CARLYLE - XVI -- EXHIBIT 10-G.
CLOSING CERTIFICATE AND AGREEMENT
THIS CLOSING CERTIFICATE AND AGREEMENT (this "AGREEMENT") is made and
entered into as of May 7, 1996 (the "CLOSING DATE") with respect to the
sale by and between VNE PARTNERS, L.P. ("SELLER") and POST APARTMENT HOMES,
L.P. ("BUYER") of approximately 90.23 acres of land located in Land Lots
334, 342, 343 and 348 of the 18th District, DeKalb County, Georgia and more
particularly described on EXHIBITS A-1, A-2 AND A-3, attached hereto and
made a part hereof (collectively, the "LAND").
WITNESSETH, THAT:
WHEREAS, Seller is a partnership comprised of Villages Northeast
Associates, an Illinois general partnership ("ASSOCIATES"), and Post
Villages Northeast, Ltd., a Georgia limited partnership ("POST").
WHEREAS, Associates, on behalf of Seller, received an offer to
purchase the Land and any improvements, structures or fixtures located on
the Land (the "IMPROVEMENTS"), consisting of an apartment community
commonly known as "Dunwoody Crossing Apartments" located in Atlanta,
Georgia, from Heitman/JMB Advisory Corporation ("H/JMB"), for Forty-Seven
Million Dollars ($47,000,000). as more particularly described in that
certain letter of intent ("LETTER OF INTENT"), dated December 8, 1995,
between H/JMB and Seller;
WHEREAS, the transactions contemplated by the Letter of Intent were
subject to the rights of Post to acquire the partnership interests of
Associates in Seller on terms which would produce the same amounts to
Associates which a sale by Seller of the Land and the Improvements would
produce pursuant to the partnership agreement of Seller;
WHEREAS, Post has requested that its rights to acquire Associates
partnership interests instead be structured as a sale by Seller of the Land
and Improvements, and has assigned it rights to acquire the same to Buyer;
and
WHEREAS, simultaneous with the execution hereof, Buyer is paying to
Seller the Forty-Seven Million Dollars ($47,000,000) purchase price,
adjusted by prorations as specified in the closing statement, Seller is
delivering that certain Limited Warranty Deed conveying the Land to Buyer,
and Seller and Buyer are entering into that certain Bill of Sale and
Assignment and Assumption Agreement of even date herewith by and between
Buyer and Seller (the "BILL OF SALE"), whereby Seller is assigning all of
its right, title and interest in certain tangible and intangible personal
property located on or about the Land or located within the Improvements.
The Land, Improvements, personal and intangible property being transferred
in connection with the transactions contemplated herein are collectively
referred to as the "BUSINESS PROPERTY".
NOW, for and in consideration of Ten Dollars (10.00) and other good
and valuable consideration, in hand paid and before the sealing and
delivery of these presents, the receipt, adequacy and sufficiency whereof
are hereby acknowledged, Seller and Buyer agree as follows:
A. GENERAL DISCLAIMER. Except as specifically set forth in this
Agreement, the sale of the Business Property hereunder is and will be made
on an "as is" basis, without representations and warranties of any kind or
nature, express, implied or otherwise, including, but not limited to, any
representation or warranty concerning title to the Business Property, the
physical condition of the Business Property (including, but not limited to,
the condition of the soil or the Improvements), the environmental condition
of the Business Property (including, but not limited to, the presence or
absence of hazardous substances on or respecting the Business Property),
the compliance of the Business Property with applicable laws and
regulations (including, but not limited to, zoning and building codes or
the status of development or use rights respecting the Business Property),
the financial condition of the Business Property or any other
representation or warranty respecting income, expenses, charges, liens or
encumbrances, rights or claims on, affecting or pertaining to the Business
Property or any part thereof. Buyer acknowledges that, Buyer has examined,
reviewed and inspected all matters which in Buyer's judgement bear upon the
Business Property and its value and suitability for Buyer's purposes.
Buyer further acknowledges that Buyer is the successor in interest of the
original developer and original property manager of the Business Property,
and that the general partner of Post is a senior officer and substantial
owner of Buyer. Except as to matters specifically set forth in this
Agreement and the other closing documents, Buyer will acquire the Business
Property solely on the basis of its own physical and financial
examinations, reviews and inspections, the knowledge of Post and Buyer with
respect to the Business Property and the title insurance protection
afforded by the Owner's Policy of Title Insurance being obtained by Buyer
concurrently herewith.
