PURCHASE AND SALE AGREEMENT
Execution
Version
THIS
PURCHASE AND SALE AGREEMENT (this “Agreement”) is dated
as of August 11, 2008, by and among Xxxxxxx X.
Xxxxxx (“Xxxxxx”), an individual
and Xxxxxx X. Xxxxxxx (“Xxxxxxx”), an individual
(each a “Limited Partner”,
collectively, the “Limited Partners”),
limited partners of Executive House Associates, a Pennsylvania limited
partnership (the “Partnership”), and
Shoreline/Marin, LLC, a Delaware limited liability company (“Shoreline” or “Special Limited
Partner” and, together with the Limited Partners, the “Seller”), a special
limited partner of the Partnership, each with an address of Executive House
Associates, c/o EB Realty Management Corp., 000 Xxxxx 0xx Xxxxxx, Xxxxx 000,
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, Attention: Xxxx Xxxxxxx, Facsimile No.
000-000-0000 and BIR Executive GP, L.L.C., a Delaware limited liability company
(the “GP Buyer”) and BIR
Executive LP, L.L.C., a Delaware limited liability company (the “LP Buyer” and, together
with the GP Buyer, the “Buyer”), with an
address of c/o Berkshire Property Advisors, L.L.C., Xxx Xxxxxx Xxxxxx, Xxxxx
0000, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx Xxxxx, Facsimile
No. 000-000-0000.
RECITALS
WHEREAS,
Packer owns a 1.255610% limited partner interest (the “Packer Partnership
Interest”) in the Partnership);
WHEREAS,
Xxxxxxx owns a 1.255610% limited partner interest (the “Xxxxxxx Partnership
Interest”);
WHEREAS,
Shoreline owns a 1.014006% special limited partner interest (the “Shoreline Partnership
Interest”; collectively with the Packer Partnership Interest and the
Xxxxxxx Partnership Interest, the “Partnership
Interests”) in the Partnership;
WHEREAS,
the Partnership is the owner of that certain tract or parcel of land located at
0000 Xxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx upon which is located the three
hundred and two (302) unit apartment complex commonly known as Executive House
which contains related improvements, facilities, amenities, structures,
driveways and walkways, all of which have been constructed on the Land
(collectively, the “Improvements”), and
certain personal property (the Land and Improvements are collectively referred
to as the “Real
Property,” and the Real Property and the Personal Property are
collectively referred to as the “Property”);
WHEREAS,
Seller and Buyer desire to enter into this Agreement pursuant to which Seller
shall sell the Partnership Interests to Buyer, and Buyer shall purchase the
Partnership Interests from Seller, upon the terms and conditions hereinafter set
forth;
WHEREAS,
simultaneously with the execution of this Agreement Buyer shall enter into a
Purchase and Sale Agreement with the remaining partners of the Partnership, as
sellers, and Buyer, as buyer, pursuant to which Buyer is to acquire all of the
remaining partnership interests in the Partnership (the “Master Agreement”);
and
WHEREAS,
pursuant to the Master Agreement, EHGP, Inc., a Pennsylvania corporation, the
Buyer may elect to require the general partner of the Partnership to cause the
Partnership to convert into a Delaware limited liability company in the name of
BIR Executive House, L.L.C., a Delaware limited liability company (the “Company”), whose
members shall be all of the partners of the Partnership.
NOW,
THEREFORE, in consideration of the foregoing, of the covenants, promises and
undertakings set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
SECTION
1
PURCHASE AND
SALE
1.01 Purchase by
Buyer. Upon the terms and subject to the conditions set forth
in this Agreement, Buyer agrees to purchase the Partnership Interests from
Seller, and Seller agrees to sell the Partnership Interests to
Buyer. Seller hereby consents to the conversion of the
Partnership from a Pennsylvania limited partnership into a Delaware limited
liability company pursuant to the Master Agreement. Upon the
conversion of the Partnership to a Delaware limited liability company, without
any further action by either Buyer or Seller, all references herein to the
“Partnership” shall automatically be deemed references to the “Company” and all
references herein to the “Partnership Interests” shall automatically be deemed
references to the “Membership Interests” in the Company.
