PURCHASE AND SALE AGREEMENT
Between
WELLSFORD SONTERRA LLC,
an Arizona limited liability company
(Seller)
and
THAYER RESIDENTIAL, INC.
a Washington Corporation
(Buyer)
Dated as of May 31, 2000
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TABLE OF CONTENTS
Page
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1. PURCHASE AND SALE....................................................1
2. PURCHASE PRICE.......................................................2
3. EARNEST MONEY........................................................2
(a) Deposit.....................................................2
(b) Treatment of the Deposit....................................2
(c) Disposition of Earnest Money................................2
4. PAYMENT OF PURCHASE PRICE............................................2
(a) Delivery of Earnest Money...................................2
(b) Payment of Balance..........................................2
5. TITLE MATTERS........................................................2
(a) Title Commitment............................................2
(b) Surveys.....................................................3
6. INSPECTION PERIOD, DELIVERIES AND PROCEDURES.........................3
(a) Definition of Inspection Period.............................3
(b) Seller's Deliveries.........................................3
(c) Inspection of Property Files................................4
(d) Completeness of Seller's Deliveries and the Property Files..4
(e) Inspection Rights of Buyer..................................4
(f) Termination Right of Buyer..................................5
(g) Continuation Notice.........................................5
(h) Assigned Contracts..........................................5
(i) Indemnification.............................................5
7. LOAN ASSUMPTION CONTINGENCY..........................................5
8. CLOSING..............................................................6
9. TRANSACTIONS AT CLOSING..............................................6
(a) Deliveries by Seller........................................6
(b) Deliveries by Buyer.........................................6
(c) Notice to Tenants...........................................7
10. PRORATIONS; CLOSING ITEMS............................................7
(a) Rents.......................................................7
(b) Security Deposits...........................................7
(c) Assigned Contracts..........................................7
(d) Real and Personal Property Taxes and Assessments............7
(e) Utility Expenses............................................8
(f) Recording Fees..............................................8
(g) Escrow and Title Fees.......................................8
(h) Attorney's Fees.............................................8
(i) Inspection Fees.............................................8
(j) Operating Expenses..........................................8
(k) Other Fees and Costs........................................8
(l) Expenses after Closing......................................8
(m) Re-proration................................................8
11. REPRESENTATIONS AND WARRANTIES.......................................9
(a) Representations and Warranties by Seller....................9
(b) Buyer's Representations and Warranties.....................10
12. "AS IS."............................................................10
(a) Buyer's Acknowledgment.....................................10
(b) "Hazardous Materials" Defined..............................11
(c) Hazardous Materials........................................11
13. SELLER'S COVENANTS..................................................12
(a) Operations Prior to Closing................................12
(b) Contracts..................................................12
(c) Further Liens..............................................12
(d) Termite Certificates.......................................12
(e) Insurance..................................................12
14. CONDITIONS TO CLOSING...............................................12
(a) Seller's Conditions........................................12
(b) Buyer's Conditions.........................................13
15. DAMAGE OR DESTRUCTION OF THE PROPERTY; CONDEMNATION.................13
(a) Damage or Destruction of the Property......................13
(b) Condemnation...............................................14
(c) Repairs....................................................14
16. COMMISSIONS, EXPENSES AND CREDITS...................................14
17. REMEDIES............................................................15
(a) Seller's Remedies..........................................15
(b) Buyer's Remedies...........................................15
(c) Provisions Applicable to Buyer and Seller..................16
18. NOTICES.............................................................16
19. MISCELLANEOUS.......................................................17
(a) No Waiver..................................................17
(b) Entire Agreement...........................................17
(c) Survival...................................................18
(d) Successors.................................................18
(e) Binding Effect; Assignment.................................18
(f) Relationship of the Parties................................18
(g) Governing Law..............................................18
(h) Severability...............................................18
(i) Possession; Risk of Loss...................................18
(j) Review by Counsel..........................................18
(k) Return of Documents........................................18
(l) Exhibits...................................................19
(m) No Recording...............................................19
(n) Counterparts...............................................19
(o) Time of Essence............................................19
(p) Confidentiality............................................19
SCHEDULE OF EXHIBITS
Exhibit A - Legal Description
Exhibit B - Personal Property
Exhibit C - Rent Roll Certification
Exhibit D - Assigned Contracts
Exhibit E - Special Warranty Deed Form
Exhibit F - Special Warranty Bill of Sale Form
Exhibit G - Assignment and Assumption Agreement Form
Exhibit H - Tenant Notification Letter
Exhibit I - Buyer's Certificate
PURCHASE AND SALE AGREEMENT
---------------------------
THIS PURCHASE AND SALE AGREEMENT ("Agreement") is made as of the day of
May, 2000 (the "Effective Date"), by and between WELLSFORD SONTERRA LLC, an
Arizona limited liability company ("Seller"), and THAYER RESIDENTIAL INC., a
Washington corporation ("Buyer").
RECITALS
A. Seller is the owner of the land more particularly described on Exhibit A
attached hereto and incorporated herein by this reference (the "Land") and the
buildings, parking areas, and other real property improvements (the
"Improvements") located thereon (the Land and the Improvements are hereinafter
referred to as the "Real Property"), comprising an apartment complex located in
Tucson, Arizona, containing 344 units commonly known as Sonterra at Williams
Centre Apartments.
B. Subject to the terms and conditions contained herein, Seller desires to
sell and Buyer desires to purchase the Real Property and the other Property (as
defined herein).