B. SELLER'S REPRESENTATIONS AND WARRANTIES. Seller hereby represents
and warrants to Buyer that Seller has no knowledge that any of the
following statements is untrue (and, for this purpose, Seller's knowledge
shall mean the present actual knowledge of Brian Ellison of JMB Realty
Corporation):
1. PERSONAL PROPERTY. Seller has not previously sold any of its
right, title and interest in and to the personal property listed on EXHIBIT
B hereto (the "PERSONAL PROPERTY") and, except for matters of record, the
interest of Seller therein is free and clear of any liens or encumbrances
created by Seller.
2. CONTINUING CONTRACTS. There are no service contracts or
agreements (other than matters of record, the "Tenant Leases", as
hereinafter defined, or other agreements provided for in this Agreement, if
any) relating to the Property which will be in force after the date hereof
except as described in EXHIBIT C hereto (the "CONTINUING CONTRACTS").
Except as noted on EXHIBIT C, all of the continuing Contracts are
terminable on thirty (30) days notice without payment of any fees.
Additionally, the Property Management Agreement by and between Seller and
Heitman Properties of Georgia Limited has been terminated effective as of
the Closing Date.
3. NOTICES: REQUESTS. Seller has received no written notice from
any government agency or employee or official (in such person's official
capacity) that any government agency currently considers the construction
of the Business Property or the Seller's operation or use the same to have
failed to comply with any law, ordinance, regulation or order or that any
investigation has been commenced or is contemplated respecting any such
possible failure of compliance. Seller has received no written unsatisfied
notice requiring repairs, restorations or improvements from any lender,
insurance carrier or government authority.
4. DUE AUTHORIZATION, EXECUTION, ORGANIZATION, ETC. This
Agreement and all agreements, instruments and documents relating to the
transaction contemplated hereby to be executed or to be caused to be
executed by Seller are duly authorized, executed and delivered by and are
binding upon the same. Seller is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State of
Georgia, and is duly authorized and qualified to do all things required of
it under this Agreement. Seller has the capacity and authority to enter
into this Agreement and to consummate the transactions herein provided, and
nothing prohibits or restricts the right or ability of Seller to close the
transactions contemplated hereunder and carry out the terms hereof.
Neither this Agreement nor any agreement, document or instruction executed
or to be executed in connection with the same, nor anything provided in or
contemplated by this Agreement or any such other agreement, document or
instrument, does now or shall hereafter breach, invalidate, cancel, make
inoperative or interfere with, or result in the acceleration of maturity of
any contract, agreement, lease, easement, right of interest, affecting or
relating to Seller or the Business Property. As of the Closing Date, JMB
Realty Corporation, a Delaware corporation, is a general partner of, and
has authority to bind, Carlyle Real Estate Limited Partnership-XV, an
Illinois limited partnership, and Carlyle Real Estate Limited Partnership-
XVI, an Illinois limited partnership, which are the general partners of,
and have the authority to bind, Villages Northeast Associates, an Illinois
general partnership, which is the sole general partner of Seller. Brian
Ellison, Vice President of JMB Realty Corporation, is fully authorized and
has full power and authority to make any and all decisions, to grant any
and all approvals, to execute any and all documents, and to take any other
action on behalf of Seller pursuant to or in connection with this Agreement
and the sale of the Business Property to Buyer as contemplated hereby and
any such action shall be duly binding on Seller and all partners of Seller
(and Buyer shall have the right to rely conclusively upon any such action).
5. DEFAULT. Seller is not in default in respect of any of its
material obligations or liabilities pertaining to the Business Property.
Without limitation on the foregoing, the Continuing Contracts and the
Tenant Leases are free from material default by Seller and the same (other
than the Tenant Leases) are free from material default by any other party
thereto.
6. LITIGATION: CONDEMNATION. Except for the lawsuits identified
in EXHIBIT D, attached hereto and made a part hereof, there are no actions,
suits or proceedings pending or threatened before or by any judicial,
administrative body or any arbiter or any governmental authority, against
or affecting Seller or the Business Property as to which Seller has been
served any process. Seller has not received any written notice if any
existing, proposed or contemplated eminent domain or similar proceeding
which would affect the Land or Improvements. Seller has executed no
exclusive brokerage agencies which will survive the Closing Date.
