Exhibit 10.2
OPTION AGREEMENT
This Option Agreement (this "Agreement") made as of the 28th day of June
1996, by and between SPECIFIED PROPERTIES VIII, L.P., a Texas limited
partnership, having an address at 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx,
Xxxxx 00000, Attention: Xxxx X. Xxxxxxxxxx or Xxx Xxxxxx (hereinafter called
"Seller"), and WELLSFORD RESIDENTIAL PROPERTY TRUST, a Maryland real estate
investment trust, having an address at 000 00xx Xxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. XxxXxxxxx (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 Sonterra at Xxxxxxxx Centre, an apartment property located in the City of
Tucson, County of Pima, State of Arizona (the "Improvements") (the Land and
the Improvements are collectively referred to herein as the "Premises"); and
WHEREAS, Seller desires to grant to Buyer and Buyer desires to obtain an
option to purchase the Premises, 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 of the Option Payment provided for herein, and
respectively expressing the intention to be legally bound hereby, covenant
and agree as follows:
1. Option. In consideration of the payment to Seller of $178,000.00
(the "Option Payment"), the receipt and sufficiency of which is hereby
acknowledged, Seller hereby grants to Buyer the right and option (the
"Option") for a term ending December 31, 1998 (the "Term") to purchase all of
the following (collectively herein referred to as the "Property"), free and
clear of liens and encumbrances except Permitted Exceptions (as hereinafter
defined) and subject to additions and removals in accordance with Paragraph
9(e):
(a) The Land;
(b) The Improvements;
(c) Easements, rights of way, privileges, appurtenances and rights
belonging to and inuring to the benefit of the Premises;
(d) All of Seller's interests in any land lying in the bed 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, computers, equipment, furnishings,
appliances, supplies, operational records and other tangible personal
property owned by Seller and now or hereafter located on the Premises,
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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,
furniture and furnishings, 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 warranties and guarantees to and
rights of action of Seller therefor, if any. (The property described in this
subparagraph 1(e), when referred to separately from the Premises, is
hereinafter sometimes called "Personalty");
(f) All strips, gores, riparian rights and littoral rights, if
any, belonging to or inuring to the benefit of the Land and/or the
Improvements; and
(g) All of Seller's right, title and interest in and to the
following (collectively, "Other Interests"):
i) Any and all catalogs, booklets, manuals, tenant files,
maintenance and operation logs, files and records, leasing records,
correspondence relating to maintenance, operations or leasing, purchaser
prospect list, tenant lists, tenant prospect lists and other mailing
lists, sales brochures and material, leasing brochures and materials,
advertising materials and, to the extent prepared for Seller by third
parties, title information, soil, engineering and environmental
inspections, studies and reports, market studies, and similar materials
with respect to the sale, management, leasing, promotion, ownership,
maintenance, use, occupancy and operation of the Premises;
ii) The name "Sonterra at Xxxxxxxx Centre" (the "Name");
iii) All tenant security deposits, together with any interest
thereon accrued or deemed accrued as of the Closing Date which the
landlord is required by law or by the Tenant Leases to refund to tenants
(collectively, the "Security Deposits");
iv) Any transferable bond, guaranty, warranty or repair
agreements (the "Warranties") 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, but only to the extent such bond, guaranty, warranty or
agreement is an obligation of a person not affiliated with Seller or its
partners, and in all cases subject to any limitation contained in each
such bond, guaranty and warranty;
v) Any transferable 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,
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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 or applied to the Loan (as such term
is defined in Section 20);
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 or applied
to the Loan (as such term is defined in Section 20);
xii) Any transferable development rights with respect to the
Land, excluding any cash deposits or letters of credit delivered to any
governmental authority in connection with the past, present or future
development of the Land (it being acknowledged that Seller may withdraw
or cause to be withdrawn any such cash or letters of credit); and
xiii) Any water and water rights of any kind or description
appurtenant to or owned by Seller in connection with the Land or the
Improvements.
2. Option Payment; Exercise of Option; Purchase Price.
(a) The Option Payment is nonrefundable and shall be credited
against the amounts due from Buyer at the Closing.
(b) Buyer may exercise the Option at any time prior to the end of
the Term by written notice (the "Exercise Notice") given to Seller in
accordance with Paragraph 20 below. If Buyer gives the Exercise Notice, the
date of closing of the purchase and sale of the Property (the "Closing Date")
shall be on a date specified by Buyer which shall be not more than ninety
(90) nor less than twenty (20) days after the date of the Exercise Notice or
on such other date as Buyer and Seller may agree.