1.02 Payment of Purchase
Price. The purchase price for the Packer
Partnership Interest shall be One Hundred Seven Thousand Seven
Hundred Ninety-Six and 00/100 Dollars ($107,796.00); the Purchase Price for the
Xxxxxxx Partnership Interest shall be One Hundred Seven Thousand Seven Hundred
Ninety-Six and 00/100 Dollars ($107,796.00); and the Purchase Price for the
Shoreline Partnership Interest shall be One Million One Hundred Seventeen
Thousand Six Hundred Twelve and 00/100 Dollars
($1,117,612.00); (collectively, the “Purchase
Price”). The Purchase Price shall be paid at the Closing (as
defined in Section 1.03 hereof) by wire transfer of immediately available funds
to the accounts of Seller.
1.03 Closing. Except
as otherwise provided in this Agreement, the closing of the transactions
contemplated by this Agreement (the “Closing”) shall occur
concurrently with closing under that certain Purchase and Sale Agreement dated
of even date herewith by and among the remaining partners of the Partnership as
sellers and Buyer, as buyer, pursuant to which Buyer is to acquire the all other
partnership interests in the Partnership (the “Master Agreement”). In
the event the Master Agreement is terminated for any reason, Buyer or Seller
shall have the right to terminate this Agreement by notice to the other and in
such event this Agreement shall be of no further force or effect. It
is agreed that time is of the essence.
SECTION
2
REPRESENTATIONS AND
WARRANTIES OF SELLER
The
Limited Partners and the Special Limited Partner each as to itself as a Seller,
hereby represents and warrants to Buyer as follows:
2.01 Ability to
Perform. Seller has full power to execute, deliver and carry
out the terms and provisions of this Agreement and Seller has taken all
necessary action to authorize the execution, delivery and performance of this
Agreement, and this Agreement constitutes the legal, valid and binding
obligation of Seller, enforceable against Seller in accordance with its
terms. No order, permission, consent, approval, license,
authorization, registration or validation of, or filing with, or exemption by,
any governmental agency, commission, board or public authority is required to
authorize, or is required in connection with, the execution, delivery and
performance of this Agreement by Seller or the taking by Seller of any action
contemplated by this Agreement.
2.02 No
Actions. There are no pending, or to Seller's knowledge,
threatened, legal actions or proceedings against the Seller, affecting or
relating to the Partnership Interests.
2.03 Financial
Status. Seller has not (a) made a general assignment for the
benefit of its creditors; (b) had an attachment, execution or other judicial
seizure of any property interest which remains in effect; or (c) become
generally unable to meet their financial obligations as they mature; and Seller
has not admitted in writing its inability to pay its debts as they
mature.
2.04 No
Bankruptcy. There is not pending any case, proceeding or other
action seeking reorganization, arrangement, adjustment, liquidation, dissolution
or recomposition of Seller, or the debts of Seller, under any law relating to
bankruptcy, insolvency, reorganization or the relief of debtors, or seeking the
appointment of a receiver, trustee, custodian or other similar official for
Seller.
2.05 Status of Interests. The
Packer Partnership Interest is owned (of record and beneficially) by Packer; the
Xxxxxxx Partnership Interest is owned (of record and beneficially) by Xxxxxxx;
and the Shoreline Partnership Interest is owned (of record and beneficially) by
Shoreline. The Partnership Interests are duly authorized, validly issued, fully
paid, nonassessable, and free and clear of liens and encumbrances of any
nature. Seller is not bound by any (a) outstanding subscriptions,
options, warrants, calls, commitments or agreements of any character calling for
it to issue, deliver or sell, or cause to be issued, delivered or sold, any
partnership interest or any other equity security of the Partnership, or (b)
securities convertible into, exchangeable for, or representing the right to
subscribe for, purchase or otherwise receive, any partnership interest or any
other equity security of the Partnership, or obligating it to grant, extend or
enter into any such subscriptions, options, warrants, calls, commitments or
agreements.
