Realty
AGREEMENT
FOR PURCHASE AND SALE
OF REAL PROPERTY
THIS AGREEMENT is entered as of the day of March,
1999, by and between the seller or sellers identified on Schedule
1 attached hereto (herein collectively called "Seller"), and
WXI/SPN Real Estate Limited Partnership, a Delaware limited
partnership (herein called "Buyer").
R E C I T A L S
A. Seller owns one or more certain parcels of land
(collectively, the "Real Property") each located in the City and
State set forth on Schedule 1, attached hereto, as each such Real
Property is more particularly described on Exhibit A, attached
hereto, together with all of the improvements (the
"Improvements") and any fixtures (the "Fixtures") presently
existing and located thereon and therein, and any personalty used
exclusively in connection with the management and operation of
the foregoing, including but not limited to the office equipment,
maintenance equipment and supplies with respect to each Real
Property described on Exhibit B attached hereto (the
"Personalty") (hereinafter said Real Property, Improvements,
Fixtures and Personalty are collectively called the "Property").
B. Buyer has participated in an auction (the
"Auction") to purchase said Property and Buyer, being the
selected bidder, has agreed to purchase such Property on the
terms and conditions set forth herein.
C. Pursuant to the terms and conditions of said
Auction and in connection with being selected as the successful
bidder thereat, Buyer has agreed to execute this Agreement.
D. The parties have agreed to the purchase and sale
of the Property as set forth below.
NOW, THEREFORE, in consideration of the foregoing, the
mutual covenants and agreement contained herein, and other good
and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, the Seller and Buyer hereby mutually
agree that this transaction shall be consummated upon the
following terms, conditions and agreements:
1. PURCHASE PRICE. The aggregate purchase price for
the Property is Forty Six Million Nine Hundred Three Thousand
Nine Hundred Twenty One and 00/100 Dollars ($46,903,921.00) (the
"Purchase Price"). Buyer acknowledges and agrees that the
Purchase Price shall be in all respects net of any and all
prepayment fees, premiums, penalties or similar charges,
expenses, costs and sums (other than outstanding principal and
accrued and unpaid interest) required to be paid to the holder of
any loan (each a "Loan") secured by a mortgage and related
security agreements, liens and financing statements encumbering a
Property, as more particularly referenced on Exhibit C attached
hereto (each, collectively, a "Mortgage"), pursuant to the
related loan documents in order to fully satisfy such Mortgage
(collectively, the "Prepayment Fees"), all as set forth on a
payoff demand submitted by the holder of such Mortgage and
approved by the Seller. The Buyer shall pay the Prepayment Fees
at Closing in accordance with Section 1.2 below, provided,
however, that if the Prepayment Fees for a Property are greater
than the amount specified on Schedule 2 attached hereto, the
Purchase Price for such Property shall be reduced by an amount
equal to the excess of the actual Prepayment Fee for such
Property over the amount specified for such Property on Schedule
2. The portion of the Purchase Price which is allocated to each
Property (each, an "Allocated Purchase Price") is set forth on
Schedule 3, attached hereto. Subject to the prorations and
adjustments hereinafter defined, Seller and the Buyer mutually
agree that the Allocated Purchase Price for each Property shall
be further allocated among Personalty and the remaining Property
in accordance with the allocation set forth on Schedule 3
(collectively, the "Tax Allocations"), which Tax Allocations have
been made in accordance with Section 1060 of the Internal Revenue
Code of 1986 (as amended) and the Treasury Regulations
promulgated thereunder (the Allocated Purchase Prices and the Tax
Allocations hereinafter called, the "Allocations"). Each of the
Seller and Buyer shall: (i) be bound by the Allocations for
purposes of determining any taxes; (ii) prepare and file any tax
returns on a basis consistent with the Allocations; (iii) take no
position inconsistent with the Allocations on any applicable tax
return, in any proceeding before any taxing authority or
otherwise; and (iv) be bound by the Allocations in all other
public filings and reports, including but not limited to any
transfer tax declarations. In the event that the mutually agreed
upon Allocations are disputed by any taxing authority, the party
receiving notice of the dispute shall promptly notify the other
party hereto of the dispute. Notwithstanding the foregoing,
nothing herein shall impair Buyer's right to initiate proceedings
after the Closing in which the value of a Property is contested
by Buyer for real estate tax purposes (including ad valorem and
similar state and local taxes imposed based on the assessed value
of real property) in accordance with applicable law.
The Purchase Price shall be payable by Buyer to Seller
as follows:
1.1. XXXXXXX MONEY. In connection with the Auction,
Buyer has delivered to the Title Insurer (as hereinafter
defined), acting as escrow agent (the "Escrow Agent") the sum of
Two Million Three Hundred Forty Five Thousand and 00/100 Dollars
($2,345,000.00) (such sum, together with any interest earned
thereon, the "Xxxxxxx Money"). From and after the date the
Xxxxxxx Money is delivered by Buyer, the Escrow Agent shall hold
the Xxxxxxx Money in accordance with the Escrow Agreement
attached hereto as Exhibit D (the "Escrow Agreement") in an
interest-bearing account for the benefit of Buyer pending
disposition as hereinafter set forth. The amount of Xxxxxxx
Money allocated to each Property is set forth on Schedule 3
attached hereto (the "Allocated Xxxxxxx Money").
1.2. PREPAYMENT FEES. The Prepayment Fees shall be
deposited with Escrow Agent on or before the Closing Date (as
hereinafter defined), by wire transfer of immediately available
funds to Escrow Agent's account pursuant to Escrow Agent's
instructions. The Prepayment Fees and the applicable portions of
the Purchase Price shall be applied by Escrow Agent at Closing
(as hereinafter defined) to pay off the Loans.
1.3. BALANCE OF PURCHASE PRICE. The balance of the
Purchase Price shall be deposited with Escrow Agent on or before
the Closing Date (as hereinafter defined), by wire transfer of
immediately available funds to Escrow Agent's account pursuant to
Escrow Agent's instructions.
2. INSPECTION, REMEDIES AND CONTINGENCIES.
2.1. BUYER INSPECTION. Buyer acknowledges and
represents that as of the date of execution of this Agreement,
Buyer has had the opportunity to review any engineering reports
made available to potential bidders at the Auction during a due
diligence period prior to the Auction, and has been given the
opportunity to make a full and complete inspection of the
Property, at Buyer's expense, including, but not limited to,
inspection by construction experts, engineers and architects
acceptable to Buyer, examining both obvious and latent conditions
of the Property. Accordingly, except for the representations,
warranties, covenants and agreements in this Agreement or in any
of the documents (the "Closing Documents") executed and delivered
by Seller to Buyer in connection with the Closing (as hereinafter
defined), Buyer will have made its investment decision to enter
into this Agreement based exclusively upon its own investigations
or inspections with respect to the Property and has not relied,
and will not have relied upon any express or implied, written or
oral, representation of Seller or Seller's general partners
(collectively, the "Selling Entity") or any of the Selling
Entity's employees, agents, representatives, broker and
attorneys, counsel for the respective plaintiffs in the
litigation captioned In re: Prudential Securities Incorporated
Limited Partnerships Litigation ("Litigation") in the United
States District Court in the Southern District of New York, MDL
Docket No. 1005, M-21-67 (MP), or any affiliates of any of them,
hereinafter designated collectively as the "Protected Group", in
entering into this Agreement. Buyer acknowledges that Seller has
cooperated with Buyer in all requests for inspection or testing,
and Seller agrees to cooperate with Buyer's reasonable requests
for additional inspections and testing (to be conducted at
Buyer's sole cost and expense) prior to the Closing Date
(hereinafter defined), provided, however, that in no event shall
facts or information which may be discovered by Buyer in so
conducting any inspections or testing, (i) be the basis of any
claim by Buyer against Seller, or any right of Buyer to terminate
this Agreement or to request an adjustment to the Purchase Price
or a cure by Seller of any condition or matter discovered by any
such additional testing or inspection unless such inspections or
tests reveal breaches of representations, warranties, covenants
or agreements of Seller herein, in which case Buyer's remedies
shall be as provided herein or (ii) otherwise affect or excuse
any of Buyer's covenants, agreements and obligations under this
Agreement unless such inspections or tests reveal breaches of
representations, warranties, covenants or agreements of Seller
herein, in which case Buyer's remedies shall be as provided
herein. Buyer agrees to promptly repair and restore the
Properties to the condition existing prior to any inspection or
testing at the sole cost of Buyer and to Seller's reasonable
satisfaction. Buyer also agrees not to interfere with any
tenants at the Properties during any inspections or testing.
2.2. ENVIRONMENTAL ASSESSMENT. Buyer acknowledges and
represents that as of the date of execution of this Agreement
Buyer has had the opportunity to review any Phase I and Phase II
environmental reports made available to potential bidders at the
Auction during a due diligence period prior to the Auction, and,
at its expense, to conduct an environmental assessment of the
Property including but not limited to hazardous substances or
waste such as asbestos, chemicals, sewage (raw or treated),
pesticides, petroleum, including crude oil or any fraction
thereof, and any substance identified in any Federal, State, or
other governmental legislation or ordinance. Buyer agrees to
accept all risks to the Property and costs of cure arising out of
the existence of any hazardous substance or waste.
2.3. BUYER'S REMEDY. Except as may be otherwise
expressly provided in this Agreement or in the Closing Documents,
Buyer acknowledges that Seller has made no representations or
warranties whatsoever regarding the accuracy or completeness of
the reports referenced in this Section 2. Except as may be
otherwise expressly provided in this Agreement or in the Closing
Documents, Buyer agrees that Buyer has no legal or equitable
remedy or recourse against Seller and the Protected Group, with
respect to any inaccuracies or errors contained in any such
report or arising out of any Property defect, or other adverse
condition of the Property, whether known or unknown to or
concealed or unconcealed by them or any of them.
2.4. ASSUMPTION OF LIABILITIES. Except as expressly
provided in this Agreement or in any Closing Documents, Buyer is
not assuming any of the debts, liabilities, taxes or obligations
of, or claims against, Seller of any kind or character, whether
direct or contingent and whether known or unknown. The only
transactions contemplated by this Agreement are the sale and
purchase of the Property.
3. CLOSING.
3.1. CLOSING. This transaction shall be closed (the
"Closing") at the offices of Skadden, Arps, Slate, Xxxxxxx &
Xxxx, LLP 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at such time
or other place in New York, New York as the parties shall agree
as soon as is practicable after the full execution of this
Agreement but not later than forty-five (45) days therefrom or
such later date on or before June 1, 1999 as may be required by
Seller in order to prepay the Loans in accordance with the
prepayment provisions of the Mortgages and related promissory
notes (the "Closing Deadline"). The date on which the Closing
occurs is herein called the "Closing Date". The Closing for all
of the Properties shall occur simultaneously unless otherwise
provided hereunder.
