENTS, NOR ANY
PARTNER, OFFICER, DIRECTOR, EMPLOYEE, AGENT OR ATTORNEY OF
SELLER, ITS COUNSEL, BROKER, OR ITS SALES AGENTS, NOR ANY
OTHER PARTY RELATED IN ANY WAY TO ANY OF THE FOREGOING
(ALL OF WHICH
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PARTIES ARE HEREIN COLLECTIVELY CALLED THE
"SELLER PARTIES") HAVE OR SHALL BE DEEMED TO HAVE MADE ANY
VERBAL OR WRITTEN REPRESENTATIONS, WARRANTIES, PROMISES
OR GUARANTEES (WHETHER EXPRESS, IMPLIED, STATUTORY OR
OTHERWISE) TO BUYER WITH RESPECT TO THE PROPERTY, ANY
MATTER SET FORTH, CONTAINED OR ADDRESSED IN THE
DOCUMENTS (INCLUDING, BUT NOT LIMITED TO, THE ACCURACY AND
COMPLETENESS THEREOF) OR THE RESULTS OF THE
INVESTIGATIONS; AND (iii) BUYER HAS CONFIRMED INDEPENDENTLY
ALL INFORMATION THAT IT CONSIDERS MATERIAL TO ITS PURCHASE
OF THE PROPERTY OR THE TRANSACTION. BUYER SPECIFICALLY
ACKNOWLEDGES THAT, EXCEPT FOR SELLER'S WARRANTIES (AS
SUCH TERM IS HEREIN DEFINED), BUYER IS NOT RELYING ON (AND
SELLER AND EACH OF THE OTHER SELLER PARTIES DOES HEREBY
DISCLAIM AND RENOUNCE) ANY REPRESENTATIONS OR WARRANTIES
OF ANY KIND OR NATURE WHATSOEVER, WHETHER ORAL OR
WRITTEN, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, FROM
SELLER OR ANY OTHER SELLER PARTIES, AS TO: (1) THE OPERATION
OF THE PROPERTY OR THE INCOME POTENTIAL, USES, OR
MERCHANTABILITY OR FITNESS OF ANY PORTION OF THE PROPERTY
FOR A PARTICULAR PURPOSE; (2) THE PHYSICAL CONDITION OF THE
PROPERTY OR THE CONDITION OR SAFETY OF THE PROPERTY OR
ANY IMPROVEMENTS THEREON, INCLUDING, BUT NOT LIMITED TO,
PLUMBING, SEWER, HEATING AND ELECTRICAL SYSTEMS, ROOFING,
AIR CONDITIONING, FOUNDATIONS, SOILS AND GEOLOGY, INCLUDING
HAZARDOUS MATERIALS, LOT SIZE, OR SUITABILITY OF THE
PROPERTY OR ANY IMPROVEMENTS THEREON FOR A PARTICULAR
PURPOSE; (3) THE PRESENCE OR ABSENCE, LOCATION OR SCOPE OF
ANY HAZARDOUS MATERIALS IN, AT, OR UNDER THE PROPERTY; (4)
WHETHER THE APPLIANCES, IF ANY, PLUMBING OR UTILITIES ARE IN
WORKING ORDER; (5) THE HABITABILITY OR SUITABILITY FOR
OCCUPANCY OF ANY STRUCTURE AND THE QUALITY OF ITS
CONSTRUCTION; (6) WHETHER THE IMPROVEMENTS ARE
STRUCTURALLY SOUND, IN GOOD CONDITION, OR IN COMPLIANCE
WITH APPLICABLE MUNICIPAL, COUNTY, STATE OR FEDERAL
STATUTES, CODES OR ORDINANCES; (7) THE ACCURACY OF ANY
STATEMENTS, CALCULATIONS OR CONDITIONS STATED OR SET
FORTH IN SELLER'S BOOKS AND RECORDS CONCERNING THE
PROPERTY OR SET FORTH IN ANY OF SELLER'S OFFERING
MATERIALS WITH RESPECT TO THE PROPERTY; (8) THE DIMENSIONS
OF THE PROPERTY OR THE ACCURACY OF ANY FLOOR PLANS,
SQUARE FOOTAGE, LEASE ABSTRACTS, SKETCHES, REVENUE OR
EXPENSE PROJECTIONS RELATED TO THE PROPERTY; (9) THE
OPERATING PERFORMANCE, THE INCOME AND EXPENSES OF THE
PROPERTY OR THE ECONOMIC STATUS OF THE PROPERTY; (10) THE
ABILITY OF BUYER TO OBTAIN ANY AND ALL NECESSARY
GOVERNMENTAL APPROVALS OR PERMITS FOR BUYER'S INTENDED
USE AND DEVELOPMENT OF THE PROPERTY OR ANY OF THE
DOCUMENTS; (11) THE LEASING STATUS OF THE PROPERTY OR THE
INTENTIONS OF ANY PARTIES WITH RESPECT TO THE NEGOTIATION
AND/OR EXECUTION OF ANY LEASE FOR ANY PORTION OF THE
PROPERTY; AND (12) SELLER'S OWNERSHIP OF ANY PORTION OF THE
PROPERTY. BUYER FURTHER
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ACKNOWLEDGES AND AGREES THAT
SELLER IS UNDER NO DUTY TO MAKE ANY AFFIRMATIVE
DISCLOSURES OR INQUIRY REGARDING ANY MATTER WHICH MAY OR
MAY NOT BE KNOWN TO SELLER, ITS OFFICERS, DIRECTORS,
CONTRACTORS, AGENTS OR EMPLOYEES.
(b) ANY REPORTS, REPAIRS OR WORK REQUIRED BY
BUYER ARE THE SOLE RESPONSIBILITY OF BUYER, AND BUYER
AGREES THAT THERE IS NO OBLIGATION ON THE PART OF SELLER TO
MAKE ANY CHANGES, ALTERATIONS OR REPAIRS TO THE PROPERTY
OR TO CURE ANY VIOLATIONS OF LAW OR TO COMPLY WITH THE
REQUIREMENTS OF ANY INSURER. BUYER IS SOLELY RESPONSIBLE
FOR OBTAINING ANY CERTIFICATE OF OCCUPANCY OR ANY OTHER
APPROVAL OR PERMIT NECESSARY FOR TRANSFER OR OCCUPANCY
OF THE PROPERTY AND FOR ANY REPAIRS OR ALTERATIONS
NECESSARY TO OBTAIN THE SAME, ALL AT BUYER'S SOLE COST AND
EXPENSE. BUYER ACKNOWLEDGES AND AGREES THAT BUYER'S
OBLIGATIONS HEREUNDER SHALL REMAIN IN FULL FORCE AND
EFFECT WITH BUYER HAVING NO RIGHT TO DELAY THE CLOSING OR
TERMINATE THIS AGREEMENT REGARDLESS OF ANY FACTS OR
INFORMATION LEARNED BY BUYER AFTER THE DATE HEREOF,
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT.