(c) The purchase price for the Property shall be $20,178,000.00 if
the Closing Date is on or before December 31, 1997, and $20,678,000.00 if the
the Closing Date is January 1, 1998 or later (in either case, the "Purchase
Price"), which Buyer shall pay by wire transfer of immediately available
funds through the Federal Reserve System to Chicago Title Insurance Company,
0000 XXX Xxxxxxx, Xxxxxx, Xxxxx 00000 (the "Title Company") for disbursement
to Seller.
3. Seller's Condition. Notwithstanding any representation, warranty
or covenant in this Agreement to the contrary, Seller's obligations and
exercise of the Option under this Agreement are conditioned on approval of
this Agreement by the limited partner of Seller.
4. Survey. Prior to the date of this Agreement, Seller has delivered
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to Buyer, at Seller's sole cost and expense, a current ALTA/ACSM Land Title
Survey of the Property prepared and certified (i) in accordance with the
"Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys"
jointly established and adopted ALTA and ACSM 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 "Initial
Survey"). The Initial Survey contains a certificate from the surveyor to
Buyer and the Title Company in form acceptable to Buyer. Seller shall have
the survey updated and recertified prior to Closing to a date not more than
thirty (30) days before the Closing Date. The updated survey (the "Final
Survey") shall be in a form acceptable to the Title Company for the deletion
of the standard survey exceptions without the addition of further exceptions
to title and shall disclose no title defects, encroachments or other matters
not shown on the Initial Survey, unless the same are acceptable to Buyer in
its sole and absolute discretion. Any matters shown on the Final Survey that
are not on the Initial Survey and are objected to by Buyer shall be corrected
at Seller's sole cost prior to the Closing Date, except that Seller shall not
be obligated to correct survey matters arising solely from changes enacted by
governmental authorities after the date of the Initial Survey (e.g. changes
in setback requirements).
5. Title Insurance and Lien Search.
(a) Prior to the date hereof, a current title insurance commitment
covering the Property issued by the Title Company (the "Initial Title
Commitment"), together with complete and legible copies of all documents
referred to therein, has been delivered to Buyer at Seller's sole cost and
expense. The Initial Title Commitment commits to insure Buyer as owner of
the Property in the amount of $20,178,000.00, and commits the Title Company
to issue its standard ALTA Owner's Policy on the Closing Date, 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) title exceptions approved by Buyer
prior to the date hereof. If the Initial Title Commitment contains any
exception for mineral rights, Seller shall pay at Closing for an endorsement
to the title insurance coverage insuring against any loss to Improvements as
a result of such exception. Seller shall cause the Initial Title Commitment
to be updated prior to Closing to a date not more than thirty (30) days
before the Closing Date. If such updated title insurance commitment (the
"Closing Title Commitment") contains any exceptions from coverage which Buyer
deems to be unacceptable and which are not on the Initial Title Commitment,
and if Seller does not remove (or, in the case of mechanic's liens, bond
over) such exceptions by Closing, Buyer, at its option, may exercise its
remedies under Paragraph 16 of this Agreement. If Buyer does not deliver
written notice of objection to title to Seller before the end of ten (10)
business days after delivery of the Closing Title Commitment, Buyer shall be
deemed to have accepted the condition of title as shown therein. Any
exceptions on the Closing Title Commitment to which Buyer does not timely
object, or to which Buyer objects but later waives its objection in writing,
shall be deemed to be "Permitted Exceptions."
(b) Seller shall obtain and shall deliver to Buyer within ten (10)
days after the Closing Date, at its sole cost and expense, a standard ALTA
Owner's Policy, covering the Property in the amount of the applicable
Purchase Price, effective as of the date and time of the Closing, subject
only to the Permitted Exceptions, and including the endorsements required
pursuant to the preceding subparagraph (a). The standard preprinted
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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 Insurance Company shall require in order to
issue, the title insurance policy as herein provided. At Closing, Seller
shall cause the Title Company to 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 Buyer in accordance with the
foregoing requirements.
(c) If the 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, subject
to applicable regulatory restrictions, protect Buyer from fraud or dishonesty
of the 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) Prior to the date of this Agreement, Seller, at its sole
expense, has delivered to Buyer a current certificate from the appropriate
governmental authorities or from a Uniform Commercial Code lien search
service acceptable to Buyer, reporting the results of a Uniform Commercial
Code lien search of all appropriate records for security interests and
financing statements against any personal property constituting a part of the
Property. Seller shall cause such report to be updated and recertified to
Buyer within ten (10) days prior to the Closing Date, and shall make
arrangements on or before the Closing Date to have all liens shown thereon
fully discharged or bonded.