A/72601421.7
1
2.06 Non-Contravention. The
execution and delivery of this Agreement and any document, agreement or
instrument to be executed and delivered by Seller in connection herewith, and
the consummation of the transactions contemplated hereby and thereby, will
not
2.07 (a)
violate or conflict with any provision of the governing or constituent documents
of the Partnership, or (b) constitute a violation of, or be in conflict with, or
constitute or create a default under, or result in the creation or imposition of
any encumbrance upon any property of either Seller pursuant to (i) any agreement
or instrument to which Seller or is a party or by which any of its respective
properties is bound, or (ii) to Seller’s actual knowledge, any statute,
judgment, decree, order, regulation or rule of any court or governmental or
regulatory authority.
2.08 Disclosure. No
representation or warranty by Seller in this Agreement or, to Seller’s
knowledge, in any exhibit, schedule, written statement, certificate or other
document delivered or to be delivered to Buyer pursuant hereto or in connection
with the consummation of the transactions contemplated hereby contains or will
contain any untrue statement of a material fact or omits or will omit to state a
material fact required to be stated therein or necessary to make the statements
contained therein not misleading.
At
Closing, each of the persons comprising Seller shall represent and warrant to
Buyer by delivering to Buyer a certificate (the “Seller's Representation Certificate”)
certifying that as to itself, all representations and warranties it makes in
this Agreement remain true and correct as of the Closing Date and all of the
representations and warranties contained herein shall be deemed remade by it
effective as of the Closing Date.
SECTION
3
REPRESENTATIONS AND
WARRANTIES OF BUYER
3.01 Ability to
Perform. Buyer has full power to execute, deliver and carry
out the terms and provisions of this Agreement, Buyer has taken all necessary
action to authorize the execution, delivery and performance of this Agreement,
and this Agreement constitutes the legal, valid and binding obligation of Buyer,
enforceable against Buyer in accordance with its terms. No order,
permission, consent, approval, license, authorization, registration or
validation of, or filing with, or exemption by, any governmental agency,
commission, board or public authority is required to authorize, or is required
in connection with, the execution, delivery and performance of this Agreement by
Buyer or the taking by Buyer of any action contemplated by this
Agreement.
3.02 No
Actions. There are no pending, or to Buyer's knowledge,
threatened legal actions or proceedings to which Buyer is a party before any
court or other governmental authority which may have an adverse impact on the
transactions contemplated hereby.
3.03 Non-Contravention. The
execution and delivery of this Agreement and any document, agreement or
instrument to be executed and delivered by Buyer in connection herewith, and the
consummation of the transactions contemplated hereby and thereby, will not (a)
violate or conflict with any provision of the governing or constituent documents
of Buyer, or (b) constitute a violation of, or be in conflict with, or
constitute or create a default under, or result in the creation or imposition of
any encumbrance upon any property of Buyer pursuant to (i) any agreement or
instrument to which such Buyer is a party or by which any of its properties is
bound, or (ii) any statute, judgment, decree, order, regulation or rule of any
court or governmental or regulatory authority.
SECTION
4
"AS IS"
PURCHASE
4.01 EXCEPT AS
EXPRESSLY SET FORTH IN THIS AGREEMENT, IT IS UNDERSTOOD AND AGREED THAT SELLER
IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY REPRESENTATIONS OR WARRANTIES OF
ANY KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT TO THE PROPERTY OR THE
PARTNERSHIP INTERESTS, INCLUDING, BUT NOT LIMITED TO, ANY REPRESENTATIONS OR
WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE. BUYER ACKNOWLEDGES AND AGREES THAT UPON THE CONSUMMATION OF
THE CLOSING, SELLER SHALL SELL AND CONVEY TO BUYER, AND BUYER SHALL ACCEPT, THE
PARTNERSHIP INTERESTS AND INDIRECTLY THE PROPERTY "AS IS, WHERE IS, WITH ALL
FAULTS," EXCEPT TO THE EXTENT EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT.