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
Seller and Buyer agree as follows:
1. PURCHASE AND SALE. Subject to the terms and conditions hereof, Seller
hereby agrees to sell, convey and assign to Buyer, and Buyer hereby agrees to
purchase and accept from Seller on the Closing Date (as defined in Paragraph 8
hereof) the following (the "Property"):
(a) The Real Property, including any and all rights, privileges and
easements appurtenant thereto which are owned by Seller.
(b) All right, title and interest of Seller in the following property
(excluding without limitation any personal property owned by the tenants of
the Property and the property manager of the Property) (the "Personal
Property"): (i) all fixtures, equipment, appliances, and other items of
personal property owned by Seller and attached to or located on the Real
Property (except for any computer hardware and software); and (ii) all
assignable or transferable intangible property used in connection with the
Real Property, including (A) any guaranties and warranties pertaining to
the Real Property, (B) all rights to obtain utility service in connection
with the Real Property, (C) assignable licenses and other governmental
permits and permissions relating to the Real Property, and (D) any
assignable interest in the trade name "Sonterra at Williams Centre."
Attached hereto as Exhibit B is a list of the tangible personal property
for Sonterra at Williams Centre Apartments.
(c) All of Seller's right, title and interest in all leases and
occupancy agreements covering space in the Improvements (the "Leases").
(d) All of Seller's right, title and interest in the "Assigned
Contracts" (as defined in Paragraph 6(h) hereof).
2. PURCHASE PRICE. Buyer shall pay as the total purchase price for the
Property (the "Purchase Price") the sum of Twenty-Two Million Five Hundred Fifty
Thousand and No/100 Dollars ($22,550,000.00). The Purchase Price shall be paid
as follows: (i) Buyer shall assume the existing loan from NationsBank, N.A., its
successors and assigns, to Seller in the original principal amount of
$16,400,000.00 (the "Existing Loan"), the balance of which shall not exceed
Sixteen Million One Hundred Thousand and No/100 Dollars ($16,100,000.00) at the
time of Closing plus (ii) Buyer shall pay to Seller, in good funds at Closing,
an amount equal to the Purchase Price minus the outstanding balance of the
Existing Loan as of the Closing Date.
3. EARNEST MONEY.
(a) Deposit. Concurrently with the execution of this Agreement, Buyer
has caused Three Hundred Fifty Thousand and No/100 U.S. Dollars
($350,000.00) (the "Deposit") to be delivered to Chicago Title of Arizona
(Tucson Office), Inc. (the "Title Company"). The Deposit, along with any
interest earnings thereon are referred to herein collectively as the
"Earnest Money."
(b) Treatment of the Deposit. Upon the expiration of the Inspection
Period (as defined below) and subject to the loan assumption contingency
set forth in Paragraph 7 below, the Deposit shall become non-refundable to
Buyer in all events except for Seller's default hereunder or as otherwise
expressly set forth herein.
(c) Disposition of Earnest Money. The Title Company shall hold, invest
and disburse the Earnest Money strictly in accordance with the terms of
this Agreement and in accordance with any escrow instructions in connection
herewith executed by all of Buyer, Seller and the Title Company. Buyer will
provide the Title Company with its taxpayer identification number and such
additional information and documents as may be required by the Title
Company.
4. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be due and payable
on the Closing Date as follows:
(a) Delivery of Earnest Money. At Closing, the Title Company shall
deliver the Earnest Money to Seller by wire transfer of immediately
available funds through the U.S. Federal Reserve System to Seller in
partial payment of the Purchase Price; and
(b) Payment of Balance. Buyer shall pay the balance of the Purchase
Price, as adjusted in accordance with the terms of this Agreement, by wire
transfer of immediately available funds through the U.S. Federal Reserve
System to Seller, on or before the Closing Date.
5. TITLE MATTERS.
(a) Title Commitment. Seller shall cause the Title Company to deliver
to Buyer within five (5) business days after the Effective Date a current
title insurance commitment issued by the Title Company covering the Real
Property in the amount of the Purchase Price (the "Preliminary Title
Commitment") accompanied by copies of the exceptions to title set forth in
the Preliminary Title Commitment. Buyer shall be solely responsible for
negotiating with the Title Company to obtain the deletion of or to obtain
affirmative coverage over any such exceptions, and for obtaining such
endorsements as Buyer may desire. Buyer shall have until fifteen (15)
business days after delivery of the Preliminary Title Commitment and the
existing survey described in Section 5(b) below (the "Title and Survey
Review Period") to review title and survey and to obtain the agreement of
the Title Company with respect to the exceptions to title and endorsements
to be issued to Buyer by the Title Company. If Buyer has reached such an
agreement with the Title Company upon expiration of the Title and Survey
Review Period, the Preliminary Title Commitment in the form agreed to
between Buyer and the Title Company shall be the "Approved Title
Commitment." If Buyer has not reached such an agreement with the Title
Company at the end of the Title Survey Review Period or otherwise approved
the condition of title, Buyer may (i) terminate this Agreement and the
Earnest Money shall be promptly returned to Buyer or (ii) proceed with the
purchase of the Property as set forth in Paragraph 6(g) below (subject to
any other applicable contingencies), in which case the Preliminary Title
Commitment as it exists at the expiration of the Title and Survey Review
Period shall be the "Approved Title Commitment." "Permitted Exceptions"
shall mean the following: (x) the title exceptions listed on the Approved
Title Commitment, and (y) the standard printed exceptions, except that the
exception for taxes shall be modified to read "real property taxes and
assessments for 2000 and subsequent years." At the Closing, Seller shall
pay that portion of the cost of issuance of a standard owner's policy of
title insurance to Buyer (the "Title Policy") attributable to the Title
Policy prior to any negotiations of Buyer for deletion of or affirmative
coverage over any such exceptions or for Buyer's endorsements, and Buyer
shall pay all costs over and above the basic cost of the Title Policy
(including any costs attributable to Buyer's negotiations, the cost of any
endorsements Buyer may request and any costs associated with upgrading to
an ALTA policy), as well as the cost of any title insurance premiums and
charges resulting from requirements imposed by Buyer's lender, if any. If
on the Closing Date, the Real Property is subject to any liens,
encumbrances or title defects (other than the Permitted Exceptions) which
did not arise because of a default by Seller hereunder, then Seller shall
not be obligated to cure or attempt to cure such defect.