3.2. SELLER'S CLOSING DELIVERABLES. At or prior to
Closing, Seller shall deliver or cause to be delivered to Escrow
Agent, the following items for delivery or recordation upon close
of escrow with respect to each Property:
(a) Quitclaim deed (the "Deed") duly executed and
acknowledged by Seller, conveying fee simple title to the
Real Property, the Improvements and the Fixtures to Buyer,
or if a quitclaim deed is not a valid means of conveyance in
a particular jurisdiction, a deed without covenants or, if
the use of such forms of deeds results in the Title Insurer
raising an exception that would not be customarily
acceptable to an institutional investor, a form of deed
subject to the Permitted Exceptions that would be insurable
by the Title Insurer without such exception;
(b) xxxx of sale (the "Xxxx of Sale") duly executed by
Seller, transferring to Buyer all of the Seller's right,
title and interest in and to the Personalty;
(c) assignment of all occupancy leases, licenses and
other occupancy agreements then in effect, if applicable,
pertaining to the Property (the "Leases"), duly executed and
acknowledged by Seller, in a form reasonably acceptable to
Buyer and Seller, assigning to Buyer the Seller's interest
therein, with Buyer expressly assuming all obligations as
landlord under such leases arising from and after the
Closing Date and with Seller responsible for such
obligations for the period prior to the Closing Date;
(d) non-recourse assignment, to the extent assignable,
of Seller's rights under the service or maintenance
contracts described on Schedule 4 ("Service Contracts")
pertaining to the Property;
(e) non-recourse assignment, to the extent possible,
of any licenses, permits, trade names and unexpired
warranties, if any, pertaining to the Property;
(f) certificates and resolutions demonstrating the
authority of the persons executing the documents at the
Closing;
(g) a rent roll, certified as accurate by the Seller,
which shall be current as of two business days prior to the
Closing and which shall also state the amounts of all tenant
security deposits (and any interest thereon required to be
held under the Leases, if any) in the possession of Seller
or required to be held by Seller (collectively, the
"Security Deposits") and shall set forth all past due and
uncollected rent and additional rent owed by tenants and all
prepayments of rent;
(h) originals of all written occupancy leases and
Service Contracts, if applicable and to the extent
available, for the Property, and if originals are not
available, copies thereof. All such leases and Service
Contracts shall be deemed delivered if they are on premises
at the Property as of the Closing Date;
(i) a certificate duly executed by Seller certifying
that all of the representations and warranties set forth in
Section 7.3 are true and correct in all material respects on
the Closing Date as if made at and as of Closing Date or the
extent to which any of such representations or warranties
are no longer true and correct ("Seller's Representation
Certificate"), which shall survive Closing for ninety (90)
days;
(j) a certification as to the Seller's non-foreign
status which complies with the provisions of Section
1445(b)(2) of the Internal Revenue Code of 1986, as amended,
any regulations promulgated thereunder, and any revenue
procedures or other officially published announcements of
the Internal Revenue Service or the U.S. Department of the
Treasury in connection therewith, duly executed by Seller;
(k) general ledgers with respect to the calendar years
ending December 31, 1997 and December 31, 1998;
(l) documents, affidavits and undertakings (including
a "Gap Undertaking" in the form set forth on Exhibit G
hereto) reasonably requested by the Title Insurer to issue,
effective as of the Closing Date, the policies of title
insurance contemplated by this Agreement without any
exception for matters (other than Permitted Exceptions)
arising after the Closing Date and prior to the date the
deeds of conveyance are recorded;
(m) a notice to tenants for each Property informing
such tenants as to the sale of such Property, signed by the
current manager of such Property or if required by Buyer,
jointly by such manager and Seller, in form reasonably
acceptable to Buyer and Seller; and
(n) such other documents as may be specifically
required by this Agreement or as may reasonably be required
by Buyer or the Title Insurer to carry out the terms and
intent of this Agreement.
On the Closing Date, and continuing for thirty (30)
days after the Closing, Seller shall make available for
photocopying by Buyer at Buyer's expense, during business hours
and subject to reasonable prior notice from Buyer, any existing
books, records, (including bookkeeping and accounting records)
and currently effective agreements which are located at the
regional offices of Seller's property manager and relate to the
Property. For each Property, at Closing Seller shall provide all
rent roll information in an ASCII format and shall transfer all
applicable data files and cooperate to facilitate an orderly
transfer of computer files pertaining to each Property.
3.3. BUYER'S CLOSING DELIVERABLES At or prior to
Closing, Buyer shall deliver or cause to be delivered to Escrow
Agent, the following items for delivery or recordation upon close
of escrow:
(a) assumption of the Leases and Service Contracts
with respect to each Property to the extent of the
obligations arising on and after the Closing Date in form
reasonably acceptable to Buyer and Seller;
(b) certificates and resolutions demonstrating the
authority of the persons executing the documents at the
Closing;
(c) the Prepayment Fees by wire transfer;
(d) balance of the Purchase Price by wire transfer;
and
(e) such other documents as may be specifically
required by this Agreement or as may reasonably be required
by Seller or the Title Insurer to carry out the terms and
intent of this Agreement.
3.4. CONTRACTS NOT BEING ASSIGNED. Seller shall not
assign to Buyer and shall cancel as of the close of escrow:
(a) the property management contract for each Property
set forth on Schedule 5, attached hereto; and
(b) any insurance policies, including but not limited
to hazard insurance policies, then in force affecting any
Property.
Buyer acknowledges that the management contracts shall
terminate automatically on the Closing Date in accordance with
that certain side letter agreement dated October 13, 1998, a copy
of which is attached hereto as Exhibit E and agrees that Seller
has no obligation to deliver any further termination agreement or
notice at Closing (but the foregoing acknowledgment and agreement
shall not relieve Seller of its obligation under this Section 3.4
to terminate all property management agreements as of the Closing
Date, at no cost or expense to Buyer, if such agreements are not
terminable or have not been effectively terminated in accordance
with such letter).
3.5. PRORATIONS. The following shall be apportioned on
a per diem basis as of 12:01 a.m. of the Closing Date
("Adjustment Date") and adjusted between the parties on the basis
of the number of days in the month of the Closing with respect to
each Property for items that are payable on a monthly basis and,
for items that are not paid on a monthly basis, such items shall
be adjusted on the basis of the number of days applicable to such
period, with Seller receiving a credit for all amounts prepaid by
Seller for any period from and after the Closing Date and Seller
charged with any unpaid charges for the period prior to the
Closing Date:
(a) Real estate and other taxes, assessments and
charges, and other municipal and State charges, license and
permit fees, water and sewer rents and charges, if any, on
the basis of the fiscal period for which assessed or
charged;
(b) Water, electric, gas, steam and other utility
charges for service furnished to the Property;
(c) Fuel, if any, and all taxes thereon, on the basis
of a reading taken as close as possible to the Adjustment
Date;
(d) Base rents and any other rental payments (the
"Rents") paid under the terms of the Leases for the month of
Closing or thereafter;
(e) Any amounts paid or payable under any Service
Contracts being assigned to Buyer;
(f) All costs associated with telephone directory
listings and any other prepaid advertising;
(g) Any other customary adjustments made in connection
with the sale of similar type buildings.
There will be no proration of insurance costs at
Closing. Except as may be otherwise provided herein, all other
expenses and liabilities which are attributable to the period
prior to the Closing Date shall be the obligation of Seller and
those which are attributable to the period from and after the
Closing Date shall be the obligation of Buyer. To the extent
there are items of prepaid income, Buyer shall receive a credit
attributable to the period from and after the Closing Date.
3.6. APPORTIONMENT FORMULA. For purposes of the
foregoing apportionments and adjustments, the following
procedures shall govern with respect to each Property:
(a) Any apportionment of income and expense items
shall be apportioned to the Seller based upon the formula
(the "Apportionment Formula") wherein the numerator is the
number of days in such month that the Property was owned by
the Seller and the denominator is the total number of days
in that month for items that are payable on a monthly basis
and, for items that are not paid on a monthly basis, such
items shall be adjusted on the basis of the number of days
applicable to such period, with Seller receiving a credit
for all amounts prepaid by Seller for any period from and
after the Closing Date and Seller charged with any unpaid
charges for the period prior to the Closing Date. To the
extent there are items of prepaid income, Buyer shall
receive a credit attributable to the period from and after
the Closing Date. In addition, if there were "front-end
fees" paid to Seller under a Service Contract, the amount of
such fee shall be amortized over the term of such Service
Contract and the portion applicable to the period from and
after the Closing Date shall be a credit to Buyer.
(b) If the Closing Date shall occur before the real
estate tax rate is fixed, the apportionment of such taxes
shall be made using the real estate taxes for the
immediately preceding year, with a reapportionment in the
event the new tax rate and valuation can be ascertained
during the Adjustment Period (as hereinafter defined).
(c) If there are water meters on the Property, Seller
shall furnish meter readings to a date not more than thirty
days prior to the Adjustment Date; and the unfixed meter
charges for the intervening time to the Adjustment Date
shall be apportioned based upon estimates using such prior
meter readings, unless final readings therefor as of the
Closing shall have been obtained, in which case such final
readings shall be used for the apportionment. As soon as
the expenses for the period shall be known, Seller and Buyer
shall recalculate the adjustment with the result that Seller
shall pay for those expenses attributable to the period
prior to the Closing Date and Buyer shall pay for those
expenses attributable to the period commencing with the
Closing Date.
(d) The apportionment of utility charges shall be made
upon the basis of charges shown on the latest available
bills for such utilities, unless final meter readings
therefor as of the Closing shall have been obtained, in
which case such final readings shall be used for the
apportionment. The charges shown on such available bills
for periods prior to the Adjustment Date shall be paid by
Seller, and for the period from the date of each such last
available utility xxxx to the Adjustment Date an
apportionment shall be made based upon estimates using such
last available xxxx. As soon as the expenses for the period
shall be known, Seller and Buyer shall recalculate the
adjustment with the result that Seller shall pay for those
expenses attributable to the period prior to the Closing
Date and Buyer shall pay for those expenses attributable to
the period commencing with the Closing Date.
(e) All taxes, water and sewer charges and assessments
for public improvements which are liens upon a Property as
of the Closing Date, will be allowed to Buyer as a credit
against the Allocated Purchase Price for such Property,
subject to apportionment as herein provided, and the
existence of any such lien shall not constitute an objection
to title.
(f) If Buyer collects any non-delinquent Rents after
the Closing which are applicable to the month in which the
Closing occurs, the Seller's pro rata share of such Rents
shall be paid to the Seller promptly upon receipt.
(g) If any tenant is delinquent in the payment of
Rents on the Closing Date, Rents received from such tenant
after the Closing Date shall be applied in the following
order of priority: (a) first to current rentals and any
other amounts currently owed to Buyer; and (b) then to
delinquent rentals with respect to the period before
Closing. If Rents or any portion thereof received by Seller
or Buyer after the Closing Date are payable to the other
party by reason of this allocation, the appropriate sum
shall be promptly paid to the other party
(h) All Security Deposits (required to be held by
Seller under the Leases which have not been applied by
Seller in accordance with the terms of the Leases) shall be
transferred and delivered to Buyer on the Closing Date or,
at Seller's option, credited against the Purchase Price.
