1
EXHIBIT 10.82
AMENDED AND RESTATED
ACQUISITION AGREEMENT
This AMENDED AND RESTATED ACQUISITION AGREEMENT (the
"Agreement"), amending and restating that certain ACQUISITION AGREEMENT dated
the 3rd day of October, 1994, is made and entered into this 14th day of May,
1996, by and between OASIS RESIDENTIAL, INC., a Nevada corporation, hereinafter
referred to as "Oasis"; XXXXXX X. XXXX, an individual, hereinafter referred to
as "W.E.B."; and Greystone Group, Inc., a California corporation, hereinafter
referred to as "Greystone". W.E.B. and Greystone are collectively hereinafter
referred to as "Xxxx".
WITNESSES:
WHEREAS W.E.B. has acquired or is in the process of
acquiring certain contractual rights and agreements for a joint venture to
develop approximately three hundred eighteen (318) apartment units at Denver
West, to be known as Westar ("Westar"); and
WHEREAS Greystone has entered into a purchase and sale
agreement with Mission Viejo Company, a California corporation, for the
acquisition of approximately 1,014,948 sq. ft. of real property located at
Highland Ranch for the development of a three hundred fifty (350) unit
apartment complex to be known as Deerwood at Highland Ranch ("Deerwood"); and
WHEREAS it is the desire of Xxxx to sell, transfer,
convey, set over and assign all of the rights that Xxxx now has or shall
acquire in the future to the purchase and sale agreement and other rights for
the development of Deerwood and Westar (collectively, the "Properties"); and
WHEREAS the parties are entering into an Employment
Contract (the "Employment Contract") contemporaneously with this Agreement, a
copy of which is attached hereto as Exhibit A.
NOW, THEREFORE, it is hereby agreed as follows:
1. Oasis does hereby represent and warrant to Xxxx that it is a
corporation lawfully formed under and pursuant to and validly existing and in
good standing under the laws of the State of Nevada. That it is a qualified
Real Estate Investment Trust whose corporate offices are located at 0000 Xxxx
Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxx. That its common stock, par value $.01 per
share (the "Common Stock") is registered under the Securities Exchange Act of
1934, and has been traded on the New York Stock Exchange ("NYSE") since October
22, 1993. That Oasis has the authorization and authority to enter into and
execute this Agreement, save and except for such amounts of stock as are
provided for under the Stock Option Plan pursuant to which the Stock Option
Agreement (defined below) will be entered into which have not at this time been
authorized and approved by the shareholders of Oasis, but which shall be
submitted for shareholder approval with the recommendation of Oasis' Board of
Directors at the annual meeting of shareholders in 1995.
2
2. Xxxx does hereby covenant and warrant that Greystone is a
California corporation, duly and properly organized in the State of California
and is in good standing. That Greystone has all requisite and necessary powers
to enter into and execute the purchase and sale agreement for Deerwood (the
"Purchase Agreement"), a copy of which is attached hereto as Exhibit B, and
that Greystone's Board of Directors has authorized Greystone to enter into this
Agreement, and to assign, sell, set over, transfer and convey all right, title
and interest that Greystone has or will have, presently or in the future, in
and to the Purchase Agreement and any amendment, alteration or addendum
thereto.
3. W.E.B. does hereby represent and warrant to Oasis that he, as an
individual, has acquired certain rights for and on his own behalf from the
Stevinson family for the development of Westar and does, by this Agreement,
agree to execute any and all additional or other documentation as may be
necessary to cause any and all of such rights of W.E.B. to be assigned, sold
and set over to Oasis, and that any and all written contracts or documents
which will exist for the development of Westar on the Stevinsons' property as a
joint venture shall be entered into by and between Oasis (or a wholly owned
subsidiary of Oasis) and Stevinson, and that W.E.B. will not now or at any time
in the future take or hold any rights to any joint venture with Stevinson in
his sole and absolute name.