(b) Surveys. Within five (5) business days after the Effective Date,
Seller shall deliver to Buyer a copy of the most recent as-built ALTA
survey of the Real Property which is in Seller's possession. If Buyer so
elects, Buyer may obtain an update of such survey and cause such updated
survey to be certified to Buyer and its lender at Buyer's own cost and
expense.
6. INSPECTION PERIOD, DELIVERIES AND PROCEDURES.
(a) Definition of Inspection Period. The "Inspection Period" shall
mean the period of time from the mutual execution of this Agreement until
5:00 p.m. Tucson Time on the date
which is ten (10) business days after the later of (i) the Effective Date
and (ii) delivery of the Seller's Deliveries (as defined below).
(b) Seller's Deliveries. In addition to the delivery of the
Preliminary Title Commitment and the existing survey as required by
Paragraph 5 hereof, Seller either has previously delivered or, immediately
upon the execution hereof by Buyer and Seller, will deliver, at its
expense, the following items which are in the possession of Seller to Buyer
("Seller's Deliveries"):
(i) A current rent roll describing all of the Leases as of the
date of this Agreement, including a schedule of security deposits
certified by Seller to the best of its knowledge and based on
information provided to it by its property manager (the form of rent
roll certification is attached hereto as Exhibit C);
(ii) Copies of the most recently conducted environmental
assessments of the Property, which are in Seller's possession;
(iii) Soils reports, environmental studies, engineering reports,
surveys and flood plain information concerning the Property, which are
in Seller's possession;
(iv) Copies of all service contracts, equipment leases and
maintenance contracts relating to the Property, which are in effect on
the Effective Date;
(v) Operating information for the period of time that Seller
owned the Property, including information regarding the following: (a)
AD VALOREM taxes both real and personal, (b) annual insurance premiums
for fire, extended coverage, workmen's compensation, vandalism, and
malicious mischief, general liability, rents, and other forms of
insurance, (c) expenses incurred for water, electricity, natural gas
and other utility charges, and (d) total rents collected from tenants,
and (e) year-to-date operating information;
(vi) A full list of all employees' compensation, management
company compensation, including employee benefits, utilities and
apartment compensation and bonuses and other commission compensation;
and
(vii) All insurance claims during the period of seller's
ownership of the Property.
(c) Inspection of Property Files. During the Inspection Period, Seller
shall make the "Property Files" (as defined below) available for inspection
by Buyer or its authorized agents or representatives ("Buyer's Agents"), at
the offices of Seller or in the offices of Seller's property manager or on
the Real Property, as applicable, during regular business hours and upon
reasonable prior notice to Seller and the property manager. The Property
Files shall mean the following, to the extent that the same are in the
possession of Seller or its property manager: lease files, including
originals and copies of leases, lease applications and credit information.
(d) Completeness of Seller's Deliveries and the Property Files. The
description of the Property Files above is not a representation that such
items are in the possession of Seller or its property manager, but is only
intended to be a list of the items which Buyer may inspect, if Seller or
its property manager possesses the same. Seller shall cooperate with Buyer
by copying such portions of the Property Files as Buyer may request upon
reasonable notice to Seller. Buyer shall not remove any items from the
Property Files. At all times, a representative of Seller shall be present
during any inspection of the Property Files. Except as provided in: (i)
Paragraph 11(a) hereof, or (ii) the rent roll to be delivered by Seller to
Buyer at the Closing, and (iii) any representations contained in the Deed
(the foregoing items (i), (ii) and (iii) being hereinafter collectively
referred to as the "Property Representations"), Seller makes no warranty,
representation or guarantee of any type or kind with respect to the
accuracy or completeness of the information contained in Property Files.
Except for reliance upon the representation set forth in Paragraph
11(a)(viii) hereof, any reliance by Buyer on the Property Files shall be at
its sole risk.
(e) Inspection Rights of Buyer. Subject to the rights of the tenants
under the Leases, during the Inspection Period Buyer and Buyer's Agents may
during regular business hours and on at least 72 hours' prior notice to
Seller, have access to the Real Property for the purpose of making
inspections thereof and compiling such information as Buyer deems
appropriate. Any requests to inspect the Property or the Property Files
shall be made to David Strong, or in his absence, to Julie Banister, both
of whom are in the Denver office of Seller referred to in the notice
provisions of this Agreement.
(f) Termination Right of Buyer. If Buyer is dissatisfied with any
aspect of this transaction, Buyer may terminate this Agreement by giving
written notice of termination (a "Termination Notice") to Seller and the
Title Company prior to the expiration of the Inspection Period. Failure by
Buyer to provide a Continuation Notice pursuant to Paragraph 6(g) hereof to
Seller prior to the expiration of the Inspection Period shall constitute an
election by Buyer to terminate this Agreement as if Buyer had delivered a
Termination Notice in accordance with this Paragraph 6(f). If this
Agreement is terminated in accordance with this Paragraph 6(f), the Title
Company shall deliver the Earnest Money to Buyer promptly after its receipt
of a Termination Notice from Buyer.
