Exhibit 10.51
AGREEMENT OF PURCHASE AND SALE
THIS AGREEMENT is made as of the 6th day of December, 1995 (the
"Effective Date"), by and between HG VENTURE, a Texas limited partnership,
having an address of 3200 Xxxxxxxx Xxxx Center, 0000 Xxxx Xxxxxx, Xxxxxx,
Xxxxx 00000 (hereinafter called "Seller") and WELLSFORD RESIDENTIAL PROPERTY
TRUST, a Maryland real estate investment trust, having an address at 000
Xxxxxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, its assignee or nominee
(hereinafter called "Buyer").
RECITALS
WHEREAS, Seller is the owner in fee simple of the land (the "Land")
which is more fully described on Exhibit "A" attached hereto and made a part
hereof, together with the buildings and improvements thereon erected, known
as The Marks West Apartments, an apartment property located in the City of
Englewood, County of Arapahoe, State of Colorado, and having an address at
0000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000 (the "Improvements") (the Land
and the Improvements are hereinafter collectively referred to herein as the
"Premises"); and
WHEREAS, the Premises are financed by a loan (the "Existing
Encumbrance") secured by deeds of trust currently encumbering the Premises,
in favor a trustee for the holders of certain tax-exempt bonds issued by the
City of Englewood (the "Bonds"); and
WHEREAS, Seller desires to sell and Buyer desires to buy the Property
(as hereinafter defined), for the price and other considerations and upon the
terms and conditions hereinafter set forth.
AGREEMENT
NOW, THEREFORE, the parties hereto, in consideration of the mutual
covenants herein contained, and respectively expressing the intention to be
legally bound hereby, covenant and agree as follows:
1. Sale. Seller agrees to sell and convey to Buyer, and Buyer agrees
to purchase and take from Seller, all of the following (hereinafter
collectively referred to as the "Property"), free and clear of all liens and
encumbrances, except Permitted Exceptions (as hereinafter defined):
A. The Land;
B. The Improvements;
C. Easements, rights of way, privileges, appurtenances, and
rights to the same belonging to and inuring to the benefit of the Premises;
D. All right, title and interest of Seller in and to any land
lying in the beds of any street, road or avenue, open or proposed, in front
of or adjoining said Premises to the center line thereof;
E. All fixtures, machinery, automobiles, computers, equipment,
furnishings, furniture, office equipment, appliances, supplies, operational
records and other personal property owned by Seller and now or hereafter
located on the Premises, including without limitation, all fittings, heating,
air cooling, air conditioning, freezing, lighting, laundry, incinerating and
power equipment and apparatus; all engines, pipes, pumps, tanks, motors,
conduits, switch boards, plumbing, lifting, cleaning, fire prevention, fire
extinguishing and refrigerating equipment and apparatus; all furnaces, oil
burners or units thereof; all appliances, vacuum cleaning systems, awnings,
signs, screens, storm doors and windows, cabinets, partitions, ducts and
compressors, hot water heaters, garbage receptacles and containers above and
below ground, janitorial supplies, landscaping materials, lawn mowers, tools,
and articles of a nature similar to the foregoing; all snow removal
equipment; and all future additions to or substitutions for the foregoing, or
any part thereof, between the date hereof and the date of closing hereunder;
and all other personal property now upon or hereafter placed on the Premises
which is used in connection with the operation of the Premises and owned by
Seller, and all warranties and guarantees to and rights of action of Seller
therefor, if any. (The property described in this Section 1E, when referred
to separately from the Premises, is hereinafter called "Personalty");
F. All right, title and interest of Seller in and to all strips,
gores, riparian rights and littoral rights, if any, belonging to or inuring
to the benefit of the Land and/or the Improvements;
G. Any other interest of Seller in and to the Premises or
pertaining thereto including, without limitation, all of Seller's right,
title and interest in and to the following (collectively, "Other Interests"):
(i) Any and all catalogs, booklets, manuals, files, logs,
records, correspondence, purchaser prospect list, tenant lists, tenant
prospect lists and other mailing lists, sales brochures and material, leasing
brochures and materials, advertising materials and other items, including
without limitation, title information, soil, engineering and environmental
inspections, studies and reports, market studies, and similar inspections
with respect to the sale, management, leasing, promotion, ownership,
maintenance, use, occupancy and operation of the Premises;
(ii) The right to use any name, trade name, trademark, service
xxxx or logo by which the Premises or any part thereof may be known or which
may be used in connection with the Premises, including without limitation,
the name "The Marks West Apartments" and all other fictitious names used on
the date hereof or which Seller has the right to use in connection with the
ownership, use, occupancy or operation of the Premises, and any logos or
marks associated with any such name (collectively, "Names") together with all
registrations, if any, for such Names;
(iii) All tenant security deposits, including any bank or other
depository accounts relating to the tenant security deposits;
(iv) Any bond, guaranty, warranty or repair agreements now
existing and outstanding concerning the Premises or any part thereof,
including without limitation, any bond, guaranty or warranty (including any
fidelity bonds) relating to construction, use, maintenance, occupancy or
operation of the Improvements and the Personalty, subject to any limitation
contained in each such bond, guaranty and warranty;
(v) Any licenses, permits, approvals and certificates issued
by any governmental authorities required or used in or relating to the
ownership, use, maintenance, occupancy or operation of any part of the
Premises;
(vi) Any surveys of, and plans and specifications relating to,
the Premises;
(vii) Any unrecorded utility agreements including any deposits
made thereunder;
(viii) The Service Agreements (as hereinafter defined);
(ix) The Tenant Leases listed on the Rent Roll (as both terms
are hereinafter defined);
(x) Any unpaid awards for any taking by condemnation or any
damage to the Premises by reason of a change of grade of any street or
highway, or any award paid to Seller and not used or applied by Seller to the
restoration of the Premises;
(xi) Any unpaid proceeds for any damage to the Premises by
reason of fire or other casualty, or any proceeds paid to Seller and not used
or applied by Seller to the restoration of the Premises;
(xii) Any development rights with respect to the Land; and
(xiii) Any water or water rights of any kind or description
appurtenant to or owned by Seller in connection with the Land or the
Improvements, including any ditch company stock.
2. Xxxxxxx Money Deposit; Purchase Price.
A. Within three business days after Buyer receives notice of
Seller's execution of this Agreement, Buyer shall deposit $200,000 with
Xxxxxxx Title Guaranty Company at 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000 (the "Title Company") by check or wire transfer of immediately
available funds. Such funds and all interest earned thereon shall constitute
the "Xxxxxxx Money Deposit" under this Agreement and shall be held and
disbursed by the Title Company in accordance with the terms of this
Agreement. The Xxxxxxx Money Deposit shall be invested in an interest-
bearing account in a federally insured institution, and all interest earned
on the Xxxxxxx Money Deposit shall be added to and comprise a part of the
Xxxxxxx Money Deposit. Buyer and Seller shall execute such escrow
instructions as the Title Company may reasonably require, provided that such
instructions are consistent with the terms of this Agreement.
B. The purchase price for the Property is Seventeen Million Three
Hundred Thousand and no/100 dollars ($17,300,000.00) (the "Purchase Price"),
which Buyer shall pay as follows:
(i) Buyer shall pay approximately $200,000 by causing the
Title Company to apply all of the Xxxxxxx Money Deposit against the Purchase
Price;
(ii) Buyer shall pay approximately Eleven Million Four
Hundred Thousand and No/100 Dollars ($11,400,000.00) by the assumption of the
Existing Encumbrance, in the manner and as more fully described in Section 6D
of this Agreement;
(iii) Buyer shall pay the balance of the Purchase Price
(approximately $5,700,000.00) by wire transfer of immediately available funds
through the Federal Reserve System. Any closing prorations and adjustments
provided for herein (the "Adjustments") shall increase or decrease (as the
case may be) the cash portion of the Purchase Price to be paid pursuant to
this Section 2A(iii).
C. Seller and Buyer agree to negotiate in good faith to allocate
the purchase price among the various property comprising the Property as
follows: (i) that portion of the Property consisting of the apartment
complex, and (ii) that portion of the Property consisting of the Personalty.
Seller and Buyer shall determine such allocation and execute a letter
agreement evidencing such allocation on or before the expiration of the
Inspection Period.
3. Delivery of Documents. On or before ten (10) days after the
Effective Date of this Agreement (except as otherwise provided), Seller shall
deliver to Buyer, at Seller's sole cost and expense, copies of all of the
following items:
A. Any notices, correspondence or licenses or any agreements
(including without limitation subdivision and similar agreements) with, to or
from any governmental or quasi-governmental authority having jurisdiction
over the Property;
B. Any soils reports, environmental studies and building plans
and specifications for the Property which are in the possession of Seller or
its agents;
C. All tax statements and operating statements for the Property
for the last three years;
D. Current Rent Roll for the Property, certified by Seller;
E. Pursuant to C.R.S. Section 38-25.5-02(3)(b)(II), Seller at
its expense agrees to request a certificate of taxes due from each of the
Colorado Department of Revenue, the County of Arapahoe and the City of
Englewood. Seller's request for certificates of taxes due shall apply to all
categories of taxes which may give rise to a lien against the Property.
Seller shall deliver the original certificates of taxes due to the Buyer not
less than 10 days prior to the Closing Date, as defined hereafter. On or
prior to the Closing Date, Seller shall cause all taxes which are due, as
evidenced by such certificates, to be paid in full and provide proof of
payment to Buyer; and
F. Copies of the note evidencing the Existing Encumbrance, the
deeds of trust securing the Existing Encumbrance and all other loan documents
executed in connection therewith (collectively, the "Existing Encumbrance
Documents"), and all documents relating to the issuance of the Bonds to which
Seller is a party or which affect the Property;
G. Any and all additional data, plans, geological and engineering
studies or reports, zoning information, water and sewer studies, topographic
maps, platting information, catalogs, booklets, manuals, warranties,
guaranties or repair agreements, tenant lists, lease files, tenant prospect
lists and other mailing lists, market studies, and similar information with
respect to the management, leasing, promotion, ownership, maintenance, use,
occupancy and operation of the Premises which is in the possession of Seller
or its agents.