BUYER HAS NOT RELIED AND WILL NOT RELY ON, AND SELLER IS NOT LIABLE FOR OR BOUND
BY, ANY EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, STATEMENTS, REPRESENTATIONS
OR INFORMATION PERTAINING TO THE PROPERTY OR THE PARTNERSHIP INTERESTS
(INCLUDING SPECIFICALLY, WITHOUT LIMITATION, ANY PROSPECTUS OR PROXY STATEMENT
DISTRIBUTED WITH RESPECT TO THE PROPERTY OR PARTNERSHIP INTERESTS) MADE OR
FURNISHED BY SELLER TO WHOMEVER MADE OR GIVEN, DIRECTLY OR INDIRECTLY, ORALLY OR
IN WRITING, UNLESS SPECIFICALLY SET FORTH IN THIS AGREEMENT. BUYER
ALSO ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO ACCOUNT THAT
THE PROPERTY IS BEING INDIRECTLY SOLD "AS-IS." THE PROVISIONS OF THIS
SECTION SHALL SURVIVE CLOSING OR ANY TERMINATION OF THIS AGREEMENT.
SECTION
5
CONDITIONS TO
AGREEMENT
5.01 Buyer's Conditions
Precedent. Buyer's obligation to purchase the Partnership
Interests or otherwise to perform any obligation provided in this Agreement
shall be conditioned upon the fulfillment of the following conditions
precedent:
(a) Seller's
representations and warranties contained herein shall be true and correct in all
material respects as of the date of this Agreement and the Closing Date,
provided that any such representations and warranties that by their express
terms are already qualified by materiality shall be true and correct as
stated.
(b) Seller
delivering the Seller Deliveries (as defined below); and
(c) Closing
under the Master Agreement shall occur simultaneously with Closing hereunder and
the sellers under the Master Agreement shall have performed all of their
obligations under the Master Agreement.
5.02 Seller's Conditions
Precedent. Seller's obligation to sell the Partnership
Interests or otherwise to perform any obligation provided in this Agreement
shall be conditioned upon:
(a) Buyer
delivering the Purchase Price in accordance with Section 1;
(b) Buyer
delivering the Assignment Agreement (as defined below) and the balance of the
Purchase Price pursuant to the Master Agreement; and
(c) Closing
under the Master Agreement shall occur simultaneously with Closing
hereunder.
5.03 Waiver. A
party in whose favor one or more of the above conditions is stated may, at its
election, waive any of the foregoing conditions by written notice to the other
party given at any time or times; provided, that a party's express or implied
consent to the close of escrow pursuant to this Agreement shall be deemed a
waiver of all such conditions.
5.04 Termination. In
the event of the failure of any of the foregoing conditions, the party in whose
favor such condition is stated shall have the right, at its option, to terminate
this Agreement by delivery of written notice to the other party on or prior to
the day on which such condition is to have been satisfied. In the event of any
termination of this Agreement for failure of an express condition stated in this
Agreement, (a) Buyer and Seller shall be released from all obligations under
this Agreement (except for those obligations which expressly survive termination
hereunder).
A/72601421.7
2
SECTION
6
SELLER'S CLOSING
OBLIGATIONS
6.01 Closing Deliveries and
Obligations. At the Closing, Seller shall deliver
(or cause to be delivered) the following to Buyer (the “Seller
Deliveries”):
(a) Assignment and Assumption of
Interests. An Assignment and Assumption of Interests with
respect to the Partnership Interests (the "Assignment Agreement") in favor
of Buyer substantially in the form of Exhibit A
attached hereto, duly executed by Seller
(b) Miscellaneous. At
Buyer's reasonable request, any other documentation or information contemplated
by or required by this Agreement and reasonably necessary to consummate the
transactions contemplated by this Agreement without increasing the liabilities
and burdens or decreasing the rights and benefits of Seller under this Agreement
or the Master Agreement.
6.02 Seller's
Expenses. Seller shall pay its own counsel fees.