7. RENT ROLL. Attached hereto as EXHIBIT E is a full, true and
correct rent roll and lease summary ("RENT ROLL") for the Business Property
as of the date thereof, with respect to each lease of the Business
Property. Any arrearages in the payment of rent of more than thirty (30)
days are set forth in EXHIBIT E, attached hereto and made a part hereof.
C. INDEMNIFICATION.
1. INDEMNIFICATION BY SELLER. Seller shall hold harmless,
indemnify and defend Buyer and the Business Property against any and all
obligations, liabilities and claims asserted by any third party for
Seller's torts related to the Business Property and arising or accruing on
or before the date hereof (but not including, under this clause a request,
demand or other action by any third party relating to the physical or
environmental condition of the Business Property nor shall the foregoing
indemnity cover any matters which were caused by the acts or omissions of
Post, Buyer, Post Properties, Inc. or any predecessor in interest to
Buyer).
2. INDEMNIFICATION BY BUYER. Buyer shall hold harmless, indemnify
and defend Seller from and against any and all obligations, liabilities and
claims related to (a) any and all third party claims for Buyer's torts
related to Business Property and arising or occurring on or after the date
hereof, and (b) any and all loss, damage or third party claims in any way
arising from or in connection with Buyer's inspections or examinations of
the Business Property prior to the date hereof.
3. GENERAL INDEMNITY PROVISIONS. Each indemnity provided for
under this Agreement shall be subject to the following provisions:
a. The indemnity shall cover the costs and expenses of the
indemnitee, including reasonable attorneys' fees, related to any actions,
suits or judgements incident to any of the matters covered by such
indemnity.
b. The indemnitee shall notify the indemnitor of any claim
against the indemnitee covered by the indemnity within 45 days after it has
notice of such claim, but failure to notify the indemnitor shall in no case
prejudice the rights of the indemnitee under this Agreement unless the
indemnitor shall be prejudiced by such failure and then only to the extent
the indemnitor shall be prejudiced by such failure. Should the indemnitor
fail to discharge or undertake to defend the indemnitee against such
liability upon learning of the same, then the indemnitee may settle such
liability, and the liability of the indemnitor hereunder shall be
conclusively established by such settlement, the amount of such liability
to include both the settlement consideration and the reasonable costs and
expenses, including attorneys' fees, incurred by the indemnitee in
effecting such settlement.
c. Each party agrees to cooperate reasonably with the other
in the defense or challenge of any obligation, liability or claim asserted
by any third party, including without limitation reasonable access to the
property files relating to the period covered.
D. BROKERS. Seller acknowledges that Richard Ellis, LLC and The
Plasencia Group, Inc. (collectively, "BROKER") have represented Seller in
connection with the sale of the Business Property to Buyer on the Closing
Date, and that Seller shall be solely responsible for payment of all
commissions or other similar fees or compensation due Broker in connection
with such sale. Other than with respect to Seller's engagement of broker,
Seller represents and warrants to Buyer, and Buyer represents and warrants
to Seller, that no broker or finder had been engaged by it, respectively,
in connection with any of the transactions contemplated by this Agreement
or to its knowledge is in any way connected with any of such transactions.
In the event of a claim for a broker's or finder's fee or commission in
connection herewith, then Seller shall indemnify and defend Buyer from the
same if it shall be based upon any statement or agreement alleged to have
been made by Seller (including without limitation any claim by Broker), and
Buyer shall indemnify and defend Seller from the same if it shall be based
upon any statement or agreement alleged to have been made by Buyer.
E. SURVIVAL; TAXES; FURTHER INSTRUMENTS.
1. GENERAL PROVISION. Except as provided in subsection E.2
below, all warranties, representation, covenants, obligations and
agreements contained in this Agreement shall survive the closing hereunder
and the transfer and conveyance of the Business Property hereunder and any
and all performances hereunder. In the event that any sales or use taxes
shall be determined to be payable in connection with any transfer of assets
provided herein, then such sales or use taxes shall be paid by Buyer. Each
party will, whenever and as often as it shall be requested so to do by the
other, cause to be executed, acknowledged or delivered any and all such
further instruments and documents as may be necessary or proper, in the
reasonable opinion of the requesting party, in order to carry out the
intent and purpose of this Agreement.