4. Survey. On or before twenty (20) days after the Effective Date
hereof, Seller shall deliver to Buyer, at Seller's sole cost and expense, a
current ALTA/ASCM Land Title Survey of the Property prepared and certified
(i) in accordance with the "Minimum Standard Detail Requirements for
ALTA/ASCM Land Title Surveys" jointly established and adopted ALTA and ASCM
in 1992, and including Items 1 through 4, 6 through 11, and 13 of Table A
thereof, and (ii) pursuant to the Accuracy Standards (as adopted by the ALTA
and ACSM and in effect on the date of the certification of such survey) of an
Urban Survey. The survey shall contain a certificate from the surveyor to
Buyer, the Title Company and any lender(s) designated by Buyer from time to
time in form acceptable to the Buyer. The survey shall be in a form
acceptable to the Title Company for the deletion of the standard survey
exception relating to boundaries, without the addition of further exceptions
unless same are acceptable to Buyer, in its sole and absolute discretion.
Buyer shall have until the end of the Inspection Period, as hereinafter
defined, to examine the survey delivered to it as provided herein. If Buyer
does not approve of the survey provided hereunder, Buyer, at its sole option,
may elect either (i) to terminate this Agreement, in which event the Xxxxxxx
Money Deposit shall be returned to Buyer upon written notice by the Buyer to
the Title Company, and this Agreement shall be of no further force or effect,
or (ii) to waive the objections and to proceed to close this purchase and
sale transaction in accordance with the terms of the remainder of this
Agreement. Buyer's election shall be made within five (5) days after Buyer's
receipt of written notice from Seller that any specified objectionable matter
will not be corrected, and Buyer's failure to deliver notice of its election
shall be deemed a waiver of such objectionable matters.
5. Title Insurance and Lien Search.
A. A current title insurance commitment covering the Property
issued by the Title Company, together with clear and legible copies of all
documents referred to therein, shall be delivered to Buyer, at Seller's sole
cost and expense, within twenty (20) days after the Effective Date of this
Agreement. The title insurance commitment shall be in the amount of the
Purchase Price, and shall commit the Title Company to issue its 1992 ALTA
Owner's Policy, with standard preprinted exceptions deleted, insuring good
and marketable title in fee simple to the Property in Buyer subject only to
(i) current non-delinquent general real property taxes, and (ii) such other
easements, restrictions and rights-of-way as Buyer shall deem, in its sole
discretion, not to adversely affect the value of or Buyer's intended use of
the Property. If the title insurance commitment shall contain any exception
for mineral rights, Seller shall pay for an endorsement to the title
insurance coverage insuring against any loss to improvements. Such title
insurance commitment shall include a gap endorsement pursuant to which Title
Company shall agree to insure against loss or damage by reason of there being
recorded any instrument first appearing in the public records subsequent to
the effective date of such commitment but prior to the effective date of the
title insurance policy and a Colorado Endorsement Form 100. If the title
insurance commitment delivered to Buyer shall contain any exceptions from
coverage which Buyer deems to be unacceptable, Buyer, at its option, may
elect either (i) to permit the Seller to secure, at its expense, affirmative
title insurance coverage with respect to the matters objected to, or (ii) to
terminate this Agreement, in which event the Xxxxxxx Money Deposit shall be
returned to Buyer upon written notice to the Title Company and this Agreement
shall be of no further force or effect, or (iii) to waive such objections and
proceed to close this purchase and sale transaction in accordance with this
Agreement. If Buyer does not deliver written notice of objection to title to
Seller as provided herein before the end of the Inspection Period, Buyer
shall be deemed to have waived this condition precedent. Any exceptions on
the title insurance commitment to which Buyer does not object or to which
Buyer objects but waives such objection pursuant to this Section shall be
deemed to be "Permitted Exceptions." Seller shall deliver at the Closing an
updated title insurance commitment, effective as of the date and hour of the
Closing, subject only to the Permitted Exceptions.
B. Seller shall cause the Title Company to deliver to Buyer
within ten (10) days after the Closing Date, at Seller's sole cost and
expense, a 1992 ALTA Owner's Policy, covering the Property in the amount of
the Purchase Price of the Property, effective as of the date and time of the
Closing, subject only to the Permitted Exceptions, and including such other
endorsements as Seller may have agreed to provide pursuant to Section 5A
above. The standard preprinted exceptions regarding parties in possession,
surveys, and mechanic's liens shall be deleted, at Seller's sole cost and
expense. Seller shall deliver to the Title Company any instruments,
documents, payments, indemnities, releases and agreements as the Title
Company shall require in order to issue, amend or update the title insurance
commitment as herein provided. At Closing, Seller shall obtain and deliver
to Buyer such assurances as Buyer may reasonably request that the Title
Company is irrevocably committed and prepared to issue its ALTA owner's
policy to Seller in accordance with the foregoing requirements.
C. If Title Company uses the escrow and closing services of an
agent in connection with this transaction, Seller shall cause Title Company
to issue to Buyer an insured closing letter, in form and substance reasonably
satisfactory to Buyer, which insured closing letter shall protect Buyer from
fraud or dishonesty of Title Company's agent in handling Buyer's funds or
documents in connection with the Closing and against the failure of the Title
Company's agent to comply with written closing instructions of Buyer or its
counsel.
D. During the Inspection Period, Buyer, at Seller's sole expense,
shall obtain from Title Company or from a Uniform Commercial Code lien search
service reasonably acceptable to Buyer, a current certificate reporting the
results of a Uniform Commercial Code lien search of all appropriate records
for security interests, financing statements, judgment liens, tax liens and
all other liens against any personal property associated with or constituting
a part of the Property. Buyer may cause such report to be updated and
recertified to Buyer within five (5) days prior to the Closing Date, at
Seller's sole expense. Buyer shall promptly deliver a copy of any such
certificate and update to Seller, and Seller shall make arrangements on or
before the Closing Date to have all liens against any personal property
associated with or constituting a part of the Property shown thereon fully
discharged.
6. Inspection by Buyer; Termination Rights; Bond Objectives.
A. Inspection by Buyer. Subject to the rights of the tenants
under the Tenant Leases, Buyer and Buyer's authorized agents and
representatives may, from time to time, during regular business hours and on
reasonable prior notice to Buyer and the managing agent of the Property,
inspect all areas of the Premises for the purpose of making inspections
thereof and conducting such tests and observations and compiling such
information as Buyer may deem appropriate. No such inspection, however,
shall constitute a waiver or relinquishment on the part of Buyer of its right
to rely upon the covenants, representations, warranties or agreements made by
Seller under this Agreement. Buyer shall pay when due all fees and expenses
incurred in the performance of any such inspections, tests or observations
and shall indemnify, defend, and save Seller harmless from any loss from
mechanic's liens, claims for nonpayment of such charges or for damages
arising out of the acts or omissions of the parties performing such
inspections, tests, or observations.
B. Examination of Records. Seller shall permit Buyer's
accountants and authorized representatives to examine Seller's books,
financial records and tenant files pertaining to the operation of the
Premises prior to the Closing. Buyer's accountants and representatives shall
be permitted access to such records during regular business hours. Seller
acknowledges that Buyer intends to include the Property as a part of a public
offering, and Seller consents to the disclosure of information regarding the
Property, including financial information, in any such public offering.
Seller further agrees to allow Buyer or its agents to audit Seller's
statements of operations or perform procedures as considered necessary to
comply with Securities and Exchange Commission regulations. Additionally, to
the extent that a subsequent interim period(s) statement of operations is
required to be included by Buyer in a public offering document, Seller agrees
to allow Buyer's auditors access to the books and records of the Property
necessary to complete procedures as required by securities laws or
regulations. Seller shall provide Buyer with such information as Seller may
have with respect to actual expenditures made on all repairs, maintenance,
operation and upkeep of the Premises, including, without limitation, all
taxes and utility payments within three years prior to the Closing, and dates
of construction, installation and major repairs to the Premises.
C. Inspection Period; Notice of Termination. Buyer's obligation
to purchase the Property pursuant to the terms of this Agreement is
specifically conditioned upon Buyer's approval of the Property, in Buyer's
sole discretion. At any time on or prior to 11:59 pm on January 15, 1996
(the "Inspection Period"), Buyer may, for any reason in Buyer's sole
discretion, terminate this Agreement by giving notice to Seller of Buyer's
election to terminate this Agreement, and in such event, this Agreement shall
terminate, and the Xxxxxxx Money Deposit, and all interest accrued thereon,
shall be delivered by the Title Company to Buyer upon notice to the Title
Company. If Buyer does not give such notice within the Inspection Period,
Buyer's right to terminate under this Section 6C shall expire and this
Agreement shall remain in full force and effect. Notwithstanding the
foregoing, the Inspection Period shall be extended one day for each day of
delay in providing all of the documents referred to in Section 3, the survey
referenced in Section 4, and the title insurance commitment and copies of all
documents or items referred to therein as provided in Section 5. Upon
expiration of the Inspection Period (and any additional period provided in
either Section 4 or Section 5 to correct any deficiencies in either the
survey or the title insurance commitment delivered pursuant to such
Sections), if this Agreement has not been terminated by Buyer as provided in
this Section 6C or in Section 4 or Section 5, the Xxxxxxx Money Deposit shall
continue to be held by the Title Company, but shall then be nonrefundable to
Buyer, except in the event of a default by Seller, or a failure of a
condition of Buyer to Closing pursuant to Section 9, or except as otherwise
specifically provided herein.