4. For and in consideration of the transfer and conveyance of the
rights of Xxxx and W.E.B. as set forth in paragraphs 2 and 3 above, and subject
to the conditions set forth herein requiring Xxxx to acquire all rights in
writing and assign all such rights to Oasis, Oasis does hereby agree to the
following:
a. Oasis shall enter into the Employment
Contract with W.E.B.
b. Oasis shall employ a secretary to W.E.B. at
an annual salary of Fifty Five Thousand Dollars ($55,000) per year, which
secretary shall not be under an employment contract and shall be subject to an
"at will" termination by Oasis or its wholly owned subsidiary. Such employment
shall first be offered to Xxxxx Xxxxxxxxxx.
c. Oasis shall enter into an employment contract
with Buck Munuez for the position of Construction Manager for Oasis or Oasis'
wholly owned subsidiary doing business in the State of Colorado, which contract
shall be for a period of one (1) year at a salary of One Hundred Thousand
Dollars ($100,000) per year, commencing the first day of September, 1994, and
terminating on the 31st day of August, 1995.
d. Oasis shall employ a secretary to the
Construction Manager at an annual salary of Forty Thousand Dollars ($40,000)
per year, which secretary shall not be under an employment contract and shall
be subject to an "at will" termination by Oasis or its wholly owned subsidiary.
e. Oasis shall assume the lease for office space
in the Denver metropolitan area currently being leased by Xxxx, and reimburse
Xxxx for any and all office rent, office overhead and office expenses that Xxxx
has incurred from September 1, 1994, until the date of the execution of this
Agreement, and hereby assumes and shall be liable to the exclusion of Xxxx for
all office rent, office overhead expense of Xxxx, his assistant/secretary,
Construction Manager and the Construction Manager's secretary from the date of
the execution of this Agreement forward.
f. Oasis shall execute a Stock Option Agreement
(the "Stock Option Agreement") granting to Xxxx stock options for the purchase
of 50,000 shares of Common Stock of Oasis at $25.625 per share, being the NYSE
closing price of the Common Stock on September 15, 1994. The Stock Option
Agreement shall be in a form as attached hereto
3
as Exhibit C.
g. Upon Oasis acquiring all of the rights of
Xxxx in a binding, written contractual form which shall grant to Oasis or its
wholly owned subsidiary all of the rights and establish binding agreements
between Oasis and each of Mission Viejo and Stevinson as above referred to in
the first two WHEREAS clauses and in paragraphs 2 and 3, Oasis shall assume and
shall be liable to the exclusion of Xxxx for, and shall indemnify and hold Xxxx
harmless from and against, any and all liabilities and obligations of Xxxx
and/or his affiliates regarding said Properties.
h. Oasis shall reimburse Xxxx for all of his
actual direct cash costs invested to date for any and all negotiations of
contracts for the purchase of the Properties, to include architectural and
engineering expenses. Should Oasis not acquire binding contractual rights to
Deerwood and/or Westar, then in that event all costs reimbursed to Xxxx under
this paragraph for the project or projects not acquired shall be repaid by Xxxx
to Oasis.
i. Upon the execution of this Agreement, the
Stock Option Agreement, the Employment Contract and the acquisition by Oasis of
binding contractual rights with Mission Viejo Company for the development of
Deerwood and the execution of a written joint venture agreement between Oasis
and the Stevinson family for the development of Westar, together with the
verification of estimated total project costs as prepared by Xxxx and supplied
to Oasis for the development of the Deerwood and Westar apartment projects
(Oasis must be satisfied in its sole and absolute discretion with such
verification), Oasis shall issue to Xxxx 19,512 shares of Oasis Common Stock,
being Common Stock of Oasis with a value equal to Five Hundred Thousand Dollars
($500,000.00) determined by reference to the NYSE closing price of Oasis Common
Stock on September 15, 1994 of $25.625. Said stock shall contain an
endorsement that the stock has not been registered under the Securities Act of
1933 (the "Act"), that the stock has been acquired for investment and may not
be transferred, sold or assigned in the absence of (1) an effective
registration statement for the shares under the Act or (2) an opinion of Oasis'
counsel or counsel reasonably satisfactory to Oasis that registration is not
required under the Act. Unless registered under the Act, the Common Stock
issued to Xxxx under this paragraph and under paragraph 5 below will be subject
to the two-year holding period and other requirements of Rule 144 under the
Act.