(g) Continuation Notice. If Buyer desires not to terminate this
Agreement at the expiration of the Inspection Period, Buyer shall give
written notice of such election (a "Continuation Notice") to Seller and the
Title Company prior to the expiration of the Inspection Period.
(h) Assigned Contracts. Attached hereto as Exhibit D is a list of all
service contracts and other contracts and agreements which affect or relate
to the Property which Seller requires that Buyer assume in connection with
the closing of the Property. Assigned Contracts shall mean (i) all such
contracts and agreements set forth on such Exhibit D, (ii) all contracts
and agreements which constitute Permitted Exceptions, and (iii) any other
contracts and agreements that Buyer and Seller agree in writing shall
constitute Assigned Contracts.
(i) Indemnification. Buyer shall pay when due all fees and expenses
incurred in conducting its inspections, tests or observations. Buyer shall
not unreasonably disturb or interfere with the operation, management or use
of the Property by Seller, Seller's agents, or any of the tenants or their
invitees or guests. Buyer shall not damage any of the Property. Buyer
hereby indemnifies, defends, and holds Seller and the Property harmless
from any and all costs, loss, damages or expenses, of any kind or nature
(including reasonable attorneys' fees and expenses), arising out of or
resulting from Buyer's exercise of its inspection rights, including without
limitation, any entry and/or activities upon the Property by Buyer, Buyer's
Agents, contractors, and/or subcontractors. The indemnity set forth in this
Paragraph 6(i) shall survive any termination of this Agreement and the
Closing.
7. LOAN ASSUMPTION CONTINGENCY. Buyer's obligation to close this
transaction is further contingent upon Buyer obtaining lender's approval to
assume the Existing Loan within sixty (60) days after the Effective Date (the
"Loan Assumption Period") upon the current terms of the Existing Loan (unless
otherwise approved by Buyer). Within three (3) business days after Buyer's
receipt of the assumption application from the current lender, Buyer shall make
a complete application to the current lender for the assumption of the Existing
Loan. Buyer shall be responsible for the payment of any application and/or loan
assumption fees. Buyer shall provide all information reasonably requested by
lender and shall use good faith efforts to secure lender's approval of the
assignment of the Existing Loan on or before the expiration of the Loan
Assumption Period. Any approved assumption of the Existing Loan shall provide
that Seller will be completely released from all obligation under the Existing
Loan. In the event Buyer does not obtain such approval on or before the
expiration of the Loan Assumption Period, Buyer may terminate this Agreement and
the Earnest Money shall be promptly returned to Buyer.
8. CLOSING. The purchase and sale of the Property ("Closing") shall occur
on or before ninety (90) days after Buyer's delivery of the Continuation Notice
(the "Closing Date"), and shall be effected through an escrow closing conducted
by the Title Company. Notwithstanding the foregoing, Buyer shall have a one-time
right to extend the Closing Date by up an additional thirty (30) days upon
delivery of written notice to Seller on or before seven (7) days prior to the
anticipated Closing Date of Buyer's exercise of its right to extend accompanied
by an additional $100,000.00, which amount shall be added to and become a part
of the Deposit, provided, however, that in no event shall the actual Closing
Date be later than September 30, 2000 and shall be applied to the Purchase Price
at Closing or otherwise disposed of in accordance with the terms of this
Agreement.
9. TRANSACTIONS AT CLOSING. On the Closing Date:
(a) Deliveries by Seller. Provided that Seller's conditions to Closing
as specified in Paragraph 14(a) hereof have been satisfied or have been
waived in writing by Seller, Seller shall deliver or cause to be delivered
to Buyer the following documents (the "Conveyance Documents") duly executed
by Seller and acknowledged where appropriate:
(i) A Special Warranty Deed conveying the Real Property
substantially in the form attached hereto as Exhibit E (the "Deed");
(ii) A Special Warranty Bill of Sale substantially in the form
attached hereto as Exhibit F (the "Bill of Sale") conveying Seller's
interest in the Personal Property to Buyer;
(iii) An Assignment and Assumption Agreement substantially in the
form attached hereto as Exhibit G (the "Assignment") pursuant to which
Seller assigns the Leases and the Assigned Contracts to Buyer, and
Buyer assumes the obligations of Seller under the Leases and the
Assigned Contracts;
(iv) A Certificate of non-foreign status to confirm that Buyer is
not required to withhold part of the Purchase Price pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended;
(v) Seller's Settlement Statement;
(vi) An update of the rent roll provided in accordance with
Paragraph 6(b)(i), certified by Seller to be accurate to the best of
Seller's knowledge, based solely on information provided by Seller's
property manager (the form of rent roll certification is attached
hereto as Exhibit C); and
(vii) Such other documents and instruments as may be reasonably
necessary and appropriate to effect the Closing of the transaction
contemplated herein.
(b) Deliveries by Buyer. Provided that Buyer's conditions to Closing
as specified in Paragraph 14(b) hereof have been satisfied or have been
waived in writing by Buyer, Buyer shall deliver or cause to be delivered to
Seller the following items and documents duly executed by Buyer and
acknowledged where appropriate:
(i) The balance of the Purchase Price, as adjusted in accordance
with the terms of this Agreement;
(ii) The Bill of Sale;
(iii) The Assignment;
(iv) Buyer's Settlement Statement;
(v) Buyer's Certificate described in Paragraph 11(b)(iv) hereof;
and
(vi) Such other documents as may be reasonably necessary and
appropriate to complete the Closing of the transaction contemplated
herein.