6. Inspection by Buyer; Maintenance.
(a) 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 the Term, during regular business hours and on reasonable prior
notice to Buyer and the managing agent of the Property, inspect all areas of
the Premises and conduct such tests and observations as Buyer may deem
appropriate. Any tests involving extraction of samples of materials, soil or
water other than for asbestos shall require prior approval of Seller. 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 (including damages associated with personal
injury or death or damage to property) arising out of the acts or omissions
of the parties performing such inspections, tests, or observations.
(b) 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 Property, from time to time during the
Term during regular business hours and upon reasonable prior notice. Seller
acknowledges that Buyer may 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 so
long as the offering material states that Seller is not a participant in the
offering or responsible for the offering materials. Upon request by Buyer,
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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 Property, 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 Property.
7. Closing. The closing of the transaction contemplated hereby (the
"Closing") shall take place at the offices of Chicago Title Insurance
Company, 0000 XXX Xxxxxxx, Xxxxxx, Xxxxx 00000, at 10:00 a.m. on the Closing
Date specified in Paragraph 2(b) above.
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:
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 Property in effect as of the date hereof (the
"Tenant Leases") (the form of which leases is attached hereto as Exhibit
C), which Exhibit B correctly sets forth: (i) the total number of
apartments at the Property, (ii) the name of each existing tenant named
in the lease for each apartment, (iii) apartment number designation,
(iv) apartment type, (v) the expiration date or status of the term of
the lease (including all rights or options to renew), (vi) the current
rent (the "Standard Rental") and other payments which the tenant is
obligated to make under the lease, (vii) the current outstanding balance
of all security deposits held thereunder, and (viii) the information
required pursuant to Paragraphs 8(a)(ii) hereof.
ii) There are no leases, tenancies, licenses or other rights
of occupancy or use for any portion of the Property other than as set
forth in Exhibit B or Exhibit F. A true, correct and complete copy of
the form of Tenant Lease has been submitted by Seller to Buyer and is
attached hereto as Exhibit C. Seller represents to Buyer that such form
of Tenant Lease is being used by Seller in all material respects in
connection with Seller's leasing of the Property. Except as otherwise
noted on Exhibit B, (i) each of the Tenant Leases is, to Seller's
knowledge, valid and subsisting and in full force and effect and 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. No tenant, licensee or
other occupant under any of the Tenant Leases has any right or option to
acquire the Property, or any part thereof or interest therein. The
copies of the Tenant Leases delivered to Buyer, if any, constitute the
sole agreements binding upon the owner of the Property and the
respective tenants of the Property with respect to the Property.
iii) 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
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extensions or renewals thereof.
iv) To the best knowledge of Seller and except as set forth
in any Exhibit hereto, 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 Property.
v) Within ten (10) business days after Buyer gives the
Exercise Notice, Seller shall deliver to Buyer a complete and correct
list of all existing management, service, equipment, supply,
maintenance, union or collective bargaining agreements with respect to
or affecting the Property to which Seller is a party or which will
affect the Property after Closing (the "Service Agreements"). Subject
to Section 8(c), effective as of the Closing Date, Seller will represent
and warrant to Buyer that no written notice of default or breach by
Seller or its agents in the terms of any such Service Agreements has
been received by Seller or its respective agentsand that Seller has
performed all payment obligations which it has under the Service
Agreements.
vi) Subject to Section 8(c), effective as of the Closing
Date, Seller will represent and warrant to Buyer that to the best
knowledge of Seller, all persons who are employed by Seller or its
agents in connection with the management, operation and maintenance of
the Property (A) are non-union employees and (B) have been paid with
respect to all benefits properly accrued and currently due.
vii) All charges for services or material related to operation
of 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.
viii) Seller has not received any notices from any
governmental authority requiring any public improvements or
installations on or in connection with the Property, 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. Seller shall
promptly forward copies of such notices to Buyer.