X. Xxxx Objectives.
(i) In connection with the acquisition of the Property, Buyer
intends and desires to accomplish the following (the "Bond Objectives"):
a. Amendments to the Existing Encumbrance Documents and
the Bond Documents (the "Amendments") which shall effect the following: (i)
approval by all necessary parties of ownership of the Bonds by Buyer without
any requirement for having the Bonds rated, and for resale of the Bonds by
Buyer to another party, provided that at the time of such sale the Bonds are
rated "A" or better by Standard & Poor's Corporation; (ii) approval by all
necessary parties of sale of the Property to Buyer, including without
limitation the City of Englewood; (iii) approval by all necessary parties of
the release of the letter of credit issued by Citibank, N.A., which letter of
credit now secures the Bonds (the "Citibank Letter of Credit") as
contemplated by Section 6D(i)(b) below; (iv) extending the maturity date of
the Bonds to a date acceptable to the Buyer effective as soon as possible
following the Closing; (v) providing the owner of the Property an option to
fix the interest rate on the Existing Encumbrance and the Bonds as soon as
possible following the Closing Date; and (vi) such other changes as Buyer may
reasonably require consistent with the foregoing.
b. The negotiation and approval by Buyer of a form of
an assumption agreement (the "Assumption Agreement"), wherein the Buyer is
substituted for Seller as the borrower in connection with the Existing
Encumbrance, the Regulatory Agreement and related documents (as such
documents have been modified in connection with the Amendments); provided
that under the terms of the Assumption Agreement Buyer shall not assume any
liability in connection with the Citibank Letter of Credit or otherwise to
Citibank, N.A. except to the extent set forth in the Tri-Party Agreement (as
hereinafter defined).
c. The negotiation and approval by Buyer of a tri-party
agreement among Buyer, Seller and Citibank, N.A. (the "Tri-Party Agreement"),
wherein (i) Buyer agrees to either cause the return of the Citibank Letter of
Credit at Closing or post cash collateral or other collateral acceptable to
Buyer and Citibank, N.A. (the "Buyer Collateral") with Citibank, N.A. in the
principal amount of the indebtedness being assumed by Buyer pursuant to the
Assumption Agreement and such additional amount as may be necessary to
provide collateral for interest that will accrue through ______________, (ii)
Citibank, N.A. agrees to release the lien of its deed of trust on the
Premises and any other lien or encumbrance it may have on the Property, and
(iii) the parties agree that if the Citibank Letter of Credit has not been
returned by then, on or about ______________, (A) a draw shall be permitted
on the Citibank Letter of Credit in the amount up to the principal amount of
the Bonds and accrued but unpaid interest thereon, (B) Citibank, N.A. shall
reimburse itself from the Buyer Collateral for the full amount of such draw,
and (C) the Citibank Letter of Credit shall be returned to Citibank, N.A. and
Citibank, N.A. shall return to Buyer any unused portion of the Buyer
Collateral.
(ii) Seller hereby agrees to cooperate with Buyer in
connection with the achievement of the Bond Objectives. The cooperation of
Seller shall include the execution of documents and certificates reasonably
necessary to accomplish the Bond Objectives to the extent that Seller
participation is necessary, as well as customary warranties and
representations and other actions as may be necessary of Seller to accomplish
the Bond Objectives. Buyer shall be responsible for causing bond counsel to
be retained and paying the costs of bond counsel and the other costs and
expenses Buyer deems necessary to accomplish the Bond Objectives.
7. Closing.
A. Initial Closing Date. The closing of the transaction
contemplated hereby (the "Closing") shall take place at the offices of
Xxxxxxxxxx Hyatt Xxxxxx & Xxxxxxxxxx, P.C., 000 Xxxxxxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 a.m., on February 20, 1996 (the
"Initial Closing Date").
B. Extension of Initial Closing Date. Notwithstanding the
foregoing, Buyer shall have the right, upon payment to Seller of an
additional xxxxxxx money deposit in the amount of Fifty Thousand and no/100
Dollars ($50,000.00) (the "Additional Xxxxxxx Money Deposit"), to extend the
Initial Closing date to April 23, 1996 (the "Extended Closing Date"). Such
election to extend the Initial Closing Date shall be exercised by written
notice delivered to Seller on or before the Initial Closing Date, accompanied
by the Additional Xxxxxxx Money Deposit in immediately available funds. At
the Closing, the Additional Xxxxxxx Money Deposit shall be credited against
and reduce the cash portion of the purchase price for the Property. The
Additional Xxxxxxx Money Deposit shall be nonrefundable to Buyer, except in
the event of a default by Seller, or a failure of a condition of Buyer to
Closing pursuant to Section 9, or except as otherwise specifically provided
herein.
As used herein, the term "Closing Date" shall refer to the Initial Closing
Date or the Extended Closing Date, as applicable.
8. Representations of Seller.
A. Seller, to induce Buyer to enter into this Agreement and to
purchase the Property, represents to Buyer that the following matters are
true as of the date hereof and shall be true as of the Closing Date:
(i) Exhibit "B" hereto (the "Rent Roll") is a true, complete
and correct listing of all existing leases (including all amendments or side
agreements) at the Premises in effect as of the date hereof (the "Tenant
Leases"), which Exhibit "B" correctly sets forth: (i) the total number of
apartments at the Premises, (ii) the name of each existing tenant residing in
each apartment, (iii) apartment number designation, (iv) apartment type
showing number of bedrooms and bathrooms in each apartment, (v) rent actually
being collected, (vi) the expiration date or status of the term of the lease
(including all rights or options to renew), (vii) the current rent (the
"Standard Rental") and other payments actually being collected and which the
tenant is obligated to make under the lease, (viii) the current outstanding
balance of all security deposits held thereunder and (viii) the information
required pursuant to Section 8A (ii), (iii) and (iv) hereof.
(ii) There are no leases, tenancies, licenses or other rights
of occupancy or use for any portion of the Premises other than as set forth
in Exhibit "B". True, correct and complete copies of the form of Tenant
Lease(s) have been submitted by Seller to Buyer as attached hereto as Exhibit
"C". Seller represents to Buyer that such form of Tenant Lease(s) is being
used by Seller in all material respects in connection with Seller's leasing
of the Premises. Except as otherwise noted on Exhibit "B", (i) each of the
Tenant Leases is valid and subsisting and in full force and effect, has not
been amended, modified or supplemented and the tenant, licensee or occupant
thereunder is in actual possession, (ii) no tenant has asserted any claim,
offset or defense which would in any way affect the collection of rent from
such tenant, (iii) there are no pending summary proceedings or other legal
action for eviction of any tenant, and (iv) no written notice of default or
breach on the part of the landlord under any of the Tenant Leases has been
received by Seller or its agents from the tenant, licensee or occupant
thereunder. Except as noted on Exhibit "B", no tenants are in arrears for
the payment of rent for any month preceding the month of the date of this
Agreement, and Seller has not received any notice from any existing tenant of
an intention to vacate. No tenant, licensee or other occupant under any of
the Tenant Leases has any right or option to acquire the Premises, or any
part thereof or interest therein. The copies of the Tenant Leases delivered
to Buyer constitute the sole agreements binding upon the owner of the
Premises and the respective tenants of the Premises with respect to the
Premises.
(iii) The rents set forth on Exhibit "B" are the actual rents
presently being collected by Seller under the Tenant Leases and, Seller has
no knowledge of any default by any tenant under its lease. Except as
otherwise set forth on Exhibit "B", no tenant, licensee or occupant under any
of the Tenant Leases is entitled to any concessions, rent-free occupancy,
allowances, rebates or refunds, or has prepaid any rents or other charges for
more than the current month. No security deposits have been paid by any
present tenants of the Premises which have not heretofore been returned,
except as set forth on Exhibit "B" hereto.
(iv) Seller has not collected and, without Buyer's prior
written consent, will not collect or accept payment of rent (other than
security deposits) more than one month in advance, except as shown on Exhibit
"B".
(v) No brokerage or leasing commission or other compensation
is or will be due or payable on or after the Closing to any person, firm,
corporation or other entity (including Seller or any affiliate of Seller)
with respect to or on account of any of the Tenant Leases or any extensions
or renewals thereof.
(vi) To the best of Seller's knowledge, Seller has performed
all obligations (including the payment of all sums due to third parties)
which obligations have accrued as of the date hereof under the Tenant Leases
and under all other agreements relating to the Premises.
(vii) Exhibit "D" attached hereto is a complete and correct
list of all existing management, service, equipment, supply, maintenance,
union or collective bargaining agreements with respect to or affecting the
Premises (the "Service Agreements") and each of such agreements has not been
amended, modified or supplemented, except as set forth on Exhibit "D". No
written notice of default or breach by Seller in the terms of any such
Service Agreements has been received by Seller or its respective agents.
Seller has performed, and at Closing shall have performed, all obligations
which it has under said Service Agreements.
(viii) To the best of Seller's knowledge, all persons who are
employed in connection with the management, operation and maintenance of the
Premises (i) are non-union employees and (ii) have been paid with respect to
all benefits properly accrued.
(ix) All charges for services or material related to the
Property, including, without limitation, water, sewer, gas and electric
bills, have been paid or will be paid as of the Closing Date, or appropriate
adjustment made therefor in accordance with the terms hereof.
(x) Seller has not received any notices from any governmental
authority requiring any public improvements or installations on or in
connection with the Premises, or asserting any violation of any applicable
law, regulation or other governmental requirement, and Seller is not
otherwise aware of any such violations or requirements of public improvements
or installations. In the event any such notices are served or received prior
to the Closing (excluding any notices of violation which are the obligation
of any of the tenants under the Tenant Leases) (the "Excluded Violations"),
Seller shall effect full compliance therewith prior to the Closing.
(xi) With respect to environmental matters:
a. to the best knowledge of Seller, no Hazardous
Substances are present in, on or under the Property and there is no present
Release or threatened Release of any Hazardous Substances in violation of
Environmental Laws, which is of material respect, in, on or under the
Property;
b. to the best knowledge of Seller, no written notices,
written complaints or orders of violation or non-compliance with
Environmental Laws addressed to Seller, or the owner of the Property have
been received by or are in the possession of Seller and no federal, state or
local environmental investigation is pending or has been threatened against
Seller, which is of material respect, with regard to (A) the Property or any
use thereof; (B) any alleged violation of Environmental Laws with regard to
the Property; (C) any failure by Seller to have any environmental permit,
certificate, approval, registration or authorization required for the conduct
of its business; (D) the generation, treatment, storage, recycling
transportation, disposal or Release (each a "Regulated Activity") of any
Hazardous Substances on, at or under the Property; or (E) the existence on
nearby real property of Hazardous Substances that could migrate to the
Property. For purposes of this Agreement, "Release" shall have the meaning
given to that term in 42 U.S.C. Section 9601(22);
c. to the best knowledge of Seller, the Property has
not been used by Seller for the conduct of any Regulated Activity other than
in compliance in all material respects with Environmental Laws;
d. to the best of Seller's knowledge, there exists no
petroleum contamination to the Property in violation of applicable
Environmental Laws which originated on the Property, and to the best of
Seller's knowledge, there exists no underground storage tanks or surface
impoundments, active or abandoned, at, on or under the Property in violation
of applicable Environmental Laws; and
e. to the best of Seller's knowledge, it has not caused
a Release which is of a material respect of any Hazardous Substances, nor is
there any friable asbestos, polychlorinated biphenyls, formaldehyde or lead
at, on or under the Property, the removal of which is currently required by
any Environmental Law or the maintenance of which constitutes a violation of
any material respect of any Environmental Law.