(c) Notice to Tenants. Seller and Buyer shall execute a tenant
notification letter to the Tenant (the "Tenant Notification Letter")
substantially in the form of Exhibit H attached hereto, disclosing the
change of ownership of the Property with the name and address of the Buyer
and the Closing Date, and Buyer shall, within three (3) business days
following the Closing, cause the Tenant Notification Letter to be delivered
to the tenants of the Property.
10. PRORATIONS; CLOSING ITEMS. The Purchase Price is subject to the
following prorations and adjustments, to be determined as of the Closing Date:
(a) Rents. Any rents and other income attributable to the use or
occupancy of the Property during the month of Closing and actually
collected on or prior to the Closing shall be prorated to the date Seller
receives the Purchase Price (the "Settlement Date") in immediately
available funds. After the Closing, if any such rents and other income are
actually received by Buyer, all such amounts shall first be applied by
Buyer to currently due rents, then to past due rents in the order such
amounts became due. Buyer shall promptly deliver any such amounts owed to
Seller after receipt. Buyer shall make a good faith effort to collect any
such rents and other income not apportioned at the Closing for the benefit
of the Seller, however, Buyer shall not be required to institute litigation
in its collection efforts.
(b) Security Deposits. Buyer shall receive a credit against the
Purchase Price for the amount of any refundable security deposits actually
held by Seller under the Leases on the Closing Date.
(c) Assigned Contracts. Prepaid fees or accrued liabilities under the
Assigned Contracts shall be prorated as of the Closing Date.
(d) Real and Personal Property Taxes and Assessments.
(i) Real property taxes and assessments for the year during which
the Closing occurs shall be prorated to the Closing Date based on
actual tax figures, if known, or the estimated tax figures if the
actual amount is not known. If estimated tax figures are used, they
shall be based on the assumption that they will equal 103% of the
current year's taxes. The above proration shall be final.
(ii) Buyer shall be solely responsible for the payment of all
personal property taxes, sales and/or transfer taxes relating to the
sale of the Personal Property.
(iii) Any AD VALOREM tax on the Personal Property shall be
prorated between Buyer and Seller.
(iv) Any homeowners' association dues and assessments shall be
prorated between Buyer and Seller.
(e) Utility Expenses. At Closing, Seller and Buyer shall cause all
existing accounts for utilities to be transferred to Buyer as of the
Closing Date. Buyer shall be obligated to pay all utility bills for service
from and after the Closing Date and Seller shall be responsible for all
utility bills for service prior to the Closing Date. Any transfer fees
shall be paid by Buyer.
(f) Recording Fees. To the extent such costs are customarily allocated
to the seller of real property, Seller shall pay recording fees for the
Deed (including documentary stamp tax) and all costs of releasing existing
liens to be released.
(g) Escrow and Title Fees. Escrow fees and title insurance premiums
shall be allocated as elsewhere set forth herein.
(h) Attorney's Fees. Each party shall bear its own fees and expenses
of counsel in connection with the negotiation and execution of this
Agreement and the Closing of the purchase of the Property.
(i) Inspection Fees. Buyer shall bear all its costs and expenses
incurred in connection with its due diligence activities, inspections and
investigations in connection with this Agreement.
(j) Operating Expenses. Expenses of operating the Real Property which
are not otherwise accounted for herein shall be prorated as of the Closing
Date, regardless of whether or not such expenses relate to Assigned
Contracts.
(k) Other Fees and Costs. To the extent not otherwise provided for
herein, Seller shall pay such other fees, costs and expenses as are
customarily paid by sellers and Buyer shall pay such other fees, costs and
expenses as are customarily paid by buyers of real property in the Tucson,
Arizona metropolitan area.
(l) Expenses after Closing. Buyer shall be liable for all utility,
insurance and other ordinary operating expenses related to the Property
which are attributable to the period on and after the Closing Date and
shall indemnify Seller against its failure to pay such amounts, which
indemnity shall survive the Closing. Except for those costs specifically
enumerated herein to be paid by Seller, none of the fees, costs, or
expenses arising from or related to this purchase and sale are to be borne
by Seller.
(m) Re-proration. If at any time within one year after the Closing
Date the amount of any prorated items shall prove to have been incorrect,
the party in whose favor the error was made shall pay to the other party
the sum necessary to correct the error within ten (10) business days after
receipt of proof of such error from the other party. Any valid bill that is
received by Seller or Buyer after the Closing shall be prorated as of the
Closing in accordance with the terms of the indemnification set forth
herein, and each party liable therefor shall pay its pro rata share within
ten (10) days after receipt of notice and evidence of the validity thereof.
This Paragraph shall expressly survive the Closing hereunder. No
re-prorations or adjustments shall be made more than one year after the
Closing Date absent fraud, deceit or intentional misconduct; no
re-prorations or adjustments shall be made for real property taxes (as set
forth in Section 10(d)(i) above) or matters in the aggregate less than
$5,000.
(n) Seller shall pay all accrued employee and management salary,
bonuses, vacation and other compensation as of Closing.
11. REPRESENTATIONS AND WARRANTIES.
(a) Representations and Warranties by Seller. Seller hereby represents
and warrants to Buyer that the following are true and correct as of the
date hereof:
(i) Seller has legal power, right and authority to enter into
this Agreement and the instruments referenced herein, and to
consummate the transactions contemplated hereby, and this Agreement
and the consummation of the transactions contemplated hereby have been
duly authorized by all necessary partnership actions.