(c) BUYER, FOR BUYER AND BUYER'S SUCCESSORS AND
ASSIGNS, HEREBY RELEASES SELLER FROM, AND WAIVES ALL
CLAIMS AND LIABILITY, KNOWN OR UNKNOWN, SUSPECTED OR
UNSUSPECTED, AGAINST SELLER FOR OR ATTRIBUTABLE TO THE
FOLLOWING:
(i) ANY AND ALL STATEMENTS OR OPINIONS
HERETOFORE OR HEREAFTER MADE, OR INFORMATION FURNISHED,
BY THE SELLER PARTIES TO BUYER OR ITS AGENTS OR
REPRESENTATIVES, EXCEPT FOR SELLER'S WARRANTIES (AS SUCH
TERM IS HEREIN DEFINED); AND
(ii) ANY STRUCTURAL, PHYSICAL OR
ENVIRONMENTAL CONDITION AT THE PROPERTY, INCLUDING
WITHOUT LIMITATION, CLAIMS OR LIABILITIES RELATING TO THE
PRESENCE, DISCOVERY OR REMOVAL OF ANY HAZARDOUS
MATERIALS IN, AT, ABOUT OR UNDER THE PROPERTY, OR FOR,
CONNECTED WITH OR ARISING OUT OF ANY AND ALL CLAIMS OR
CAUSES OF ACTION BASED UPON CERCLA (COMPREHENSIVE
ENVIRONMENTAL RESPONSE, COMPENSATION, AND LIABILITY ACT
OF 1980, 42 U.S.C. ''9601 ET SEQ., AS AMENDED BY XXXX
[SUPERFUND AMENDMENT AND REAUTHORIZATION ACT OF 1986]
AND AS MAY BE FURTHER AMENDED FROM TIME TO TIME), THE
RESOURCE CONSERVATION AND RECOVERY ACT OF 1976, 42 U.S.C.
''6901 ET SEQ., OR ANY RELATED CLAIMS OR CAUSES OF ACTION OR
ANY OTHER FEDERAL OR STATE BASED STATUTORY OR
REGULATORY CAUSES OF ACTION FOR ENVIRONMENTAL
CONTAMINATION AT, IN OR UNDER THE PROPERTY.
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(d) WITH RESPECT TO ANY RELEASE SET FORTH IN THIS
AGREEMENT RELATING TO UNKNOWN AND UNSUSPECTED CLAIMS
(INCLUDING, WITHOUT LIMITATION, THE RELEASES SET FORTH IN
SUBSECTION 4.1(c)), BUYER HEREBY ACKNOWLEDGES THAT SUCH
WAIVER AND RELEASE IS MADE WITH THE ADVICE OF COUNSEL AND
WITH FULL KNOWLEDGE AND UNDERSTANDING OF THE
CONSEQUENCES AND EFFECTS OF SUCH RELEASE, AND THAT SUCH
RELEASE IS MADE WITH THE FULL KNOWLEDGE, UNDERSTANDING
AND AGREEMENT THAT CALIFORNIA CIVIL CODE SECTION 1542
PROVIDES AS FOLLOWS, AND THAT THE PROTECTION AFFORDED BY
SAID CODE SECTION IS HEREBY WAIVED:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR."
(e) EXCEPT AS EXPRESSLY PROVIDED TO THE
CONTRARY IN THIS SUBSECTION (e), BUYER HEREBY (i) ASSUMES
AND TAKES RESPONSIBILITY AND LIABILITY FOR ALL LOSSES, COSTS,
CLAIMS, LIABILITIES, EXPENSES, DEMANDS AND OBLIGATIONS OF
EVERY KIND OR NATURE WHATSOEVER ATTRIBUTABLE TO THE
PROPERTY, ARISING OR ACCRUING ON OR AFTER THE CLOSING
DATE AND ATTRIBUTABLE TO EVENTS OR CIRCUMSTANCES WHICH
MAY HEREAFTER OCCUR, INCLUDING, WITHOUT LIMITATION, ALL
LOSSES, COSTS, CLAIMS, LIABILITIES, EXPENSES AND DEMANDS
WITH RESPECT TO THE STRUCTURAL, PHYSICAL OR
ENVIRONMENTAL CONDITION OF THE PROPERTY (INCLUDING,
WITHOUT LIMITATION, ANY HAZARDOUS MATERIALS, IN AT, UNDER
OR ABOUT THE PROPERTY), AND (ii) AGREES TO INDEMNIFY, DEFEND
AND HOLD HARMLESS SELLER FROM ANY LOSS, COST, CLAIM,
LIABILITY, EXPENSE OR DEMAND WITH RESPECT THERETO.
(f) For purposes of this Agreement, the term "Hazardous
Material" shall mean any substance, chemical, waste or material that is
or becomes regulated by any federal, state or local governmental
authority because of its toxicity, infectiousness, radioactivity,
explosiveness, ignitability, corrosiveness or reactivity, including, without
limitation, asbestos or any substance containing more than 0.1 percent
asbestos, the group of compounds known as polychlorinated biphenyls,
flammable explosives, oil, petroleum or any refined petroleum product.
(g) Buyer acknowledges and agrees that the provisions of
this Article 4 were a material factor in Seller's acceptance of the
Purchase Price and, while Seller has provided the Documents and
cooperated with Buyer, Seller is unwilling to sell the Property unless
Seller and the other Seller Parties are expressly released as set forth in
Subsection 4.2(c) and Buyer assumes the obligations specified in, and
provides the indemnifications set forth in, Subsection 4.2(e).
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(h) Notwithstanding anything to the contrary herein, the
provisions of this Section 4.2 shall survive the Closing and shall not be
merged therein.
ARTICLE 5 - ADJUSTMENTS AND PRORATIONS
The following adjustments and prorations shall be made at Closing:
5.1 Real Estate and Personal Property Taxes. Real estate and
personal property taxes shall be prorated on an accrual basis. Such
proration shall be calculated based upon the actual number of days in
such calendar year, with Seller being responsible for that portion of such
calendar year occurring prior to midnight of the day prior to the Closing
Date and Buyer being responsible for that portion of such calendar year
occurring after midnight of the day prior to the Closing Date. If the real
estate and/or personal property tax rate and assessments have not been
set for the calendar year in which the Closing occurs, then the proration
of such taxes shall be based upon the rate and assessments for the
preceding calendar year, and such proration shall be adjusted between
Seller and Buyer upon presentation of written evidence that the actual
taxes paid for the calendar year in which the Closing occurs differ from
the amounts used at Closing and in accordance with the provisions of
Section 5.6. Seller shall pay all installments of special assessments due
and payable prior to the Closing Date and Buyer shall pay all installments
of special assessments due and payable on and after the Closing Date;
provided, however, that Seller shall not be responsible for any
installments of special assessments which have not been confirmed or
which relate to projects that have not been completed on the date
hereof. In the event the Property has been assessed for property tax
purposes at such rates as would result in reassessment (i.e., "escape
assessment" or "roll-back taxes") based upon the change in land usage
or ownership of the Property, Buyer hereby agrees to pay all such taxes
and to indemnify and save Seller harmless from and against all claims
and liability for such taxes. Such indemnity shall survive the Closing and
not be merged therein.
5.2 Other Property Operating Expenses. Operating expenses for
the Property shall be prorated as of midnight of the day prior to the
Closing Date. Seller shall pay all utility charges and other operating
expenses attributable to the Property to, but not including the Closing
Date (except for those utility charges and operating expenses payable by
tenants in accordance with the Leases) and Buyer shall pay all utility
charges and other operating expenses attributable to the Property on or
after the Closing Date. To the extent that the amount of actual
consumption of any utility services is not determined prior to the Closing
Date, a proration shall be made at Closing based on the last available
reading and post-closing adjustments between Buyer and Seller shall be
made within twenty (20) days of the date that actual consumption for
such pre-closing period is determined, which obligation shall survive the
Closing and not be merged therein. Seller shall not assign to Buyer any
deposits which Seller has with any of the utility services or companies
servicing the Property. Buyer shall arrange with such services and
companies to have accounts opened in Buyer's name beginning at
12:01 a.m. on the Closing Date.