ix) With respect to environmental matters:
a) to the best knowledge of Seller: (i) no Hazardous
Substances are present in, on or under the Property, and (ii) there is
no present Release or threatened Release of any Hazardous Substances in
violation of Environmental Laws, from, 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 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
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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) 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, and to the best of Seller's knowledge, there exist
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 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 continued existence of which constitutes a
violation 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 protection of the environment or the regulation
or control of or 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, carcinogenicor mutagenic or is designated as toxic
or hazardous under any applicable federal, state or local law, and petroleum,
its derivatives, by-products and other hydrocarbons; provided, however, that
Hazardous Substances shall not include material used or stored in reasonable
amounts in the ordinary course of business for the operation or maintenance
of the Property and in compliance in all material respects with all
Environmental Laws.
x) Seller presently causes to be maintained policies of
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insurance with respect to the Property as listed on Exhibit H.
xi) To the knowledge of Seller, 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.
xii) Seller has no knowledge of any pending or threatened
condemnation or eminent domain proceedings against the Property or which
would affect access to the Property, except as set forth on Exhibit E
hereto.
xiii) Seller has delivered to Buyer current tax
certificates with respect to the Property and shall promptly forward to
Buyer copies of all tax bills received during the Term. There are no
proceedings presently pending for the reduction of the assessed value of
the Property. All taxes becoming due during the Term shall be paid by
Seller prior to delinquency.
xiv) 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 material
agreement of Seller, require consent under any such agreement of any
person or give any person any right to terminate any Tenant Lease or
other material agreement relating to the Property.
xv) Except as noted on Exhibit F, Seller has not entered into
any contract for goods and/or services relating to operation of the
Property which may not be cancelled without charge to Buyer upon not
more than thirty (30) days without written notice. Seller has not
entered into any management agreement for the Property which will be in
effect on the Closing Date.
xvi) Utility services to the Property, including but not
limited to water, sewer, telephone, cable TV, electric and gas, are
being provided by the utility suppliers listed on Exhibit G hereto, in
sufficient quantities to permit the use and occupation of the Property
for the intended use.
xvii) To the best of Seller's knowledge the Property is
free from infestation by termites and any damage from previous termite
infestation.
xviii) Seller has delivered to Buyer true, correct and
complete financial statements for the Property for the calendar year
1996 through May 31, including notes, comments, schedules, and
supplemental data therein (collectively, "Financial Statements"), all of
which have been prepared from the books and records of Seller.
xix) Regardless of whether Seller would otherwise be obligated
under Arizona 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.
xx) To the best of Seller's knowledge, the Property, the use
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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.
xxi) Seller has not received any written notice from the
insurance companies insuring the Property requiring Seller to perform
any work at the Property.
xxii) To Seller's knowledge, no person has objected to
Seller's use of the name "Sonterra at Xxxxxxxx Centre" or any logo or
xxxx used by Seller in connection with the Property.
(b) The representations contained in this Paragraph 8 shall
survive the Closing hereunder, subject to the provisions of Section 18.
(c) On the Closing Date, Seller shall execute and deliver to Buyer
a certificate stating (i) that to Seller's knowledge each of the warranties
and representations set forth in this Paragraph 8 are true and correct in all
material respects as of the Closing Date except for any specific facts set
forth with particularity in such certificate that constitute exceptions not
known to Seller on the date of this Agreement or required by changed
circumstances, and (ii) that there exists no material non-performance or
breach in respect of any of the agreements, covenants, representations or
warranties on the part of Seller contained in this Agreement.
(d) 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 Paragraph 8 or in the certificate to be
delivered by Seller to Buyer pursuant to Paragraph 8(c) above, not being true
and correct in all material respects.
(e) As used in this Agreement, the phrases "to Seller's knowledge"
or "to the best knowledge of Seller" and similar phrases mean the actual
knowledge of Xxxx X. Xxxxxxxxxx and Xxx Xxxxxx, without any investigation and
without any imputation of the knowledge of any other person, even if the
knowledge of such other person would otherwise be imputed to one or both of
them as a matter of law.
(f) BUYER ACKNOWLEDGES THAT, EXCEPT FOR THE REPRESENTATIONS,
WARRANTIES AND COVENANTS OF SELLER SET FORTH IN THIS AGREEMENT, THE PROPERTY IS
BEING PURCHASED ON AN "AS IS" BASIS, AND THAT NO REPRESENTATIONS OR WARRANTIES
HAVE BEEN MADE BY SELLER EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT.
9. Termination by Buyer. 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, this Agreement shall terminate and the parties shall have no
further liability hereunder.