(ii) The execution of this Agreement and the documents executed
pursuant hereto will not result in a breach of or constitute any
default, with or without notice or passage of time, or both, under any
agreement, contract, note, deed of trust or other document to which
Seller is a party or by which Seller or the Property is or might be
bound.
(iii) Seller is not a "foreign person," as that term is used and
defined in the Internal Revenue Code, Section 1445, as amended.
(iv) To Seller's knowledge, Seller has not received written
notice that any eminent domain, condemnation or similar proceeding or
conveyance in lieu thereof of all or any part of the Property is
contemplated.
(v) To Seller's knowledge, Seller has not received any notices of
violation of any law, rule, regulation or ordinance affecting the
Property.
(vi) To Seller's knowledge, there are no actions, suits or
proceedings pending or threatened against the Property.
(vii) To Seller's knowledge, collectively the actual Seller's
Deliveries made by Seller and the Property Files to which Seller will
provide Buyer access contains all material information in Seller's
possession which are described in Paragraphs 6(b) and 6(c) hereof.
Seller has not caused any material portion of the Property Files to be
removed or destroyed. Seller has no knowledge of any material
inaccuracies in any of the information contained in the Seller's
Deliveries.
(viii) Seller is not the subject of any bankruptcy proceedings.
(ix) To Seller's knowledge, there are no physical or structural
defects to the Improvements, except as disclosed to Buyer, in writing,
or as set forth in any of the Seller's Deliveries.
The representations and warranties made by Seller in this Agreement shall
survive the Closing Date for a period of one (1) year, and any action for a
breach of any representation, warranty or covenant must be made and filed within
said one (1) year period. As used herein, "Seller's knowledge" means the
current, actual knowledge of David Strong, Vice President of Wellsford
Residential Property Trust and the only officer/employee of Seller charged with
the day-to-day operation and ownership of the Property.
(b) Buyer's Representations and Warranties. Buyer represents,
warrants, and covenants to Seller that:
(i) Buyer has legal power, right and authority to enter into this
Agreement and the instruments referenced herein, and to consummate the
transactions contemplated hereby, and this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all necessary actions.
(ii) Buyer is a corporation duly formed and validly existing
under the laws of the State of Washington.
(iii) Buyer has not relied on any representation or warranty made
by Seller or any agent or representative of Seller other than the
Property Representations in connection with this Agreement or the
acquisition of the Property.
(iv) At Closing, Buyer shall deliver to Seller a certificate
("Buyer's Certificate") dated as of the Closing Date, executed by an
officer of Buyer, in the form attached hereto as Exhibit I.
The representations and warranties made by Buyer in this Agreement shall survive
the Closing and shall not merge thereby.
12 "AS IS."
(a) Buyer's Acknowledgment. Buyer acknowledges for Buyer and Buyer's
successors, heirs and assignees, (i) that Buyer is being afforded a
reasonable opportunity to inspect and investigate the Property, all
improvements thereon and all aspects relating thereto, either independently
or through agents and experts of Buyer's choosing and (ii) that Buyer is
acquiring the Property based solely upon Buyer's own investigation and
inspection thereof and the Property Representations, and (iii) the
provisions of this Paragraph 12 shall survive Closing and shall not be
merged therein. SELLER AND BUYER AGREE THAT THE PROPERTY SHALL BE SOLD AND
THAT BUYER SHALL ACCEPT POSSESSION OF THE PROPERTY ON THE CLOSING DATE "AS
IS, WHERE IS, WITH ALL FAULTS" WITH NO RIGHT OF SET-OFF OR REDUCTION IN THE
PURCHASE PRICE, AND THAT EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT
SUCH SALE SHALL BE WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS
OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTY OF INCOME, POTENTIAL,
OPERATING EXPENSES, USES, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE (BUT SPECIFICALLY EXCLUDING THE LIMITED WARRANTY OF TITLE TO BE
GIVEN IN THE DEED AND OTHER CONVEYANCE DOCUMENTS), AND SELLER DOES HEREBY
DISCLAIM AND RENOUNCE ANY SUCH REPRESENTATION OR WARRANTY EXCEPT FOR THE
PROPERTY REPRESENTATIONS. BUYER SPECIFICALLY ACKNOWLEDGES THAT BUYER IS NOT
RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER,
EXPRESS OR IMPLIED, FROM SELLER, OTHER AGENTS OR BROKERS AS TO ANY MATTER
CONCERNING OR RELATED TO THE PROPERTY (EXCEPT FOR THE REPRESENTATIONS
EXPRESSLY SET FORTH HEREIN AND THE LIMITED WARRANTY OF TITLE SET FORTH IN
THE DEED), INCLUDING WITHOUT LIMITATION: (1) THE CONDITION OR SAFETY OF THE
PROPERTY OR ANY IMPROVEMENTS THEREON, INCLUDING, BUT NOT LIMITED TO,
PLUMBING, SEWER, HEATING AND ELECTRICAL SYSTEMS, ROOFING, AIR CONDITIONING,
IF ANY, FOUNDATIONS, SOILS AND GEOLOGY INCLUDING HAZARDOUS MATERIALS (AS
HEREINAFTER DEFINED), LOT SIZE, OR SUITABILITY OF THE PROPERTY OR ITS
IMPROVEMENTS FOR A PARTICULAR PURPOSE; (2) WHETHER THE APPLIANCES, IF ANY,
PLUMBING OR UTILITIES ARE IN WORKING ORDER; (3) THE HABITABILITY OR
SUITABILITY FOR OCCUPANCY OF ANY STRUCTURE AND THE QUALITY OF ITS
CONSTRUCTION; (4) THE FITNESS OF ANY PERSONAL PROPERTY; (5) WHETHER THE
IMPROVEMENTS ARE STRUCTURALLY SOUND, IN GOOD CONDITION, OR IN COMPLIANCE
WITH APPLICABLE CITY, COUNTY, STATE OR FEDERAL STATUTES, CODES OR
ORDINANCES; OR (6) MATTERS RELATED TO THE LEASES OR THE TENANTS. BUYER
FURTHER ACKNOWLEDGES AND AGREES THAT IT IS RELYING SOLELY UPON ITS OWN
INSPECTION OF THE PROPERTY, REVIEW OF THE LEASES AND INVESTIGATIONS
CONCERNING THE TENANTS AND NOT UPON ANY REPRESENTATIONS MADE TO IT BY
SELLER, ITS PARTNERS, OFFICERS, DIRECTORS, CONTRACTORS, MANAGERS OR
EMPLOYEES NOR ANY PERSON WHOMSOEVER. ANY REPORTS, REPAIRS OR WORK REQUIRED
BY BUYER ARE TO BE THE SOLE RESPONSIBILITY OF BUYER AND BUYER AGREES THAT
THERE IS NO OBLIGATION ON THE PART OF SELLER TO MAKE ANY CHANGES,
ALTERATIONS, OR REPAIR TO THE PROPERTY.