Buyer and Seller agree that the provisions of Sections
3.5 and 3.6 shall survive the Closing for a period of ninety (90)
days after the Closing Date ("Adjustment Period"), during which
period Buyer and Seller shall agree on a reconciliation of the
prorations described herein. If the parties cannot agree on a
reconciliation within such ninety (90) day period then such
matter shall be submitted to arbitration in accordance with the
terms of Section 10 below.
3.7. COSTS. The fees of the Escrow Agent, transfer
taxes, recording fees, standard title insurance premiums for
owner's title policies and all other closing and recording costs
shall be borne equally by Seller and Buyer. Each party shall pay
its own professional fees including but not limited to attorneys'
and accountants' fees, and Buyer shall pay for (i) the cost of
any endorsements or affirmative coverage in connection with the
issuance of title policies, and (ii) any further updates or
modifications to the Surveys requested by Buyer or Buyer's
lender.
3.8. CONDITIONS TO SELLER'S AND BUYER'S OBLIGATION TO
CLOSE. The obligations of Seller and Buyer to close under this
Agreement as to a particular Property are subject to the
fulfillment, prior to or at Closing, of the following:
that there shall not be in effect any statute, regulation,
order, decree or judgment of any governmental entity having
jurisdiction which renders illegal or enjoins or prevents
the sale of such Property to Buyer.
In no event shall the failure of this condition as to a
particular Property be a condition to Buyer's or Seller's
obligations hereunder with respect to another Property.
3.9. CONDITIONS TO SELLER'S OBLIGATION TO CLOSE. The
obligations of Seller to close under this Agreement are subject
to the fulfillment, prior to or at Closing, of each of the
following (all or either of which may be waived in writing by
Seller):
(a) The representations and warranties of Buyer herein
as set forth in Section 7.4 shall have been true and correct
in all material respects when made and shall be true and
correct in all material respects as of the Closing Date, as
if made at and as of such date except as otherwise expressly
provided herein.
(b) On and as of the Closing Date, Buyer shall have
performed and complied with, in all material respects, all
agreements and covenants required by this Agreement to be
performed or complied with prior to or on the Closing Date.
3.10. CONDITIONS TO BUYER'S OBLIGATION TO CLOSE.
The obligations of Buyer to close under this Agreement are
subject to the fulfillment, prior to or at Closing, of the
following (all or any of which may be waived in writing by
Buyer):
(a) The representations and warranties of Seller, as
set forth in Section 7.3 herein, shall have been true and
correct in all material respects when made and shall be true
and correct in all material respects as of the Closing Date,
as if made at and as of such date except as otherwise
expressly provided herein.
(b) On and as of the Closing Date, Seller shall have
performed and complied with, in all material respects, all
agreements and covenants required by this Agreement to be
performed or complied with prior to or on the Closing Date.
(c) On the Closing Date, (i) the Title Insurer
(hereafter defined) shall be unconditionally obligated and
prepared, subject to the payment of the applicable title
insurance premium and other related charges, to issue to
Buyer an owner's title insurance policy for the Property in
compliance with the Title Commitments (hereafter defined),
free and clear of all mortgages (including all of the
Mortgages), liens, encumbrances, easements, leases,
conditions and other matters affecting title other than
matters created or granted by Buyer and the Permitted
Exceptions (hereafter defined), and (ii) the Seller shall
have delivered the Gap Undertaking to the Title Insurer.
(d) As of the Closing Date, Seller shall not have
commenced (within the meaning of any Bankruptcy Law) a
voluntary case, nor shall there have been commenced against
Seller an involuntary case, nor shall Seller have consented
to the appointment of a Custodian of it or for all or any
substantial part of its property, nor shall a court of
competent jurisdiction have entered an order or decree under
any Bankruptcy Law that is for relief against Seller in an
involuntary case or appointed a Custodian of Seller for all
or any substantial part of its property. The term
"Bankruptcy Law" means Title 11, U.S. Code, or any similar
state law for the relief of debtors. The term "Custodian"
means any receiver, trustee, assignee, liquidator or similar
official under any Bankruptcy Law.
3.11. ESCROW FOR SURVIVING WARRANTIES AND
AGREEMENTS. On the Closing Date, the Seller shall deposit with
the Escrow Agent, pursuant to an escrow agreement in the form
attached hereto as Exhibit F executed by Buyer, Seller and the
Escrow Agent, an amount equal to Six Hundred Twelve Thousand Two
Hundred Thirty Seven and 00/100 Dollars ($612,237.00) (the "Post-Closing
Escrow") as security for the obligations of Seller
arising from a breach of a surviving representation, warranty,
covenant or agreement of Seller under this Agreement. The Post-Closing
Escrow shall be reduced proportionally in the event that
a Closing does not occur hereunder with respect to a particular
Property based on the ratio that such Property bears to the
Purchase Price (prior to reduction as a result of the termination
of this Agreement as to such Property). The Buyer's right to
claim all or any portion of the Post-Closing Escrow shall
terminate ninety (90) days after the Closing, upon which
termination the balance of the Post-Closing Escrow (less any
amounts in dispute), if any, shall be returned to Seller.
4. POSSESSION AND RISK OF LOSS PRIOR TO CLOSING.
4.1. CASUALTY. In the event of physical damage to a
Property or destruction thereof due to a casualty (a "Casualty"),
affecting all or any part of a Property, without fault of Buyer,
prior to the Closing Date, Seller and Buyer agree as follows with
respect to such damage or destruction, specifically exclusive of
non-physical losses such as business losses incidental thereto:
(a) If, prior to the Closing Date, a Property is
damaged due to a Casualty and the cost of repairing such
damage, as is reasonably determined by an independent
engineer and appraiser selected by Seller (the "Repair
Cost") is less than One Million and 00/100 Dollars
($1,000,000.00), then Seller and Buyer shall proceed to
close the sale of all of the Property without any abatement
of the Purchase Price, provided however that Seller shall,
at Seller's election, either: (i) repair the Casualty to
such Property prior to Closing at Seller's expense or (ii)
assign to Buyer at Closing, without recourse or warranty of
any nature whatsoever, all of Seller's right, title and
interest in and to any casualty insurance policies covering
such Casualty with respect to the Property, and Seller shall
pay to Buyer the deductible plus any uninsured amounts plus
all payments theretofore made by such insurers as a result
of such loss after deducting therefrom the costs of
collection thereof (an "Assignment of Proceeds").
(b) If, prior to the Closing Date, any Property is
damaged due to a Casualty and the Repair Cost equals or
exceeds One Million and 00/100 Dollars ($1,000,000.00), then
Seller shall have the option to: (i) repair the Casualty to
such Property prior to Closing or (ii) terminate this
Agreement in its entirety, upon which termination, provided
that Buyer is not in default hereunder, Buyer's Xxxxxxx
Money shall be returned to Buyer. Notwithstanding anything
herein to the contrary, Seller shall have the right to
adjourn the Closing Date as to such Property for such
reasonable period as shall be necessary to repair any such
Casualty, not to exceed one hundred eighty (180) days.
(c) If more than one Property is to be acquired
pursuant to this Agreement and the Repair Cost as to a
particular Property equals or exceeds One Million and 00/100
Dollars ($1,000,000.00) such damaged Property may, at
Seller's election, be removed from this Agreement and this
Agreement terminated as to such Property, upon written
notice from Seller to Buyer. In the event of such a
termination, provided that Buyer is not in default
hereunder, Buyer's Allocated Xxxxxxx Money as to such
Property shall be returned to Buyer at Closing. If Seller
elects to remove a Property from this Agreement and
terminate this Agreement as to such Property, or to
terminate this Agreement in its entirety due to a Casualty
as described in this Section 4.1, then Buyer shall have the
option, to be exercised by delivering written notice to
Seller of such election within ten days after Buyer's
receipt of written notice of Seller's election, to accept
all of the Property together with an Assignment of Proceeds
with respect to the affected Property.
4.2. CONDEMNATION. If, prior to the Closing Date, all
or any portion of the Property is condemned or taken by eminent
domain, then this Agreement shall nevertheless remain in full
force and effect without any abatement of the Purchase Price. In
such event, Seller shall convey the Property to Buyer at the
Closing in its then condition, and Buyer shall be entitled to
receive all net or condemnation awards otherwise payable to
Seller as a result of such loss or damage and, in full
satisfaction of any claims by Buyer against Seller, Seller shall
assign to Buyer at Closing, without recourse or warranty of any
nature whatsoever, all of Seller's right, title and interest in
and to any claims Seller may have to any condemnation awards, as
well as all rights or pending claims of Seller with respect to
such condemnation or taking of the Property, and Seller shall pay
to Buyer all payments theretofore made by such condemning
authorities as a result of such loss after deducting therefrom
the costs of collection thereof.
5. TITLE.
5.1. PRELIMINARY TITLE REPORT, COMMITMENT AND SURVEY.
Seller has provided or otherwise made available to Buyer with
respect to each Property: a copy of a preliminary title report
or a commitment for an ALTA (or the equivalent in the applicable
jurisdiction) policy of Owner's title insurance (each a "Title
Commitment", collectively, the "Title Commitments") issued by
First American Title Insurance Company or a comparable national
title insurance company selected by Seller (the "Title Insurer")
and a copy of the current survey(s) prepared by licensed public
land surveyors according to ALTA standards (each a "Survey",
collectively, the "Surveys"). Buyer has agreed to accept each
Property subject to any and all exceptions to title insurance
coverage contained on the related Title Commitment, including,
but not limited to any exceptions to coverage based upon matters
shown on the related Survey, (collectively, the "Initial
Exceptions"). Upon Closing, each said Title Commitment shall
show fee simple title to the related Property as vested in Seller
subject to (i) all of the Initial Exceptions previously shown in
such Title Commitment at time of execution of this Agreement,
(ii) any New Title Exceptions (defined herein) which are not
identified as Title Defects by Buyer in accordance with the
provisions hereof, and (iii) any Title Defects which are waived
in writing by Buyer (clauses (i), (ii) and (iii) collectively,
the "Permitted Exceptions"). Notwithstanding the foregoing, the
Permitted Exceptions shall not include any of the Mortgages,
Voluntary Liens or mechanic's liens or the "standard" exceptions
except that (i) the standard exception for "parties in
possession" shall be a Permitted Exception if modified by the
Title Insurer to provide materially for "rights of tenants, as
tenants only, under unrecorded leases," and (ii) such standard
exceptions shall be Permitted Exceptions if the deletion is not
permitted under applicable law or will not be removed upon
delivery by the Seller of the Title Insurer's owner's affidavit
in the form attached hereto as Exhibit G and an ALTA survey
certified to the Title Insurer.