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5.3 Closing Costs. Buyer shall pay all premiums and charges of
the Title Company for any ALTA extended coverage or endorsements to
the Owner's Title Policy, the cost of any survey obtained by Buyer, all
recording and filing charges in connection with the instrument by which
Seller conveys the Property, one-half (1/2) of all escrow or closing
charges, all costs of Buyer's due diligence and any other costs
customarily paid by the buyer pursuant to local practice. Seller shall pay
all premiums and charges of the Title Company for the Owner's Title
Policy (excluding any ALTA extended coverage or endorsements), one-
half (1/2) of all escrow or closing charges and all transfer taxes and
similar charges, if any, applicable to the transfer of the Property to Buyer
and any other costs customarily paid by the seller pursuant to local
practice. Except as otherwise agreed by the parties, each party shall pay
its own attorneys. The obligations of the parties to pay applicable
escrow or closing charges shall survive the termination of this
Agreement.
5.4 Apportionment Credit. In the event the apportionments to be
made at the Closing result in a credit balance (i) to Buyer, such sum shall
be paid (at Seller's option) at the Closing by giving Buyer a credit against
the Purchase Price in the amount of such credit balance, or (ii) to Seller,
Buyer shall pay the amount thereof to Seller at the Closing by wire
transfer of immediately available funds to the account or accounts to be
designated by Seller for the payment of the Purchase Price.
5.5 Delayed Adjustment. If at any time following the Closing Date,
the amount of an item listed in any section of this Article 5 shall prove to
be incorrect (whether as a result in an error in calculation or a lack of
complete and accurate information as of the Closing), the party in whose
favor the error was made shall promptly pay to the other party the sum
necessary to correct such error upon receipt of proof of such error,
provided that such proof is delivered to the party from whom payment is
requested on or before one (1) year after Closing. The provisions of this
Section 5.5 shall survive the Closing and not be merged therein.
5.6 Lease Expenses. At Closing, Buyer shall reimburse Seller for
any and all fees, costs and expenses (including, without limitation, costs
incurred for leasing commissions, legal fees, cash or other leasing
incentives, moving expenses, buy-outs of leases of other space occupied
by the tenant and tenant improvement work) incurred or paid by Seller
after November 11, 1996, and prior to Closing in connection with any new
leases of any or all of the Property; provided that Seller has informed
Buyer of such leases prior to Closing.
8
ARTICLE 6 - CLOSING
Buyer and Seller hereby agree that the Transaction shall be
consummated as follows:
6.1 Closing Date. Subject to Seller's right to extend the Closing
as provided in this Agreement, the Transaction shall close ("Closing") on
the date hereof (the "Closing Date"). The Closing shall take place
through an escrow (the "Escrow") established with the Title Company
(the "Escrow Agent"), with title transfer and payment of the Purchase
Price to be completed on the Closing Date as set forth in Section 6.2.
Time is of the essence with respect to the Closing Date.
6.2 Title Transfer and Payment of Purchase Price. Provided all
conditions precedent to Seller's obligations hereunder have been
satisfied, Seller agrees to convey title to the Real Property to Buyer by
grant deed upon confirmation of receipt of the Purchase Price by the
Escrow Agent as set forth below. Provided all conditions precedent to
Buyer's obligations hereunder have been satisfied, Buyer agrees to
deliver the payment specified in Article 2 by timely delivering the same to
the Escrow Agent no later than 8:00 a.m. Pacific Time on the Closing
Date. Notwithstanding the foregoing, Seller shall have the right to
terminate this Agreement at any time if such payment is not received by
8:00 a.m. Pacific Time on the Closing Date.
6.3 Seller's Closing Deliveries. At the Closing, Seller shall deliver
the Deed and the Transfer Tax Statement (as such terms are defined
below) to the Escrow Agent and shall deliver the other documents
referenced below directly to Buyer, outside of the Escrow, immediately
after the Closing:
(a) Deed. A grant deed in the form of Exhibit C attached
hereto and incorporated herein by this reference, conveying to Buyer all
of Seller's right, title and interest in and to the Real Property, subject only
to the Permitted Exceptions ("Deed").
(b) Transfer Tax Statement. A statement in the form of
Exhibit D attached hereto and incorporated herein by this reference, to
be executed by the Escrow Agent and delivered to the Recorder of the
County of San Bernardino together with the Deed.
(c) Xxxx of Sale. A xxxx of sale in the form of Exhibit E
attached hereto and incorporated herein by this reference conveying all
of Seller's right, title and interest in and to the Personal Property.
(d) Assignment of Contracts. An assignment and
assumption of warranties and guaranties and the Other Property Rights
(to the extent the same are not transferred by the Deed or Xxxx of Sale) in
the form of Exhibit F attached hereto and incorporated herein by this
reference ("Assignment of Contracts"), transferring, to the extent
assignable, without liability or expense to Seller, all warranties and
guaranties which remain in effect on the Closing Date and any Other
Property Rights not otherwise transferred to Buyer (all of the foregoing
being herein collectively
9
called the "Contracts"). Seller shall not assign
any existing management agreement or any contracts or policies of
insurance for the Property.
(e) Non-Foreign Status Affidavit. A non-foreign status
affidavit in the form of Exhibit G attached hereto and incorporated
herein by this reference, as required by Section 1445 of the Internal
Revenue Code and a California Nonresident Withholding Exemption
Certificate for Real Estate Sales (Form 590-RE).
(f) Evidence of Authority. A certificate of an Assistant
Secretary of Seller with respect to the authority to act on behalf of Seller
of the individual executing on behalf of Seller all documents
contemplated by this Agreement.
(g) Property Documents. (i) To the extent in the possession
of Seller or the current manager of the Property, (A) the original (or, if
unavailable, a copy) of the existing certificate or certificates of
occupancy for the Property, and (B) all original (or, if unavailable, copies
of) certificates, licenses, permits, authorizations and approvals issued for
or with respect to the Property by governmental and quasi-governmental
authorities having jurisdiction; and (ii) all non-proprietary books and
records located at the Property or at the office of Seller's building
manager relating to the Property and the ownership and operation
thereof (the items described in clauses (i) and (ii) being herein collectively
called the "Property Documents").
(h) Other Documents. Such other documents as may be
reasonably required by the Title Company or as may be agreed upon by
Seller and Buyer to consummate the Transaction.
(i) Keys and Original Documents. Keys to all locks on the
Real Property (in Seller's or Seller's building manager's possession) and
originals or, if originals are not available, copies, of the Contracts (unless
canceled as set forth herein) encumbering the Property on the Closing
Date.
(j) Transfer Taxes. If applicable, duly completed and signed
real estate transfer tax returns.
6.4 Buyer Closing Deliveries. At the Closing, Buyer shall deliver
the Purchase Price, as adjusted for apportionments and other
adjustments required under this Agreement, plus any other amounts
required to be paid by Buyer at Closing, and shall deliver the following
items directly to Seller, outside of the Escrow, immediately after the
Closing:
(a) Assignment of Contracts. The Assignment of Contracts
executed and acknowledged by Buyer.
(b) Buyer's ERISA Certificate. The certificate of Buyer
substantially in the form of Exhibit H attached hereto and incorporated
herein by this reference and any other certificate or other information
reasonably required by Seller to satisfy Seller that the Transaction does not
10
constitute a non-exempt prohibited transaction under the Employee
Retirement Income Security Act of 1974, as amended ("ERISA") and that
the Transaction complies with ERISA in all respects.
(c) Evidence of Authority. Documentation to establish to
Seller's reasonable satisfaction the due authorization of Buyer's
acquisition of the Property and Buyer's delivery of the documents
required to be delivered by Buyer pursuant to this Agreement (including,
but not limited to, the organizational documents of Buyer, as they may
have been amended from time to time, resolutions of Buyer and
incumbency certificates of Buyer).