As used in this Agreement, (A) (Environmental Laws" shall mean and include
the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et
seq., as amended by the Hazardous and Solid Waste Amendments of 1984, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended by the Superfund Amendments and Reauthorization Act of 1986, 42
U.S.C. Section 9601 et seq., the Hazardous Materials Transportation Act of
1975,
49 U.S.C. Section 1801 et seq., the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq., the Clean Air Act, 42 U.S.C. Section 7401 et seq., the
Federal
Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. Section 136, et seq., the
Clean Water Act, 33 U.S.C. Section 1251 et seq., the National Environmental
Policy
Act, 42 U.S.C. Section 4321 et seq., and the Occupational Safety and Health
Act,
29 U.S.C. Section 651 et seq., and all similar federal, state and local
environmental laws, ordinances, rules, codes and regulations, as any of the
foregoing may have been from time to time amended, supplemented or supplanted
which relate to the environment or the regulation or control of imposing
liability or standards of conduct concerning Hazardous Substances (as
hereinafter defined), and (B) "Hazardous Substances" shall mean any substance
which is toxic, explosive, corrosive, flammable, infectious, radioactive,
carcinogenic, mutagenic or otherwise hazardous, including petroleum, its
derivatives, by-products and other hydrocarbons and is regulated by any
governmental authority, including any agency, department, commission, board
or instrumentality of the United States, the state, or any political
subdivision thereof, where the Property is located; provided, however, that
Hazardous Substances shall not include material used or stored in the
ordinary course of business in connection with the operation or maintenance
of the Property in compliance in all material respects with all Environmental
Laws.
(xii) Seller presently causes to be maintained policies of
insurance with respect to the Premises which policies insure the Premises in
amounts deemed adequate by Seller in the exercise of reasonable commercial
judgment against all risks usually insured against by persons operating
similar properties and underwriting similar operations in the locality where
the Premises are located.
(xiii) To the best of Seller's knowledge, there is no action,
suit, investigation or proceeding pending or threatened against or affecting
the Property or any portion thereof by any person or government agency, board
or bureau, except as set forth on Exhibit "E" hereto.
(xiv) Seller has no knowledge of any pending or threatened
condemnation or eminent domain proceedings which would affect the Premises,
except as set forth on Exhibit "E" hereto.
(xv) Seller has delivered to Buyer a copy of the latest real
estate tax xxxx with respect to the Premises. There are no proceedings
presently pending for the reduction of the assessed value of the Premises
which have been initiated by or on behalf of Seller.
(xvi) The persons signing this Agreement on behalf of Seller
have the requisite power and authority to execute and deliver this Agreement
in the name of Seller and to create thereby a binding obligation of Seller,
and the execution, delivery and performance of this Agreement will not
constitute a default under any agreement of Seller, require the consent under
any such agreement or of any person or give any person any right to terminate
any Tenant Lease or other agreement relating to the Premises.
Notwithstanding the above, Buyer acknowledges that as of the Effective Date,
Seller is soliciting approval from its constituent partners but has not yet
received the required number of approval votes. Seller shall exercise
reasonable efforts to obtain such approval. In the event that Seller is
unable to obtain such approval within ten (10) days from the Effective Date,
Seller will promptly so notify Buyer in writing, whereupon this Agreement
shall terminate and the Xxxxxxx Money Deposit shall be forthwith returned to
Buyer. Seller's failure to notify Buyer in writing on or before ten (10)
days from the Effective Date that it has not received such approval shall
constitute Seller's waiver of the foregoing condition.
(xvii) To the best of Seller's knowledge there are no material
(i) interior or exterior structural defects in the Improvements or mechanical
systems of the Improvements, (ii) defects in the plumbing, electrical,
mechanical, heating, ventilating or air-conditioning systems, or (iii)
defects in the parking areas of the Premises, and all hot water heaters,
refrigerators, ranges, dishwashers, disposals, package heating and air-
conditioning units, personalty, and other equipment now located in or on the
Improvements are in good working order and/or shall be on the Closing Date.
To the best of Seller's knowledge, the roof of each building is watertight
and free of leaks.
(xviii) Except as noted on Exhibit "F", Seller has not entered
into any contract for goods and/or services relating to the Premises which
may not be cancelled without charge to Buyer upon not more than thirty (30)
days written notice. Seller has not entered into any management agreement
for the Premises which will be in effect on the Closing Date.
(xix) Utility services to the Premises, including but not
limited to water, sewer, telephone, cable TV, electric and gas, are being
provided in sufficient quantities to permit the use and occupation of the
Premises for the intended use.
(xx) To the best of Seller's knowledge the Premises are free
from infestation by termites and any damage from previous termite
infestation.
(xxi) Seller has delivered or shall deliver to Buyer in the
time periods required hereby true, correct and complete financial statements
for the Premises for the calendar years 1993 and 1994, including notes,
comments, schedules, and supplemental data therein (collectively, "Financial
Statements"), all of which have been prepared from the books and records of
Seller.
(xxii) Regardless of whether Seller would otherwise be obligated
under Colorado law, Seller has paid, has caused to be paid or will pay any
and all taxes incurred by it as a result of the transactions contemplated by
this Agreement, including, but not limited to transfer taxes, gains taxes,
sales and use taxes and bulk sales taxes.
(xxiii) To the best of Seller's knowledge, the Property, the use
of the Property and the transfer of the Property pursuant to this Agreement
does not and will not violate any applicable subdivision, zoning, land-use or
other similar law, code, ordinance or regulation relating to the Property.
(xxiv) Except for any default that will be fully cured on or
before the Closing Date, Seller is not in default in the payment of principal
or interest or other amounts due under the Existing Encumbrance, and to the
knowledge of Seller there are no other defaults, and no facts exist which,
with the giving of notice and/or the passage of time, would constitute a
default, under the Existing Encumbrance, any regulatory agreement executed in
connection therewith, or any other documents relating to or executed in
connection with the Existing Encumbrance.
B. Seller has not knowingly failed to disclose anything material
in connection with the Premises.
C. Seller has not received any written notice from the insurance
companies insuring the Premises requiring Seller to perform any work at the
Premises.
D. The representations contained in this Section 8 shall survive
the Closing hereunder.
E. On the Closing Date, Seller shall execute and deliver to Buyer
a certificate stating that each of the warranties and representations set
forth in this Section 8 is true and correct as of the Closing Date and that
there exists no non-performance or breach in respect of any of the
agreements, covenants, representations or warranties on the part of Seller
contained in this Agreement.
F. Seller agrees to indemnify, defend and hold Buyer harmless
from and against any and all loss, cost, expense, damage or liability
suffered or incurred by Buyer as a result of any of the warranties and
representations set forth in this Section 8 or in the certificate to be
delivered by Seller to Buyer pursuant to Section 8F above, not being true and
correct in all material respects.
G. As used in this Agreement, the phrase "to the best of Seller's
knowledge" means the actual knowledge of Xxxxxx X. Xxxxxxxx and Xxxxxxx X.
Xxxxx, without inquiry, investigation, or further review of Seller's records,
except for discussions with Seller's asset managers, property managers and
maintenance personnel directly responsible for the use, operation and
management of the Property, and without imputation of the knowledge of
specific laws, rules and regulations or their impact.
9. Conditions to the Obligations of Buyer. The obligation of Buyer
under this Agreement to purchase the Property from Seller is subject to the
satisfaction of each of the following conditions (any one or more of which
may be waived in whole or in part by Buyer at or prior to the Closing):
A. The representations set forth in this Agreement shall be true
and correct as of the date of this Agreement and at the Closing in all
material respects and the covenants of the Seller set forth herein shall have
been performed at or before the Closing, except as otherwise specified
herein.
B. Seller shall have performed all of its covenants and
obligations and complied in all respects with all conditions required by this
Agreement, including without limitation the obligation to make any payments
required by Section 2 hereof.
C. The Amendments shall have been executed by the appropriate
parties, including the City of Englewood.
D. The Assumption Agreement shall have been executed by the
parties thereto, and the closing of the transactions described therein shall
occur concurrently with the closing of the sale of the Property on the
Closing Date pursuant to this Agreement.
E. Buyer shall have received an estoppel certificate from the
trustee of the bond issue relating to the Property and the holder of the
Existing Encumbrance, certifying that no default exists under the Existing
Encumbrance Documents, any regulatory agreement related thereto, or any
documents executed in connection therewith, all in form reasonably acceptable
to Buyer.
F. The Tri-Party Agreement shall have been executed by the
parties thereto, and the transactions required by the Tri-Party Agreement
shall close on the Closing Date.
G. Buyer shall have received all third party approvals it
reasonably deems necessary in connection with the Amendments, the Assumption
Agreement and the Tri-Party Agreement to avoid violation of any applicable
law or agreement affecting the Property or the Bonds. Such approval shall
include such opinions of counsel as may be required by Buyer or under the
Existing Encumbrance Documents, including, without limitation, an opinion of
bond counsel that the transfer will not affect the exclusion of interest from
such Bonds from income for Federal tax purposes (subject to the customary
exclusions to such opinion).
If any of the conditions set forth in herein are not fulfilled or otherwise
waived by Buyer, then Buyer shall have no obligation to consummate the
transaction described herein and upon written notice to Seller stating
Buyer's intention not to proceed with the transaction contemplated by this
Agreement, the Xxxxxxx Money Deposit (and, if applicable, the Additional
Xxxxxxx Money Deposit) shall be returned to Buyer, and the parties shall have
no further liability hereunder. All conditions of the Closing hereunder
shall be deemed satisfied upon consummation of the Closing.
