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Exhibit 2.3
AGREEMENT OF PURCHASE AND SALE
(LOSS ASSETS)
THIS AGREEMENT OF PURCHASE AND SALE (the "Agreement") is by and
between NQRS, INC., a Nevada corporation (hereinafter called the "Seller") and
SIERRA-NEVADA MULTIFAMILY INVESTMENTS, LLC, a Delaware limited liability
company (hereinafter called the "Purchaser").
ARTICLE 1.
Definitions
Section 1.1 As used in this Agreement, unless the context
otherwise requires or it is otherwise herein expressly provided, the following
terms shall have the following meanings:
CLOSING: The consummation of the transaction contemplated by this
Agreement.
CLOSING DATE: June 29, 1998 or such earlier or later date as mutually
agreed to by Purchaser and Seller.
IMPROVEMENTS: The buildings, structures, fixtures and other
improvements of every kind and nature situated on, in or under the Real
Property.
PERMITTED EXCEPTIONS: With respect to each parcel of land comprising
the Real Property, separately from all other such parcels, the matters
identified on Exhibit H attached hereto as the Permitted Exceptions
relating to that parcel or to all parcels.
PERSONAL PROPERTY: All fixtures; equipment; compressors; engines;
electrical systems, fixtures and equipment; plumbing fixtures, systems
and equipment; heating fixtures, systems and equipment; air
conditioning fixtures, systems and equipment; furniture; refrigerators;
dishwashers; disposals; ranges; range hoods; ovens; microwaves;
carpets, drapes; maintenance equipment; washing machines and dryers;
appliances of every kind; tools; landscaping; pool equipment; statuary;
television antennae, systems and equipment; intercom equipment and
systems; elevator fixtures, systems and equipment; central music
systems and equipment; security and fire alarms, systems and equipment;
and all other machinery; equipment; fixtures; automotive vehicles;
carts; supplies; replacement parts; building materials; and personal
property of every kind and character, tangible or intangible, owned by
the Seller and used or usable in connection with the operation of the
Improvements, including any and all trade names used in connection with
the ownership, use or operation of the Property other than the name
"Oasis" which is expressly reserved to Seller and its affiliates
(collectively, the "Trade Names").
REAL PROPERTY: The real property described on Exhibit "A" annexed
hereto and made a part hereof consisting of six (6) tracts of land in
the State of Nevada and all easements, rights, appurtenances and
hereditaments relating or appertaining thereto.
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RELATED AGREEMENTS: The Contribution Agreement and Agreement of
Purchase and Sale bearing even date herewith entered into by Purchaser
(as the "Company" or "Purchaser" thereunder) and Camden Subsidiary,
Inc. (as the "Contributor" or "Seller" thereunder), which are
substantially similar to this Agreement but provide, respectively, for
Purchaser's acquisition from Camden Subsidiary, Inc. of an aggregate of
thirteen (13) residential apartment properties situated in the State of
Nevada.
TENANT LEASES: Leases, licenses, contracts and other agreements for the
use or occupancy of any space in the Real Property or Improvements,
written or verbal.
Section 1.2 The effective date of this Agreement (the "Effective
Date") shall be the later of the two dates upon which this Agreement is
executed by Seller and Purchaser as set forth beside their respective
signatures.
Section 1.3 To the extent other terms are defined elsewhere in this
Agreement, such terms shall have the meanings set forth herein.
ARTICLE 2.
Sale and Purchase
Section 2.1 Subject to the terms and provisions hereof, the Seller
agrees to sell and convey to the Purchaser, and the Purchaser agrees to purchase
and acquire from the Seller the following (collectively, the "Property"):
(a) Fee simple title to and ownership of the Real Property
and Improvements, together with all right, title and interest, if any,
of Seller in and to any unpaid award made or to be made for the taking
by condemnation or otherwise, for public or quasi-public use or purpose
of such right, title or interest and any unpaid award for damage to any
or all of the Real Property or Improvements by reason of change of
grade of any such street, road or avenue; and all easements,
right-of-way, privileges, licenses (written or oral), and all
appurtenances thereto;
(b) All of Seller's right, title and interest, if any, in
and to:
(1) All plans and specifications, site plans, soil and
substrata studies, architectural drawings, floor plans,
landscape plans, and other plans, reports or documents of any
kind whatsoever relating to the Real Property or Improvements;
(2) The Trade Name and any telephone listings thereof;
(3) All guaranties or warranties delivered to, or whose
benefit has been assigned to Seller or made to or inuring to
the benefit of Seller in connection with the construction,
development, ownership, use, improvement, repair, operation or
maintenance of the Improvements, and all agreements or
contracts (if any) entered into by, or whose benefit has been
assigned to, Seller or made to or inuring to the benefit of
Seller in connection with the development, construction,
ownership, use, improvement, repair, operation or maintenance
of the Improvements (the "Miscellaneous Agreements");
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(4) All building and other permits, licenses or approvals
heretofore or hereafter granted by any governmental authority
with respect to the development, construction, ownership, use,
improvement, repair, maintenance, occupancy or operation of the
Improvements.
(5) All unpaid insurance proceeds relating to any damage
to or destruction of, and all unpaid damages and awards
relating to any condemnation or other taking of, all or any
part of the Property.
(c) The Personal Property.
(d) The Tenant Leases.
(e) All reports, files, correspondence, documents and
writings of any kind whatsoever relating to any of the foregoing which
are in Seller's possession or control.
ARTICLE 3.