(d) Other Documents. Such other documents as may be
reasonably required by the Title Company or may be agreed upon by
Seller and Buyer to consummate the Transaction.
(e) Transfer Taxes. If applicable, duly completed and signed
real estate transfer tax returns.
6.5 Delivery of Deed. Effective upon delivery of the Deed, actual
and exclusive possession (subject only to the Permitted Exceptions) and
risk of loss to the Property shall pass from Seller to Buyer.
ARTICLE 7 - CONDITIONS TO CLOSING
7.1 Seller's Obligations. Seller's obligation to close the
Transaction is conditioned on the following, which may be waived by
Seller by an express written waiver, at its sole option:
(a) Buyer's Deliveries Complete. Buyer shall have delivered
the funds required hereunder and shall be prepared to deliver to Seller,
outside of the Escrow, all of the documents to be executed by Buyer set
forth in Section 6.4 and shall have performed all other covenants,
undertakings and obligations, and complied with all conditions required
by this Agreement, to be performed or complied with by Buyer at or prior
to the Closing.
7.2 Buyer's Obligations. Buyer's obligation to close the
Transaction is conditioned on all of the following, any or all of which may
be expressly waived by Buyer in writing, at its sole option:
(a) Title Conditions Satisfied. At the time of the Closing,
title to the Property shall be as provided in Article 3 of this Agreement;
and
(b) Seller's Deliveries Complete. Seller shall have delivered
the Deed to the Escrow Agent and shall be prepared to deliver to Buyer,
outside of the Escrow, all of the documents and other items required
pursuant to Section 6.3 and shall have performed all other covenants,
undertakings and obligations, and complied with all conditions required
by this Agreement, to be performed or complied with by Seller at or prior
to the Closing.
11
7.3 Waiver of Failure of Conditions Precedent. At any time or
times on or before the date specified for the satisfaction of any condition,
Buyer or Seller may elect in writing to waive the benefit of any such
condition set forth in Section 7.1 or Section 7.2, respectively. By closing
the Transaction, Buyer shall be conclusively deemed to have waived the
benefit of any remaining unfulfilled conditions set forth in Section 7.2. In
the event any of the conditions set forth in Sections 7.1 or 7.2 are neither
waived nor fulfilled, Buyer or Seller (as appropriate) may terminate their
obligations to perform at the Closing and otherwise under this
Agreement in accordance with the provisions of Article 10.
ARTICLE 8 - REPRESENTATIONS AND WARRANTIES
8.1 Buyer's Representations. Buyer represents and warrants to,
and covenants with, Seller as follows:
8.1.1 Buyer's Authorization. Buyer is duly organized (or
formed), validly existing and in good standing under the laws of its State
of organization and the State in which the Property is located, and is
authorized to consummate the Transaction and fulfill all of its obligations
hereunder and under all documents contemplated hereunder to be
executed by Buyer, and has all necessary power to execute and deliver
this Agreement and all documents contemplated hereunder to be
executed by Buyer, and to perform all of its obligations hereunder and
thereunder. This Agreement and all documents contemplated hereunder
to be executed by Buyer have been duly authorized by all requisite
partnership or corporate action on the part of Buyer and are the valid
and legally binding obligation of Buyer, enforceable in accordance with
their respective terms. Neither the execution and delivery of this
Agreement and all documents contemplated hereunder to be executed
by Buyer, nor the performance of the obligations of Buyer hereunder or
thereunder will result in the violation of any law or any provision of the
agreement of partnership or articles of incorporation and by-laws of
Buyer or will conflict with any order or decree of any court or
governmental instrumentality of any nature by which Buyer is bound.
8.1.2 Buyer's Financial Condition. Buyer's financial condition
is as is represented to Seller on any financial statements previously
submitted to Seller by Buyer.
8.2 Seller's Representations. Seller represents and warrants to
Buyer as follows:
8.2.1 Seller's Authorization. Seller is (a) duly organized (or
formed), validly existing and in good standing under the laws of its State
of organization and the State in which the Property is located, (b) is
authorized to consummate the Transaction and fulfill all of its obligations
hereunder and under all documents contemplated hereunder to be
executed by Seller, and (c) has all necessary power to execute and
deliver this Agreement and all documents contemplated hereunder to be
executed by Seller and to perform its obligations hereunder and
thereunder. This Agreement and all documents contemplated hereunder
to be executed by Seller have been duly authorized by all requisite
corporate action on the part of Seller and are the valid and legally
binding obligation of
12
Seller enforceable in accordance with their
respective terms. Neither the execution and delivery of this Agreement
and all documents contemplated hereunder to be executed by Seller nor
the performance of the obligations of Seller hereunder or thereunder will
result in the violation of any law or any provision of the articles of
incorporation and by-laws of Seller or will conflict with any order or
decree of any court or governmental instrumentality of any nature by
which Seller is bound.
8.2.2 Other Seller's Representations. To Seller's knowledge
(as such term is hereinafter defined):
(a) Except as listed in Exhibit I attached hereto and
incorporated herein by this reference, Seller has not received any written
notice of pending litigation against Seller which would, if determined
adversely to Seller, adversely affect the Property.
(b) Seller has not entered into any service, supply,
maintenance or utility contracts affecting the Property which will be
binding upon Buyer after the Closing other than the Contracts listed on
Exhibit B attached hereto.
(c) Seller has not received any written notice of default
under the terms of any of the Contracts except as listed in Exhibit I
attached hereto.
(d) Except as listed in Exhibit I attached hereto, Seller
has not received any written notice from any governmental authority of
any violation of any zoning, building, fire, or health code, statute,
ordinance, rule or regulation applicable to the Property. Notwithstanding
the foregoing, however, Seller shall not be required to disclose to Buyer
(and shall not be deemed to make any representation or warranty with
respect to) any notices relating to the environmental condition of the
Property or Hazardous Materials in, at, under or about the Property, it
being acknowledged and agreed to by both Buyer and Seller that Buyer
has investigated and satisfied itself with regard to the environmental
condition of Property and the presence or absence of Hazardous
Materials during its due diligence period.
(e) As of the date of this Agreement, the only tenants
of the Property are the tenants listed in Exhibit I attached hereto.
8.3 General Provisions.
8.3.1 Definition of "Seller's Knowledge". All references in this
Agreement to "Seller's knowledge" or words of similar import shall refer
only to the actual knowledge of Xxxxx Xxxxxxxx (the "Designated
Employee") and shall not be construed to refer to the knowledge of any
other officer, agent or employee of Seller or any affiliate thereof or to
impose or have imposed upon the Designated Employee any duty to
investigate the matters to which such knowledge, or the absence thereof,
pertains, including, but not limited to, the contents of the files,
documents and materials made available to or disclosed to Buyer or the
contents of files maintained by the
13
Designated Employee. There shall be
no personal liability on the part of the Designated Employee arising out of
any representations or warranties made herein.
8.3.2 Seller's Representations Deemed Modified. To the
extent that Buyer knows or is deemed to know prior to the date hereof
that Seller's representations and warranties are inaccurate, untrue or
incorrect in any way, such representations and warranties shall be
deemed modified to reflect Buyer's knowledge or deemed knowledge, as
the case may be. For purposes of this Agreement, Buyer shall be
"deemed to know" that a representation or warranty was untrue,
inaccurate or incorrect to the extent that this Agreement, the Documents,
any estoppel certificate executed by any tenant of the Property and
delivered to Buyer, or any studies, tests, reports, or analyses prepared by
or for Buyer or any of its employees, agents, representatives or attorneys
(all of the foregoing being herein collectively called the "Buyer's
Representatives") or otherwise obtained by Buyer or Buyer's
Representatives contains information which is inconsistent with such
representation or warranty.