10. Operations Prior to Settlement. Between the date of the execution
of this Agreement and the Closing Date:
A. Seller, in accordance with its normal practices and
procedures, will continue to maintain and to make all repairs and
replacements to the Premises and the Personalty so as to keep the Premises
and the Personalty in substantially its present condition, subject to the
provisions of Section 13 hereof, and Seller shall operate and manage the
Premises and the Personalty in the same manner as it has operated the
Premises prior to the date hereof. Without limiting the above, Seller shall
take all actions necessary to make apartment units ready for new tenants
within five (5) days after vacation thereof by the previous tenant.
B. Seller will use commercially reasonable efforts from the date
hereof through the date of the Closing to (i) continue to rent the Premises,
(ii) modify, renew or extend any Tenant Lease on an as needed basis and (iii)
enter into any agreement to complete work for any tenant for a period
extending beyond the Closing Date, provided such work is in the ordinary
course of managing the Premises or in fulfillment of Seller's obligation as
Landlord.
C. Seller will not enter into or accept the surrender of any of
the Service Agreements, Tenant Leases or grant any concession, rebate,
allowance or free rent at the Premises unless (i) such Service Agreement is
commercially reasonable, (ii) such Service Agreement is terminable upon
thirty (30) days notice, and (iii) Seller shall give Buyer prior notice that
such Service Agreement is to be executed. Prior to the end of the Inspection
Period, Buyer shall determine which of the Service Agreements that are
terminable that Buyer elects to have terminated by the Closing Date, and
shall give Seller notice thereof. At the Closing, Seller shall terminate all
Service Agreements specified in such notice, and as provided elsewhere
herein, in connection with the Closing, Buyer shall assume all other Service
Agreements (the "Assumed Service Agreements").
D. Seller shall cause all certificates of occupancy to be
observed and to be kept in full force and effect. Seller shall cause all
obligations under the Service Agreements to be performed. Seller shall not
permit any Service Agreement to be voluntarily renewed, amended or
terminated, unless such renewal, amendment or termination is commercially
reasonable. Seller shall carry on and conduct the operation of the Property
in substantially the same manner as such business is now and has heretofore
been conducted to the extent same is commercially reasonable, including (but
not limited to) maintenance of and compliance with the insurance policies.
Seller shall maintain insurance at the Premises and operate the Premises in
accordance with all applicable laws, rules, regulations, ordinances, licenses
and permits.
E. Seller shall not remove any personal property, personalty,
fixtures or equipment located in the Premises except as may be required for
maintenance, repair and/or replacement or where such removal is commercially
reasonable. All replacements shall be (i) completed free and clear of any
liens and encumbrances, (ii) of quality at least equal to the replaced items
and (iii) deemed included in the sale, without cost or expense to Buyer.
F. Seller shall carry on or cause to be carried on, the operation
of the Premises in the ordinary course of business between the date hereof
and the Closing Date. Except as Buyer may otherwise request, and without
making any commitment on its behalf, Seller will utilize reasonable efforts
to keep its business organization intact and to keep available to Buyer the
services of its present material (i.e., key) employees.
G. No contract for or on behalf of or affecting the Premises
shall be negotiated or entered into which cannot be terminated on not more
than 30 days' notice as of or after Closing without charge, cost, penalty or
premium, without the prior written consent of Buyer, which consent shall not
be unreasonably withheld.
H. Seller will deliver to Buyer, as soon as available to Seller,
any new monthly operating statements and leasing reports with respect to the
Premises for each calendar month which elapses between the date of execution
hereof and the Closing Date. Seller will also deliver to Buyer, as soon as
available to Seller, any new leasing reports with respect to the Premises for
each week which elapses between the date of execution hereof and the Closing
Date, which leasing reports shall show all new leases, with the information
relating thereto which is set forth in the Rent Roll.
I. Seller shall cause all debts and liabilities for labor,
material and equipment incurred by Seller prior to the Closing Date, which
could result in a lien against the Property, to be promptly paid in full.
J. Seller shall cause to be paid all taxes and assessments levied
or assessed against the Property or any part thereof on or before the Closing
Date, other than real property taxes not yet due.
K. Seller shall, immediately upon obtaining knowledge of (i) the
institution of any proceedings for the condemnation of the Property, or any
portion thereof; (ii) any other proceedings arising out of injury or damage
to or upon the Property or any portion thereof; (iii) any violation of the
applicable laws, ordinances, rules or regulations regarding the Property or
any portion thereof; or (iv) any proceeding which could affect or cloud title
to or ownership of the Property, or any part thereof, notify Buyer of the
pendency of such proceeding or violation. If any of such proceedings or
violation materially and adversely affects the Property, or any portion
thereof, upon such notification, Buyer shall have a period of ten (10) days
from such notification (but not beyond the Closing Date) to terminate this
Agreement by written notice to Seller, and upon such termination the Xxxxxxx
Money Deposit (and the Additional Xxxxxxx Money Deposit, if applicable) shall
be promptly returned to Buyer.
L. Between the date of this Agreement and the Closing, Seller
shall not, in violation of any Environmental Laws in any material respect,
intentionally, knowingly and willfully use, produce, process, manufacture,
generate, treat, handle, store or dispose of any Hazardous Substances in, on
or under the Property, or use the Property for any such purposes, or Release
any Hazardous Substances into any air, soil, surface water or groundwater
comprising the Property. Between the date of this Agreement and the Closing,
Seller shall use reasonable efforts to comply with all Environmental Laws
applicable to the Property, or its use or occupancy thereof. Between the
date of this Agreement and the Closing, Seller shall use reasonable efforts
to obtain all permits, licenses and approvals required by all applicable
Environmental Laws for the use and occupancy of, and all operations and
activities in, the Property, comply and use its best efforts to cause the
tenants to comply with all Environmental Laws and with all such permits,
licenses and approvals, and to keep all such permits, licenses and approvals
in full force and effect. Immediately after Seller obtains any information
indicating that any Hazardous Substances may be present or any Release or
threatened Release of Hazardous Substances may have occurred between the date
of this Agreement and Closing in, on or under the Property (or any nearby
real property which could migrate to the Property) or that any violation of
any Environmental Laws may have occurred between the date of this Agreement
and Closing at the Property, Seller shall give written notice thereof to
Buyer with a reasonably detailed description of the event, occurrence or
condition in question. Seller shall immediately furnish to Buyer copies of
all written communications received between the date of this Agreement and
Closing by Seller from any person (including notices, complaints, claims or
citations that any Release or threatened Release of any Hazardous Substances
or any violation of any Environmental Laws has actually or allegedly
occurred) or given between the date of this Agreement and Closing by Seller
to any person concerning any past or present Release or threatened Release of
any Hazardous Substances in, on or under the Property (or any nearby real
property which could migrate to the Property) or any past or present
violation of any Environmental Laws at or in connection with the Property.
11. Provisions with Respect to Closing. At the Closing, Seller shall
deliver to Buyer the following:
A. Deed. Special warranty deed, subject only to the Permitted
Exceptions, duly executed and acknowledged and in proper form for recording.
B. Xxxx of Sale. A valid xxxx of sale or valid bills of sale for
the Personalty in form and substance reasonably satisfactory to Buyer, duly
executed and acknowledged by Seller.
C. Assignment of Leases. A valid assignment or valid assignments
of the Tenant Leases, in form and substance reasonably satisfactory to Buyer,
duly executed and acknowledged by Seller assigning to Buyer the interests of
Seller in the Tenant Leases, together with the original executed copy of each
Tenant Lease; and letters prepared by Buyer (and approved by Seller, which
approval shall not be unreasonably withheld) and addressed to each of the
tenants informing them of the sale and assignment and directing them to make
future payments of rents to Buyer or its nominee or assignee, as Buyer may
elect; together with lease files containing all lease guarantees, notices
from tenants, general correspondence and the like. Buyer shall assume, and
indemnify Seller with respect to, all of the obligations of Seller with
respect to the proper application of any tenant security deposit, and all
interest thereon payable to any tenant, for which Buyer received a credit (or
which was transferred to Buyer) at the Closing and shall assume, and
indemnify Seller with respect to, all of the obligations of the landlord
under the Tenant Leases accruing or arising from and after the Closing Date.
Seller shall also notify any bank in which Seller maintains a lockbox account
for the receipt of rents from the Premises that all amounts received by such
bank after the Closing Date shall be delivered to Buyer.
D. Assignment of Name. A valid assignment in recordable form,
duly executed and acknowledged by Seller, assigning to Buyer all of the
right, title and interest of Seller in and to the name The Marks Apartments
in connection with the Premises, together with such documents as shall be
necessary to transfer any logos, trademarks or service marks associated with
such names and for proper termination of the use of said name by Seller.
E. Assignment of Service Agreements and Warranties. A valid
assignment duly executed and acknowledged by Seller, in form and substance
reasonably satisfactory to Buyer, of the rights of Seller under (i) each of
the Service Agreements, and (ii) each of the Warranties, together with
original copies or duly executed counterparts thereof; provided, however,
that if any such agreement requires the approval of the other party thereto
prior to assignment thereof to a third party, then the assignment of such
agreement shall be accompanied by such written approval. Seller shall
perform, and shall indemnify Buyer with respect to, all of the obligations of
Seller accruing or arising prior to the Closing under the Service Agreements.
Buyer shall assume, and shall indemnify Seller with respect to, all of the
obligations of Seller accruing or arising from and after the Closing under
the Service Agreements.
F. Assignment of Other Interests. An assignment duly executed
and acknowledged by Seller, in form and substance reasonably satisfactory to
Buyer, of the rights of Seller in and to the Other Interests.
G. Updated Rent Roll and Tenant Schedule. An updated Rent Roll
and schedule of Tenant Leases supplied by Seller which contains all
information required to be set forth in Exhibit "B", which schedule is
correct and complete as of the Closing Date.
H. FIRPTA Affidavit. The affidavit referred to in Section 1445
of the Internal Revenue Code with all pertinent information confirming that
Seller is not a foreign person, trust, estate, corporation or partnership.
