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Exhibit 10.58
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TOWER EQUITIES AND REALTY CORP.
and
TOWER REALTY OPERATING PARTNERSHIP, L.P.,
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PURCHASE AND SALE AGREEMENT
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Dated: March 31, 1997
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PURCHASE AND SALE AGREEMENT
THIS AGREEMENT is entered into as of the 31 day of March, 1997 by TOWER
EQUITIES AND REALTY CORP., a New York corporation ("SELLER") and TOWER REALTY
OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the "OP").
R E C I T A L S:
A. Seller has previously entered into that certain Real Estate
Sale Agreement dated February 12, 1997 (the "CONTRACT") with Executive Villas
Limited Partnership, an Arizona limited partnership ("OWNER"), as seller, and
Seller, as purchaser, for the purchase of the property described below and more
particularly described in the Contract. A true and complete copy of the
Contract is attached hereto as EXHIBIT A.
B. The subject property is located in the City of Phoenix, County
of Maricopa and State of Arizona and is known as 0000 Xxxxx Xxxxxxx Xxxxxx, as
more particularly described on EXHIBIT B attached hereto. The term "PROPERTY"
as used herein is and shall be one in the same as and identical to the
"Property" and the "Premises" as such terms are defined in the Contract.
C. SELLER AND THE OP DESIRE (i) THAT SELLER ACQUIRE FEE TITLE TO
THE PROPERTY FROM OWNER PURSUANT TO THE CONTRACT AND (ii) THAT SELLER,
IMMEDIATELY THEREAFTER, CONVEY TO PURCHASER (AS HEREINAFTER DEFINED) SUCH FEE
TITLE OR OTHERWISE DISPOSE OF THE PROPERTY AS HEREINAFTER PROVIDED.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties do hereby agree as
follows:
1. Any capitalized term used herein and not defined shall have the
meanings ascribed to it in the Purchase Agreement (the "PURCHASE AGREEMENT")
entered into on or about the date hereof by and among Tower Realty Trust, Inc.,
the OP and each of the investors who are signatories thereto (collectively,
the "INVESTORS").
2. Upon the earlier to occur of a Termination Event or September
1, 1997, the OP shall have the right upon notice to Seller to require Seller to
enter into an agreement with such person(s), entity or entities as the OP may
designate or agree to, including itself (such person(s), entity or entities
being hereinafter referred to as "PURCHASER"), pursuant to which Seller shall
agree to convey the Property to Purchaser for a price equal to the purchase
price payable under the Contract (the "PURCHASE PRICE"). Any amounts, whether
in the form of cash, securities or otherwise, that Purchaser may agree to pay
in excess of the Purchase Price shall be retained by the OP and applied to the
payment of, or held as Collateral for, the Obligations. In the event that
Seller receives any amounts, whether in the form of cash, securities or
otherwise, in excess of the Purchase Price, it shall hold the same in trust for
the benefit of the OP, separate and apart from Seller's other assets, and
immediately transfer such amounts to the OP for application to the payment of,
or to be held as Collateral for, the Obligations.
3. If the OP has not exercised its rights under the preceding
paragraph by September 1, 1997, Seller, in its discretion, may elect either:
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(i) to locate a purchaser, in which event any amounts, whether in the
form of cash, securities or otherwise, received by Seller in excess of the
Purchase Price shall be held in trust for the benefit of the OP separate and
apart from Seller's other assets, and immediately transferred to the Company to
be held as additional Collateral for the Obligations; or
(ii) to purchase or otherwise acquire, with or without any partner or
co-venturer, the Property or a direct or indirect interest therein, in which
event Seller shall: (A) if Seller has purchased or otherwise acquired the
Property or a direct or indirect interest therein without any partners or
co-venturers, convey to the OP cash or an equity interest in the Property equal
to the difference between the fair market value of the Property and the Purchase
Price therefor, which cash or interest shall be held as additional Collateral,
or (B) if Seller has purchased or otherwise acquired the Property or a direct or
indirect interest therein, along with one or more partners or co-venturers,
transfer to the Company all cash received by Seller in excess of the Purchase
Price plus an equity interest in the Property equal to the difference between
the fair market value of the Property less the sum of the amount of cash
transferred to the OP as provided above plus the Purchase Price, which cash and
equity interest shall be held as additional Collateral for the Obligations. Any
equity interest transferred to the OP pursuant to this clause (ii) shall be
freely transferable (subject to any restrictions imposed under applicable law).
In the event that Seller exercise its rights pursuant to this paragraph, it
shall deliver to the OP and the Investors a certificate setting forth the terms
of the transaction and attaching copies of all of the transaction documents,
certified to be true, correct and complete and in full force and effect.
4. Seller acknowledges and agrees that the rights of the
Company under this Agreement will be assigned to the Collateral Agent as
security for the Obligations.
5. Seller shall use reasonable efforts to negotiate in good
faith the terms of any agreement with Purchaser required to be entered into
hereunder.
6. Seller shall use reasonable efforts, at Purchaser's
expense, to provide Purchaser with the benefit of any representation or
warranty by Owner in favor of Seller under the Contract, and, in connection
therewith, Purchaser shall have the right to compel Seller to xxx Owner, at
Purchaser's expense, for any damages resulting from a breach by Owner of any
such representation or warranty, and Seller shall assign to Purchaser's
Seller's rights to any award from such suit.