8.3.3 Notice of Breach; Seller's Right to Cure. If prior to the
Closing, Buyer or any Buyer's Representative obtains actual knowledge
that any of the representations or warranties made herein by Seller are
untrue, inaccurate or incorrect in any material respect, Buyer shall give
Seller written notice thereof within five (5) business days of obtaining
such knowledge (but, in any event, prior to the Closing). If at or prior to
the Closing, Seller obtains knowledge that any of the representations or
warranties made herein by Seller are untrue, inaccurate or incorrect in
any material respect, Seller shall give Buyer written notice thereof within
five (5) business days of obtaining such knowledge (but, in any event,
prior to the Closing). In either such event, Seller shall have the right to
cure such misrepresentation or breach and shall be entitled to a
reasonable adjournment of the Closing (not to exceed ninety (90) days)
for the purpose of such cure. If Seller is unable to so cure any
misrepresentation or breach, then Buyer, as its sole remedy for any and
all such materially untrue, inaccurate or incorrect material
representations or warranties, shall elect either (a) to waive such
misrepresentations or breaches of warranties and consummate the
Transaction without any reduction of or credit against the Purchase
Price, or (b) to terminate this Agreement by written notice given to Seller
on the Closing Date, in which event this Agreement shall be terminated,
and, thereafter, neither party shall have any further rights or obligations
hereunder except as provided in any section hereof that by its terms
expressly provides that it survives any termination of this Agreement. If
any such representation or warranty is untrue, inaccurate or incorrect but
is not untrue, inaccurate or incorrect in any material respect, Buyer shall
be deemed to waive such misrepresentation or breach of warranty, and
Buyer shall be required to consummate the Transaction without any
reduction of or credit against the Purchase Price. The untruth,
inaccuracy or incorrectness of a representation or warranty shall be
deemed material only if Buyer's aggregate damages resulting from the
untruth, inaccuracy or incorrectness of any of the representations or
warranties are reasonably estimated by Buyer to exceed Fifty Thousand
Dollars ($50,000).
8.3.4 Survival; Limitation on Seller's Liability. The
representations and warranties made by Seller in Section 8.2 shall
survive the Closing and not be merged therein for a period of one
14
(1) year and Seller shall only be liable to Buyer hereunder for a breach of a
representation and warranty made herein or in any of the documents
executed by Seller at the Closing with respect to which a claim is made
by Buyer against Seller on or before the date one (1) year after the date
of the Closing. Anything in this Agreement to the contrary
notwithstanding, the maximum aggregate liability of Seller for Seller's
breaches of representations and warranties herein or in any documents
executed by Seller at Closing shall be limited as set forth in Section 11.16
hereof. Notwithstanding the foregoing, however, if the Closing occurs,
Buyer hereby expressly waives, relinquishes and releases any right or
remedy available to it at law, in equity or under this Agreement to make
a claim against Seller for damages that Buyer may incur, or to rescind
this Agreement and the Transaction, as the result of any of Seller's
representations or warranties being untrue, inaccurate or incorrect if (a)
Buyer knew or is deemed to know that such representation or warranty
was untrue, inaccurate or incorrect at the time of the Closing, or (b)
Buyer's damages as a result of such representations or warranties being
untrue, inaccurate or incorrect are reasonably estimated to aggregate
less than Fifty Thousand Dollars ($50,000).
ARTICLE 9 - COVENANTS
9.1 Mutual Covenants.
9.1.1 Broker. Seller and Buyer expressly acknowledge that
Broker has acted as the exclusive broker with respect to the Transaction
and with respect to this Agreement, and that Seller shall pay any
brokerage commission due to Broker in accordance with the separate
agreement between Seller and Broker. Seller and Buyer each represents
and warrants to the other that it has not dealt with any other broker in
the Transaction and each agrees to hold harmless the other and
indemnify the other from and against any and all damages, costs or
expenses (including, but not limited to, reasonable attorneys' fees and
disbursements) suffered by the indemnified party as a result of acts of
the indemnifying party that would constitute a breach of its
representation and warranty in this section.
9.1.2 Tax Refunds and Credits. All real estate and personal
property tax refunds and credits with respect to the Property shall be
apportioned between Buyer and Seller as follows:
(a) with respect to any refunds or credits attributable
to real estate and personal property taxes due and payable in the
calendar year in which the Closing occurs (regardless of the year for
which such taxes are assessed), such refunds and credits shall be
apportioned between Buyer and Seller in proportion to the number of
days in such calendar year that each party owned the Property (with title
to the Property being deemed to have passed as of 12:01 a.m. on the
Closing Date);
(b) with respect to any refunds or credits attributable
to real estate and personal property taxes due and payable during any
period prior to the calendar year in which the
15
Closing occurs (regardless of the year for which such taxes are assessed),
Seller shall be entitled to the entire refunds and credits; and
(c) with respect to any refunds or credits attributable
to real estate and personal property taxes due and payable during any
period after the calendar year in which the Closing occurs (regardless of
the year for which such taxes are assessed), Buyer shall be entitled to
the entire refunds and credits.
9.1.3 Survival. The provisions of this Article 9 shall survive
the Closing (and not be merged therein) or earlier termination of this
Agreement.
ARTICLE 10 - FAILURE OF CONDITIONS
10.1 To Seller's Obligations. If, on the Closing Date, (i) Buyer is in
default of any of its obligations hereunder, or (ii) any of Buyer's material
representations or warranties are untrue in any material respect, or
(iii) the Closing otherwise fails to occur by reason of Buyer's failure or
refusal to perform its obligations hereunder in a prompt and timely
manner, then Seller may elect to (a) terminate this Agreement by written
notice to Buyer; or (b) proceed to close the Transaction. If this
Agreement is so terminated, then neither party to this Agreement shall
have any further rights or obligations hereunder other than any arising
under any section herein which expressly provides that it survives the
termination of this Agreement.
10.2 To Buyer's Obligations. If, on the Closing Date, (i) Seller is in
default of any of its obligations hereunder, or (ii) any of Seller's material
representations or warranties are untrue in any material respect, or
(iii) the Closing otherwise fails to occur by reason of Seller's failure or
refusal to perform its obligations hereunder in a prompt and timely
manner, Buyer shall have the right, to elect, as its sole and exclusive
remedy, to (a) terminate this Agreement by written notice to Seller, or (b)
waive the condition and proceed to close the Transaction. If this
Agreement is so terminated, then neither party to this Agreement shall
have any further rights or obligations hereunder other than any arising
under any section herein which expressly provides that it survives the
termination of this Agreement.
ARTICLE 11 - MISCELLANEOUS
11.1 Buyer's Assignment. Buyer shall not assign this Agreement or
its rights hereunder to any individual or entity without the prior written
consent of Seller, which consent Seller may grant or withhold in its sole
discretion, and any such assignment shall be null and void.
11.2 Designation Agreement. Section 6045(e) of the United States
Internal Revenue Code and the regulations promulgated thereunder
(herein collectively called the "Reporting Requirements")
16
require an information return to be made to the United States Internal Revenue
Service, and a statement to be furnished to Seller, in connection with the
Transaction. Escrow Agent ("Agent") is either (i) the person responsible
for closing the Transaction (as described in the Reporting Requirements)
or (ii) the disbursing title or escrow company that is most significant in
terms of gross proceeds disbursed in connection with the Transaction
(as described in the Reporting Requirements). Accordingly:
(a) Agent is hereby designated as the "Reporting Person"
(as defined in the Reporting Requirements) for the Transaction. Agent
shall perform all duties that are required by the Reporting Requirements
to be performed by the Reporting Person for the Transaction.