I. Property Records. All records (including tax certiorari
filings), documents, information and data in the possession of Seller or its
agents concerning the Property. If the Buyer retains Seller's managing
agent, then delivery of documents herein prescribed need not occur with
respect to those documents already in the possession or control of such
managing agent.
J. Transfer Tax Return. If required, all transfer and gains tax
returns fully executed and completed by Seller.
K. Indemnification. An indemnification from Seller, on behalf of
Seller and its affiliates, for any brokerage commissions payable or which
will become payable in connection with any Tenant Lease.
L. Security Deposits. All security deposits relating to the
Property which have not been forfeited or applied, shall be credited against
the Purchase Price of the Property.
M. Evidence of Payment and Discharge of Liens and Encumbrances.
Evidence satisfactory to the Title Company and reasonably satisfactory to
Buyer that all liens, encumbrances and assessments against the Property,
except the lien of current taxes, have been paid and discharged or that such
liens, encumbrances and assessments will be fully paid and discharged by
Title Company on the Closing Date using Seller's proceeds of sale.
12. Prorations and Credits.
A. The items listed below shall be prorated as of 11:59 p.m. of
the day immediately preceding the Closing Date. To the extent that the
amounts of the items to be prorated are ascertainable as of the Closing Date,
they shall be prorated at the Closing. To the extent that the amounts of the
items to be prorated are not reasonably ascertainable as of the date of
closing, they shall be adjusted as promptly after the Closing as the amounts
thereof are ascertained. Any errors or omissions in computing the prorations
at the Closing shall be promptly corrected and this obligation shall survive
the Closing hereunder for a period of six (6) months from the Closing Date.
(i) Water, sewer, fire protection inspection services,
electric, telephone and all other utility charges.
(ii) Prepaid rents (including tax and similar participations),
utility deposits.
(iii) Prepaid service, maintenance and other similar contracts
with respect to the Service Agreements.
(iv) Buyer shall receive a credit against the Purchase Price
in an amount equal to the outstanding security deposit liability to which it
will be subject with respect to Tenant Leases as evidenced by the Rent Roll
delivered by Seller at the Closing.
(v) a. Rents (including furniture, carport, garage and all
other rental amounts payable by tenant of the Premises) for the month of
Closing shall be prorated. Unpaid rents from tenants shall not be prorated
at the Closing. In the event that on the Closing Date, any tenant is in
arrears in the payment of rent for the month of the Closing and/or any months
prior thereto, Buyer shall hold any rents (net of the reasonable costs of
collection) collected after the Closing Date from such tenant in trust for
the benefit of Seller, and shall promptly remit such rents (net of reasonable
costs of collection) to Seller for application in reduction of such
arrearage; provided, however, that no sums received by Buyer shall be so paid
to Seller for application to rents in arrears unless and until such rent and
other charges due for the periods subsequent to the Closing shall have been
received and retained by Buyer.
b. Buyer agrees to xxxx tenants, and to send Seller
copies of all rent bills within a reasonable time, for all charges payable by
them, and other charges due under the Tenant Leases and for which charges
Buyer is entitled to payment of all or a portion thereof, and Buyer shall
promptly remit to Seller Seller's share of such sums up to the Closing Date,
after collection. Subject to subsection (v)a above, Buyer shall have the
right, in good faith, to settle or adjust any amount of such rents or charges
due from any tenant without Seller's prior consent, provided that such
settlement or adjustment applies ratably to all amounts of such charges due
from such tenant.
c. Buyer agrees to use reasonable efforts to collect
rent arrearages due Seller from tenants, provided that Buyer shall not be
obligated to commence any litigation against such tenants, incur any expense
in collecting such arrearages (other than the expense of routine billing) or
terminate a Tenant Lease.
(vi) Real Estate Taxes and Special Assessments.
Notwithstanding anything to the contrary contained herein, (i) real estate
taxes shall be prorated on the basis of the latest valuations and mill
levies, and shall be subject to readjustment as soon as the actual valuation
and mill levies for the year of Closing are conclusively determined, (ii)
Seller shall be responsible to pay in full at or prior to Closing any special
assessments which may be a lien on the Property for improvements to the
Property such as, but not limited to, curb and gutter, sidewalk, street and
alley improvements, and (iii) assessments on the Property by special
districts that impose periodic assessments to provide the Property with
services such as fire protection and water and sanitation facilities shall be
prorated as of the Closing Date.
(vii) Such other items of income and expenses as are
customarily prorated in real estate transactions.
B. Seller shall furnish readings of the water, gas and electric
meters at the Premises to the Closing Date. Seller shall cooperate with
Buyer to provide, as of the Closing Date, for a cancellation of electricity
and other utility services in Seller's name and a resumption thereof in
Buyer's name. If such a timely cancellation and resumption occurs, there
shall be no proration of water, gas and electric charges as provided in
Section 12A(i).
C. All transfer taxes and all sales and use taxes imposed on or
in connection with this transaction shall be paid by Seller, regardless of
whether Seller would otherwise be obligated under Colorado law. Seller and
Buyer shall each execute and swear to the returns in connection with the
aforesaid taxes.
D. If in connection with the assumption by Buyer of Seller's
obligations under the Existing Encumbrance Documents, Seller transfers to
Buyer the interest of Seller in any deposits, escrows or funds held by the
holder of the Existing Encumbrance, then Seller shall receive a credit for
the actual amount of such deposits, escrows or funds so transferred. In
addition, Buyer shall receive a credit for any accrued, but unpaid interest
on the Existing Encumbrance attributable to the period prior to the Closing
Date. If and to the extent the terms of this Section 12D conflict with the
Assumption Agreement to which Buyer and Seller are a party, the terms of the
Assumption Agreement shall control.
13. Casualty Loss.
A. Seller shall cause the insurance policies now in effect with
respect to the Premises to be maintained until the Closing. If at any time
prior to the Closing Date, any portion of the Premises is destroyed or
damaged as a result of fire or any other casualty whatsoever, Seller shall
promptly give written notice thereof to Buyer and, within ten (10) days
thereafter, shall provide Buyer with an estimate of the cost of restoring the
Premises to the condition it was in immediately before such damage or
destruction.
B. If the cost of restoring and repairing the portion of the
Premises so damaged to substantially its present condition is not more than
Two Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars, as reasonably
estimated by a general contractor selected by Seller and reasonably approved
by Buyer, then Buyer shall have no right to terminate this Agreement and
shall purchase the Premises in its damaged condition and be fully responsible
for repair thereto, but without reduction of the Purchase Price or any other
claim or offset. Seller shall assign to Buyer the right to receive all
insurance proceeds payable to Seller as a result of such fire or other
casualty, provided that Seller shall be entitled to retain, to the extent
theretofore paid, and shall not be obligated to assign the right to receive,
to the extent not theretofore paid, an amount of such insurance proceeds
equal to Seller's expenses incurred in collecting such proceeds and any sums
expended by Seller in connection with the repair of such damage or
destruction. Seller shall pay to or credit Buyer with the amount of the
deductible under the insurance policy covering the Premises.
C. If the cost of restoring and repairing the portion of the
Premises so damaged to substantially its present condition is more than Two
Hundred Fifty Thousand and 00/100 ($250,000.00) Dollars, as reasonably
estimated by a general contractor selected by Seller and reasonably approved
by Buyer, then Buyer shall have the option, to be exercised within five (5)
business days from the date of Buyer's receipt of such estimate, to terminate
this Agreement, in which case the Xxxxxxx Money Deposit (and the Additional
Xxxxxxx Money Deposit, if applicable) shall be returned to Buyer and neither
party hereto shall have any further duties, obligations or liabilities to the
other. If Buyer shall not elect to terminate this Agreement as provided
above, then this Agreement shall remain in full force and effect and the
provisions of Section 13B hereof shall apply to such damage and any insurance
proceeds payable in connection therewith.
14. Brokerage. Seller and Buyer each represent and warrant to each
other that it has not dealt with any broker or other intermediary, in
connection with or relating to the sale and purchase which is the subject of
this Agreement. Seller and Buyer shall defend, indemnify and hold the other
harmless from and against any and all liability, claim, charge or damages,
including without limitation, counsel fees and court costs, incurred by the
other as a result of any breach by the indemnitor of the foregoing
representation.
15. Eminent Domain.
A. If at any time prior to the Closing Date, there shall be a
taking by eminent domain proceedings or the commencement of any such
proceedings, with respect to all or any "material part" of the Premises,
Seller shall promptly give written notice thereof to Buyer, and Buyer shall
have the right, at Buyer's sole option, to terminate this Agreement by giving
written notice to Seller before the earlier to occur of (i) thirty (30) days
after Buyer receives written notice of such proceedings or (ii) the Closing
Date, in which event the Xxxxxxx Money Deposit (and the Additional Xxxxxxx
Money Deposit, if applicable) shall be returned to Buyer. If Buyer does not
so terminate this Agreement, the purchase price for the Premises shall be
reduced by the total of any awards or other proceeds received by Seller
(directly or indirectly) with respect to any such taking, and at the Closing
Seller shall assign to Buyer all rights of Seller in and to any awards or
other proceeds payable by reason of any taking. For purposes of this Section
15A, a taking by eminent domain or condemnation proceedings that results in a
diminution in value of the Premises by $250,000.00 or more or an award of
$250,000.00 or more shall be deemed to be a taking of a "material part" of
the Premises.
B. Until such time as the Closing has occurred, or this Agreement
terminates, any negotiation for or agreement to, and all contests of, any
offers and awards relating to eminent domain proceedings shall be conducted
with the joint approval and consent of Seller and Buyer.
16. Acceptance of Property "As Is". Buyer acknowledges and agrees
that, prior to Closing it will have had full opportunity to inspect and
investigate every aspect of the Property, including all matters related to
legal status or requirements, physical condition, zoning, environmental
condition, title, leasing, contracts and all other matters of significance.
Buyer specifically acknowledges and agrees that the Property is being sold in
an "AS IS" condition and "WITH ALL FAULTS" as of the date of the Closing.