5. In recognition of the expected value of the Properties as
developed, and as a mechanism to determine such value, this paragraph provides
for contingent payments to Xxxx in connection with the development of an
apartment project on each of the properties, one said property being referred
to as the Deerwood at Highland Ranch property ("Deerwood") and the other said
property being referred to as Westar at Denver West property ("Westar").
Subject to the terms and conditions of this paragraph, Oasis shall issue to
Xxxx (i) up to $750,000 in stock in respect of the development of Deerwood, and
(ii) up to $250,000 in stock in respect of the development of Westar. The
aggregate maximum value of stock which may become issuable to Xxxx under this
paragraph is $1,000,000. The determinations of whether and how much stock is
issuable in respect of one Property shall be completely independent of whether
and how much stock is issuable in respect of the other Property. For purposes
of this paragraph, the following terms have the indicated meaning:
4
"Net Operating Income" or "NOI" means the difference between (i)
the sum of all rent paid under Qualified Leases (as hereinafter
defined) to Oasis for the Relevant Period (as hereinafter
defined) for up to and including 95% of all units, plus all
other revenues (excluding rent) received by Oasis for the
Relevant Period from Property operations, minus (ii) the product
of (a) $675, multiplied by (b) the number of rental units in the
apartment project.
"Annualized NOI" means the product of (i) four, multiplied by
(ii) NOI for the Relevant Period.
"Capitalized Costs" means the sum of (i) costs and expenses for
constructing the apartment project on the Property, plus (ii)
$1,000,000, being the aggregate value of the Common stock
issuable to Xxxx under Paragraph 4 above and this paragraph 5,
being $750,000 with respect to Deerwood and $250,000 with
respect to Westar.
"NOI Yield" means a percent equal to the product of (i) 100,
multiplied by (ii) the quotient of (a) Annualized NOI for the
Property, divided by (b) Capitalized Costs in respect of the
Property.
"Outside Period" means the period beginning on the date hereof
and ending 18 months after the first day of the month following
the month during which development of a given Property is
completed, which shall be evidenced by (i) a written statement
of substantial completion issued by the project architect or
(ii) final certificate(s) of occupancy in respect of the project
issued by appropriate governmental authorities, but in no event
shall said period extend to more than thirty-six months after
the date on which the first building permit shall be obtained.
"Completion Period" means the period beginning on the date
hereof and ending upon the first to occur of (i) the issuance of
all stock to which Xxxx may be entitled under this paragraph in
respect of a given Property, or (ii) the last day of the Outside
Period for that Property.
"Relevant Period" means any consecutive three-month period which
is selected as hereinafter set forth and which (i) occurs after
the apartment project on the Property achieves an occupancy rate
of at least 90%, (ii) occurs within the 12-month period
beginning on the first day of the month following the month
during which the project on the Property achieves an occupancy
rate of at least 90%, and (iii) ends on or before the last day
of the Outside Period. Xxxx shall have the right to designate
the Relevant Period, provided that he notifies Oasis of the
Relevant Period in writing no later than 30 calendar days after
the end of the Outside Period. If Xxxx fails to timely notify
Oasis of the Relevant Period, then Oasis shall have discretion
to either permit Xxxx to designate the Relevant Period or
designate the Relevant Period itself, and in either event, the
Relevant Period shall be designated in writing within 45
calendar days after the end of the Outside Period.
"Qualified Leases" means all leases which are in accordance with
normal lease practices utilized at the Property at the time of
the execution of the lease and which do not deviate from
customary leasing practices in the local marketplace for
comparable apartment projects.
All references to "month" are to a calendar month.