If after the date hereof and prior to the time of
Closing, Buyer receives written updates to said Title Commitments
to include any new exceptions which were not previously shown
therein, including, but not limited to, any new exceptions based
upon Survey updates, Buyer shall deliver to Seller within 10
business days of the delivery of said updated Title Commitments
written notice setting forth its objections to any new matter
encumbering any Property (each a "New Title Exception") which,
taken alone or in the aggregate with other New Title Exceptions
encumbering such Property, impairs such Property's current use or
value (each a "Title Defect"). Seller shall have the option to:
(i) cure any Title Defect prior to Closing or (ii) terminate this
Agreement in its entirety, upon which termination, provided that
Buyer is not in default hereunder, Buyer's Xxxxxxx Money shall be
returned to Buyer. Notwithstanding anything herein to the
contrary, Seller shall have the right to postpone the Closing
Date for such reasonable period as shall be necessary to cure any
Title Defect not to exceed sixty (60) days. If more than one
Property is to be acquired pursuant to this Agreement and Seller
elects not to cure a Title Defect with respect to a Property,
such Property may be removed from this Agreement and this
Agreement terminated as to such Property. In the event of such a
termination, provided that Buyer is not in default hereunder,
Buyer's Allocated Xxxxxxx Money as to such Property shall be
returned to Buyer at Closing. If Seller elects to terminate this
Agreement in its entirety or with respect to a particular
Property due to a Title Defect as described in this paragraph,
then Buyer shall have the option to waive such Title Defect and
accept the Property subject to the applicable Title Defect
provided however that Buyer exercise such option in writing
within ten (10) business days of Seller's notice of said
election.
5.2. PERMITTED EXCEPTIONS. Subject to the terms and
conditions of this Agreement, Buyer agrees to accept each
Property subject to the Permitted Exceptions. Notwithstanding
anything herein to the contrary, in no event or circumstances
shall a Title Defect (except for liens and encumbrances created,
granted or assumed pursuant to one or more instruments executed
by Seller ("Voluntary Liens")) and mechanic's liens) include any
title exception or matter encumbering the Property the cost of
which to cure or reduction in value is, when aggregated with any
other Title Defect for such Property, less than or equal to Fifty
Thousand and 00/100 Dollars ($50,000.00), provided, however, that
should the cost to cure the New Title Exceptions (except for
Voluntary Liens and mechanic's liens) or reduction in value with
respect to a particular Property, in the aggregate ("Aggregate
Curative Cost"), be greater than Fifty Thousand and 00/100
Dollars ($50,000.00) then: Buyer may send a written notice
setting forth its objections to such exceptions or matters
pursuant to the same notice requirements provided in Section 5.1
above and if Seller elects to cure such New Title Exceptions
pursuant to Section 5.1 (i) above, Seller shall be obligated to
cure only such New Title Exceptions (except for Voluntary Liens
and mechanic's liens) such that the resulting Aggregate Curative
Cost for the uncured New Title Exceptions objected to by Buyer
with respect to a particular Property will be an amount less than
or equal to Fifty Thousand and 00/100 Dollars ($50,000.00). In
lieu of curing any New Title Exception, which Seller may elect to
eliminate under this Agreement, Seller may (subject to Buyer's
reasonable approval other than with respect to mechanics liens)
deposit with the Title Insurer such amount of money as may be
determined by the Title Insurer as being sufficient to induce the
Title Insurer, without the payment of any additional premium by
Buyer, to omit such New Title Exception from Buyer's title
insurance policy. Notwithstanding the foregoing, Seller shall
not be obligated, under any circumstances, to cure any exception
or matter encumbering the Property other than Voluntary Liens or
mechanics liens.
5.3. RESOLUTION OF TITLE ISSUES. Buyer and Seller
shall make reasonable efforts to agree as to the existence of any
Title Defect. If the Seller and Buyer do not agree on the
foregoing within fifteen (15) days after Seller's receipt of
Buyer's notice described in Section 5.1 above, then the Parties
shall submit the matter to binding arbitration in accordance with
the terms of Section 10 below.
5.4. TITLE INSURANCE POLICY. Seller's obligations to
deliver title to the Property shall be satisfied by the issuance
of a extended coverage owner's title insurance policy with
respect to each Property issued by the Title Insurer, insuring
Buyer in the amount of the Allocated Purchase Price for such
Property and showing the Property to be subject to the Permitted
Exceptions.
6. BROKER. Each of the parties warrants to the other
that no broker, salesman or agent has been engaged or used in
connection with this transaction. To the fullest extent
permitted by law, each party agrees to indemnify the other party
against any and all loss, claims, liability, and expense,
including reasonable attorneys' fees, arising out of any claim
for commission or fee incurred or allegedly incurred by the
indemnifying party.
The provisions of this Section 6 shall survive the
Closing.
7. SELLER'S DISCLAIMERS; REPRESENTATIONS,
COVENANTS AND WARRANTIES.
7.1. PROPERTY SOLD "AS IS" WITHOUT WARRANTY. Except as
may be otherwise expressly provided in this Agreement or the
Closing Documents, Buyer agrees and acknowledges that Buyer is
purchasing the Property "AS IS", in its existing condition and
subject to its present defects, in reliance on Buyer's own
investigation and that no other representations or warranties of
any kind whatsoever, written or oral, express or implied, have
been made by Seller or the Protected Group, including without
limitation representations relating to zoning, site and physical
conditions, toxic and hazardous materials or waste, soils
content, or any matter affecting the ability of the Buyer to use
the Property or the suitability of the Property to Buyer's
purposes. Buyer further acknowledges and agrees that as of the
Closing Date, Buyer shall have investigated, inspected, and made
itself aware of all zoning regulations, other governmental
requirements, site and physical conditions, the existence or
nonexistence of toxic or hazardous materials or waste, soil
conditions, and other matters affecting the use and condition of
the Property.
Additionally and specifically, except as may be
otherwise expressly provided in this Agreement or the Closing
Documents, Seller makes no representation whatsoever, express or
implied: (a) that the Property is in good or any other
condition; (b) that the buildings and other Improvements, if any,
were built or are currently in compliance with plans and/or
specifications; (c) that the buildings and other Improvements, if
any, were built in accordance with either good or acceptable
construction and/or engineering practices; (d) that the buildings
and other Improvements, if any, were built or are currently in
compliance with applicable zoning or building code requirements
including, but not limited to applicable safety codes or laws and
the Americans with Disabilities Act or any State or local law
concerning disabled persons; (e) that the Property is free of
major or minor, latent or patent defects; (f) that the Property
has no hazards; (g) that the Property complies with Federal,
State or local laws or any other standards regarding toxic,
hazardous or unhealthful materials; (h) that the Property
complies with Federal, State and local environmental laws; (i) as
to the existence of soil instability, past soil repairs, soil
additions or conditions of soil fill, or susceptibility to
landslides; and (j) as to any other matter affecting the
stability or integrity of the land or any buildings or
improvements situated on or part of the Property.
Without limiting the generality of the foregoing, Buyer
agrees to purchase the Property subject to any and all notices of
violations of law or municipal ordinances, orders or requirements
whatsoever noted in or issued by any federal, state, municipal or
other governmental department, agency or bureau having
jurisdiction over the Property (collectively, "Violations"), or
any lien, fine or penalty imposed in connection with any of the
foregoing, or any condition or state of repair imposed in
connection with any of the foregoing, or any condition or state
of repair or disrepair or other matter or thing, whether or not
noted, which, if noted, would result in a Violation being placed
on the Property. Seller shall have no duty to remove or comply
with or repair any such Violations, liens or other conditions and
Buyer shall accept the Property subject to all such Violations
and liens, the existence of any conditions at the Property which
would give rise to such Violations or liens, if any, and any
governmental claims arising from the existence of such Violations
and lien, in each case without any abatement of or credit against
the Purchase Price. Notwithstanding the foregoing, in connection
with any Violations that are issued after the date of this
Agreement, but on or prior to the Closing Date, (i) any liens,
fines and/or penalties imposed on the Property after the date of
this Agreement, but on or prior to the Closing Date, by reason of
the existence of such Violations and (ii) any cure costs
associated with such Violations with respect to a particular
Property shall be addressed in the same fashion in which New
Title Exceptions are addressed hereunder, and Seller's and
Buyer's respective rights and obligations with respect thereto
shall be governed by the provisions of Sections 5.1 and 5.2
hereof. Notwithstanding anything contained herein to the
contrary, the provisions of this Section 7.1 requiring Buyer to
acquire title to the Property subject to a Violation arising from
the non-payment of an item which is to be apportioned hereunder
shall not abrogate the provisions of Sections 3.5 and 3.6
requiring the apportionment thereof or Seller's liability for a
breach of Section 7.3 or Section 11 of this Agreement.
7.2. SELLER UNDER NO DUTY TO DISCLOSE CONDITION.
Except as provided in Section 7.3 or Section 11, Buyer
acknowledges and agrees that Seller and the Protected Group shall
have no duty to disclose to Buyer any information known to them,
or any of them, concerning the condition of the Property, defects
in the Property, failure of the Property to comply with plans,
specifications, building codes, life safety codes, safety laws,
hazardous materials, environmental laws or any other laws or
codes or construction standards affecting the Property. If any
duty to disclose exists, Buyer expressly waives that duty as to
all of the above-referenced persons and entities. Without
limiting the foregoing if any information is disclosed to Buyer,
except as provided in this Agreement, Seller makes no
representation or warranties whatsoever with respect to the
accuracy or completeness of any information provided to Buyer.
Buyer has conducted its own independent investigation.
7.3. SELLER'S REPRESENTATIONS. Seller represents,
covenants and warrants to the Buyer as of the date hereof and the
Closing Date (each of which is being relied upon by Buyer and
each of which shall survive Closing for a period of ninety (90)
days) that:
(a) Organization and Authorization. Prudential-Bache/X.X.
Xxxxxx Realty Partners L.P., I is a limited
partnership duly organized and validly existing under the
laws of the State of Delaware. The execution and delivery
of this Agreement and the transactions contemplated hereby
have been authorized by all requisite corporate and limited
partnership action of Seller and the general partners of
Seller.
(b) No Conflicting Agreements. The execution and
delivery by Seller of, and the performance of and compliance
by Seller with, the terms and provisions of the this
Agreement do not (i) conflict with, or result in a breach
of, the terms, conditions or provisions of, or constitute a
default under, the organizational and governing documents or
any other agreement or instrument to which Seller is a party
or by which all or any part of the Property is bound, (ii)
violate any restriction, requirement, covenant or condition
to which all or any part of the Property is bound, (iii)
constitute a violation of any judgment, decree or order
applicable to Seller or specifically applicable to a
Property, or (iv) require the consent, waiver or approval of
any third party which has not been obtained by Seller which,
in the aggregate, would have an adverse effect on Seller's
ability to perform its obligations hereunder.
(c) Leases. As of the date(s) of the rent rolls
attached hereto as Schedule 6 (the "Rent Rolls"), there were
no written or oral leases, license agreements, occupancy
agreements or tenancies for any space in the Real Property
other than the leases set forth on the Rent Rolls. Seller
has delivered to Buyer a true, correct and complete copy of
the form of lease used for the Property and has delivered or
made available prior to the date of this Agreement, true,
correct and complete copies (including all amendments and
modifications) of each lease set forth on the Rent Rolls.