Except as otherwise expressly set forth in this Agreement and in the
documents to be delivered by Seller to Buyer at the Closing, no statements,
representations or warranties have been made or are made, and no
responsibility has been or is assumed, by Seller, or by any partner, officer,
person, firm, agent or representative acting or purporting to act on behalf
of Seller, as to any matters concerning or that might in any manner affect
the Property, including the condition or repair of the Property or the value,
expense of operation, or income potential thereof, and Buyer is not relying
upon any such statement, representation or warranty.
Further, to the extent that Seller has provided to Buyer
information or reports regarding any inspection, engineering, environmental
or other matters regarding any aspect of the Property, Seller makes no
representations or warranties with respect to the accuracy, completeness,
methodology of preparation or otherwise concerning the contents of such
reports.
17. Statutory Compliance. SPECIAL TAXING DISTRICTS MAY BE SUBJECT TO
GENERAL OBLIGATION INDEBTEDNESS THAT IS PAID BY REVENUES PRODUCED FROM ANNUAL
TAX LEVIES ON THE TAXABLE PROPERTY WITHIN SUCH DISTRICTS. PROPERTY OWNERS IN
SUCH DISTRICTS MAY BE PLACED AT RISK FOR INCREASED MILL LEVIES AND EXCESSIVE
TAX BURDENS TO SUPPORT THE SERVICING OF SUCH DEBT WHERE CIRCUMSTANCES ARISE
RESULTING IN THE INABILITY OF SUCH A DISTRICT TO DISCHARGE SUCH INDEBTEDNESS
WITHOUT SUCH AN INCREASE IN MILL LEVIES. BUYER SHOULD INVESTIGATE THE DEBT
FINANCING REQUIREMENTS OF THE AUTHORIZED GENERAL OBLIGATION INDEBTEDNESS OF
SUCH DISTRICTS, EXISTING MILL LEVIES OF SUCH DISTRICT SERVICING SUCH
INDEBTEDNESS, AND THE POTENTIAL FOR AN INCREASE IN SUCH MILL LEVIES. (C.R.S.
SECTION 38-35.7-101).
18. Further Assurances. Buyer and Seller shall execute and deliver
each to the other such documents and instruments and take such further
actions as may be reasonably necessary or required to consummate the
transactions contemplated by this Agreement.
19. Entire Agreement. This is the entire agreement between the parties
and there are no other terms, obligations, covenants, representations,
statements or conditions, oral or otherwise, of any kind whatsoever. Any
agreement hereafter made shall be ineffective to change, modify, discharge or
effect an abandonment of this Agreement in whole or in part unless such
agreement is in writing and signed by the party against whom enforcement of
the change, modification, discharge or abandonment is sought.
20. Survival. Except as otherwise provided herein, all agreements,
warranties and representations contained herein shall survive Closing, and
shall not be deemed to have merged into the deed.
21. Notices. All notices, requests and other communications under this
Agreement shall be in writing and shall be sent by certified or registered
mail, return receipt requested, or by overnight courier or may be personally
delivered to the following addresses:
If intended for Buyer:
WELLSFORD RESIDENTIAL PROPERTY TRUST
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxxx XxxXxxxxx
Phone Number: 303/000-0000
Facsimile: 303/595-7799
With a copy to:
XXXXXXXXXX XXXXX XXXXXX & XXXXXXXXXX, P.C.
000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
Attn: Xxxxx X. Xxxxx, Esq.
Phone Number: 303/000-0000
Facsimile: 303/623-1956
If intended for Seller:
HG VENTURE
3200 Xxxxxxxx Xxxx Center
0000 Xxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Phone Number: ________________
Facsimile: _______________
With copies to:
XXXXXXX FINANCIAL GROUP
000 Xxxxxxx Xxxx
Xxxxxxx Xxxxxx, XX 00000-0000
Attn: Lincoln Xxxxxxx
Phone Number: 415/000-0000
Facsimile: 415/529-2131
XXXXXXX, XXXXX & XXXXXX
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxx X. Xxxxxxx
Phone Number: 415/000-0000
Facsimile: 415/954-4480
or such other address of which Seller or Buyer shall have given notice as
herein provided. All such notices, requests and other communications shall
be deemed to have been sufficiently given for all purposes hereof on the date
of receipt.
22. Remedies. If any obligation hereunder is not performed as herein
provided, there shall be the following remedies:
A. If Buyer defaults in its obligation to purchase the Property
when and as required hereby, then it shall forfeit the Xxxxxxx Money Deposit
and the Additional Xxxxxxx Money Deposit, if applicable, except as herein
provided to the contrary, and both parties shall thereafter be released from
all obligations hereunder. It is agreed that the forfeiture of the Xxxxxxx
Money Deposit and the Additional Xxxxxxx Money Deposit, if applicable,
constitutes liquidated damages and is Seller's sole and exclusive remedy for
Buyer's failure to perform its obligations to purchase the Property as
required hereby. Seller expressly waives the remedies of specific
performance and additional damages.
B. If Seller is in default, (i) Buyer may elect to treat this
Agreement as terminated, in which case the Xxxxxxx Money Deposit and all
other payments and things of value provided by Buyer hereunder, including the
Additional Xxxxxxx Money Deposit, if applicable, shall be returned to Buyer
and Buyer may recover such damages as may be proper, and/or (ii) Buyer may
elect to treat this Agreement as being in full force and effect, and Buyer
shall have the right to an action for specific performance or damages, or
both.
23. Miscellaneous.
A. The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope of intent of
this Agreement or any of the provisions hereof.
B. This Agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective heirs, executors,
administrators, legal representatives, successors and assigns.
C. This Agreement shall be governed by and shall be construed and
interpreted in accordance with the laws of the State of Colorado.
D. This Agreement and all documents, agreements, understandings
and arrangements relating to this transaction have been executed by the
undersigned in his/her capacity as an officer or trustee of Buyer which has
been formed as a Maryland real estate investment trust pursuant to a
Declaration of Trust of Buyer dated as of July 10, 1992, and not
individually, and neither the trustees, officers or shareholders of Buyer
shall be bound or have any personal liability hereunder or thereunder.
Seller shall look solely to the assets of Buyer for satisfaction of any
liability of the Buyer in respect of this Agreement and all documents,
agreements, understandings and arrangements relating to this transaction and
will not seek recourse or commence any action against any of the trustees,
officers or shareholders of Buyer or any of their personal assets for the
performance or payment of any obligation hereunder or thereunder. The
foregoing shall also apply to any future documents, agreements,
understandings, arrangements and transactions between the parties hereto.
E. Buyer acknowledges and agrees that in the event of any default
hereunder by Seller, neither Seller nor any of the trustees, directors,
officers, employees, shareholders or partners of Seller or any of them, shall
have any personal liability, and Purchaser agrees to look solely to the
Property for satisfaction of any claim or liability of Seller under this
Agreement and agrees not to seek recourse against any other assets of Seller
or against the trustees, directors, officers, employees, shareholders or
partners of Seller, or any of them, or any of their personal assets for such
satisfaction.
F. The parties hereto acknowledge that the transfer of the
Property must be reported to the Internal Revenue Service as required by
Section 6045(e) of the Internal Revenue Code of 1986, as amended (the
"Code"), unless Section 6045(e) provides an exemption to such reporting
requirement. Accordingly, on or before the Closing Date, Seller, Buyer and
the Title Company shall enter into a written "designation agreement" as
defined in and in accordance with Regulation Section 1.6045-4 of the Code,
which designation agreement shall designate the Title Company as the "real
estate reporting person" responsible for reporting the respective transfers
to the Internal Revenue Service.
G. Subject to the last sentence of this Section, the parties
hereto agree that neither party shall make an announcement of the transaction
contemplated herein to third parties without the prior written consent of the
other party hereto. The Buyer shall have the right to approve any public
announcement. Subject to the last sentence of this Section and except as
required by court order or by operation of law, the contents of this
Agreement shall remain confidential, shall only be disclosed to those third
parties necessary to facilitate the consummation of the transaction
contemplated hereby. Notwithstanding the foregoing, Buyer may disclose this
Agreement as it deems necessary or appropriate to comply with securities or
other laws or to fulfill their corporate or fiduciary obligations to their
investors.
H. The Exhibits attached hereto and made a part hereof are:
Exhibit A: Legal Description of the Land
Exhibit B: Certified Rent Roll
Exhibit C: Form of Tenant Lease
Exhibit D: Service Agreements
Exhibit E: Description of Pending Claims
Exhibit F: Nonterminable Contracts
I. Buyer shall have the right to assign its interest in this
Agreement to a wholly owned subsidiary of Buyer. No assignment of Buyer's
interest in this Agreement shall release it of its obligations and duties
hereunder.
J. This Agreement may be executed in more than one counterpart,
each of which shall be deemed an original and all of which, when taken
together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
HG VENTURE, a Texas limited
partnership
By: HAMPDEN I, LIMITED, a
Texas limited partnership,
Its Managing General Partner
By: /s/ Xxxxxxxx X. Xxxx
----------------------------
Xxxxxxxx X. Xxxx
Its General Partner
By: XXXXXXX MARKS INVESTORS, a
California limited partnership,
Its General Partner
By: XXXXXXX PARTNERS II, a
California limited
partnership, Its General
Partner
By: XXXXXXX REALTY
CORPORATION, Its
General Partner
By:/s/ Xxxxx X. Xxxxxxx
____________________________
Xxxxx X. Xxxxxxx
Its President
WELLSFORD RESIDENTIAL PROPERTY
TRUST, a Maryland real estate
investment trust
By:/s/ Xxxxxx X. XxxXxxxxx
_________________________________
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
EXHIBIT A
(Legal Description)
XXX 0, XXX XXXXX XXXXXXXXXXX 0XX XXXXXX, Xxxxxx xx Xxxxxxxx, Xxxxx of
Colorado.