10. Operations Prior to Settlement. Between the date of the execution
of this Agreement and the Closing Date:
(a) Seller shall continue to maintain and to make all repairs and
replacements to the Property and the Personalty so as to keep the Property
and the Personalty in substantially its present condition, subject to
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ordinary wear and tear and to the provisions of Paragraphs 13 and 15 hereof,
and Seller shall operate and manage the Property and the Personalty in the
same manner as it has operated the Property prior to the date hereof. All
vacant apartment units shall be made ready for occupancy by Closing;
provided, however, that units becoming vacant fourteen (14) days or less
before Closing shall be made ready by Seller within fifteen (15) days after
Closing. Any carpet installed on or after the date of this Agreement shall
comply with the carpet specifications delivered to Seller by Buyer prior to
the date of this Agreement, and described on Exhibit D attached hereto.
(b) Seller shall use its best efforts from the date hereof to the
date of the Closing to (i) continue to rent the Property and to achieve and
maintain full occupancy thereof and (ii) modify, renew or extend any Tenant
Lease on an as-needed basis.
(c) Seller will not, without the prior written consent of Buyer,
enter into any Service Agreements or amend or extend any current Service
Agreements such that any Service Agreements that survive Closing are not
cancelable on 30 days' notice at no cost to the owner. Seller shall not
cause or permit any change in the property manager without prior written
consent of Buyer.
(d) Seller shall cause all certificates of occupancy to be
observed and to be kept in full force and effect. Seller shall cause all
material obligations of Seller under the Service Agreements to be timely
performed. 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, including (but not limited to) maintenance of and compliance
with the insurance policies. Seller shall operate the Property in accordance
with all applicable laws, rules, regulations, ordinances, licenses and
permits.
(e) Seller shall not remove any Personalty, fixtures or equipment
located on the Property 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 of the Property, without cost or expense to
Buyer. Items removed in accordance with this subparagraph (e) will cease to
be part of the Property.
(f) Seller will deliver to Buyer, as soon as available to Seller,
any new monthly operating statements and leasing reports with respect to the
Property for each calendar month which elapses between the date of execution
hereof and the Closing Date.
(g) 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 or
bonded over.
(h) Seller shall cause to be paid before the same become due all
taxes and all installments of assessments levied or assessed against the
Property or any part thereof on or before the Closing Date. If Seller or any
entity affiliated with Seller or with any of Seller's partners shall
undertake any action, including, without limitation, any development on
property that is within the area subject to the instrument recorded in
Docket 7335 at Page 842, as the same may be amended or supplemented, (the
11
"Declaration"), then Seller shall be solely liable for payment of any
increase in the assessments against the Property pursuant to the Declaration
resulting from such action and shall indemnify and defend Buyer against such
increase.
(i) Seller shall, immediately upon obtaining knowledge of (i) any
proposed new assessment against the Property by any governmental or quasi-
governmental authority; (ii) the institution of any proceedings for the
condemnation of the Property or any portion thereof; (iii) any material
injury or damage to or upon the Property or any portion thereof; (iv) any
violation of the applicable laws, ordinances, rules or regulations regarding
the Property or any portion thereof; or (v) 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 proposal, proceeding or violation. Buyer shall
have the right, but no obligation, at Buyer's expense and at its sole
discretion, to join in or participate in any such proceedings or other
matters. No such participation by Buyer shall relieve Seller of any of its
obligations under this Agreement. In the event item (i) in this subparagraph
occurs, Seller shall oppose such assessment in a commercially reasonable
manner unless Buyer approves it in writing.
(j) Between the date of this Agreement and the Closing, Seller
shall not, in violation of any Environmental Laws, intentionally, knowingly
or 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 reasonable efforts to cause the tenants to comply
with all Environmental Laws applicable to the Property and with all such
permits, licenses and approvals, and use reasonable efforts 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 at the Property in violation of any Environmental Law or that any
Release or threatened Release of Hazardous Substances may have occurred in
violation of any Environmental Law 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.
(k) During the Term, Seller shall not, and shall cause any
12
affiliates of Seller that are controlled directly or indirectly by any person
(except Seller's limited partner and its affiliate(s) that directly or
indirectly owns an interest in Seller (hereinafter called "Related Parties")
not to acquire any interest in or develop any multifamily residential
property within a three-mile radius of the Land without first giving written
notice to Buyer of its intent to do so and if Buyer indicates a desire to
participate in such acquisition or development, negotiating in good faith
with Buyer to allow such participation; provided that, if agreement with
Buyer is not reached within 45 days after such good faith negotiations are
commenced by Seller, Seller shall have no further obligation to Buyer under
this Paragraph 10(k).