(b) Seller and Buyer shall furnish to Agent, in a timely
manner, any information requested by Agent and necessary for Agent to
perform its duties as Reporting Person for the Transaction.
(c) Agent hereby requests Seller to furnish to Agent Seller's
correct taxpayer identification number. Seller acknowledges that any
failure by Seller to provide Agent with Seller's correct taxpayer
identification number may subject Seller to civil or criminal penalties
imposed by law. Accordingly, Seller hereby certifies to Agent, under
penalties of perjury, that Seller's correct taxpayer identification number
is ___________________.
(d) Each of the parties hereto shall retain this Agreement for
a period of four (4) years following the calendar year during which
Closing occurs.
11.3 Survival/Merger. Except for the provisions of this Agreement
which are explicitly stated to survive the Closing, (a) none of the terms of
this Agreement shall survive the Closing, and (b) the delivery of the Deed
and any other documents and instruments by Seller and the acceptance
thereof by Buyer shall effect a merger, and be deemed the full
performance and discharge of every obligation on the part of Buyer and
Seller to be performed hereunder.
11.4 Integration; Waiver. This Agreement, together with the
Schedules and Exhibits hereto, embodies and constitutes the entire
understanding between the parties with respect to the Transaction and
all prior agreements, understandings, representations and statements,
oral or written, are merged into this Agreement. Neither this Agreement
nor any provision hereof may be waived, modified, amended, discharged
or terminated except by an instrument signed by the party against whom
the enforcement of such waiver, modification, amendment, discharge or
termination is sought, and then only to the extent set forth in such
instrument. No waiver by either party hereto of any failure or refusal by
the other party to comply with its obligations hereunder shall be deemed
a waiver of any other or subsequent failure or refusal to so comply.
11.5 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the law of the State in which the Property
is located except to the extent its conflict of law principles would direct
the application of the law of a different state or forum.
17
11.6 Captions Not Binding; Schedules and Exhibits. The captions
in this Agreement are inserted for reference only and in no way define,
describe or limit the scope or intent of this Agreement or of any of the
provisions hereof. All Schedules and Exhibits attached hereto shall be
incorporated by reference as if set out herein in full.
11.7 Binding Effect. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
11.8 Severability. If any term or provision of this Agreement or the
application thereof to any persons or circumstances shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement or the
application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable shall not be
affected thereby, and each term and provision of this Agreement shall be
valid and enforced to the fullest extent permitted by law.
11.9 Notices. Any notice, request, demand, consent, approval and
other communications under this Agreement shall be in writing, and shall
be deemed duly given or made at the time and on the date when
personally delivered as shown on a receipt therefor (which shall include
delivery by a nationally recognized overnight delivery service) or three (3)
business days after being mailed by prepaid registered or certified mail,
return receipt requested, to the address for each party set forth below.
Any party, by written notice to the other in the manner herein provided,
may designate an address different from that set forth below.
IF TO BUYER:
Delphinidae/White Birch
c/o Dolphin Partners, Inc.
00000 Xxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx
COPY TO:
Sheppard, Mullin, Xxxxxxx & Xxxxxxx LLP
0000 XxxXxxxxx Xxxxx, Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx, Esq.
18
IF TO SELLER:
Prudential Realty Acquisition Fund II, L.P.
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxxxx, Vice President
COPY TO:
The Prudential Insurance Company of America
0000 Xxxxxxx Xxxx Xxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxx, Esq.
11.10 Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original and all of which
counterparts taken together shall constitute one and the same
agreement.
11.11 No Recordation. Seller and Buyer each agrees that
neither this Agreement nor any memorandum or notice hereof shall be
recorded and Buyer agrees (a) not to file any notice of pendency or other
instrument (other than a judgment) against the Property or any portion
thereof in connection herewith and (b) to indemnify Seller against all
costs, expenses and damages, including, without limitation, reasonable
attorneys' fees and disbursements, incurred by Seller by reason of the
filing by Buyer of such notice of pendency or other instrument.
11.12 Additional Agreements; Further Assurances. Subject to
the terms and conditions herein provided, each of the parties hereto shall
execute and deliver such documents as the other party shall reasonably
request in order to consummate and make effective the Transaction;
provided, however, that the execution and delivery of such documents by
such party shall not result in any additional liability or cost to such party.
11.13 Construction. The parties acknowledge that each party
and its counsel have reviewed and revised this Agreement and that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any amendment, Schedule or Exhibit
hereto.
11.14 ERISA. To satisfy compliance with ERISA, Buyer
represents and warrants to Seller that:
(a) Neither Buyer nor any of its affiliates (within the meaning
of Part V(c) of Prohibited Transaction Exemption 84-14 granted by the
U.S. Department of Labor ("PTE 84-14") has, or during the immediately
preceding year has exercised, the authority to appoint or terminate
19
Seller as investment manager of any assets of the employee benefit plans
whose assets are held by Seller or to negotiate the terms of any
management agreement with Seller on behalf of any such plan;
(b) The Transaction is not specifically excluded by Part I(b)
of PTE 84-14;
(c) Buyer is not a related party of Seller (as defined in Part
V(h) of PTE 84-14); and
(d) The terms of the Transaction have been negotiated and
determined at arm's length, as such terms would be negotiated and
determined by unrelated parties.
Buyer hereby agrees to execute such documents or provide
such information as Seller may require in connection with the
Transaction or to otherwise assure Seller that: (i) this is not a prohibited
Transaction under ERISA, (ii) that the Transaction is otherwise in full
compliance with ERISA and (iii) that Seller is not in violation of ERISA by
compliance with this Agreement and by closing the Transaction. Seller
shall not be obligated to consummate the Transaction unless and until
the Transaction complies with ERISA and Seller is satisfied that the
Transaction complies in all respects with ERISA. The obligations of
Buyer under this section shall survive the Closing and shall not be
merged therein.
11.15 Business Day. As used herein, the term "business day"
shall mean any day other than a Saturday, Sunday, or any Federal or
State of California holiday.
11.16 Seller's Maximum Aggregate Liability. Notwithstanding
any provision to the contrary contained in this Agreement or any
documents executed by Seller pursuant hereto or in connection herewith,
the maximum aggregate liability of Seller, and the maximum aggregate
amount which may be awarded to and collected by Buyer, under this
Agreement (including, without limitation, the breach of any
representations and warranties contained herein) and any and all
documents executed pursuant hereto or in connection herewith for which
a claim is timely made by Buyer shall not exceed Five Hundred Thousand
Dollars ($500,000). The provisions of this section shall survive the
Closing and shall not be merged therein.
20
IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be duly executed on its behalf on the day and year first
above written.
PRUDENTIAL REALTY ACQUISITION
FUND II, L.P., a Delaware limited
partnership
By: Prudential Realty Partnerships,
Inc., a Delaware corporation
General Partner
By: /s/ Xxxxx X. Xxxxxxxx
___________________________
Xxxxx X. Xxxxxxxx
Vice President
DELPHINIDAE/WHITE BIRCH,
a California general partnership
By: Roosterfish Equities, L.P., a
California limited partnership
Its Managing General Partner
By: Dolphin Partners, Inc., a
California corporation
Its General Partner
By: /s/ Xxxxx X. Xxxxx
_________________________
Name: Xxxxx X. Xxxxx
Its: E.V. Pres.