The listing of arrearages of rent payable by tenants set
forth on the Rent Rolls, as set forth in the delinquency
reports attached hereto as Schedule 6, were true and
accurate as of the date(s) of such delinquency reports.
Seller has the sole right to collect rent under each Lease
and such right has not been assigned, pledged, hypothecated
or otherwise encumbered, except for an assignment as
security for the payment of any Loan that Seller shall use a
portion of the Purchase Price to repay in full at or prior
to settlement hereunder.
(d) Service Contracts. To the actual knowledge of
Seller, all Service Contracts which will be assigned to
Buyer at Closing are set forth on Schedule 4, and a correct
copy of each Service Contract was made available to Buyer
prior to the date of this Agreement.
(e) Management and Leasing Agreements. On the Closing
Date, there will be no contracts or agreements in effect
with any party for the management or leasing of the Property
which will be binding upon Buyer.
(f) Litigation. Except for the Litigation and the
matters set forth on Schedule 7, Seller has not received
written notice of any actions, suits or claims pending
against or affecting the Property or any part thereof. The
Seller has made available to Buyer a correct copy of the
Stipulation of Settlement with Xxxxxx Defendants dated as of
May 12, 1997, and such stipulation is in full force and
effect and has not been modified in any way that would
affect the transactions contemplated by this Agreement. The
Seller has not received any notice that any such action,
suit or claim is threatened. Except as may relate to the
Litigation, the Seller is not operating under or subject to
any order, writ, injunction or decree that relates to the
Property or any part thereof.
(g) Environmental Reports. The environmental reports
referred to in Schedule 8 are all the material reports in
Seller's possession dealing with environmental matters
relating to the Property that were prepared during the past
five years. Except as disclosed in such reports, Seller has
not received from any governmental body having authority any
material written complaint, order, citation or violation
notice with regard to air emissions, water discharges, noise
emissions and hazardous or toxic materials or substances, if
any, or any other environmental matters affecting the
Property or any part thereof.
(h) FIRPTA. Seller is a "United States person" within
the meaning of Sections 1445(f)(3) and 7701(a)(30) of the
Internal Revenue Code of 1986, as amended.
(i) Personal Property. Seller has good title to all
the Personalty and the execution and delivery to Buyer of
the Xxxx of Sale required by Section 9(b)(ii) shall vest
good title to all of the Personalty in Buyer, free and clear
of liens, encumbrances and adverse claims (except for liens
that will be discharged as of the Closing Date).
(j) Operating Statements. The operating statements
for the Property delivered by Seller to Buyer prior to the
execution of this Agreement are not inconsistent with any
other cash basis operating statements for the Property for
the operating period to which they relate that have been
prepared by or for Seller.
(k) Engineering Reports. The reports referred to in
Schedule 9 attached hereto are all of the material reports
on the physical and structural condition of the Property
prepared by a licensed engineering firm engaged by Seller
and in Seller's possession that were prepared during the
past five years.
(l) Title. Seller has good, valid and insurable title
to the Real Property together with the Improvements subject
to the Permitted Exceptions.
7.4. BUYER'S REPRESENTATIONS. In consideration of
Seller's entering into this Agreement and as an inducement to
Seller to sell the Property, Buyer makes the following covenants,
representations, and warranties, each of which is material and is
being relied upon by Seller, and each shall survive the Closing:
(a) Buyer's Authority. Buyer is a limited partnership
duly organized and validly existing and in good standing
under the laws of the State of Delaware. Buyer has the
legal power, right and authority to enter into this
Agreement and to consummate the transactions contemplated by
this Agreement;
(b) Buyer's Action. All requisite action (corporate,
partnership, trust or otherwise) has been taken by Buyer in
connection with entering into this Agreement and the
consummation of the transactions contemplated by this
Agreement;
(c) Individual Authority. The individual(s) executing
this Agreement on behalf of Buyer has the legal power,
right, and actual authority to bind Buyer to the terms and
conditions of this Agreement;
(d) Lender Authorization. Neither the execution and
delivery of this Agreement, nor the occurrence of the
obligations set forth in this Agreement, nor the
consummation of the transactions contemplated by this
Agreement, nor compliance with the terms of this Agreement
will (i) conflict with or result in a breach of any of the
terms, conditions, or provisions of, or constitute a default
under, the organizational and governing documents of Buyer,
any bond, note or other evidence of indebtedness or any
contract, indenture, mortgage, deed of trust, loan,
agreement, lease or other agreement or instrument to which
Buyer is a party or by which any of Buyer's properties may
be bound, (ii) constitute a violation of any judgment,
decree or order applicable to Buyer, or (iii) require the
consent, waiver of approval of any third party which has not
been obtained by Buyer, which, in the aggregate, would have
a material adverse effect on Buyer's ability to perform its
obligations hereunder;
(e) Adequate Funds. Buyer has adequate funds or
available credit resources to pay the Purchase Price at the
Closing Date as provided hereunder;
(f) Sophisticated Buyer. Buyer is an experienced and
sophisticated real property purchaser; and
(g) Representation by Counsel. Buyer has had the
opportunity to confer with counsel of Buyer's choice for a
complete explanation of the meaning and significance of each
provision of this Agreement.
8. INDEMNIFICATION.
8.1. INDEMNIFICATION. To the fullest extent provided
by law, Buyer agrees to indemnify and hold Seller and the
Protected Group harmless from and against all claims, damages,
liabilities, obligations, costs, damages, injuries, losses and
expenses arising (i) out of the Buyer's inspection of the
Property prior to or as of the Closing Date, or (ii) after the
Closing Date as a result of the condition, operation or
management of the Property attributable to Buyer's acts or
omissions. Buyer further agrees to pay for Seller's and the
Protected Group's reasonable costs of defense, including
reasonable attorney fees and expert fees, pertaining to the
foregoing indemnification rights, to be provided by attorneys
reasonably acceptable to Seller and the Protected Group.
The provisions of this Section 8.1 shall survive the
Closing Date.
9. DEFAULT; TERMINATION; LIQUIDATED
DAMAGES AND OTHER REMEDIES.
9.1. IF BUYER FAILS TO COMPLY WITH ITS OBLIGATIONS
UNDER THIS AGREEMENT AND COMPLETE THE TRANSACTION CONTAINED IN
THIS AGREEMENT IN VIOLATION OF THE TERMS HEREOF, THE PARTIES
AGREE THAT SELLER SHALL BE PAID OR RETAIN A SUM EQUAL TO THE
XXXXXXX MONEY DEPOSIT REQUIRED HEREUNDER, AS LIQUIDATED AND
AGREED UPON DAMAGES AS ITS SOLE REMEDY, WHEREUPON THIS AGREEMENT
SHALL BE NULL AND VOID, AND NEITHER SELLER NOR BUYER NOR ANY OF
THEIR RESPECTIVE REPRESENTATIVES SHALL HAVE ANY FURTHER RIGHTS OR
OBLIGATIONS HEREUNDER. SUCH AMOUNT IS PRESUMED TO BE THE AMOUNT
OF DAMAGES SUSTAINED BY A BREACH, AS IT WOULD BE IMPRACTICAL OR
EXTREMELY DIFFICULT TO FIX THE ACTUAL AMOUNT OF DAMAGES. IN
PLACING THEIR INITIALS AT THE PLACES PROVIDED, EACH PARTY
SPECIFICALLY CONFIRMS THE ACCURACY OF THE STATEMENTS MADE ABOVE
AND THE FACT THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO
EXPLAINED THE CONSEQUENCES OF THIS DAMAGES PROVISION AT THE TIME
THIS AGREEMENT WAS MADE.
AUTHORIZED REPRESENTATIVE
OF SELLER'S INITIALS
BUYER'S OR AUTHORIZED REPRESENTATIVE
OF BUYER'S INITIALS
9.2. (a) IF PRIOR TO CLOSING, SELLER DEFAULTS IN ANY OF
THE COVENANTS, AGREEMENTS OR OBLIGATIONS TO BE PERFORMED BY
SELLER UNDER THIS AGREEMENT AT OR PRIOR TO CLOSING AND SUCH
DEFAULT IS NOT CURED BY THE EARLIER OF (A) THE CLOSING DATE OR
(B) THE DATE WHICH IS TEN (10) DAYS AFTER NOTICE OF SUCH DEFAULT
FROM BUYER TO SELLER, THEN, AND IN SUCH EVENT BUYER, AS ITS SOLE
REMEDY THEREFOR, MAY EITHER (1) TERMINATE THIS AGREEMENT BY
WRITTEN NOTICE TO SELLER, WHEREUPON SELLER SHALL REFUND TO BUYER
THE XXXXXXX MONEY DEPOSIT REQUIRED HEREUNDER, PLUS THE ACTUAL AND
REASONABLE OUT-OF-POCKET COSTS AND EXPENSES INCURRED BY BUYER ON
OR AFTER THE FINAL BID DATE (AS DEFINED HEREIN), UP TO AN
AGGREGATE MAXIMUM OF EIGHTY EIGHT THOUSAND EIGHT HUNDRED EIGHTY
EIGHT AND 00/100 DOLLARS ($88,888.00) ("BUYER'S REIMBURSABLE
EXPENSES"), AS LIQUIDATED AND AGREED UPON DAMAGES, WHEREUPON THIS
AGREEMENT SHALL BE NULL AND VOID, AND NEITHER SELLER NOR BUYER
NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES SHALL HAVE ANY
FURTHER RIGHTS OR OBLIGATIONS HEREUNDER AT LAW OF IN EQUITY FOR
DAMAGES OR OTHERWISE, OR (2) SEEK SPECIFIC PERFORMANCE OF
SELLER'S OBLIGATIONS HEREUNDER, WITHOUT ABATEMENT, CREDIT AGAINST
OR REDUCTION OF THE PURCHASE PRICE.