11. Provisions with Respect to Closing. At the Closing, Seller shall
deliver to Buyer the following:
(a) Deed. Special warranty deed conveying the Land and the
Improvements, 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 for the Personalty (with
warranties of title against claims by, through or under Seller, but not
otherwise) in form and substance reasonably satisfactory to Buyer, duly
executed and acknowledged by Seller.
(c) Assignment of Leases. A valid assignment 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 attributable
to the period from and after the Closing Date. Seller shall indemnify Buyer
with respect to all obligations of the landlord under the Tenant Leases
attributable to the period prior to the Closing and with respect to all
obligations of the landlord under any leases affecting the Property that were
terminated prior to the Closing. Seller shall also notify any bank in which
Seller maintains a lockbox account for the receipt of rents from the Property
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
(without warranty except as set forth in Paragraph 8(xxv) above), duly
executed and acknowledged by Seller, assigning to Buyer all of the right,
title and interest of Seller in and to the name Sonterra at Xxxxxxxx Centre
in connection with the Property, together with such documents as shall be
necessary 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
13
the Service Agreements, and (ii) each of the Warranties, together with
original copies or duly executed counterparts thereof; and if any such
agreement requires the approval of the other party thereto prior to
assignment thereof to a third party, then Seller shall use reasonable efforts
to obtain such written approval. If Seller is unable to obtain such approval
after reasonable efforts, Seller shall not be obligated to assign those
agreements for which approval is not obtained. Seller shall perform, and
shall indemnify Buyer with respect to, all of the obligations of Seller
attributable to the period prior to the Closing under the Service Agreements;
Buyer shall assume, and shall indemnify Seller with respect to, all of the
obligations of Seller attributable to the period 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 not transferred
pursuant to subparagraphs (c), (d) or (e) above.
(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 a date not more than five (5) days before 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, documents, information and
data in the possession of Seller or its agents concerning operation, leasing
and maintenance of 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 for any
brokerage commissions payable or which will become payable in connection with
any Tenant Lease.
(l) Evidence of Payment and Discharge of Liens and Encumbrances.
Evidence satisfactory to the Title Company and sufficient for deletion of any
exceptions that all liens, encumbrances and assessments against the Property,
except the lien of current taxes not yet due, have been paid and discharged
or that either such liens, encumbrances and assessments will be fully paid
and discharged by the Title Company on the Closing Date using Seller's
proceeds of sale or bonded by Buyer so that they do not constitute liens
against the Property.
(m) Possession. Possession of the Property shall be delivered by
Seller to Buyer on the Closing Date, subject to the Tenant Leases and Service
Contracts.
At the Closing, Buyer shall deliver to Seller (i) written indemnity
agreements as contemplated by Paragraphs 11(c) and 11(e), and (ii) if
required to comply with applicable statutes, execution of each letter to
tenants contemplated by Paragraph 11(c).
14
12. Prorations and Credits.
(a) The following items 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 Closing Date,
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 twelve (12) 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, and income from cable television and telephone
providers, vending machines and other sources.
iii) Prepaid service, maintenance and other similar items with
respect to the Service Contracts.
iv) Such other items of income and expenses as are
customarily prorated in real estate transactions.
v) Rents (including furniture, carport, garage and all other
rental amounts payable by tenants of the Property) 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 held or 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. 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, special assessments and assessments
under the Declaration. 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 during which Closing takes place are conclusively determined, and
(ii) Seller shall pay in full at or prior to Closing any installments of
special assessments which may be a lien on the Property and that are due
prior to Closing.
(b) Seller shall furnish readings of the water, gas and electric
meters at the Property to the Closing Date. Seller shall cooperate with
Buyer to provide, as of the Closing Date, for a cancellation of electricity
15
and other utility services in Seller's name and a continuation thereof
without interruption in Buyer's name. To the extent such a timely
cancellation and continuation occurs, there shall be no proration of utility
charges as provided in Paragraph 12(a)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 Arizona law.
(d) The Security Deposits shall be transferred to Buyer or
credited against the Purchase Price.
(e) Buyer may elect to satisfy a portion of the Purchase Price by
taking title to the Property subject to the outstanding balance of any lien
or encumbrance against the Property, provided that (1) credit shall not be
allowed for any liens that are bonded over by Seller, and (2) if Buyer elects
to take title subject to the Loan, such election shall be conditioned on
Buyer releasing Seller and the Related Parties from all further liability
under the Loan, including all liability under any warranty, guaranty,
indemnity or other agreement given in connection with the Loan.