21
The undersigned has executed this
Agreement solely to confirm its
agreement to comply with the provisions
of Sections 6.3(b) and 11.2.
By: XXXXXXX TITLE OF THE INLAND EMPIRE
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Its: Vice President
Date:
22
EXHIBIT A
LEGAL DESCRIPTION
PARCELS 2 AND 3 OF PARCEL MAP NO. 7244, AS SHOWN
BY MAP ON FILE IN BOOK 76 PAGE(S) 74 THROUGH 77,
INCLUSIVE, OF PARCEL MAPS, RECORDS OF SAN
BERNARDINO COUNTY, CALIFORNIA, AND PER
CERTIFICATE OF COMPLIANCE FOR LOT LINE
ADJUSTMENT RECORDED APRIL 26, 1983 AS
INSTRUMENT NO. 83-088592 OF OFFICIAL RECORDS, AND
PER CERTIFICATE OF CORRECTION RECORDED MAY 24,
1983 AS INSTRUMENT NO. 83-113303 OF OFFICIAL
RECORDS, AND PER CERTIFICATE OF COMPLIANCE FOR
LOT LINE ADJUSTMENT RECORDED FEBRUARY 6, 1984
AS INSTRUMENT NO. 84-028325 OF OFFICIAL RECORDS;
EXCEPTING THEREFROM THE NORTHERLY 183 FEET OF
PARCEL 3.
A-1
EXHIBIT B
LIST OF CONTRACTS
None.
B-1
EXHIBIT C
FORM OF GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Sheppard, Mullin, et al.
0000 XxxXxxxxx Xx.
Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxx, Esq.
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is
hereby acknowledged, PRUDENTIAL REALTY ACQUISITION FUND II,
L.P., a Delaware limited partnership ("Grantor"), hereby GRANTS to
DELPHINIDAE/WHITE BIRCH, a California general partnership, that
certain real property located in the County of San Bernardino, State of
California and more particularly described in Exhibit 1 attached hereto
and incorporated herein by this reference (the "Property"), together
with all improvements located thereon and all rights, privileges,
easements and appurtenances of Grantor appertaining to the Property
and all right, title and interest of Grantor in, to and under adjoining
streets, rights of way and easements.
In accordance with Section 11932 of the California Revenue
and Taxation Code, Grantor has declared the amount of the transfer
tax which is due in connection with the property conveyed hereby, by a
separate statement, which is not being recorded with this Grant Deed.
C-1
IN WITNESS WHEREOF, Grantor has caused its duly au-
thorized representatives to execute this instrument as of the date
hereinafter written.
DATED: December ___, 1996
PRUDENTIAL REALTY ACQUISITION
FUND II, L.P., a Delaware limited
partnership
By: Prudential Realty Partnerships,
Inc., a Delaware corporation
General Partner
By: ___________________________
Xxxxx X. Xxxxxxxx
Vice President
C-2
Exhibit 1
PARCELS 2 AND 3 OF PARCEL MAP NO. 7244, AS SHOWN
BY MAP ON FILE IN BOOK 76 PAGE(S) 74 THROUGH 77,
INCLUSIVE, OF PARCEL MAPS, RECORDS OF SAN
BERNARDINO COUNTY, CALIFORNIA, AND PER
CERTIFICATE OF COMPLIANCE FOR LOT LINE
ADJUSTMENT RECORDED APRIL 26, 1983 AS
INSTRUMENT NO. 83-088592 OF OFFICIAL RECORDS, AND
PER CERTIFICATE OF CORRECTION RECORDED MAY 24,
1983 AS INSTRUMENT NO. 83-113303 OF OFFICIAL
RECORDS, AND PER CERTIFICATE OF COMPLIANCE FOR
LOT LINE ADJUSTMENT RECORDED FEBRUARY 6, 1984
AS INSTRUMENT NO. 84-028325 OF OFFICIAL RECORDS;
EXCEPTING THEREFROM THE NORTHERLY 183 FEET OF
PARCEL 3.
X-0
XXXXX XX XXXXXXXXXX )
)
COUNTY OF _______________ )
On December ___, 1996, before me __________________, a Notary
Public in and for said State, personally appeared ____________________,
personally known to me (or proved to me on the basis of satisfactory
evidence) to be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that he/she/they executed
the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity
on behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
____________________________________
Notary Public, State of California
C-4
EXHIBIT D
FORM OF TRANSFER TAX STATEMENT
Document No. _______________
Recorded December ___, 1996
STATEMENT OF TAX DUE AND REQUEST THAT TAX
DECLARATION NOT BE MADE A PART OF THE PERMANENT
RECORD IN THE OFFICE OF THE COUNTY RECORDER
(PURSUANT TO SECTION 11932 OF THE REVENUE AND
TAXATION CODE)
TO: Recorder of the County of San Bernardino
Request is hereby made in accordance with the provisions of the
Documentary
Transfer Tax Act that the amount of the tax due not be shown on the
original document which names:
Grantor: Prudential Realty Acquisition Fund II, L.P., a Delaware
limited partnership
Grantee: Delphinidae/White Birch, a California general partnership
The property described in the accompanying document is located
in the County of San Bernardino.
The amount of tax due on the accompanying document is
$________________.
_______ Computed on the full value of the property conveyed.
_______ Computed on the full value, less liens and encumbrances
remaining at the time of sale.
____________________________________
(Signature of Declarant of Agent)
_____________________________________
(Firm Name)
D-1
EXHIBIT E
FORM OF XXXX OF SALE
THIS XXXX OF SALE, dated as of December ___, 1996, is made by
PRUDENTIAL REALTY ACQUISITION FUND II, L.P., a Delaware limited
partnership ("Seller"), in favor of DELPHINIDAE/WHITE BIRCH, a
California general partnership ("Buyer").
RECITALS
WHEREAS, by special warranty deed of even date herewith, Seller
conveyed to Buyer, whose mailing address is 000 Xxx Xxxxxx Xxxxx,
Xxxxx 000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000, that certain tract of land
more particularly described in Exhibit 1 attached hereto and
incorporated herein by this reference, together with all improvements
located thereon ("Real Property").
WHEREAS, in connection with the above described conveyance
Seller desires to sell, transfer and convey to Buyer certain items of
tangible personal property as hereinafter described.
AGREEMENT
NOW, THEREFORE, in consideration of the receipt of TEN AND
NO/100 DOLLARS ($10.00) and other good and valuable consideration
paid in hand by Buyer to Seller, the receipt and sufficiency of which are
hereby acknowledged, Seller has GRANTED, CONVEYED, SOLD,
TRANSFERRED, SET OVER and DELIVERED and by these presents
does hereby GRANT, SELL, TRANSFER, SET OVER and DELIVER to
Buyer, its legal representatives, successors and assigns, all of its right,
title and interest in and to all tangible personal property owned by
Seller (excluding any computer or computer equipment and software),
located on the Real Property, and used in the ownership, operation and
maintenance of the Real Property and all nonconfidential books,
records and files (excluding appraisals, budgets, marketing information
or other information in the possession or control of Seller or Seller's
property manager which Seller
E-1
deems proprietary) relating to the Real
Property (herein collectively called the "Personal Property"), to have
and to hold, all and singular, the Personal Property unto Buyer forever.