Consideration for Conveyance
Section 3.1 Subject to the terms, conditions and provisions herein
contained, Purchaser agrees to pay and assign to Seller, and Seller agrees to
accept, as consideration for the conveyance and sale of the Property to the
Purchaser, the sum of $96,906,000 (the "Purchase Price"), which shall be due and
payable at Closing as follows:
(a) The sum of One Thousand and No/100 Dollars ($1,000.00)
shall be due and payable in cash or immediately available funds at
Closing (the "Cash Payment");
(b) Purchaser shall assume the outstanding principal balance
(the "Assumed Loan Balance") as of the Closing Date (not to exceed the
amount of the original principal balance) of, but no interest, fees or
other charges under or relating to, that one certain loan (the "Assumed
Loan") in the original principal amount of $98,716,057.00 from Camden
Subsidiary II, Inc. (successor by merger to Oasis Residential, Inc. and
k/n/a Camden Subsidiary, Inc.) ("Lender") to Seller, such Loan being
secured in part by liens on the Property and being evidenced in part by
a promissory note from Seller to Lender in the original principal
amount of $98,716,057.00 and dated April 6, 1998 (together with any and
all other documents securing, evidencing or pertaining to the Assumed
Loan, the "Assumed Loan Documents"). The Purchase Price was determined
based upon the expectation that at Closing the outstanding balance due
under the Assumed Loan will be $96,905,000. If at Closing the principal
amount of the Assumed Loan has been further reduced, the Purchase Price
shall not be reduced, but to the extent (if any) that the aggregate of
the Cash Payments made under the Related Agreements is not increased,
the Cash Payment shall be increased by the amount of such principal
reduction.
Section 3.2 At Closing, Purchaser shall assume and agree to pay the
Assumed Loan Balance of the Assumed Loan. At Closing, Seller and Purchaser shall
execute and deliver all such documents and instruments (the "Loan Assumption
Documents") required by Lender to evidence
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such assumption in form reasonably satisfactory to Lender and Purchaser.
Purchaser shall not be responsible for the payment at Closing of any assumption
or transfer fees or any other transaction costs incurred in connection with
assumption of the Assumed Loan Balance.
Section 3.3 As consideration for the conveyance of the Trade Names,
Purchaser shall pay to the Seller, and Seller agrees to accept, the sum of TEN
AND NO/100 DOLLARS ($10.00) in cash at Closing. It is expressly agreed that such
sum represents that portion of the Purchase Price that is attributable to or
paid for the Trade Names.
ARTICLE 4.
Survey and Title
Section 4.1 Seller will, at Seller's expense, cause to be delivered
to Purchaser at the Closing the following, all of which will be subject to
Purchaser's approval: (i) a title commitment signed by the title company
agreeing to deliver an ALTA owner's policy of title insurance in the amount of
the Purchase Price, with extended coverage over any general permitted exceptions
to such policies at Purchaser's expense, insuring Purchaser as the owner of the
Real Property and Improvements subject to no exceptions other than the Permitted
Exceptions (the "Title Policy"); and (ii) a currently-dated as-built plat of
survey of each parcel of land comprising the Real Property, certified to
Purchaser as having been prepared in accordance with the standards most recently
adopted by ALTA and ACSM (the "Survey").
ARTICLE 5.
Representations, Warranties and Covenants of Seller
Section 5.1 Seller represents and warrants to Purchaser that as of
the Effective Date and also as of the Closing Date, the following statements are
and will be true and correct:
(a) The Assumed Loan Documents are in full force and effect,
and Seller has not received written notice from Lender, nor does it
otherwise have knowledge of, any default or event of default
thereunder.
(b) There are no parties in possession of, and no person has
any right to the use or possession of, or to occupy, any portion of the
Real Property or Improvements as lessees or tenants at sufferance or
otherwise, except for tenants under the Tenant Leases, and, except for
such tenants, no person has any right to enter onto the Real Property
except for those who, pursuant to easements or other Permitted
Exceptions or the Miscellaneous Agreements have the right to enter onto
the Real Property solely for purposes of providing or servicing
utilities to the property or providing laundry services or facilities
at the Real Property.
(c) Except as disclosed on Schedule 5.1(c) hereof, Seller has
not received notice of, and Seller has no actual knowledge of any
pending or threatened condemnation, eminent domain, or similar
proceeding, or any special or other assessment affecting the Real
Property or Improvements or any part thereof.
(d) Seller is duly authorized and empowered to sell the
Property. Seller has obtained all necessary approvals required under
its organizational or operational documents for entering into this
Agreement and for the consummation of this transaction. This
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Agreement has been duly authorized by all necessary and appropriate
action of Seller, has been executed on Seller's behalf by its duly
authorized representative, and is a legal, valid and binding obligation
of Seller.
(e) Except as disclosed on Schedule 5.1(e) hereof, Seller has
not received notice of, and Seller has no actual knowledge of, any
pending or threatened claims or lawsuits which could, if decided
adversely to Seller or Purchaser or otherwise, materially affect the
Real Property or Improvements or any part thereof or the use or value
thereof or which could become a lien on any thereof.
(f) All obligations of Seller arising from the ownership and
operation of the Real Property, including, but not limited to, salaries
and the like, have been paid as they became due or will be paid at or
prior to Closing. Except for obligations for which provisions are made
herein for assumption by Purchaser or with respect to which a proration
adjustment is made in Purchaser's favor at Closing, there will be no
obligations of Seller with respect to, relating to or affecting the
Real Property or any part thereof outstanding as of Closing which could
give rise to a lien on or claim against or affecting the Real Property
or any part thereof.