SECTION
7
BUYER'S CLOSING
OBLIGATIONS
7.01 Closing Deliveries and
Obligations. At the Closing, Buyer shall deliver (or caused to
be delivered) the following to Seller:
(a) Payment of Purchase Price
and Additional Amounts. The Purchase Price due to Seller
pursuant to Section 1 hereof.
(b) Assignment
Agreement. The Assignment Agreement, duly executed by
Buyer.
7.02 Buyer's
Expenses. Buyer shall pay its own counsel fees.
SECTION
8
FAILURE TO
PERFORM
8.01 Buyer's
Election. If Seller is unable to satisfy all of the Seller's
obligations as set forth in this Agreement, Buyer shall have the right to elect,
in its sole discretion, at the Closing, either to waive such failed obligations
and to accept the Partnership Interests subject to such unfulfilled obligations
and to pay therefor the Purchase Price without reduction or offset, in which
case Seller shall convey such Partnership Interests for such price.
8.02 Seller's
Default. If Seller fails to satisfy all of any of Seller's
obligations under this Agreement, and Buyer does not elect to acquire the
Partnership Interests as provided in Section 8.01 hereof, Seller shall be
in default under this Agreement. In such event, Buyer may either (a)
terminate this Agreement, in which case the Deposit made under the Master
Agreement (together with all interest accrued thereon) shall be forthwith
returned to Buyer and Buyer shall be entitled to recover Buyer's actual,
out-of-pocket expenses incurred in connection with its investigation of the
Property, negotiation of this Agreement, and proposed financing of the
acquisition (including, without limitation, reasonable attorneys' fees), not to
exceed $250,000 in the aggregate, or (b) if Buyer desires to purchase the
Partnership Interests in accordance with the terms of this Agreement, Buyer
shall have the right to compel specific performance by Seller hereunder (and
recover Buyer's reasonable attorneys' fees and costs in connection with Buyer's
specific performance action if a court of competent jurisdiction determines that
Buyer is the "prevailing party" in such action), provided, however, that if
specific performance is not available to Buyer because Seller has sold the
Partnership Interests to a third party, Buyer shall have the right to pursue any
and all remedies, at law or in equity, on account of such Seller
default.
8.03 Buyer's
Default. In the event of Buyer’s default hereunder, Seller
acknowledges that it shall be entitled to compensation only from the other
partners of the Partnership to the extent liquidated damages are received by
such partners under the Master Agreement.
SECTION
9
BROKERAGE
FEES
9.01 Brokerage
Fees. Seller and Buyer mutually represent and warrant that
neither Seller nor Buyer has dealt with any broker in connection with this
purchase and sale and that neither Seller nor Buyer knows of any broker who has
claimed or may have the right to claim a commission in connection with this
purchase and sale other than CB Xxxxxxx Xxxxx ("Broker"). Any
brokerage commission due to Broker shall be paid by seller under the Master
Agreement and neither Seller nor Buyer shall have no obligation to pay a
brokerage commission to Broker. Seller and Buyer shall indemnify and
defend each other against any costs, claims or expenses, including reasonable
attorneys' fees and expenses, arising out of the breach on their respective
parts of any representations, warranties or agreements contained in this Section
9.01. The representations and obligations under this Section 9.01
shall survive the Closing or, if the Closing does not occur, the termination of
this Agreement.
SECTION
10
NOTICES
10.01 Effective
Notices. All notices under this Agreement shall be in writing
and shall be delivered personally or shall be sent by Federal Express or other
comparable overnight delivery courier, addressed as set forth at the beginning
of this Agreement, or by facsimile to the facsimile numbers set forth at the
beginning of this Agreement. Any such notice shall be deemed
effective when so delivered. Copies of all such notices to Seller
shall be sent to Xxxx X. Xxxxxx, Esq., Askot, Weiner & Xxxxx, LLP, 000 X.
Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000, Telecopier No. 000-000-0000, and
to Xxxxxx Xxxxxxxx, Esq., Liner Yankelevitz Sunshine & Regenstreif, LLP 000
Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, XX 00000, Telecopier No. (000)
000-0000 and copies of all such notices to Buyer shall be sent to XxxxXxxx
Xxxxx, Esq. The Berkshire Group, Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000,
Telecopier No. (000) 000-0000 and to Xxxxxxx X. Xxxxxx, Esq., Xxxxxxx XxXxxxxxx,
LLP, Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Telecopier No. (000)
000-0000.
SECTION
11
LIMITATIONS ON SURVIVAL AND
LIABILITY
11.01 Representations and
Warranties. Except as otherwise expressly provided in this
Agreement, the representations, warranties, covenants or other obligations of
Seller set forth in this Agreement shall survive until twelve (12) months after
the Closing (such twelve (12) month period to be hereinafter referred to as the
“Survival
Period”), and no action based thereon shall be commenced after the
expiration of the Survival Period. Notwithstanding anything contained
herein to the contrary, the representations and warranties set forth in Section
2.05 shall survive the Closing and the expiration of the Survival
Period.
A/72601421.7
3
SECTION
12
MISCELLANEOUS
PROVISIONS
12.01 Assignment. Neither
Seller nor Buyer shall have the right to assign this Agreement without the
other’s prior written consent, which consent may be given or withheld in the
other’s sole and absolute discretion.
12.02 Master
Agreement. It is the intention of the parties hereto that one
hundred percent (100%) of the partnership interests in the Partnership be
conveyed to the Buyer under this Agreement and the Master Agreement and
therefore Seller and Buyer would not be entering into this Agreement unless the
Master Agreement is executed by the parties thereto. Therefore, it is
agreed that: (a) a default under the Master Agreement shall
constitute a default under this Agreement; and (b) in the event this Agreement
is terminated by either party pursuant to any applicable provision contained
herein, then the Master Agreement shall be terminated as well, provided however,
if a condition precedent to Buyer’s obligation to purchase the interests in the
Partnership under the Master Agreement is not satisfied, Buyer shall
nevertheless have the right, without waiving any of Buyer’s remedies under the
Master Agreement, to waive such contingency and purchase 100% of the interests
in the Partnership, including the Partnership Interests pursuant to the terms of
this Agreement. In
the event the Master Agreement is terminated, this Agreement shall automatically
terminate. It is the intention of the parties that the Closing
hereunder and the Closing under the Master Agreement occur
simultaneously. Therefore, in the event that Buyer is pursuing a
remedy under the Master Agreement which causes a delay in the Closing, or if the
Closing under the Master Agreement is extended for any reason provided therein,
the Closing hereunder shall be extended until such extended Closing under the
Master Agreement.
12.03 Integration. This
Agreement embodies and constitutes the entire understanding between the parties
with respect to the transaction contemplated herein, and all prior agreements,
understandings, representations and statements, oral or written, are merged into
this Agreement. Neither this Agreement nor any provision hereof may
be waived, modified, amended, discharged or terminated except by an instrument
signed by the party against whom the enforcement of such waiver, modification,
amendment, discharge or termination is sought, and then only to the extent set
forth in such instrument.
12.04 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the state in which the Property is
located.
12.05 Captions. The
captions in this Agreement are inserted for convenience of reference only and in
no way define, describe or limit the scope or intent of this Agreement or any of
the provisions hereof.
12.06 Binding
Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties hereto and their respective, permitted successors
and assigns.
12.07 Drafts. This
Agreement shall not be binding or effective until properly executed and
delivered by both Seller and Buyer. The delivery by Buyer to Seller
of an executed counterpart of this Agreement shall constitute an offer which may
be accepted by the delivery to Buyer of a duly executed counterpart of this
Agreement and the satisfaction of all conditions under which such offer is made,
but such offer may be revoked by Buyer by written notice given at any time prior
to such acceptance and satisfaction.
12.08 Number and
Gender. As used in this Agreement, the masculine shall include
the feminine and neuter, the singular shall include the plural and the plural
shall include the singular, as the context may require.