(b) IF ON OR PRIOR TO THE CLOSING DATE, (I) BUYER
SHALL BECOME AWARE OF AN INACCURACY IN ANY REPRESENTATION OR
WARRANTY MADE BY SELLER PURSUANT TO SECTION 7.3 HEREOF (AS MADE
AS OF THE DATE HEREOF) WHICH HAS A MATERIAL ADVERSE EFFECT ON
BUYER OR (II) BUYER SHALL BECOME AWARE OF AN INACCURACY IN ANY
REPRESENTATION OR WARRANTY MADE BY SELLER PURSUANT TO SELLER'S
REPRESENTATION CERTIFICATE (AS MADE AS OF THE CLOSING DATE) WHICH
HAS A MATERIAL ADVERSE EFFECT ON BUYER, THEN, AND IN ANY OF SUCH
EVENTS, BUYER MAY TERMINATE THIS AGREEMENT BY WRITTEN NOTICE TO
SELLER, WHEREUPON SELLER SHALL RETURN TO BUYER THE XXXXXXX MONEY
AND BUYER'S REIMBURSABLE EXPENSES AS LIQUIDATED AND AGREED UPON
DAMAGES, WHEREUPON THIS AGREEMENT SHALL BE NULL AND VOID AND
NEITHER SELLER NOR BUYER NOR ANY OF THEIR RESPECTIVE
REPRESENTATIVES SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS
HEREUNDER AT LAW OR IN EQUITY FOR DAMAGES OR OTHERWISE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SELLER SHALL
HAVE THE RIGHT UPON NOTICE TO BUYER, TO SUSPEND SUCH TERMINATION
NOTICE AND TO ADJOURN THE CLOSING FOR SUCH REASONABLE PERIOD AS
SHALL BE NECESSARY TO CURE SUCH INACCURACY TO BUYER'S REASONABLE
SATISFACTION, NOT TO EXCEED SIXTY (60) DAYS FROM THE DATE OF
BUYER'S TERMINATION NOTICE, UPON WHICH CURE BUYER'S TERMINATION
NOTICE SHALL BE DEEMED REVOKED. WITHOUT LIMITING THE GENERALITY
OF THIS SECTION, IN NO EVENT SHALL THE OCCURRENCE OF ANY OF THE
EVENTS OR CIRCUMSTANCES DESCRIBED IN THIS SECTION 9.2(b) GIVE
RISE TO ANY OBLIGATION OF SELLER TO CURE ANY INACCURACY IN ANY
REPRESENTATION OR WARRANTY OR OTHERWISE MAKE SELLER LIABLE FOR
DAMAGES ON ACCOUNT THEREOF. FOR PURPOSES OF THIS SECTION 9.2,
THE PHRASE "MATERIAL ADVERSE EFFECT ON BUYER" SHALL MEAN ONE OR
MORE INACCURACIES IN ANY OF THE REPRESENTATIONS OR WARRANTIES
MADE BY SELLER PURSUANT TO SECTION 7.3 HEREOF OR PURSUANT TO
SELLER'S REPRESENTATION CERTIFICATE WHERE BUYER CAN REASONABLY
DEMONSTRATE THAT THE LIABILITIES, LOSS, CURATIVE COST OR EXPENSE
WITH RESPECT TO A PARTICULAR PROPERTY RESULTING FROM SUCH
INACCURACIES AND FROM ANY NEW TITLE EXCEPTIONS ARE, IN THE
AGGREGATE, MORE THAN FIFTY THOUSAND AND 00/100 DOLLARS
($50,000.00). IN THE EVENT SELLER ELECTS TO CURE SUCH
INACCURACIES OR NEW TITLE EXCEPTIONS, SELLER SHALL BE OBLIGATED
TO CURE ONLY SUCH INACCURACIES AND NEW TITLE EXCEPTIONS SUCH THAT
THE RESULTING AGGREGATE LIABILITIES, LOSS, CURATIVE COST OR
EXPENSE WILL BE AN AMOUNT LESS THAN OR EQUAL TO FIFTY THOUSAND
AND 00/100 DOLLARS ($50,000.00). IF ANY SUCH INACCURACY IN ANY
REPRESENTATION OR WARRANTY UNDER SECTION 7.3 OR PURSUANT TO
SELLER'S REPRESENTATION CERTIFICATE SHALL NOT HAVE A MATERIAL
ADVERSE EFFECT ON BUYER, AS DETERMINED IN ACCORDANCE WITH THIS
SECTION, THEN BUYER SHALL NOT BE ENTITLED TO ANY RIGHT OR REMEDY
UNDER THIS AGREEMENT, AT LAW OR EQUITY, AS A RESULT OF SUCH
INACCURACY, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO TERMINATE
THIS AGREEMENT IF BUYER SHALL BECOME AWARE OF SUCH INACCURACY ON
OR BEFORE THE CLOSING.
(c) ANY DAMAGE AMOUNT TO BE PAID PURSUANT TO THIS
SECTION 9.2 IS PRESUMED TO BE THE AMOUNT OF DAMAGES SUSTAINED BY
A BREACH, AS IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO
FIX THE ACTUAL AMOUNT OF DAMAGES. NOTWITHSTANDING ANYTHING
CONTAINED HEREIN, IN NO EVENT SHALL SELLER (BEYOND ITS INTEREST
IN THE PROPERTY) OR THE PROTECTED GROUP HAVE ANY PERSONAL
LIABILITY UNDER THIS AGREEMENT WHATSOEVER AND BUYER SHALL UNDER
NO CIRCUMSTANCES INITIATE ANY ACTION IN COURT OR BY ARBITRATION
AGAINST THE PROTECTED GROUP UNLESS IT IS PROCEDURALLY REQUIRED BY
LAW TO NAME A MEMBER OF THE PROTECTED GROUP IN ORDER TO INITIATE
SUCH PROCEEDING, WHICH NAMING SHALL NOT ALTER THE ABOVE WAIVERS
AND LIMITATIONS.
(d) IF SELLER DISCLOSES TO BUYER IN WRITING OR BUYER
DISCLOSES TO SELLER IN WRITING PRIOR TO CLOSING, (I) A DEFAULT IN
ANY OF THE COVENANTS, AGREEMENTS OR OBLIGATIONS TO BE PERFORMED
BY SELLER UNDER THIS AGREEMENT, AND/OR (II) A MATERIAL INACCURACY
IN ANY REPRESENTATION OR WARRANTY OF SELLER MADE IN THIS
AGREEMENT OR PURSUANT TO SELLER'S REPRESENTATION CERTIFICATE, AND
BUYER ELECTS TO PROCEED TO CLOSING, THEN UPON THE CONSUMMATION OF
THE CLOSING, BUYER SHALL BE DEEMED TO HAVE WAIVED ANY SUCH
DEFAULT AND/OR MATERIAL INACCURACY AND SHALL HAVE NO CLAIM
AGAINST SELLER ON ACCOUNT THEREOF. IN PLACING THEIR INITIALS AT
THE PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS THE
ACCURACY OF THE STATEMENTS MADE IN THIS SECTION 9.2 AND THE FACT
THAT EACH PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE
CONSEQUENCES OF THESE DAMAGES PROVISIONS AT THE TIME THIS
AGREEMENT WAS MADE
AUTHORIZED REPRESENTATIVE
OF SELLER'S INITIALS
BUYER'S OR AUTHORIZED REPRESENTATIVE
OF BUYER'S INITIALS
9.3. TERMINATION. Notwithstanding anything contained
herein, this Agreement may be terminated as follows:
(a) By Seller, if any reductions or adjustments to the
Purchase Price result in the Purchase Price being reduced to
an amount which is less than the purchase price that would
be produced by the final bid submitted by the Xxxxxx
Defendants, as such term is defined in the Stipulation of
Settlement with Xxxxxx Defendants pertaining to the
Litigation;
(b) By Seller or Buyer in accordance with any rights
of termination expressly conferred under the terms of this
Agreement or if any of the applicable conditions precedent
have not been satisfied or waived by the party who is the
beneficiary of such conditions precedent; and
(c) By Seller or Buyer as to all of the Properties, if
a court of competent jurisdiction or arbitrator issues a
binding and final order permanently preventing the sale of
any Property to Buyer.
In the event this Agreement is terminated in its
entirety or as to a particular Property pursuant to any of the
foregoing provisions, this Agreement shall thereupon become null
and void in its entirety or as to such Property, as applicable,
and neither Seller nor Buyer nor any of their respective
representatives shall have any further rights or obligations
hereunder, provided, however, that the Confidentiality Agreement
and the Indemnification Agreement (each as defined herein) shall
remain in full force and effect. If this Agreement is terminated
as to a particular Property pursuant to the foregoing provisions,
the Purchase Price shall be reduced by an amount equal to the
Allocated Purchase Price for such Property.
10. ARBITRATION.
10.1. ARBITRATION OF DISPUTES.
The parties agree that any controversy or claim arising
out of or related to this Agreement, whether claimed under the
law of tort or the law of contract or any other laws, shall be
submitted to the American Arbitration Association (the
"Association") (or any successor organization) for arbitration.
Notwithstanding the foregoing, the parties shall have the right
to file an action for injunctive relief with a court of competent
jurisdiction to preserve the status quo pending the final
resolution of such arbitration. All arbitration shall be finally
determined in New York City and shall be governed in accordance
with the Rules for Commercial Arbitration of the Association (or
any successor thereto) and the judgment or the award rendered may
be entered in any court having jurisdiction provided that the
judgment or award is based upon the proper interpretation and
application of New York law. Each party shall pay 50% of the
fees and expenses of the Association. If the matter in dispute
arises prior to the Closing Date, the Closing Date shall be
adjourned pending resolution of the matter in dispute. Upon
resolution of such dispute the parties shall take whatever action
is required to be taken pursuant to this Agreement or the final
determination of an arbitrator.
10.2. LIMITATION ON DISCOVERY. In a mutual effort
to expedite the arbitration and limit the cost of dispute
resolutions, the parties agree that there shall be limited
discovery as directed by the arbitrator, and if a party intends
to call its own expert witness or adduce expert testimony, then
that party must notify the other party of the name, address and
all educational background of that witness and provide a complete
(complete means no subsequent data, references or opinions may be
added, referred to or testified to) report describing all of such
expert's investigations, findings and conclusions not later than
sixty (60) days before arbitration. Each party shall, on written
demand, make its expert available for deposition not later than
twenty (20) days before the arbitration hearing. Failure to make
the expert available for deposition shall permanently preclude
the arbitrator(s) from considering the expert's testimony. The
deposition may not be admitted or used as a substitute for the
live testimony of the expert at the hearing under any
circumstances. The arbitrator(s) shall not have the power to
subpoena any documents, records, reports or writings of either
party.
11. CONDUCT OF BUSINESS. During the period from
January 15, 1999 (the "Final Bid Date") to the Closing Date,
except (i) as Buyer shall otherwise agree, (ii) as necessary in
connection with the transactions contemplated herein, or (iii) as
otherwise permitted under Article 4 hereof, Seller shall operate
the Property in the ordinary and usual course, consistent with
past practice.
(a) Between Final Bid Date and the Closing Date,
Seller agrees that, without Buyer's written
consent in each case, it will not voluntarily
grant, create, assume or permit to be created any
mortgage, lien, encumbrance, easement, covenant,
condition, right-of-way or restriction upon the
Property or voluntarily take or permit any action
adversely affecting the title to the Property as
it exists on the date hereof.
(b) Between the date hereof and the Closing Date,
Seller agrees that, without Buyer's prior written
consent, it will not enter into any new leases
except in accordance with the leasing guidelines
and credit approval guidelines attached hereto as
Schedule 10.
(c) Between the Final Bid Date and the Closing Date,
the Seller will not remove any material Personalty
from the Property except in the ordinary course of
business and provided such Personalty is replaced
with items of the same or better quality.
(d) Seller will not return any security deposits held
or required to be held by Seller which have been
deposited by tenants with respect to Leases
terminating between the date hereof and the
Closing Date unless and until Seller has verified
that all equipment, fixtures and appliances
located in the subject apartment are in working
order and the apartment is otherwise in the
condition required for the return of such deposits
under such Leases.
The Provisions of this Section 11 shall survive the
Closing for a period of ninety (90) days.