(g) Seller has not received notice of, and Seller has no
actual knowledge of, any attachments, executions, assignments for the
benefit of creditors or voluntary or involuntary proceedings in
bankruptcy or under any other debtor relief laws contemplated by or
pending or threatened against Seller or the Real Property or any part
thereof.
(h) The matters set out in the rent roll attached hereto as
Exhibit I are true and correct and are not misleading. The rent roll
identifies all deposits made by, or credit for which is owed to, any
tenant under any Tenant Lease except to the extent (if any) expressly
stated on the rent roll. Each Tenant Lease identified or referred to
therein is in full force and effect. Except as disclosed on Schedule
5.1(h) hereof, Seller has not received any notice from any tenant
alleging a default by Seller or the landlord, and Seller has no actual
knowledge of any default by or unperformed obligation of the landlord,
under any of the Tenant Leases, and, to the best of Seller's knowledge,
no tenant under any of the Tenant Leases is in default thereunder.
(i) Seller is the fee simple owner of the Real Property and
the Improvements, subject to no restrictions, covenants, conditions,
liens, claims, encumbrances, reservations, easements or other
exceptions to title other than the Permitted Exceptions.
(j) Except as disclosed in Schedule 5.1(j) hereof Seller has
not received written notice of, and has no actual knowledge of, any
existing condition with respect to the Real Property or Improvements
(or any part thereof) or its operation which violates any law,
ordinance, code, regulation or court or administrative order.
(k) Except as disclosed in Schedule 5.1(k) hereof, Seller has
not received written notice, and Seller has no actual knowledge that
the Real Property or the Improvements or any part thereof is being used
for the storage or disposal of any hazardous or toxic materials or that
any such materials are present on, under or in, or were released or
discharged from, the Real Property or the Improvements in violation of
applicable laws. To Seller's actual
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knowledge, no hazardous or toxic materials now are or ever were placed
or situated on, under or in, or were released or discharged from, the
Real Property or the Improvements.
(l) No portion of the Real Property or the Improvements
constitutes "plan assets" of any "employee benefit plan" as defined in
Section 3(3) of the Employee Retirement Income Security Act of 1974,
as amended, or any "plan" as defined in Section 4975(e)(2) of the
Internal Revenue Code of 1986, as amended.
(m) The data and information contained in each of the
financial statements and operating reports relating to the Real
Property and Improvements (or any part or parts thereof) hereto
furnished by Seller to Purchaser are true and correct and are not
misleading and do not omit any material information.
Seller shall promptly advise Purchaser in writing if any
representation or warranty contained in this Section 5.1 becomes false or
misleading prior to the Closing; provided, however, that the delivery of such
notification shall not waive, limit, diminish or affect the right of Purchaser
to object thereto (or except as expressly provided in this grammatical
paragraph) any right or remedy of Purchaser relating thereto. As a condition
precedent to Purchaser's obligations hereunder, the representations and
warranties contained in this Section 5.1 shall be true and correct on the
Closing Date. However, in the event of a breach hereof by Seller or in the
event Seller has given Purchaser written notice of a material change in any
matter made the subject of the foregoing representations and warranties,
Purchaser's sole and exclusive remedy prior to Closing will be to (i) waive the
default by Seller and close the transaction contemplated hereby, without any
reduction in the Purchase Price, or (b) terminate this Agreement. To the
extent Purchaser has received written notice from Seller at or prior to
Closing, that any one or more of the foregoing representations and warranties
are not true and correct (the "Waived Representation(s)"), and Purchaser
consummates the transaction contemplated hereby, Purchaser waives any claims
against Seller for a breach of a Waived Representation. Purchaser's right to
bring a claim against Seller for breach of any representations and warranties
contained herein shall survive until one (1) year after the Closing.
Section 5.2. From the Effective Date until the Closing Date or
earlier termination of this Agreement, Seller shall:
(a) Operate the Real Property and Improvements, and
continue its marketing and leasing efforts, in the same manner as
heretofore, and use reasonable efforts to preserve for the benefit of
Purchaser the Tenant Leases and the relationships of Seller and its
tenants.
(b) Keep, maintain and repair the Real Property and
Improvements in a good, safe, neat, clean and presentable condition,
and comply in all material respects with all laws, ordinances,
regulations, licenses, permits and court or governmental orders
affecting the Property.
(c) Keep, observe and perform its obligations as landlord
under the Tenant Leases, and as long as tenants are not in default
thereunder, not cause the termination of any Tenant Lease nor alter,
amend or otherwise modify or supplement any Tenant Lease without the
prior written consent of Purchaser.
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(d) Not enter into any written or oral service contract or
other agreement with respect to the Property that will not be fully
performed on or before Closing, or that will not be cancelable by
Purchaser with thirty (30) days notice without liability on or after
Closing without the prior written consent of Purchaser.
(e) Promptly advise Purchaser of any pending or threatened
litigation, arbitration, administrative hearing or legislation before
any governmental body or agency, or any tax increase or assessment, of
which Seller becomes aware, that concerns or could affect the Property
or any part thereof.
(f) Not take or omit to take any action which would have the
effect of violating any of the representations, warranties, covenants
or agreements of Seller contained herein.
(g) Not further encumber or allow the encumbrance of the
title to the Property, or modify the terms or conditions of any
existing encumbrances (other than Tenant Leases), if any, which will
not be released at Closing, without in each case the prior written
consent of Purchaser.