5
Promptly after designation of the Relevant Period for the Property, Oasis shall
in good faith determine the NOI, Annualized NOI and NOI Yield for that
Property. If the NOI Yield is equal to or greater than 11%, then Oasis shall
issue to Xxxx Common stock with a value equal to $750,000 with respect to
Deerwood and $250,000 with respect to Westar, determined by reference to the
NYSE closing price of the Common stock on the trading day before the date of
issuance or, if not then authorized for trading on the NYSE, the fair market
value of the Common Stock as determined in good faith by Oasis' Board of
Directors (the "stock"). For each one tenth of one percent the NOI Yield is
below 11%, the value of Stock which shall be issued to Xxxx shall be reduced by
$50,000 with respect to Deerwood and $16,666.66 with respect to Westar;
provided, however, that if the NOI Yield is less than 10%, Xxxx shall not be
entitled to any Stock. For instance, if the NOI Yield was 10.6%, the value of
Stock issuable to Xxxx with respect to Deerwood would be $550,000 and the value
of Stock issuable to Xxxx with respect to Westar would be $183,333.36; if the
NOI Yield was below 10%, Xxxx would not be entitled to any Stock.
Notwithstanding any contrary provision of this Agreement, or any employment or
stock option agreement between Oasis or its affiliates and Xxxx, if before the
end of the Completion Period (i) Oasis either (a) terminates Xxxx' employment
for any reason (except for "cause" as defined in Section 5.3 of the Employment
Contract) or for no reason or (b) sells its interest in the subject Property,
or (ii) Xxxx terminates his employment for "cause" as provided in Section 5.4
of the Employment Contract, then Oasis shall pay to Xxxx the sum of $375,000 in
cash with regards to Deerwood and $125,000 in cash with regards to Westar in
lieu all stock and in total, full and complete satisfaction of any and all
rights, claims, demands which Xxxx may have against Oasis or any subsidiary of
Oasis, its officers, directors, employees, agents, servants or shareholders.
If Oasis' duty to pay such cash amounts arises as a result of any such
termination of Xxxx' employment, Xxxx shall, for and in consideration of the
sum of $375,000 with respect to Deerwood and $125,000 with respect to Westar,
execute a full, complete and absolute release of Oasis, its subsidiaries,
officers, directors, employees, agents, servants and shareholders of any claims
he may have against them. Said sum of $375,000 with respect to Deerwood and
$125,000 with respect to Westar and all other sums paid hereunder or provided
for payment hereunder shall only be paid and are subject to Oasis acquiring the
rights from Mission Viejo and the Stevinson family as set forth in this
Agreement. If Xxxx does not acquire said rights and transfer said rights to
Oasis, Xxxx shall have no rights under this paragraph to any compensation upon
termination. If Xxxx dies before the issuance of any stock as provided above
and at that time is employed by Oasis, the provisions of this paragraph shall
bind, be enforceable by, and inure to the benefit of Xxxx' heirs, legatees,
devisees and personal and legal representatives.
6. Oasis represents that it has reserved, or covenants that
promptly upon execution of this Agreement by all parties hereto it shall
reserve, for issuance a sufficient number of shares of Common Stock to enable
it to perform its obligations hereunder to issue Common stock to Xxxx.
6
7. Oasis represents that it has the right, power and authority from
its Board of Directors to enter into and perform the obligations under this
Agreement. Xxxx has been advised and understands that at the present time,
Oasis has only 30,000 shares of stock available for granting options under the
Oasis Stock Option Plan pursuant to which the Stock Option Agreement is being
entered into. That the Board of Directors of Oasis shall adopt the necessary
resolutions to increase its stock available for options to its officers,
directors and other parties, said resolution being subject to approval by the
shareholders of Oasis at its annual meeting of 1995 and that, upon said
approval by the shareholders, said option shall become fully and completely
available to Xxxx under and pursuant to the terms and conditions of the Stock
Option Agreement attached hereto.
OASIS RESIDENTIAL, INC.
By:
--------------------------- ----------------------------
Xxxxx X. Xxxxxxxx Xxxxxx X. Xxxx
President
GREYSTONE GROUP, INC.
By:
---------------------------
Xxxxxx X. Xxxx, President