12. REASONABLE EFFORTS; PUBLIC ANNOUNCEMENTS. Each
party hereto will use all reasonable efforts to perform all acts
required to consummate the transactions contemplated hereby as
promptly as practicable. Such acts shall include, without
limitation, the provision of any information to and submission of
any filing with any governmental entity having jurisdiction. The
foregoing notwithstanding, except as may be required to comply
with the requirements of any applicable laws or regulations or of
the court with respect to the Litigation and the rules and
regulations of each stock exchange upon which the securities of
one of the parties is listed (including, but not limited to, the
filing of Form 8-K by Seller) and except communications by Seller
to holders of limited partnership interests in Seller (copies of
which will be made available to employees of the general partners
of Seller or their affiliates who, in the case of communications
which include the Purchase Price, shall be informed of Seller's
obligations under this Section 12), no press release or similar
public announcement or communication shall, if prior to the
Closing, be made or caused to be made concerning the execution or
performance of this Agreement, unless the parties shall have
consulted in advance with respect thereto. Subject to the
provisions of Section 13.8(b), Seller's obligations under the
previous sentence shall survive the Closing. In the event Buyer
elected to inspect the Property prior to the Auction, Buyer has
agreed to indemnify and hold Seller harmless with respect matters
relating to such inspections in accordance with a certain
Inspection Indemnification Agreement dated January 7, 1999,
executed by affiliates of Buyer (the "Indemnification
Agreement"). Buyer shall keep such information confidential,
subject to the terms and conditions of the Confidentiality
Agreement dated October 28, 1998, by affiliates of Buyer (the
"Confidentiality Agreement").
13. GENERAL PROVISIONS.
13.1. TIME. Time shall be of the essence of this
Agreement. If any expiration or deadline date falls on a
Saturday, Sunday or legal holiday, it shall be extended to the
next following business day.
13.2. EFFECT OF WAIVER OF PROVISION OR REMEDY. No
waiver by a party of any provision of this Agreement shall be
considered a waiver of any other provision or any subsequent
breach of the same or any other provision, including the time for
performance of any such provision. The exercise by a party of
any remedy provided in this Agreement or at law shall not prevent
the exercise by that party of any other remedy provided in this
Agreement or at law.
13.3. INTEGRATED ENTIRE AGREEMENT. This Agreement
and the attached exhibits, along with the Confidentiality
Agreement, the Escrow Agreement and the Indemnification Agreement
constitute the entire agreement between the parties relating to
the sale of the Property. Any prior agreements, promises,
negotiations, or representations not expressly set forth in this
Agreement in writing are of no force and effect and may not be
relied upon for any purpose whatsoever by any party to this
Agreement. Any amendment to this Agreement shall be of no force
and effect unless it is in writing and signed by Buyer and
Seller. Any statements or representations made by any person,
whether or not a party to the Agreement, whether or not an
employee or other representative of Seller or Buyer, shall not be
relied upon by either Seller or Buyer and shall not be of any
force and effect for any purpose whatsoever, except for the
statements and representations in this Agreement.
13.4. NO REPRESENTATION REGARDING LEGAL EFFECT OF
DOCUMENT. No representation, warranty, or recommendation is made
by Seller or the Protected Group, or their brokers, respective
agents, employees, or attorneys regarding the legal sufficiency,
legal effect, or tax consequences of this Agreement or the
transaction, and each signatory has had the opportunity to submit
this Agreement to its qualified legal and/or financial advisor
before signing it.
13.5. COUNTERPARTS. This Agreement and all
amendments and supplements to it may be executed in any number of
counterparts, at different places and times, all of which taken
together shall constitute one and the same instrument, which
shall be deemed dated as of the day and year first above written.
Buyer and Seller shall each receive one duplicate original.
13.6. BINDING ON SUCCESSORS. This Agreement inures
to the benefit of, and is binding on, the parties and, without
affecting the limitations of paragraph 9, their respective heirs,
personal representatives, successors, and assigns.
13.7. INTERPRETATION. Titles and headings of
sections of this Agreement are for convenience of reference only
and shall not affect the construction of any provision of this
Agreement. All recitals set forth at the beginning of this
Agreement are, by this reference, fully incorporated into this
Agreement. All exhibits referred to in this Agreement are deemed
fully incorporated herein. As used herein: (a) the singular
shall include the plural (and vice versa) and the masculine or
neuter gender shall include the feminine gender (and vice versa)
as the context may require; (b) locative adverbs such as
"herein", "hereto", and "hereunder" shall refer to this Agreement
in its entirety and not to any specific section or paragraph; and
(c) the terms "include", "including", and similar terms shall be
construed as though followed immediately by the phrase "but not
limited to". All parties have jointly participated in the
negotiation and drafting of this Agreement, upon advice of their
own independent counsel or have had an opportunity to do so, and
this Agreement shall be construed fairly and equally as to all
parties as if drafted jointly by them.
13.8. SURVIVAL. (a) Except as otherwise expressly
provided in this Agreement, no provision of this Agreement,
(i.e., no representation warranty, covenant, certification,
indemnification, agreement or other obligation set forth in any
provision of this Agreement, in Seller's Representation
Certificate or in Seller's certification of any rent rolls) shall
survive the Closing (and, accordingly, no claim arising out of
the same may be commenced after the Closing), and the delivery
and acceptance of the conveyance deed shall be deemed to be full
performance and discharge of each such representation,
certification, indemnification, warranty, covenant, agreement or
other obligation.
(b) WITH RESPECT TO (I) AN INACCURACY IN ANY REPRESENTATION
OR WARRANTY OF SELLER MADE PURSUANT TO SECTION 7.3 HEREOF (AS
MADE AS OF THE DATE HEREOF) OR AN INACCURACY IN ANY
REPRESENTATION OR WARRANTY OF SELLER MADE PURSUANT TO SELLER'S
REPRESENTATION CERTIFICATE (AS MADE AS OF THE CLOSING DATE)
WHICH, IN ANY CASE, HAS A MATERIAL ADVERSE EFFECT ON BUYER,
EXPRESSLY SURVIVES THE CLOSING PURSUANT TO THIS AGREEMENT AND IS
NOT WAIVED HEREUNDER OR (II) A DEFAULT IN ANY OF THE COVENANTS,
AGREEMENTS OR OBLIGATIONS TO BE PERFORMED BY SELLER UNDER THIS
AGREEMENT (OTHER THAN SECTIONS 3.4, 3.5, 3.6, 6 AND 12) WHICH
EXPRESSLY SURVIVES THE CLOSING AND IS NOT WAIVED HEREUNDER, BUYER
SHALL HAVE, AS ITS SOLE REMEDY THEREFOR, A CLAIM AGAINST SELLER
TO BE SATISFIED SOLELY FROM THE POST-CLOSING ESCROW ON ACCOUNT
THEREOF; PROVIDED THAT (1) ANY SUCH CLAIM NOT BROUGHT WITHIN
NINETY (90) DAYS AFTER THE CLOSING DATE SHALL BE DEEMED WAIVED,
(2) BUYER HEREBY WAIVES THE RIGHT TO COLLECT OR SEEK TO COLLECT
PUNITIVE DAMAGES, (3) IN NO EVENT SHALL SELLER'S AGGREGATE
LIABILITY FOR ANY SUCH CLAIM EXCEED THE AMOUNT OF FUNDS IN THE
POST-CLOSING ESCROW, AND BUYER HEREBY WAIVES THE RIGHT TO COLLECT
OR SEEK ANY AMOUNTS IN EXCESS OF THE AMOUNT OF THE POST-CLOSING
ESCROW, (4) IN NO EVENT SHALL SELLER BE RESPONSIBLE FOR THE FIRST
FIFTY THOUSAND AND 00/100 DOLLARS ($50,000.00) PER PROPERTY OF
LIABILITIES, LOSS, CURATIVE COST OR EXPENSE WITH RESPECT TO ANY
INACCURACIES (IN THE AGGREGATE) DESCRIBED IN CLAUSE (I) ABOVE AND
(5) IN THE EVENT THAT BUYER'S CLAIM IS DETERMINED TO EXCEED THE
AMOUNT OF THE POST-CLOSING ESCROW, BUYER AGREES TO ACCEPT THE
AMOUNT OF THE POST-CLOSING ESCROW AS LIQUIDATED AND AGREED UPON
DAMAGES, WHEREUPON NEITHER SELLER NOR ANY OF ITS REPRESENTATIVES
SHALL HAVE ANY FURTHER LIABILITIES OR OBLIGATIONS HEREUNDER AT
LAW OF IN EQUITY FOR DAMAGES OR OTHERWISE OTHER THAN SURVIVING
OBLIGATIONS, IF ANY, UNDER SECTIONS 3.4, 3.5, 3.6, 6 AND 12
HEREOF. ANY DAMAGE AMOUNT TO BE PAID PURSUANT TO CLAUSE (5)
ABOVE IS PRESUMED TO BE THE AMOUNT OF DAMAGES SUSTAINED BY A
BREACH, AS IT WOULD BE IMPRACTICAL OR EXTREMELY DIFFICULT TO FIX
THE ACTUAL AMOUNT OF DAMAGES. BUYER HEREBY WAIVES ALL REMEDIES
WITH RESPECT TO ANY DEFAULT BY SELLER OF ITS OBLIGATIONS UNDER
SECTION 12 HEREOF AND THE CONFIDENTIALITY AGREEMENT WHICH
EXPRESSLY SURVIVE THE CLOSING AND ARE NOT WAIVED HEREUNDER
(INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR MONETARY DAMAGES),
OTHER THAN PURSUIT OF A RESTRAINING ORDER OR INJUNCTIVE RELIEF TO
PREVENT SELLER'S VIOLATION OF SUCH PROVISION TO THE EXTENT
AVAILABLE TO BUYER UNDER APPLICABLE LAW. NOTWITHSTANDING
ANYTHING CONTAINED HEREIN, IN NO EVENT SHALL SELLER (BEYOND ITS
INTEREST IN THE PROPERTY) OR THE PROTECTED GROUP HAVE ANY
PERSONAL LIABILITY UNDER THIS AGREEMENT WHATSOEVER AND BUYER
SHALL UNDER NO CIRCUMSTANCES INITIATE ANY ACTION IN COURT OR BY
ARBITRATION AGAINST THE PROTECTED GROUP UNLESS IT IS
PROCEDURALLY REQUIRED BY LAW TO NAME A MEMBER OF THE PROTECTED
GROUP IN ORDER TO INITIATE SUCH PROCEEDING, WHICH NAMING SHALL
NOT ALTER THE ABOVE WAIVERS AND LIMITATIONS. IN PLACING THEIR
INITIALS AT THE PLACES PROVIDED, EACH PARTY SPECIFICALLY CONFIRMS
THE ACCURACY OF THE STATEMENTS MADE ABOVE AND THE FACT THAT EACH
PARTY WAS REPRESENTED BY COUNSEL WHO EXPLAINED THE CONSEQUENCES
OF THIS DAMAGES PROVISION AT THE TIME THIS AGREEMENT WAS MADE.