(b) "Hazardous Materials" Defined. For purposes of this Agreement, the
term "Hazardous Material" shall mean any substance, chemical, waste or
material that is or becomes regulated by any federal, state or local
governmental authority because of its toxicity, infectiousness,
radioactivity, explosiveness, ignitability, corrosiveness or reactivity,
including, without limitation, those substances regulated by the Hazardous
Waste Laws.
(c) Hazardous Materials. In addition to and not by way of limitation
of the sale of the Property on an "AS IS" basis under this Agreement, Buyer
acknowledges that Seller makes no representations or warranties whatsoever
to Buyer regarding (i) the contents, completeness and/or accuracy or any
environmental assessments or surveys contained in the Property Files or the
ability of Buyer to rely thereon, or (ii) the presence or absence of any
Hazardous Materials in, at, or under the Property. Buyer has made such
studies and investigations, conducted such tests and surveys, and engaged
such specialists as Buyer has deemed appropriate to evaluate fairly the
Property and its risks from an environmental and Hazardous Materials
standpoint.
13 SELLER'S COVENANTS. With respect to the period between the date hereof
and the Closing Date, Seller covenants as follows:
(a) Operations Prior to Closing. Between the Effective Date and the
first to occur of the Closing Date or the date of termination of this
Agreement, Seller shall (i) operate and manage the Property in accordance
with its customary operating procedures, (ii) perform all regularly
scheduled maintenance and (iii) not cancel any maintenance contracts
without Buyer's consent.
(b) Contracts. Without Buyer's prior written consent, which consent
shall not be unreasonably withheld, Seller shall not enter into any
contract with respect to the Property which will survive the Closing and
for which Buyer shall be liable.
(c) Further Liens. Without Buyer's prior written consent, Seller shall
not further voluntarily encumber the Property with any mortgage, lien or
deed of trust which will not be removed on or before the Closing Date.
(d) Insurance. Seller will maintain property insurance coverage on the
Property in accordance with Seller's customary operating procedures.
If Buyer fails to close as a result of a breach of any of the foregoing
covenants, then Buyer shall have the remedies set forth in Paragraph 17(b)
hereof. No obligations under this Paragraph 13 shall survive the Closing.
14 CONDITIONS TO CLOSING.
(a) Seller's Conditions. The obligation of Seller to sell and convey
the Property under this Agreement is subject to the satisfaction of the
following conditions precedent or conditions concurrent (the satisfaction
of which may be waived only in writing by Seller):
(i) Delivery and execution by Buyer of all monies, items, and
other instruments required to be delivered by Buyer to Seller;
(ii) Buyer's warranties and representations set forth herein
shall be true and correct as of the Closing Date;
(iii) All of the actions by Buyer required by this Agreement
shall have been completed; and
(iv) There shall be no uncured default by Buyer of any of its
obligations under this Agreement.
(v) Seller shall have been completely released from the Existing
Loan.
Seller shall have no duty or obligation to cause the satisfaction of any of its
conditions to Closing set forth in this Paragraph 14(a).
(b) Buyer's Conditions. The obligation of Buyer to acquire the
Property under this Agreement is subject to the satisfaction of the
following conditions precedent or conditions concurrent (the satisfaction
of which may be waived only in writing by Buyer):
(i) Delivery and execution by Seller of all items and other
instruments to be delivered by Seller;
(ii) Seller's warranties and representations set forth herein
shall be true and correct as of the Closing Date;
(iii) The Title Company shall be prepared to issuing the Title
Policy subject only to the Permitted Exceptions;
(iv) All of the actions by Seller required by this Agreement
shall have been taken; and
(v) There shall be no uncured default by Seller of any of its
obligations under this Agreement.
(vi) Buyer shall have assumed the Existing Loan.
Notwithstanding the foregoing, if a condition of Buyer is unsatisfied on the
Closing Date because of a breach of this Agreement by Buyer, then such condition
shall be deemed satisfied. Buyer shall have no duty or obligation to cause the
satisfaction of any of its conditions to Closing set forth in this Paragraph
14(b).