13. Casualty Loss. Seller shall cause the insurance policies now in
effect with respect to the Property to be maintained until the Closing. If
at any time prior to the Closing Date, any portion of the Property is
destroyed or damaged as a result of fire or any other casualty whatsoever,
Seller shall promptly give written notice thereof to Buyer and, subject to
the rights of the holder of any first priority mortgage on the Property,
Seller shall promptly restore and repair the Property to a condition at least
as good as that existing prior to the damage. If such restoration cannot
reasonably be completed prior to the Closing Date, Buyer shall be entitled to
(i) terminate this Agreement, (ii) postpone the Closing until such
restoration is complete or (iii) close on the Closing Date and receive all
casualty insurance proceeds available to complete such restoration (less the
portion thereof claimed by any first priority mortgage lender or applied
toward restoration or repair of the Property) and, unless all deductible
amounts have been fully paid by Seller with respect to such insurance prior
to Closing, Buyer shall receive a credit for such amounts at Closing.
14. Brokerage. Seller shall pay at closing all amounts due to Xxxxxx
Xxxxx and to Xxxxx, Zarilli & Co., Inc. (collectively, "Broker") with respect
to the transactions contemplated in this Agreement. Seller and Buyer each
represent and warrant to the other that the party making such representation
has not dealt with any broker or other intermediary other than Broker in
connection with or relating to the transactions that are the subject of this
Agreement. Seller and Buyer shall defend, indemnify and hold the other
harmless from and against any and all liability, claim, charges 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 part of the Property, Seller shall
give written notice thereof to Buyer promptly upon learning of the same, and,
if Buyer elects to close this transaction, the purchase price for the
Property shall be reduced by the total of any awards or other proceeds
16
received by Seller (directly or indirectly) with respect to any such taking
at or prior to Closing, and at the Closing Seller shall assign to Buyer all
rights of Seller in and to any further awards or other proceeds payable by
reason of any taking.
(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
only with the joint approval and consent of Seller and Buyer.
16. Remedies. If any obligation of Seller hereunder is not fully and
timely performed as herein provided, Buyer shall have the following remedies
(which shall be Buyer's sole and exclusive remedies except where otherwise
provided herein):
(a) Buyer may elect to treat this Agreement as terminated, in
which case all payments and things of value provided by Buyer hereunder shall
be returned to Buyer;
(b) 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, provided, however, that specific performance shall not be
available as to obligations (other than conveyance of title as provided for
in this Agreement) that are not within the reasonable control of Seller; and
(c) Buyer shall be entitled to payment of its reasonable
attorneys' fees and costs of enforcement of its remedies.
17. Entire Agreement. This is the entire agreement between the parties
relating to the subject matter hereof and there are no other terms,
obligations, covenants, representations, statements or conditions, oral or
otherwise, of any kind whatsoever relating to the subject matter hereof. 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.
18. 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, but such survival shall
extend for only twelve (12) months, after which no action, claim or other
proceeding may be brought upon or to enforce any such agreement, warranty or
representation.
19. Notices. All notices, demands and requests or other communication
to be sent by one party to the other hereunder or required by law shall be in
writing and shall be deemed to have been validly given or served by delivery
of same in person to the addressee or by depositing same with a carrier in
the business of making guaranteed overnight deliveries for next business day
delivery or by depositing same in the United States mail, postage prepaid,
registered or certified mail, return receipt requested, to the following
addresses:
If intended for Seller:
Specified Properties VIII, L.P.
0000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
17
Attn: Xxxx X. Xxxxxxxxxx or Xxx Xxxxxx
Phone No.: (000)000-0000
Fax No.: (000)000-0000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Xxxxx Day Xxxxxx & Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Phone No.: (000)000-0000
Fax No.: (000)000-0000
If intended for Buyer:
Wellsford Residential Property Trust
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Phone No.: (000)000-0000
Fax No.: (000)000-0000
With a copy to:
Xxxxxxxxxx Hyatt Xxxxxx & Xxxxxxxxxx, P.C.
000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxx, Esq.
Phone No.: (000)000-0000
Fax No.: (000)000-0000
All notices, demands and requests shall be effective upon such personal
delivery or upon being deposited with the above-referenced overnight carrier
or in the United States mail as required above. However, with respect to
notices, demands or requests so deposited with the above-referenced overnight
carrier or in the United States mail, the time period within which a response
to any such notice, demand or request must be given shall commence to run
from the next business day following any such deposit with the above-
referenced overnight carrier or, in the case of a deposit in the United
States mail as provided above, the date on the return receipt of the notice,
demand or request reflecting the date of delivery or rejection of the same by
the addressee thereof. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given as herein
required shall be deemed to be receipt of the notice, demand or request sent.