7. Notwithstanding anything contained herein to the contrary,
the only representation or warranty Seller shall be obligated to give Purchaser
in connection with Seller's conveyance of the Property to Purchaser is that
Seller has not encumbered the Property in any way.
8. All notices, demands or other communications shall be in
writing and shall be sent to the party to whom the notice, demand or other
communication is directed at the following addresses.
If to Seller, as follows:
Tower Equities and Realty Corp.
c/o Feldman Equities
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
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and an additional copy to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
If to the OP, as follows:
Tower Realty Operating Partnership, L.P.
c/o Feldman Equities
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxxxx
and additional copies to:
Battle Xxxxxx LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.; and
Xxxxxx Xxxxxxx Asset Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx; and
Xxxxxx & Xxxxx
Xxx Xxxxxxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: A. Xxxxxx Xxxxx, Esq.
All notices, demands or other communications shall be sent either by (i)
personal delivery with receipt acknowledged in writing, (ii) United States
Mail, postage prepaid, as a registered or certified item, return receipt
requested, (iii) national prepaid overnight delivery service. Each notice,
demand or other communication sent by hand delivery or by national prepaid
overnight delivery service shall be effective when received or refused by the
party to whom the same is directed. Each notice, demand or other communication
sent by certified or registered mail shall be deemed given on the date of
receipt or refusal as indicated on the return receipt. Either party hereto may
change the address for notice, demand or other communication specified above by
giving the other party five (5) business days' advance written notice of such
change of address. Any notice, demand or other communication may be given
either by a party hereto or by such party's attorney.
9. OP acknowledges that Seller is not currently the owner of the
Property and that Seller is a contract-vendee under the Contract and that
certain of Seller's obligations under this Agreement are conditioned upon
Seller's acquisition of the Property from Owner. If Seller does not acquire the
Property on or before December 31, 1997, this Agreement shall automatically
terminate.
10. This Agreement may not be modified or amended except by an
agreement in writing signed by both parties and consented to by the Collateral
Agent. The parties may waive any of the conditions contained herein or any of
the obligations of the other party hereunder, but any such waiver shall be
effective only if in writing and signed by both parties to this Agreement and
consented to by the Collateral Agent. The Seller shall not agree to any
amendment, modification or termination of the Contract, or waive any right
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thereunder, or release Owner form any obligation thereunder unless consented to
by the OP and the Collateral Agent.
11. Each person executing this Agreement warrants and represents that
he or she is fully authorized to do so.
12. This Agreement, including the exhibits hereto, constitute the
entire agreement among the parties pertaining to the subject matter hereof and
supersede all prior and contemporaneous agreements and understanding of the
parties in connection therewith.
13. Numerous copies of this Agreement may be executed by the parties
hereto. Each such executed original copy shall have the full force and effect of
an original executed instrument.
14. This Agreement shall be controlled by and construed in accordance
with the laws of the State of New York.
15. PURCHASER AND THE OP HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE
THE RIGHT TO A JURY TRIAL IN ANY ACTION, SUIT OR PROCEEDING ARISING FROM OR
RELATED TO THIS AGREEMENT.
16. At any time and from time to time after the Closing, Seller and
Purchaser shall, at the reasonable request of the other, execute and deliver any
further documents or agreements and take such further actions as may be
reasonably required for carrying out the intentions or facilitating the
consummation of this Agreement. The provisions of this Section shall survive the
Closing Date.
17. Neither this Agreement nor any memorandum hereof may be recorded
without first obtaining Seller's consent thereto. The recording of this
Agreement without Seller's consent shall be a default by Purchaser hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
SELLER
TOWER EQUITIES AND REALTY CORP.
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: President & CEO
Name: Xxxxxx Xxx
Title: Executive Vice President
OP
TOWER REALTY OPERATING PARTNERSHIP. L.P.
By: /s/ Tower Realty Trust, Inc. general partner
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By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: President and CEO
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STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK)
On the 13th day of March, 1997, before me personally came Xxxxxx Xxx to
me known, who, being by me duly sworn, did depose and say that he resides at 00
Xxxxxx Xx., Xxxxxxxx, XX, that he is a (vice) president of TOWER EQUITIES AND
REALTY CORP., the corporation described in and which executed the foregoing
instrument and that he executed said instrument as authorized by the board of
directors of said corporation.
/s/ Xxxxxxxx Xxxxxxx XXXXXXXX XXXXXXX
------------------------------------- NOTARY PUBLIC, State of New York
Notary Public No. 01AL5046686
Qualified in Queens County
My commission expires: July 17, 1997 Commission Expires July 17, 0000
XXXXX XX XXX XXXX )
) ss.:
COUNTY OF NEW YORK)
On the 31st day of March, 1997, before me personally came Xxxxxxxx
Xxxxxxx to me known, who, being by me duly sworn, did depose and say that he
resides at 000 Xxxx Xxxxx Xxxx, Xxxxx Xxxxxxxxxx, XX, that he is a president of
Tower Realty Trust, Inc., the general partner of TOWER REALTY OPERATING
PARTNERSHIP, L.P., the corporation described in and which executed the
foregoing instrument on behalf of said partnership and that he executed said
instrument as authorized by the board of directors of said corporation and by
said partnership.
/s/ Xxxxxxxx Xxxxxxx XXXXXXXX XXXXXXX
------------------------------------- NOTARY PUBLIC, State of New York
Notary Public No. 01AL5046686
Qualified in Queens County
My commission expires: July 17, 1997 Commission Expires July 17, 1997
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