Seller shall promptly advise Purchaser in writing if any covenant
contained in this Section 5.2 is breached prior to the Closing; provided,
however, that the delivery of such notification shall not waive, limit,
diminish or affect the right of Purchaser to object thereto or any right or
remedy of Purchaser relating thereto. As a condition precedent to Purchaser's
obligations hereunder, the covenants contained in this Section 5.2 shall have
been fully performed at all times up to and including the Closing Date.
ARTICLE 6.
Inspection and Audit; Purchaser's "Due Diligence"
Section 6.1 The Seller agrees that from the Effective Date until
Closing, Purchaser, personally or through its authorized agents, designees or
representatives, shall be entitled to enter upon the Real Property and into the
Improvements to conduct such physical and environmental and other inspections,
independent appraisals, and other tests, examinations and studies of the
Property as Purchaser desires, (but only upon twenty-four (24) hours prior
notice to Seller), during business hours and provided that such inspections do
not interfere with rights of tenants under the Tenant Leases or Seller's
operation of the Property. Seller agrees to provide Purchaser with all access
described in this Section and to facilitate Purchaser's entry and conduct of
its inspections and tests. Purchaser agrees to indemnify and hold Seller
harmless of and from any claim for physical damages or physical injuries
arising from Purchaser's inspection of the Property, and notwithstanding
anything to the contrary in this Agreement, such obligation to indemnify shall
survive Closing or any termination of this Agreement.
Section 6.2 Seller agrees that all times until the Closing occurs,
promptly in response to Purchaser's reasonable request therefor Seller will make
available and deliver to Purchaser and Purchaser's agents, representatives and
designees all reports, financial statements, operating statements, contracts,
permits, licenses, Tenant Leases, records, files and writings of any and every
kind whatsoever that relate in any way directly or indirectly to the Property,
the Real Property, the
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Improvements, any part of any thereof, any or all of the Tenant Leases, or the
business or affairs of Seller.
Section 6.3 If Purchaser, in its sole and unreviewable discretion, is
not satisfied in any respect with any matter relating in any way directly or
indirectly to the Property or any component or aspect thereof, Purchaser may
give Seller a notice (a "Due Diligence Termination Notice") at any time before
the Closing terminating this Agreement, in which event this Agreement will be
terminated without liability of or to either party and neither party shall have
any further obligations hereunder other than those that expressly survive the
termination of this Agreement.
ARTICLE 7.
Conditions Precedent to Obligations of Purchaser
Section 7.1 The satisfaction of each and every one of the following
shall be a condition precedent to Purchaser's obligation to close hereunder:
(a) the representations and warranties of Seller contained in
Section 5.1 shall have been true and correct on the Effective Date and
on the Closing Date;
(b) Seller shall have performed and complied with all of its
covenants, agreements and undertakings contained in Section 5.2 or
elsewhere herein;
(c) There shall not have occurred any material damage to or
change in the condition of any component or part of the Real Property
or Improvements since the Effective Date;
(d) There shall not be pending or threatened any condemnation
or proceeding in the nature of eminent domain affecting all or any part
of the Real Property;
(e) Seller shall have delivered to Purchaser the commitment
for the Title Policy, the Survey, all of the documents described in
Section 8.2 hereof and all other documents, writings and things which,
under any provision of this Agreement, Seller is to deliver to
Purchaser at or before the Closing;
(f) Purchaser shall have failed to deliver a "Due Diligence
Termination Notice" to Seller before the Closing;
(g) The closings shall have occurred, or shall simultaneously
be occurring, under all of the Related Agreements; and
(h) All other conditions precedent (if any) to Seller's
obligation to close, as set out in any provision of this Agreement,
shall have been satisfied.
Section 7.2 If any condition precedent to Purchaser' s obligation to
close hereunder is not timely satisfied, then Purchaser may elect, in its sole
discretion, to waive any such defect or requirement and close the transaction
contemplated herein or terminate this Agreement without liability and neither
party shall have any further obligations hereunder other than those that
expressly survive the termination of this Agreement.
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ARTICLE 8.
Closing
Section 8.1 The Closing hereunder shall take place at the offices of
Seller unless otherwise agreed between the parties in writing, on or before the
Closing Date, unless the Closing Date shall be extended by agreement by
Purchaser and Seller in writing in accordance with the terms hereof.
Section 8.2 At the Closing, Seller shall deliver or cause to be
delivered to Purchaser each of the following items, each duly executed by
Seller as required and in form and substance satisfactory to Purchaser:
(a) A bargain and sale deed, in the form of Exhibit "B"
attached hereto, duly executed and acknowledged by Seller, and in form
for recording, conveying good and indefeasible fee simple title in the
Real Property and Improvements to Purchaser, subject only to the liens
securing the Assumed Loan Balance of the Assumed Loan and, with
respect to each specific land parcel and the improvements situated
thereon, the Permitted Exceptions that apply to that particular parcel
as set out on Exhibit H attached hereto.
(b) A bill of sale, in the form of Exhibit "C" attached
hereto, with a list of the Personal Property attached, duly executed
by Seller, conveying to Purchaser the Personal Property.
(c) Executed originals of all Tenant Leases to the extent in
Seller's possession and, as to any Tenant Lease for which the executed
original is not in Seller's possession, a true photocopy of the actual
signed lease (each to be delivered at the respective property),
together with an assignment, in the form of Exhibit "D" attached
hereto, duly executed and acknowledged by Seller and in recordable
form, assigning to Purchaser all the Tenant Leases and all security
deposits held pursuant to the Tenant Leases.