SELLER:
PRUDENTIAL REALTY ACQUISITION
FUND II, L.P., a Delaware limited
partnership
By: Prudential Realty Partnerships,
Inc., a Delaware corporation
General Partner
By: ___________________________
Xxxxx X. Xxxxxxxx
Vice President
E-2
Exhibit 1
PARCELS 2 AND 3 OF PARCEL MAP NO. 7244, AS SHOWN
BY MAP ON FILE IN BOOK 76 PAGE(S) 74 THROUGH 77,
INCLUSIVE, OF PARCEL MAPS, RECORDS OF SAN
BERNARDINO COUNTY, CALIFORNIA, AND PER
CERTIFICATE OF COMPLIANCE FOR LOT LINE
ADJUSTMENT RECORDED APRIL 26, 1983 AS
INSTRUMENT NO. 83-088592 OF OFFICIAL RECORDS, AND
PER CERTIFICATE OF CORRECTION RECORDED MAY 24,
1983 AS INSTRUMENT NO. 83-113303 OF OFFICIAL
RECORDS, AND PER CERTIFICATE OF COMPLIANCE FOR
LOT LINE ADJUSTMENT RECORDED FEBRUARY 6, 1984
AS INSTRUMENT NO. 84-028325 OF OFFICIAL RECORDS;
EXCEPTING THEREFROM THE NORTHERLY 183 FEET OF
PARCEL 3.
E-3
EXHIBIT F
FORM OF ASSIGNMENT OF CONTRACTS
THIS ASSIGNMENT OF CONTRACTS ("Assignment"), dated as of
December ___, 1996, is made by and between PRUDENTIAL REALTY
ACQUISITION FUND II, L.P., a Delaware limited partnership ("Assignor")
and DELPHINIDAE/WHITE BIRCH, a California general partnership
("Assignee").
W I T N E S S E T H:
WHEREAS, by Purchase and Sale Agreement ("Sale Agreement")
dated as of even date herewith, by and between Assignor and
Assignee, Assignor agreed to sell to Assignee certain real property, and
the improvements located thereon ("Property") as more particularly
described in the Sale Agreement; and
WHEREAS, the Sale Agreement provides, inter alia, that Assignor
shall assign to Assignee rights to certain intangible property and that
Assignee shall assume all of the obligations of Assignor under such
intangible property from and after the date of such assignment, and
that Assignor and Assignee shall enter into this Assignment.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants herein contained, the parties hereto hereby agree as
follows:
1. Assignment of Licenses and Permits. Assignor hereby
assigns, sets over and transfers to Assignee all of its right, title and
interest in, to and under if and to the extent assignable by Assignor, all
licenses, permits and other written authorizations necessary for the
use, operation or ownership of the Property and in Assignor's
possession or control (herein collectively called the "Licenses and
Permits"). Assignee hereby assumes all obligations under the Licenses
and Permits whether arising or accruing before or after the date
hereof.
2. Assignment of Warranties and Guarantees. Assignor hereby
assigns, set over and transfers to Assignee all of its right, title and
interest in, to and under all warranties and guarantees relating solely to
the Property, to the extent assignable.
3. Indemnity. Assignee agrees to indemnify, defend and hold
harmless Assignor from any loss, cost, claim, liability, expense or
demand of whatever nature under the Licenses and Permits, arising or
accruing on or after the date hereof.
4. Miscellaneous. This Assignment and the obligations of the
parties hereunder shall survive the closing of the transaction referred
to in the Sale Agreement and shall not be merged
F-1
therein, shall be
binding upon and inure to the benefit of the parties hereto, their
respective legal representatives, successors and assigns, shall be
governed by and construed in accordance with the laws of the State of
California applicable to agreements made and to be wholly performed
within said State and may not be modified or amended in any manner
other than by a written agreement signed by the party to be charged
therewith.
5. Counterparts. This Assignment may be executed in
counterparts, each of which shall be an original and all of which
counterparts taken together shall constitute one and the same
agreement.
IN WITNESS WHEREOF, the parties hereto or their authorized
representatives have executed this Assignment as of the date hereof.
ASSIGNOR:
PRUDENTIAL REALTY ACQUISITION FUND
II, L.P., a Delaware limited partnership
By: Prudential Realty Partnerships, Inc., a
Delaware corporation
General Partner
By: ___________________________
Xxxxx X. Xxxxxxxx
Vice President
ASSIGNEE:
DELPHINIDAE/WHITE BIRCH,
a California general partnership
By: Roosterfish Equities, L.P., a California
limited partnership
Its Managing General Partner
By: Dolphin Partners, Inc., a
California corporation
Its General Partner
By: __________________________
Name:
Its:
F-2
EXHIBIT G
FORM OF SELLER'S FIRPTA AFFIDAVIT
Section 1445 of the Internal Revenue Code provides that a
transferee of a United States real property interest must withhold tax if
the transferor is a foreign person. To inform the transferee that
withholding of tax is not required upon the disposition of a United
States real property interest by PRUDENTIAL REALTY ACQUISITION
FUND II, L.P., a Delaware limited partnership ("Prudential"), the
undersigned hereby certifies the following on behalf of Prudential:
1. Prudential is not a foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations); and
2. Prudential's U.S. employer tax identification number is
____________; and
3. Prudential's office address is 000 Xxxxx Xxxxxx, Xxxxxx,
Xxx Xxxxxx, 00000-0000.
Prudential understands that this certification may be disclosed to
the Internal Revenue Service by transferee and that any false statement
contained herein could be punished by fine, imprisonment, or both.
The undersigned officer of Prudential declares that he has
examined this certification and to the best of his knowledge and belief
it is true, correct and complete, and he further declares that he has
authority to sign this document on behalf of Prudential.
Dated: December ___, 1996.
PRUDENTIAL REALTY ACQUISITION
FUND II, L.P., a Delaware limited
partnership
By: Prudential Realty Partnerships,
Inc., a Delaware corporation
General Partner
By: ___________________________
Xxxxx X. Xxxxxxxx
Vice President
G-1
EXHIBIT H
FORM OF BUYER'S ERISA REPRESENTATION
December ___, 1996
Prudential Realty Acquisition Fund II, L.P.
0 Xxxxxx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000-0000
Attention: Xxxxx Xxxxxx, Esq.
Re: Sale of PRAF II - 3
00000 Xxxxx Xxxxx Xxxxx
Xxxxxx Xxxxxxxxx, Xxxxxxxxxx
Ladies and Gentlemen:
To satisfy compliance with the Employee Retirement Income
Security Act of 1974, as amended, the undersigned represents and
warrants to Prudential Realty Acquisition Fund II, L.P. ("Prudential")
that:
1. neither the undersigned nor any of its affiliates (within
the meaning of Part V(c) of Prohibited Transaction Exemption 84-14
granted by the U.S. Department of Labor ("PRE 84-14")) has, or
during the immediately preceding year has exercised, the authority
to appoint or terminate Prudential as investment manager of any
assets of the employee benefit plans whose assets are held by
Prudential or to negotiate the terms of any management agreement
with Prudential on behalf of any such plan;
2. the transaction contemplated hereunder is not
specifically excluded by Part I(b) of PTE 84-14;
3. the undersigned is not a related party of Prudential (as
defined in V(h) of PTE 84-14); and
H-1
4. the terms of the transaction contemplated hereunder
have been negotiated and determined at arm's length, as such
terms would be negotiated and determined by unrelated parties.
DELPHINIDAE/WHITE BIRCH,
a California general partnership
By: Roosterfish Equities, L.P., a
California limited partnership
Its Managing General Partner
By: Dolphin Partners, Inc.,
a California corporation
Its General Partner
By: _________________________
Name:
Its:
H-2
EXHIBIT I
LITIGATION NOTICES, CONTRACT DEFAULTS
AND GOVERNMENTAL VIOLATIONS
None.
I-1
EXHIBIT J
LIST OF TENANTS
None.
J-1