By giving to the other party hereto at least 15 days' written notice thereof
in accordance with the provisions hereof, the parties hereto shall have the
right from time to time to change their respective addresses and each shall
have the right to specify as its address any other or additional address
within the United States of America.
20. No Joint Venture; No Merger. Seller and Buyer acknowledge that
concurrently with execution of this Agreement Buyer or an affiliate of Buyer
has made a loan to Seller in the principal amount of $17,800,000.00, secured
by the Property (the "Loan"). Notwithstanding anything in this Agreement or
in the documents delivered in connection with the Loan, it is the express
intent of the parties that (i) nothing in the relationship between Seller and
Buyer is intended to or shall constitute Seller and Buyer as partners or
joint venturers with respect to the Property or to any other matter; (ii) the
18
relationship of the parties hereunder shall be strictly that of optionor and
optionee under the Option granted herein; (iii) the rights of Buyer hereunder
shall survive any foreclosure or other exercise of remedies under the Loan
and shall not be merged therein, nor shall any rights of the holder of the
Loan be merged into any document delivered in connection with the Option.
21. Miscellaneous.
(a) The captions in this Agreement are inserted for convenience of
reference only and in no way define, describe or limit the scope or 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 Arizona.
(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) 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 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.
(f) 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. 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 and 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 its corporate or fiduciary obligations to its
investors.
19
(g) The Exhibits attached hereto and made a part hereof are:
Exhibit A: Legal Description
Exhibit B: Rent Roll
Exhibit C: Form of Tenant Lease
Exhibit D: Description of Carpet Specifications
Exhibit E: Description of Pending Claims
Exhibit F: List of Nonterminable Contracts
Exhibit G: Utility Suppliers
Exhibit H: Insuranc
20
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
SELLER:
SPECIFIED PROPERTIES VIII, L.P., a Texas
limited partnership
By: Westwood Residential No. 9
Limited Partnership, its general
partner
By: Westwood Residential
General Partner No. 9,
Inc., its general partner
By:/s/ Xxxx X. Xxxxxxxxxx
_____________________________
Name: Xxxx X. Xxxxxxxxxx
Title: President
BUYER:
WELLSFORD RESIDENTIAL PROPERTY TRUST, a
Maryland real estate investment trust
By:/s/ Xxxxxx X. XxxXxxxxx
______________________________________
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
21
EXHIBIT A
(Legal Description)
BLOCKS 19, 21, 22, 23 OF THE RESUBDIVISION OF XXXXXXXX CENTRE, PIMA COUNTY,
ARIZONA ACCORDING TO THE PLAT OF RECORD IN THE OFFICE OF THE PIMA COUNTY
RECORDER IN BOOK 39 OF MAPS AT PAGE 28
22
EXHIBIT B
(Rent Roll)
23
EXHIBIT C
(Form of Tenant Lease)
24
EXHIBIT D
(Description of Carpet Specifications)
25
EXHIBIT E
(Description of Pending Claims)
NONE
26
EXHIBIT F
(List of Nonterminable Contracts)
Vendor Type Cancellation
Xxxx Publishing Company Apt. Guide Between 4th &
5th Issue or
2/1/97
Web Service Co. Washers/Dryers 9/1/2005
Interactive Cable Systems, Inc. Cable Television Serv. April, 2010
Interactive Cable Systems, Inc. Telephone Service April, 2010
Interactive Cable Systems, Inc. Alarm Service
April, 2010
27
EXHIBIT G
(Utility Suppliers)
_________________________________________________________________
| | |
| Telephone | Interactive Cable Systems, Inc. |
|______________________|_______________________________________|
| | |
| Cable Television | Interactive Cable Systems, Inc. |
|______________________|_______________________________________|
| | |
| Electric | Tucson Electric Power Company |
|______________________|_______________________________________|
| | |
| Water | City of Tucson |
|______________________|_______________________________________|
| | |
| Sewer | City of Tucson |
|______________________|_______________________________________|
| | |
| Gas | Southwest Gas Corporation |
|______________________|_______________________________________|
28
EXHIBIT H
(Insurance)
(See attached two (2) Certificates of Insurance)
29