(d) The Loan Assumption Documents.
(e) Letters addressed to each tenant under each Tenant
Lease, in the form of Exhibit "E" attached hereto, conforming to the
requirements of applicable state law and advising of the change of
ownership of the Property, the transfer of the security deposits (to
the extent the same are transferred) to Purchaser, and informing such
tenant to make future rental payments to the person, at the address,
designated by Purchaser.
(f) An assignment, in the form of Exhibit "F" attached
hereto, duly executed by Seller, assigning to Purchaser (i) all of
Seller's rights and benefits under any Miscellaneous Agreements
affecting the Property, (ii) all warranties, guaranties, and bonds
applicable to the Property or any part thereof, without representation
or warranty by Seller, and (iii) all of Seller's right, title, and
interest in the Trade Names without representation or warranty by
Seller.
(g) To be delivered at each respective property, all keys to
all locks on the Real Property or Improvements (and an accounting for
keys in possession of others); all books, records, files, documents,
reports, advertising materials, and correspondence pertaining to the
Property; all documents in the possession of the Seller pertaining to
tenants of the
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Property, including, but not by way of limitation, all applications,
correspondence and credit reports relating to each such tenant.
(h) A Certification in a form of Exhibit "G" attached hereto,
duly executed by the Seller under penalties of perjury, containing the
following:
(i) The Seller's U.S. Taxpayer Identification Number and
business address; and
(ii) A statement that the Seller is not a foreign person
within the meaning of Sections 1445 and 7701 of the
Internal Revenue Code and applicable regulations.
In the event that the Seller fails to deliver such Certification at
Closing or the Seller delivers such Certification but the Purchaser
has actual knowledge that such Certification is false or the Purchaser
receives notice that the Certification is false from any agent of the
Purchaser or the Seller, the Purchaser shall be entitled to withhold
from the Purchase Price a sum equal to ten percent (10%) of the total
amount which otherwise would have been realized by the Seller from
such sale, which sum will be paid by the Purchaser to the United
States Treasury pursuant to the requirements of Section 1445 of the
IRC and the regulations promulgated thereunder.
(i) Such evidence or documents as may reasonably be required
by Purchaser or the title insurance company issuing the Title Policy
evidencing the status and capacity of Seller and the authority of the
person or persons who are executing the various documents on behalf of
Seller in connection with the sale of the Property.
(j) The amount of any deposits or fees or prepaid rent, both
refundable and non-refundable, held by the Seller pursuant to
provisions of any Tenant Leases.
(k) A written guaranty of payment executed by Camden Property
Trust in favor of Purchaser, guaranteeing the payment by Seller of any
of its obligations and liabilities to Purchaser under this Agreement as
to which claims are asserted, and are permitted to be asserted, by
Purchaser after the Closing.
(l) A closing settlement statement acceptable to Seller and
Purchaser, duly signed by Seller.
(m) All other items comprising the Property and all other
documents, agreements, certificates, writings or items that any
provision of this Agreement obligates Seller to deliver to Purchaser.
(n) All other declarations (including, without limitation,
transfer tax declarations), documents, instruments and writings that
are required by law to be, or are customarily, executed or delivered by
sellers of multifamily residential real estate properties in connection
with the sale or conveyance thereof.
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Section 8.3 At the Closing, Purchaser shall deliver to Seller the
following items, each duly executed by Purchaser as required:
(a) The Cash Payment.
(b) The Loan Assumption Documents.
(c) Any of the conveyance documents described in Section 8.2
that require the signature of Purchaser.
(d) Such evidence or documents as may reasonably be required
by Seller evidencing the status and capacity of Purchaser and the
authority of the person or persons who are executing the various
documents on behalf of Purchaser in connection with the sale of the
Property.
(e) A closing settlement statement acceptable to Seller and
Purchaser, duly signed by Seller.
Section 8.4 At Closing, the following items shall be adjusted or
prorated between Seller and Purchaser, such prorations to be made effective as
of the Closing Date (Seller receiving the benefit and burden thereof):
(a) Rents collected for month in which Closing occurs shall
be prorated. No proration shall be made for rents not collected as of
the Closing Date and Purchaser shall have no liability to Seller for
such delinquent rents; provided, however, that if Purchaser collects
after Closing any rents which are owing to the Seller by tenants of the
Property and specifically designated by the payor thereof for periods
prior to the Closing Date, and if at that time all other rents due or
payable from those tenants are fully and currently paid (Purchaser
shall be entitled to apply all rental payments to the latest period for
which rentals are due), Purchaser shall promptly remit to Seller that
portion of such rental payments as is allocable to the period before
the Closing. This provision shall not be deemed an obligation, express
or implied, by or on behalf of Purchaser to take any action to collect
such rents.
(b) Taxes, ad valorem, personal or otherwise, for the
Property for the current calendar year shall be prorated. The
Seller's pro rata portion of such taxes shall be based upon taxes
actually assessed for the current calendar year. If, for any reason,
taxes for the current calendar year have not been assessed on the
Property such proration shall be estimated based upon the most
recently published tax rate and valuation for the Property for
calendar year in which the Closing Date occurs, and adjusted within
thirty (30) days following the date when exact amounts are available
and such adjustment provision shall expressly survive the closing
hereof.
(c) All other income and ordinary operating expenses for or
pertaining to the Property, public utility charges, maintenance,
service charges, and all other normal operating charges of the Property
shall be prorated.