2. EXPIRATION DATE. Notwithstanding the provisions of
subsection E.1 above, any cause of action of Buyer of any Buyer's
successors or assigns against Seller by reason of any breach or default by
Seller of any of the representations and warranties contained in this
Agreement shall continue until, but shall lapse as of, the "Expiration
Date," except that the same shall not lapse as to any breach or default
with respect to which Buyer or any successor or assign of either shall
have, on or before the "Expiration Date," commenced suit. As used herein,
"EXPIRATION DATE" means the date which May 7, 1997.
3. BUYER'S KNOWLEDGE. Notwithstanding the foregoing, if
Buyer (or Post or any other affiliated entity) shall have actual knowledge
as of the date hereof that any of the representations or warranties of
Seller contained herein are false or inaccurate or that or that Seller is
in breach or default of any of its obligations under this Agreement, and
the transactions hereunder shall nonetheless close, then Seller shall have
no liability or obligation respecting such false or inaccurate
representations or warranties or other breach or default (and any cause of
action resulting therefrom shall terminate upon such closing hereunder).
F. BUYER'S AUTHORITY. Buyer hereby represents and warrants to
Sellers as follows: This Agreement and all agreements, instruments and
documents herein provided to be executed or to be caused to be executed by
Buyer duly authorized, executed and delivered by and are finding upon the
same. Buyer is a limited partnership, duly organized, validly existing and
in good standing under the laws of the State of Georgia, and is duly
authorized and qualified to do all things required of it under this
Agreement; Buyer has the capacity and authority to enter into this
Agreement and to consummate the transactions herein provided, and nothing
prohibits or restricts the right or ability of Buyer to close the
transactions contemplated hereunder and carry out the terms hereof; neither
this Agreement nor any agreement, document or instrument executed or to be
executed in connection with the same, nor anything provided in or
contemplated by this Agreement or any such other agreement, document or
instrument, does now or shall hereafter breach, invalidate, cancel, make
inoperative or interfere with, or result in the acceleration of maturity
of, any contract, agreement, lease, easement, right or interest, affecting
or relating to Buyer; and that those individuals whose signatures will bind
Buyer include Sherry W. Cohen and _______________.
G. NOTICES. Any notice, request or other communication (a
"NOTICE") required or permitted to be given hereunder shall be in writing
and shall be delivered by hand or overnight courier (such as United Parcel
Service or Federal Express) mailed by United States registered or certified
mail, return receipt requested, postage prepaid and addressed to each party
at its address as first set forth below. Any such notice shall be
considered given on the date of such hand or courier delivery, deposit with
such overnight courier for next business day delivery, or deposit in the
United States mail, but the time period (if any is provided herein) in
which to respond to such notice shall commence on the date of hand or
courier delivery or on the date received following deposit in the United
States mall as provided above. Rejection or other refusal to accept or
inability to deliver because of changed address of which no notice was
given shall be deemed to be receipt of the notice. By giving at least five
(5) days' prior written notice thereof, any party may from time to time and
at any time change its mailing address hereunder. Any notice of any party
may be given by such party's counsel.
TO SELLER:
900 North Michigan Avenue
Suite 3900
Chicago, Illinois 60611-1575
Attention: Mr. Brian K. Ellison
With copy to:
Pircher, Nichols & Meeks
1999 Avenue of the Stars
Los Angeles, California 90067
Attention: Gary M. Laughlin, Esq.
TO BUYER:
Post Apartment Homes, L.P.
3350 Cumberland Circle
Suite 2200
Atlanta, Georgia 30339
Attention: Sherry W. Cohen
With a copy to:
Dan L. Heller Esq.
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303-1763
H. MISCELLANEOUS. This Agreement contains the entire agreement
between the parties respecting the matters herein set forth and supersedes
all prior agreements between the parties hereto respecting such matters.
Time is of the essence of this Agreement. Section headings shall not be
used in construing this Agreement. If any party obtains a judgement
against any other party by reason of breach of this Agreement, a reasonable
attorneys' fee as fixed by the court shall be included in such judgement.