12.09 Construction. This
Agreement shall be governed by and construed under the laws of the state in
which the Real Property is located. The parties acknowledge that each
party and its counsel have reviewed and revised this Agreement and that no rule
of construction to the effect that any ambiguities are to be resolved against
the drafting party shall be employed in the interpretation of this Agreement or
any amendments or exhibits hereto or any document executed and delivered by
either party in connection with this Agreement. All captions in this
Agreement are for reference only and shall not be used in the interpretation of
this Agreement or any related documents. If any provision of this
Agreement shall be determined to be illegal, void or unenforceable, such
determination shall not affect any other provision of this Agreement and all
such other provisions shall remain in full force and effect, so long as the
overall intent of the parties may be effectuated without such illegal, void or
unenforceable provision.
12.10 Counterparts. This
Agreement may be executed in one or more counterparts, by original signature or
facsimile, each of which shall be an original, but all of which shall constitute
one contract, binding on Buyer and Seller, notwithstanding that both parties are
not signatory to the same counterpart.
12.11 Time. Time
is of the essence in the performance of the parties' respective obligations set
forth in this Agreement. If the Closing Date or any other deadline
hereunder should fall on a Saturday, Sunday or legal holiday, such date shall
automatically be extended to the next normal business day. For
purposes of this Agreement a "business day" shall mean any calendar day not a
Saturday, Sunday or legal holiday.
12.12 Attorneys'
Fees. In the event any dispute between the parties to this
Agreement should result in litigation or other proceeding, the prevailing party
shall be reimbursed by the nonprevailing party for all actual costs and
expenses, including, without limitation, reasonable attorneys' fees, incurred by
the prevailing party in connection with such litigation or other proceeding and
any appeal thereof. Such costs, expenses and fees shall be included
in and made a part of the judgment recovered by the prevailing party, if
any.
12.13 Attachments. If
the provisions of any schedule or rider to this Agreement are inconsistent with
the provisions of this Agreement, the provisions of such schedule or rider shall
prevail. The Schedules attached are hereby incorporated as integral
parts of this Agreement.
12.14 No
Recording. Neither this Agreement nor any memorandum or short
form hereof shall be recorded or filed in any public land or other public
records of any jurisdiction, by either party and any attempt to do so may be
treated by the other party as a breach of this Agreement.
12.15 Press
Releases. Buyer shall make no public announcement or
disclosure of any information related to this Agreement to outside brokers or
third parties, before or after the Closing, without the prior written specific
consent of Seller; provided, however, that Buyer may make disclosure of this
Agreement to its lenders, prospective lenders, investors, potential investors,
accountants, consultants, agents and lawyers as necessary to perform its
obligations hereunder and as may be required under laws or regulations
applicable to Buyer, including, without limitation, disclosures required to be
made to the Securities and Exchange Commission and any press releases required
in connection with such Securities and Exchange Commission filings.
12.16 Return of
Property. In the event this Agreement is terminated, Buyer and
its representatives shall promptly deliver to Seller all originals and copies of
all information provided to Buyer by Seller relating to the Property and the
Partnership.
[Signature
Pages to Follow]
A/72601421.7
4
IN
WITNESS WHEREOF, the parties hereto caused this Agreement to be executed under
seal as of the date first above written.
SELLER:
LIMITED
PARTNERS:
By: /s/ Xxxxxxx X.
Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Limited
Partner
By: /s/ Xxxxxx X.
Xxxxxxx
Name: Xxxxxx X.
Xxxxxxx
Title: Limited
Partner
SPECIAL LIMITED
PARTNER:
SHORELINE/MARIN, LLC,
a Delaware limited liability
company
By: Xxxxxxx
Xxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxx
Title: Sole
Member
BUYER:
BIR
EXECUTIVE GP, L.L.C.,
a
Delaware limited liability company
By: /s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X.
Xxxxx
Title:
President and
Treasurer
BIR
EXECUTIVE GP, L.L.C.,
a
Delaware limited liability company
By:
/s/ Xxxxx X.
Xxxxx
Name:
Xxxxx X.
Xxxxx
Title:
President and
Treasurer
A/72601421.7
5