In the event any adjustments pursuant to this Section 8.4 are,
subsequent to Closing, found to be erroneous, then either party hereto who is
entitled to additional monies shall invoice the other
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party for such additional amounts as may be owing, and such amount (reduced by
any monies due to the other party) shall be paid within ten (10) days from
receipt of the invoice. This covenant shall survive the Closing of the sale
contemplated hereby.
Section 8.5 Neither this Agreement, nor any of the rights and
obligations hereunder, may be assigned by Purchaser without Seller's prior
written consent, which may be withheld in Seller's sole and absolute
discretion. The preceding sentence shall not apply to, or reflect or limit in
any way, the admission of new or additional members into Purchaser.
Section 8.6 Exclusive possession of the Property shall be delivered
to Purchaser by Seller at the Closing, subject only to the rights of tenants
under the Tenant Leases and subject to the Permitted Exceptions.
Section 8.7 Seller shall pay for the Title Policy, the Survey, and
all transfer taxes relating to the transactions contemplated hereby. All other
costs and expenses (if any) in connection with the transaction contemplated by
this Agreement shall be borne by Seller and Purchaser in the manner in which
such costs and expenses are customarily allocated between the parties at
closings of multifamily residential real property similar to the Property in the
Las Vegas, Nevada area. Except as specifically provided in Section 10.5 hereof,
each party hereto shall pay its own attorneys' fees and expenses incurred in the
preparation and negotiation of this Agreement and the Closing of the transaction
contemplated hereby.
ARTICLE 9.
Remedies of Default
Section 9.1 In the event of Seller's default hereunder, Purchaser may
elect, at its option, as its sole and exclusive remedies, either to (a)
terminate this Agreement; or (b) if Seller's default arises out of its alleged
failure to perform its obligation to convey title on the Closing Date, enforce
specific performance hereunder against Seller.
Section 9.2 In the event that Seller is unable to consummate the
sale contemplated hereby due to a default by Purchaser, then, as Seller's sole
and exclusive remedy and relief, Seller shall be entitled to the Cash Payment
as liquidated damages for Purchaser's default. Such amount is agreed upon by
and between the Seller and the Purchaser as liquidated damages, due to the
difficulty and inconvenience of ascertaining and measuring actual damages, and
the uncertainty thereof; and no other damages, rights or remedies shall in any
case be collectible, enforceable or available to the Seller other than as
specified in this Article 9, but the Seller shall accept said Cash Payment as
the Seller's total damages and relief. If Purchaser fails to timely deliver
the Cash Payment, Seller shall have all rights at law or equity against
Purchaser for its default.
Section 9.3 Notwithstanding the provisions of Sections 9.1 and 9.2
above, in the event that after Closing a party (the "Defaulting Party") breaches
an obligation hereunder which is expressly stated herein to survive Closing, the
Defaulting Party shall be liable to the other party (the "Non-Defaulting Party")
for the damages incurred by the Non- Defaulting Party as a result of such
breach.
Section 9.4 Seller and Purchaser specifically acknowledge and agree
that any limitation on remedies set forth in this Article 9 does not apply to
the express hold harmless and
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indemnification agreements set forth in this Agreement or to the amounts
recoverable pursuant to Section 10.5 hereof.
ARTICLE 10.
Miscellaneous
Section 10.1 All notices, demands, or other communications of any type
(herein collectively referred to as "Notices") given by the Seller or required
to be given to the Purchaser or by the Purchaser to the Seller, whether required
by this Agreement or in any way related to the transaction contracted for
herein, shall be in writing and given in accordance with the provisions of this
Section 10.1. All notices shall be delivered or sent either in person, by
facsimile, by nationally recognized overnight courier, or by United States Mail,
as a registered or certified item, return receipt requested. Notices delivered
by mail shall be deemed given on the third business day after being deposited in
a post office or other depository under the care or custody of the United States
Postal Service, enclosed in a wrapper with proper postage affixed, addressed, as
follows:
If to Seller: NQRS, Inc.
c/o Camden Property Trust
3200 Southwest Freeway, Suite 1500
Houston, Texas 77027
Attention: Richard J. Campo
Telephone No.: (713) 964-3555
Facsimile No.: (713) 964-3599
With a copy to: Elizabeth Pringle Johnson, Esq.
Camden Property Trust
3200 Southwest Freeway, Suite 1500
Houston, Texas 77027
Telephone No.: (713) 964-3555
Facsimile No.: (713) 964-3590
and a copy to: Robert M. Berger, Esq.
Mayer, Brown & Platt
190 South LaSalle Street, Suite 3100
Chicago, IL 60603
Telephone No.: (312) 701-7272
Facsimile No.: (312) 701-7711
Stephen B. Hansen
Schroder Real Estate Associates, Inc.
437 Madison Avenue
New York, New York 10022
Telephone No.: (212) 940-3600
Facsimile No.: (212) 732-5144
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If to the Purchaser, as follows:
Sierra-Nevada Multifamily Investments, LLC
c/o Camden Property Trust
3200 Southwest Freeway, Suite 1500
Houston, Texas 77027
Attention: Richard J. Campo
Telephone No.: (713) 964-3555
Facsimile No.: (713) 964-3599
With a copy to: Elizabeth Pringle Johnson, Esq.
Camden Property Trust
3200 Southwest Freeway, Suite 1500
Houston, Texas 77027
Telephone No.: (713) 964-3555
Facsimile No.: (713) 964-3590
and a copy to: Robert M. Berger, Esq.
Mayer, Brown & Platt
190 South LaSalle Street, Suite 3100
Chicago, IL 60603
Telephone No.: (312) 701-7272
Facsimile No.: (312) 701-7711
Stephen B. Hansen
Schroder Real Estate Associates, Inc.