AUTHORIZED REPRESENTATIVE
OF SELLER'S INITIALS
BUYER'S OR AUTHORIZED REPRESENTATIVE
OF BUYER'S INITIALS
(c) For purposes of this Section 13.8, the phrase "material
adverse effect on Buyer" shall mean one or more inaccuracies in
any of the representations or warranties made by Seller pursuant
to Section 7.3 hereof or pursuant to Seller's Representation
Certificate where Buyer can reasonably demonstrate that the
liabilities, loss, curative cost or expense with respect to a
particular Property resulting from such inaccuracies are more
than Fifty Thousand and 00/100 Dollars ($50,000.00). If any such
inaccuracies in any representation or warranty under Section 7.3
or pursuant to Seller's Representation Certificate shall not have
a material adverse effect on Buyer, as determined in accordance
with this Section 13.8 then Buyer shall not be entitled to any
right or remedy under this Agreement, at law or equity, as a
result of such inaccuracies.
(d) The provisions of this Section 13.8 shall survive
Closing or any termination of this Agreement.
13.9. NOTICES. All elections, notices and demands
required or permitted hereunder shall be given in writing and
shall be delivered either by: personal service or a national
overnight delivery service such as Federal Express. Facsimile
transmission is acceptable provided however that such
transmission shall be followed by next day delivery via one of
the foregoing means of delivery. Notices shall be addressed or
transmitted as appears below for each party; provided, that if
any party gives notice of a change of name or address, notices to
the giver of that notice shall thereafter be given as set forth
in that notice. Notice shall be deemed delivered and effective
upon actual receipt at the following addresses or such other
addresses as the parties may notify each other by similar notice:
If to Seller, to:
Prudential-Bache Properties, Inc.
One Seaport Plaza
000 Xxxxx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
With a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxx Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to Buyer, to:
x/x Xxxxxxxxx Xxxxxx Real Estate Limited Partnership XI
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxxx
Facsimile No.: (000) 000-0000
With copies to:
Archon Group, L.P.
000 Xxxx Xxx Xxxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxx III
Facsimile No.: (000) 000-0000
and
Arent Fox Xxxxxxx Xxxxxxx & Xxxx, PLLC
0000 Xxxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
13.10. PUNITIVE DAMAGES. Each party waives any
claims it may now have or may in the future have arising out of
this transaction for exemplary, punitive and/or penalty damages.
13.11. INSURANCE. Buyer shall be responsible for
obtaining casualty and liability insurance on the Property as of
the Closing Date.
13.12. ASSIGNMENT. Buyer may not assign this
Agreement without Seller's prior written consent except to an
entity controlling, controlled by or under common control with
Whitehall Street Real Estate Limited Partnership XI
("Whitehall"), in which Whitehall directly or indirectly holds
greater than fifty percent (50%) of the ownership interests (an
"Affiliate"). The valid assignment of this Agreement shall not
relieve Buyer of liability under this Agreement, unless to an
Affiliate which assumes all of Buyer's obligations hereunder.
Buyer shall deliver to Seller a copy of any such assignment
together with such additional information regarding the assignee
as Seller may reasonably request not less than ten (10) days
prior to Closing.
13.13. SEVERABILITY. In the event that any
provision of this Agreement, including the arbitration
provisions, is determined to be unlawful then that provision
shall be deemed stricken and the balance of the Agreement shall
be enforceable. If the stricken provision relates to the
arbitration procedure, then the stricken provision shall be
replaced by such provision as is statutorily required.
13.14. ATTORNEYS' FEES, COSTS AND PRE-JUDGMENT
INTEREST. Each party waives any right to claim attorneys' fees,
costs or pre-judgment interest in connection with any dispute or
award concerning this transaction, except as expressly provided
for herein.
13.15. GOVERNING LAW. This contract and the legal
relations between the parties shall be governed by and construed
in accordance with the substantive laws of the State of New York.
13.16. FURTHER ASSURANCES. Each of the parties
hereto shall, at the request of the other party, execute,
acknowledge and deliver any further instruments, and take such
further actions, as the requesting party may reasonably request,
to carry out effectively the intent of this Agreement. The
provisions of this Section 13.16 shall survive the Closing.
13.17. SANDPEBBLE VILLAGE ZONING MATTERS.
Notwithstanding anything to the contrary contained herein, (a)
the obligation of Buyer to close under this Agreement with
respect to the Property known as Sandpebble Village, Sparks,
Nevada (the "Sandpebble Property") is subject, in addition to the
conditions set forth in Section 3.10 hereof, to the delivery by
Seller to Buyer, at Seller's sole cost and expense, prior to or
at Closing, of documentation providing valid evidence that the
appropriate municipal authority in Sparks, Nevada with
jurisdiction has (i) removed condition number three set forth in
the special use permit, case no. SP-81-82 dated December 29, 1982
(as amended or modified) under which the Sandpebble Property was
developed, and (ii) issued the appropriate variance and amendment
to special use permit, zoning change or other measure such that
the current number of residential units located on the Sandpebble
Property are permitted under the municipal density requirements
of Sparks, Nevada without further conditions or restrictions on-site or
off-site (collectively, the "Additional Sandpebble
Condition"), (b) the Additional Sandpebble Condition may be
waived in writing by the Buyer, (c) the Additional Sandpebble
Condition shall not be a condition to Buyer's obligation to close
under this Agreement with respect to any other Property, (d)
Seller may, but shall not be obligated to, adjourn the Closing
Date with respect to the Sandpebble Property for a period not
exceeding seventy-five (75) days in the event that the Additional
Sandpebble Condition shall not have been satisfied on or prior to
the scheduled Closing Date, (e) Seller shall have no obligation
to satisfy the Additional Sandpebble Condition, and the failure
of such condition to be satisfied shall in no event (x)
constitute a default by Seller or a breach of any of Seller's
representations or warranties, (y) be the basis of any claim by
Buyer against Seller, or any right of Buyer to terminate this
Agreement with respect to any Property other than the Sandpebble
Property or to request an adjustment to the Purchase Price (other
than a reduction in an amount equal to the Allocated Purchase
Price for such Property), or (z) otherwise affect or excuse any
of Buyer's covenants, agreements or obligations under this
Agreement, and (f) in the event that Seller has not satisfied the
Additional Sandpebble Condition on or prior to the Closing Date
(as the same may be adjourned by Seller as provided above), and
Buyer shall not have elected to waive such condition, Seller may,
at Seller's option, withdraw the Sandpebble Property from this
Agreement and terminate this Agreement as to such Property, upon
which termination, provided that Buyer is not in default
hereunder, Seller shall instruct the Escrow Agent to return the
Allocated Xxxxxxx Money with respect to such Property to Buyer.
13.18. THIS AGREEMENT SHALL NOT BE BINDING AND
EFFECTIVE UNTIL EXECUTED BY BOTH BUYER AND SELLER.
[BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Agreement is executed by the parties on
the date first above written.
BUYER:
WXI/SPN REAL ESTATE LIMITED PARTNERSHIP
By: WXI/SPN Gen-Par, L.L.C.,
General Partner
By: /s/ Xxxx Xxxx
----------------------
SELLER(S):
PRUDENTIAL-BACHE/X.X. XXXXXX
REALTY PARTNERS L.P., I
By: Prudential-Bache Properties, Inc.,
General Partner
By: /s/ Xxxxx X. Xxxxxx
--------------------------
By: X.X. Xxxxxx Realty Partners, L.P., a
California limited partnership,
General Partner
By: AGS Financial Corporation,
General Partner
By: /s/ Xxxxxx X. Xxxx
--------------------------
By: X.X. Xxxxxx Realty Capital, Inc.,
General Partner
By: /s/ Xxxxxx X. Xxxx
--------------------------
SCHEDULE 1
PROPERTY NAMES AND LOCATIONS/XXXXXXX
Xxxxxxx Creek, Tempe, AZ
Prudential-Bache/X.X. Xxxxxx Realty
Partners L.P., I
Xxxxxxxx Crest, San Diego, CA
Prudential-Bache/X.X. Xxxxxx Realty
Partners L.P., I
Pointe West, Aurora, CO
Prudential-Bache/X.X. Xxxxxx Realty
Partners L.P., I
Sandpebble Village, Sparks, NV
Prudential-Bache/X.X. Xxxxxx Realty
Partners L.P., I
SCHEDULE 2
PREPAYMENT FEES
Cameron Creek, Tempe, AZ
None
Xxxxxxxx Crest, San Diego, CA
None
Pointe West, Aurora, CO
None
Sandpebble Village, Sparks, NV
None
SCHEDULE 3
PURCHASE PRICE AND XXXXXXX MONEY ALLOCATIONS/
TAX ALLOCATIONS
A. The following sets forth the Allocated Purchase Price and
the Allocated Xxxxxxx Money for each of the Properties:
Cameron Creek, Tempe, AZ
$10,512,306
$525,600
Xxxxxxxx Crest, San Diego, CA
$20,833,492
$ 1,041,600
Pointe West, Aurora, CO
$6,496,033
$324,750
Sandpebble Village, Sparks, NV
$9,062,091
$453,050
B. The following sets forth the portion of the Allocated
Purchase Price allocated to Personalty for all of the
Properties:
Cameron Creek, Tempe, AZ
$158,250
Xxxxxxxx Crest, San Diego, CA
$162,000
Pointe West, Aurora, CO
$103,500
Sandpebble Village, Sparks, NV
$177,000
SCHEDULE 4
SERVICE CONTRACTS
SCHEDULE 5
PROPERTY MANAGEMENT CONTRACTS
Cameron Creek, Tempe, AZ
November 18, 0000
Xxxxxxxx Xxxxx, Xxx Xxxxx, XX
November 18, 0000
Xxxxxx Xxxx, Xxxxxx, XX
November 18, 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxx, XX
November 18, 1988
SCHEDULE 6
(RENT ROLLS/DELINQUENCY REPORTS/
SECURITY DEPOSIT REPORTS)
SCHEDULE 7
LITIGATION
SCHEDULE 8
ENVIRONMENTAL REPORTS
Xxxxxxxx Crest
San Diego CA
9/17/1997
Phase I Environmental Assessment
Cameron Creek (Arizona)
Tempe AZ
10/16/1997
Phase I Environmental Assessment
Pointe West
Aurora CO
9/9/1997
Phase I Environmental Assessment
Sandpebble Village
Sparks NV
10/2/1997
Phase I Environmental Assessment
SCHEDULE 9
ENGINEERING REPORTS
Xxxxxxxx Crest
San Diego, CA
Property Condition Report
Xxxxxxx Consultants
9/17/1997
Seismic Report
Xxxxxxx Consultants
9/17/1997
Sandpebble Village
Sparks, NV
Property Condition Report
Xxxxxxx Consultants
9/16/1997
Cameron Creek
Tempe, AZ
Property Condition Report
Xxxxxxx Consultants
10/16/1997
Pointe West
Aurora, CO
Property Condition Report
Xxxxxxx Consultants
9/8/1997
SCHEDULE 10
LEASING AND CREDIT APPROVAL GUIDELINES