Except as expressly stated in this Agreement, no remedy conferred upon a
party in this Agreement is intended to be exclusive of any other remedy
herein or by law provided or permitted, but each shall be cumulative and
shall be in addition to every other remedy given hereunder or now or
hereafter existing at law, in equity or by statute. Except as otherwise
expressly provided in this Agreement, no waiver by a party of any beach of
this Agreement or of any warranty or representation hereunder by the other
party shall be deemed to be a waiver of any other breach by such other
party (whether preceding or succeeding and whether or not of the same or
similar nature). no failure or delay by a party to exercise any right it
may have by reason of the default of the other party shall operate as a
waiver of default or modification of this Agreement or shall prevent the
exercise of any right by the first party while the other party continues to
be so in default. Except as otherwise expressly provided herein, any
approval or consent provided to be given by a party hereunder may be given
or withheld in the absolute discretion of such party. This Agreement shall
construed and enforced in accordance with the laws of the State of Georgia.
Each party acknowledges that such party and its counsel, after
negotiation and consultation, have reviewed and revised this Agreement. As
such, the terms of this Agreement shall be fairly construed and the usual
rule of construction, to the effect that any ambiguities herein should be
resolved against the drafting party, shall not be employed in the
interpretation of this Agreement or any amendments, modifications or
exhibits hereto or thereto. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document. This Agreement and the terms
and provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties hereto.
I. LIMITATION OF LIABILITY.
1. Notwithstanding anything to the contrary contained herein, if
the closing of the transactions hereunder shall have occurred (and Buyer
shall not have waived, relinquished or released any applicable rights in
further limitation), the aggregate liability of Seller arising pursuant to
or in connection with the representations, warranties, indemnifications,
covenants or other obligations (whether express or implied) of Seller under
this Agreement (or any document executed or delivered in connection
herewith other than the Limited Warranty Deed transferring the Land and
Improvements from Seller to Buyer) shall not exceed $500,000.
2. No constituent partner in or agent of Seller, nor any advisor,
trustee, director, officer, employee, beneficiary, shareholder,
participant, representative or agent of any corporation or trust that is or
becomes a constituent partner in Seller (including, but not limited to,
Carlyle Real Estate Limited Partnership-XV, Carlyle Real Estate Limited
Partnership-XVI, JMB Realty Corporation and the individual(s) specified in
Section B above) shall have any personal liability, directly or indirectly,
under or in connection with this Agreement or any agreement made or entered
into under or pursuant to the provisions of this Agreement, or any
amendment or amendments to any of the foregoing made at any time or times,
heretofore or hereafter, and Buyer and its successors and assigns and,
without limitation, all other persons and entities, shall look solely to
Seller's assets for the payment of any claim or for any performance, and
Buyer, on behalf of itself and its successors and assigns, hereby waives
any and all such personal lability. Notwithstanding anything to the
contrary contained in this Agreement, neither the negative capital account
of any constituent partner in Seller (or in any other constituent partner
of Seller), not any obligation of any constituent partner in Seller ( or in
any other constituent partner of Seller) to restore a negative capital
account or to contribute capital to Seller ( or to any other constituent
partner of Seller), shall at any time be deemed to be the property or an
asset of Seller or any such other constituent partner (and neither Buyer
nor any of its successors or assigns shall have any right to collect,
enforce or proceed against or with respect to any such negative capital
account of partner's obligation to restore or contribute).
[SIGNATURES BEGIN ON NEXT PAGE]
IN WITNESS WHEREOF, Seller and Buyer have each caused this instrument
to be signed, sealed and delivered as of May _____, 1996.
SELLER
VNE PARTNERS, L.P.
a Georgia limited partnership
By: VILLAGES NORTHEAST ASSOCIATES,
an Illinois general partnership, General Partner
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XV, an Illinois
limited partnership, General Partner
By: JMB REALTY CORPORATION, a
Delaware corporation, Corporate
General Partner
By: Brian K. Ellison
Name: Brian K. Ellison
Title: Vice President
ATTEST: Robert D. Jaffe
Name: Robert D. Jaffe
Title: Assistant Secretary
[CORPORATE SEAL]
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-XVI, an Illinois
limited partnership, General Partner
By: JMB REALTY CORPORATION, a
Delaware corporation, Corporate
General Partner
By: Brian K. Ellison
Name: Brian K. Ellison
Title: Vice President
Attest: Robert D. Jaffe
Name: Robert D. Jaffe
Title: Assistant Secretary
[CORPORATE SEAL]
BUYER:
POST APARTMENT HOMES, L.P., a
Georgia limited partnership
By: Post Properties, Inc., a Georgia
corporation, Sole General Partner
By: Sherry W. Cohen
Name: Sherry W. Cohen
Title: Senior V.P. Sec.
Attest:
Name:
Title:
[Corporate Seal]