437 Madison Avenue
New York, New York 10022
Telephone No.: (212) 940-3600
Facsimile No.: (212) 732-5144
Notice given in person, by facsimile or by overnight courier shall be deemed
given upon receipt. Either party hereto may change the address for notice
specified above by giving the other party ten (10) days advance written notice
of such change of address.
Section 10.2 This Agreement shall be construed and interpreted in
accordance with the laws of the State of Nevada. Where required for proper
interpretation, words in the singular shall include the plural; the masculine
gender shall include the neuter and the feminine, and vice versa. The terms
"heirs, executors, administrators and assigns" shall include "successors, legal
representatives and assigns."
Section 10.3 This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective legal representatives,
successors and permitted assigns. This Agreement may not be modified or
amended except by an agreement in writing signed by the Seller and the
Purchaser, a copy of which has been delivered to Messrs. Hansen and Berger at
their respective addresses set out in Section 10.1 above. The parties may
waive any of the conditions contained herein or any of the obligations of the
other party hereunder, but any such waiver shall be effective only if in
writing and signed by the party waiving such conditions or obligations, a copy
of which waiver has been delivered to Messrs. Hansen and Berger at their
respective addresses set out in Section 10.1 above.
15
Section 10.4 Time is of the essence of this Agreement.
Section 10.5 In the event it becomes necessary for either party
hereto to file a suit to enforce this Agreement or any provisions contained
herein, the party prevailing in such action (as determined by the court) shall
be entitled to recover, in addition to all other remedies or damages,
reasonable attorneys' fees and court costs, including appellate costs, incurred
in such suit.
Section 10.6 The descriptive headings of the several Articles,
Sections and Paragraphs contained in this Agreement are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 10.7 This Agreement, including the Exhibits hereto,
constitutes the entire agreement among the parties pertaining to the subject
matter hereof and supersedes all prior and contemporaneous agreements and
understandings of the parties in connection therewith. No representation,
warranty, covenant, agreement or condition not expressed in this Agreement
shall be binding upon the parties hereto or shall affect or be effective to
interpret, change or restrict the provisions of this Agreement.
Section 10.8 Multiple originals of this Agreement have been executed
by the parties hereto. Each such executed original shall have the full force and
effect of an original executed instrument. Signature pages from the multiple
originals may be assembled to form one document. This Agreement may be executed
in multiple counterparts, all of which when taken together shall constitute one
and the same agreement.
Section 10.9 Unless otherwise specified, in computing any period of
time described in this Agreement, the day of the act or event after which the
designated period of time begins to run is not to be included and the last day
of the period so computed is to be included, unless such last day is a Saturday,
Sunday or legal holiday under the laws of the State of Nevada, in which event
the period shall run until the end of the next day which is neither a Saturday,
Sunday or legal holiday. The final day of any such period shall be deemed to end
at 5:00 o'clock p.m. (Central Time).
Section 10.10 If any term or provision of this Agreement which would
not deprive the parties of the benefit of the bargain shall be held to be
invalid, illegal, unenforceable or inoperative as a matter of law, the remaining
terms and provisions of this Agreement shall not be affected thereby, but each
such remaining term and provision shall be valid and shall remain in full force
and effect.
Section 10.11 Each party hereto acknowledges that each of them has had
the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement with its legal counsel and that this
Agreement has been jointly drafted and shall be construed as having been jointly
drafted by each party hereto. Accordingly, the rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be employed in the interpretation of this Agreement or any amendments or
exhibits hereto.
Section 10.12 In addition to the acts and deeds recited herein and
contemplated to be performed, executed and/or delivered by Seller and
Purchaser, both Seller and Purchaser hereby agree to perform, execute and/or
deliver or cause to be performed, executed and/or delivered at the Closing or
after the Closing, such further acts, deeds and assurances as the other party
hereto may
16
reasonably require to (a) evidence and vest in Purchaser the ownership of, and
title to, all of the Property in accordance with the terms hereof, and (b)
consummate the transactions contemplated hereunder.
Section 10.13 Each party agrees to reasonably cooperate with the other
in connection with any attempted "tax deferred exchange" by the other party, as
may be allowed or permitted under Section 1031 of the Internal Revenue Code of
1986 and the regulations promulgated thereunder, as such may have been or may in
the future be amended, including the execution of various assignments or notices
of assignments to qualified intermediaries as may be required to effect such a
transaction; provided, however, that the Purchaser will not be obligated to bear
or incur any costs or expenses in connection with such transaction and shall be
indemnified and held harmless by Seller from, against and with respect to all
aspects of any such exchange and the results or consequences thereof and all
matters arising therefrom. Additionally, the accomplishment of a tax deferred
exchange shall in no event be a condition to the Closing.
Section 10.14 THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE SUBSTANTIVE FEDERAL LAWS OF THE UNITED STATES
AND THE LAWS OF THE STATE OF NEVADA.
Section 10.15 Each party hereto represents to the other that such
respective party has not authorized any broker or finder to act on its behalf
in connection with the sale and purchase hereunder. Each party hereto agrees to
indemnify, defend, and hold harmless the other party from and against any and
all claims, losses, damages, costs, or expenses (including, but not limited to,
reasonable attorney's fees) of any kind or character arising out of or
resulting from any agreement, arrangement, or understanding alleged to have
been made by such party with any broker or finder in connection with this
Agreement or the transaction contemplated hereby. This Section 10.15 shall
survive the Closing or any earlier termination of this Agreement.