[Depiction of Property]
EXHIBIT B
(Rent Roll)
EXHIBIT C
(Form of Tenant Leases)
EXHIBIT D
(Service Agreements)
SERVICE AGREEMENTS
Xxxxx Pest Control
Xxxx Landscaping
Rocky Mountain Turf & Tree (Snow Removal)
Data Vision (Security Alarms)
Waste Management
Xxxxx (air fresheners)
For Rent Magazine
Globe Furniture
Agreements that Cannot Be Terminated in 30 Days
Automatic Laundry - Laundry Room Lease (expires 9/16/96)
Data Vision - Alarm monitoring for 116 units (expires 2/19/97)
No pending claims against the property at this time
EXHIBIT E
(Description of Pending Claims)
See Exhibit D
EXHIBIT F
(List of Nonterminable Contracts)
See Exhibit D
AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS AMENDMENT TO AGREEMENT OF PURCHASE AND SALE ("Amendment") is made
as of February 1, 1996, by and between HG VENTURE, a Texas limited
partnership ("Seller"), and WELLSFORD RESIDENTIAL PROPERTY TRUST, a Maryland
real estate investment trust ("Buyer").
WHEREAS, Seller and Buyer entered into that certain Agreement of
Purchase and Sale (the "Agreement") dated as of the 6th day of December, 1995
for the purchase and sale of property, together with the buildings and
improvements thereon erected, known as The Marks West Apartments, 0000 Xxxxxx
Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000, as amended by a letter agreement dated
January 12, 1996 (capitalized terms not otherwise defined herein shall have
the definitions given them in the Agreement); and
WHEREAS, Seller and Buyer desire to amend the Agreement as hereinafter
provided.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Buyer hereby agree as
follows:
(i) Closing Date. Section 7 is amended and restated in its entirety as
follows:
Closing. The closing of the transaction contemplated hereby
(the "Closing") shall take place at the offices of Xxxxxxxxxx Xxxxx
Xxxxxx & Xxxxxxxxxx, P.C., 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000, at 10:00 a.m., on the earlier of March 18,
1996 or the date designated for closing by Buyer upon not less than
three days prior written notice to Seller (the "Closing Date").
(ii) Purchase Price.
a. The Purchase Price shall mean the following: (i) if the
Closing occurs on or before February 20, 1996, then seventeen million two
hundred thousand and no/100 dollars ($17,200,000.00); (ii) if the Closing
occurs after February 20, 1996, but on or before March 1, 1996, then
seventeen million two hundred twenty-five thousand and no/100 dollars
($17,225,000.00); and (iii) if the Closing occurs after March 1, 1996, then
seventeen million two hundred fifty thousand and no/100 dollars
($17,250,000.00).
b. Section 2C of the Agreement is amended and restated as
follows:
The Purchase Price is allocated as follows: (i) $40,000 of the
Purchase Price is allocated to Personalty; (ii) the balance of the
Purchase Price is allocated to real property.
4. The Agreement, as amended hereby, remains in full force and effect.
This Amendment may be executed in counterparts by each party separately.
When Seller and Buyer have executed a copy hereof, such copies taken together
shall be deemed to be a full and complete Amendment to the Agreement between
Seller and Buyer.
IN WITNESS WHEREOF, Seller and Buyer have executed this First Amendment
as of the date set forth below, to be effective as of the date first above
written.
HG VENTURE, a Texas limited partnership
By: XXXXXXX MARKS INVESTORS, a
California limited partnership,
Its General Partner
By: XXXXXXX PARTNERS II, a
California limited partnership,
Its General Partner
By: XXXXXXX REALTY
CORPORATION, Its General
Partner
By: /s/ Xxxxx X. Xxxxxxx
___________________________
Xxxxx X. Xxxxxxx,
Its President
By: HAMPDEN I, LIMITED, a Texas limited
partnership, its Managing General
Partner
By: /s/ Xxxxxxxx X. Xxxx
------------------------------
Xxxxxxxx X. Xxxx, Its General Partner
WELLSFORD RESIDENTIAL PROPERTY
TRUST, a Maryland real estate
investment trust
By: /s/ Xxxxxx X. XxxXxxxxx
______________________________________
Xxxxxx X. XxxXxxxxx, Vice President
SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS SECOND AMENDMENT TO AGREEMENT OF PURCHASE AND SALE ("Amendment") is
made as of February 29, 1996, by and between HG VENTURE, a Texas limited
partnership ("Seller"), and WELLSFORD MARKS WEST CORP., a Colorado
corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Wellsford Residential Property Trust, a Maryland
real estate investment trust ("Wellsford REIT"), have entered into that
certain Agreement of Purchase and Sale dated as of December 6, 1995, as
amended (collectively, the "Agreement"), for the purchase and sale of
property, together with the buildings and improvements thereon erected, known
as The Marks West Apartments, 0000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx 00000
(capitalized terms not otherwise defined herein shall have the definitions
given them in the Agreement); and
WHEREAS, by Assignment and Assumption of Agreement of Purchase and Sale
dated February __, 1996, Wellsford REIT has assigned the Agreement to Buyer
and Buyer has assumed the obligations of Wellsford REIT under the Agreement;
and
WHEREAS, Seller and Buyer desire to amend the Agreement as hereinafter
provided.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer hereby amend
the Agreement as follows:
(iii) Closing Date. Section 7 is amended and restated in its
entirety as follows:
Closing. The closing of the transaction contemplated hereby
(the"Closing") shall take place at the offices of Xxxxxxxxxx Hyatt
Xxxxxx & Xxxxxxxxxx, P.C., 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxx, Xxxxxxxx 00000. The Closing is presently scheduled for
March 6, 7 and 8, 1996, but in any event will occur on or before
March 18, 1996 (the "Closing Date").
(iv) Purchase Price. Section 2.a. is amended and restated in its
entirety as follows:
a. The Purchase Price shall mean the following: (i) if the
Closing occurs on or before March 8, 1996, then seventeen million two hundred
twenty-five thousand and no/100 dollars ($17,225,000.00); and (ii) if the
Closing occurs after March 8, 1996, then seventeen million two hundred fifty
thousand and no/100 dollars ($17,250,000.00).
(v) The Agreement, as amended hereby, remains in full force and effect.
This Amendment may be executed in counterparts by each party separately.
When Seller and Buyer have executed a copy hereof, such copies taken together
shall be deemed to be a full and complete Amendment to the Agreement between
Seller and Buyer.
IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as of
the date first above written.
HG VENTURE, a Texas limited partnership
By: XXXXXXX MARKS INVESTORS, a
California limited partnership,
Its General Partner
By: XXXXXXX PARTNERS II, a
California limited partnership,
Its General Partner
By: XXXXXXX REALTY
CORPORATION, Its General
Partner
By: /s/ Xxxxx X. Xxxxxxx
____________________________
Xxxxx X. Xxxxxxx,
Its President
By: HAMPDEN I, LIMITED, a Texas limited
partnership, its Managing General
Partner
By: /s/ Xxxxxxxx X. Xxxx
------------------------------
Xxxxxxxx X. Xxxx, Its General Partner
WELLSFORD MARKS WEST CORP., a
Colorado corporation
By: /s/ Xxxxxx X. XxxXxxxxx
______________________________________
Xxxxxx X. XxxXxxxxx, Vice President
THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE
THIS THIRD AMENDMENT TO AGREEMENT OF PURCHASE AND SALE ("Amendment") is
made as of March 8, 1996, by and between HG VENTURE, a Texas limited
partnership ("Seller"), and WELLSFORD MARKS WEST CORP., a Colorado
corporation ("Buyer").
W I T N E S S E T H:
WHEREAS, Seller and Wellsford Residential Property Trust, a Maryland
real estate investment trust ("Wellsford REIT"), have entered into that
certain Agreement of Purchase and Sale dated as of December 6, 1995, as
amended (collectively, the "Agreement"), for the purchase and sale of certain
real property, together with the buildings and improvements thereon erected,
known as The Marks West Apartments, 0000 Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx
00000 (capitalized terms not otherwise defined herein shall have the
definitions given them in the Agreement); and
WHEREAS, by Assignment and Assumption of Agreement of Purchase and Sale
dated February 27, 1996, Wellsford REIT has assigned the Agreement to Buyer
and Buyer has assumed the obligations of Wellsford REIT under the Agreement;
and
WHEREAS, the Buyer and the Seller have requested that the remarketing
agent acquire the Bonds on a voluntary basis from the current holders to
facilitate the Closing; and
WHEREAS, as of the date of this Agreement, the remarking agent has not
repurchased the Bonds; and
WHEREAS, Seller and Buyer desire to amend the Agreement as hereinafter
provided.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Buyer hereby amend
the Agreement as follows:
(vi) Closing Date. Section 7 is amended and restated in its entirety as
follows:
Closing. The closing of the transaction contemplated hereby
(the"Closing") shall take place at the offices of Xxxxxxxxxx Hyatt
Xxxxxx & Xxxxxxxxxx, P.C., 000 Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000. The parties agree to mutually cooperate to close this
transaction as soon as reasonably practical after the remarketing agent
has repurchased the Bonds, but in any event on or before March 18, 1996
(the "Closing Date").
(vii) Purchase Price. The first three lines of Section 2.B. are
amended and restated as follows:
B. The Purchase Price shall mean the following: (i) if the
Closing occurs on or before March 15, 1996, then seventeen million two
hundred twenty-five thousand and no/100 dollars ($17,225,000.00); and
(ii) if the Closing occurs after March 15, 1996, then seventeen million
two hundred fifty thousand and no/100 dollars ($17,250,000.00).
(viii) The Agreement, as amended hereby, remains in full force and
effect. This Amendment may be executed in counterparts by each party
separately. When Seller and Buyer have executed a copy hereof, such copies
taken together shall be deemed to be a full and complete Amendment to the
Agreement between Seller and Buyer.
IN WITNESS WHEREOF, Seller and Buyer have executed this Amendment as of
the date first above written.
HG VENTURE, a Texas limited partnership
By: XXXXXXX MARKS INVESTORS, a
California limited partnership,
Its General Partner
By: XXXXXXX PARTNERS II, a
California limited partnership,
Its General Partner
By: XXXXXXX REALTY
CORPORATION, Its General
Partner
By:
____________________________
Xxxxx X. Xxxxxxx, President
By: HAMPDEN I, LIMITED, a Texas limited
partnership, its Managing General Partner
By:/s/ Xxxxxxxx X. Xxxx
--------------------------------
Xxxxxxxx X. Xxxx, General Partner
WELLSFORD MARKS WEST CORP., a
Colorado corporation
By: /s/ Xxxxxx X. XxxXxxxxx
______________________________________
Xxxxxx X. XxxXxxxxx, Vice President