ARTICLE 11.
Disclaimers and Waivers
Section 11.1 Except as expressly set forth in Section 5.1 hereof,
Seller makes no representation or warranty as to the truth, accuracy or
completeness of any of the materials, data or information delivered by Seller
to Purchaser in connection with the transaction contemplated hereby. Purchaser
acknowledges and agrees that except as set forth in Section 5.1, all materials,
data and information delivered by Seller to Purchaser in connection with the
transaction contemplated hereby is provided to Purchaser as a convenience only,
that such materials, data and information may be incomplete or inaccurate, that
Seller is released from all claims and liability arising out of or relating to
such materials, data and information, and that any reliance on or use of such
materials, data or information by Purchaser shall be at the sole risk of
Purchaser. Purchaser acknowledges that Seller makes no representation or
warranty as to Seller's compliance with the American With Disabilities Act of
1990 or any amendments or regulations related thereto.
Section 11.2 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT
(INCLUDING, WITHOUT LIMITATION, SECTION 5.1 HEREOF) AND AS MAY HEREAFTER BE SET
FORTH IN ANY OF THE EXHIBITS HERETO, IT IS UNDERSTOOD AND AGREED AS FOLLOWS:
THAT SELLER IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY REPRESENTATIONS OR
WARRANTIES OF ANY KIND OR CHARACTER, EXPRESS OR
17
IMPLIED, WITH RESPECT TO THE PROPERTY, INCLUDING BUT NOT LIMITED TO, WARRANTIES
OR REPRESENTATIONS AS TO HABITABILITY, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE TO BE SET
FORTH IN THE DEED AND ANY OTHER WARRANTY OR REPRESENTATION BY SELLER TO BE
CONTAINED IN ANY OF THE OTHER EXHIBITS HERETO), ZONING, TAX CONSEQUENCES,
PHYSICAL OR ENVIRONMENTAL CONDITION (INCLUDING THE PRESENCE OF ASBESTOS),
UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS,
THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE TRUTH, ACCURACY OR
COMPLETENESS OF THE ITEMS DELIVERED TO COMPANY OR ANY OTHER INFORMATION
PROVIDED BY OR ON BEHALF OF SELLER TO COMPANY, OR ANY OTHER MATTER OR THING
REGARDING THE PROPERTY; THAT UPON CLOSING SELLER SHALL CONVEY TO COMPANY AND
COMPANY SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS, WITH ALL FAULTS;" COMPANY
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 RELATING THERETO MADE OR FURNISHED BY SELLER, THE
MANAGER OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR AGENT REPRESENTING OR
PURPORTING TO REPRESENT SELLER, TO WHOMEVER MADE OR GIVEN, DIRECTLY OR
INDIRECTLY, VERBALLY OR IN WRITING EXCEPT AS SET OUT IN THIS AGREEMENT; COMPANY
REPRESENTS TO SELLER THAT COMPANY HAS CONDUCTED, OR WILL CONDUCT PRIOR TO
CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED TO, THE
PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS COMPANY DEEMS NECESSARY TO
SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR
NONEXISTENCE OF CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR
TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON
SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS
AGENTS OR EMPLOYEES WITH RESPECT THERETO EXCEPT AS SET OUT IN THIS AGREEMENT;
UPON CLOSING, COMPANY SHALL ACCEPT THE RISK THAT ADVERSE MATTERS, INCLUDING BUT
NOT LIMITED TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL
CONDITIONS, MAY NOT HAVE BEEN REVEALED BY COMPANY'S INVESTIGATIONS, AND
COMPANY, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED SELLER FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION
(INCLUDING CAUSES OF ACTION IN TORT), LOSSES,
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DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' FEES AND COURT
COSTS) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH COMPANY
MIGHT HAVE ASSERTED OR ALLEGED AGAINST SELLER AT ANY TIME BY REASON OF OR
ARISING OUT OF ANY CONSTRUCTION DEFECTS, PHYSICAL CONDITIONS, VIOLATIONS OF ANY
APPLICABLE LAWS (INCLUDING ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER ACTS,
OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY EXCEPT AS
SET OUT IN THIS AGREEMENT; COMPANY ACKNOWLEDGES THAT THE PURPOSE OF THIS
SECTION IS FOR COMPANY, TO THE FULLEST EXTENT POSSIBLE AT LAW, TO WAIVE,
RELINQUISH, RELEASE AND DISCLAIM, ANY CLAIM OR LIABILITY OF OR AGAINST SELLER
AS THE RESULT OF ANY CONDITION OR STATE OF FACTS RELATING OR PERTAINING TO THE
PROPERTY ON THE CLOSING DATE, EXCEPT AS SET OUT IN THIS AGREEMENT.
Section 11.3. All of the terms, provisions, releases and covenants
set forth in this Article 11 shall survive the Closing and not be merged
therein.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement to be effective as of the Effective Date.
EXECUTED on this the 26th day of June, 1998, by Purchaser.
SIERRA-NEVADA MULTIFAMILY
INVESTMENTS, LLC, a Delaware limited liability
company
By: Camden Subsidiary, Inc., Manager
By: /s/ G. Steven Dawson
--------------------------------------
G. Steven Dawson, Senior Vice President
EXECUTED on this the 26th day of June, 1998, by Seller.
NQRS, INC., A NEVADA CORPORATION
By: /s/ G. Steven Dawson
---------------------------------------------
G. Steven Dawson, Senior Vice President