15 DAMAGE OR DESTRUCTION OF THE PROPERTY; CONDEMNATION.
(a) Damage or Destruction of the Property.
(i) If, between the Effective Date and the Closing Date, the
Property is "materially damaged or destroyed," Buyer may elect in
writing, within fifteen (15) days after receipt of notice from Seller
of such damage or destruction, accompanied by information regarding
the amount and payment of insurance, to terminate this Agreement or to
purchase the Property without regard to such damage or destruction. If
Buyer fails to notify Seller of Buyer's election, Buyer will be deemed
to have elected to proceed with the purchase of the Property. If Buyer
purchases the Property, Seller shall have no obligation to repair any
such damage or destruction, nor shall the Purchase Price be adjusted.
"Materially damaged or destroyed" shall mean damage or destruction the
repair or replacement of which would exceed $100,000, as determined by
a licensed general contractor approved by Buyer and Seller. If prior
to the Closing Date, the Property sustains nonmaterial damage, Seller
shall assign its rights to insurance proceeds as provided for in
Paragraph 15(a)(iii) hereof. In addition, Seller shall deliver to
Buyer an amount equal to the deductible attributable to such casualty.
(ii) If Buyer elects to terminate this Agreement in accordance
with Paragraph 15(a)(i), Buyer shall notify Seller of such election in
writing, this Agreement shall be of no further force and effect,
subject to Paragraph 17(c), and the Earnest Money shall be returned to
Buyer.
(iii) If Buyer elects or is required to purchase the Property
despite such damage or destruction, Seller shall assign its rights to
and Buyer shall be entitled to receive any insurance proceeds to which
Seller is entitled or shall credit against the Purchase Price any
insurance proceeds actually received by Seller prior to the Closing
with respect to such casualty. In addition, Seller shall deliver to
Buyer an amount equal to the deductible attributable to such casualty.
(b) Condemnation. If prior to Closing all or a "material part of the
Property" is subject to a proposed taking by any public authority, Seller
shall promptly notify Buyer of such proposed taking and Buyer may terminate
this Agreement by notice to Seller within five (5) days after written
notice thereof. If Buyer so elects, this Agreement shall be of no further
force and effect. If Buyer does not so terminate this Agreement, or if the
taking is not as to a material part of the Property, Buyer shall accept all
of the Property subject to the taking without a reduction in the Purchase
Price and shall receive at Closing an assignment of all of Seller's rights
to any condemnation award or if an award was previously received, the
amount of such award. For the purposes of this paragraph, a taking of a
"material part of the Property" would be a taking that reduces the market
value of the Property by in excess of $500,000 or would materially impair
the ability of the owner of the project to manage it as a multi-family
project. If Buyer and Seller cannot agree on whether a taking was of a
"material part of the Property," they shall jointly retain a disinterested
MAI appraiser with experience in valuing multi-family projects in the
Tucson, Arizona metropolitan area for the purpose of making such
determination. Such appraiser's determination shall be final and binding on
Buyer and Seller. If the determination of whether a taking of a "material
part of the Property" has occurred is not determined by the Closing Date,
then Seller shall
have the right to extend the Closing Date for a period not to exceed thirty
(30) days to enable such determination to be made by an appraiser in the
manner specified in this Paragraph.
(c) Repairs. If the Property is damaged prior to the Closing Date and
such damage creates in Seller's judgment the need for immediate repair,
Seller shall be entitled to commence such repairs, and choose the
contractor and method of repair in a timely manner. Casualty proceeds, if
any, paid as a result of damage requiring immediate repair shall be used in
paying the cost of such repairs, and notwithstanding anything to the
contrary herein, shall not be credited against the Purchase Price.
16 COMMISSIONS, EXPENSES AND CREDITS. Buyer and Seller represent and
warrant to each other that no real estate broker or agent has been authorized to
act on either party's behalf, except that Buyer has engaged Thayer Residential
("Buyer's Broker") as its exclusive broker and Seller has engaged Hendricks and
Partners ("Seller's Broker") as its exclusive Broker. Seller shall be solely
responsible for the payment of a fee of 1.00% of the gross sales price (the
"Commission") to Buyer's Broker payable only if and when Seller receives the
Purchase Price at Closing. Seller shall also be solely responsible for the
payment of any fees due to Seller's Broker pursuant to separate agreement
between Seller and Seller's Broker. Buyer hereby indemnifies Seller and holds
Seller harmless from any and all demands or claims which now or hereafter may be
asserted against Seller for any brokerage fees, commissions or similar types of
compensation which may be claimed by Buyer's Broker or any other broker which
was engaged or which claims to have been engaged by Buyer and all expenses and
costs in handling or defending any such demand or claim. Seller hereby
indemnifies Buyer and holds Buyer harmless from any and all demands or claims
which now or hereafter may be asserted against Buyer for any brokerage fees,
commissions or similar types of compensation which may be claimed by any broker
(excluding Buyer's Broker) which was engaged or which claims to have been
engaged by Seller and all expenses and costs in handling or defending any such
demand or claim.
17 REMEDIES.
(a) Seller's Remedies.
(i) If Buyer defaults in its obligation to purchase the Property,
then Buyer shall automatically and immediately forfeit the Earnest
Money, and the Title Company shall deliver the Earnest Money to
Seller, and neither party shall be obligated to proceed with the
purchase and sale of the Property. The Earnest Money is liquidated
damages and recourse to the Earnest Money is Seller's sole and
exclusive remedy for Buyer's failure to perform its obligation to
purchase the Property. Seller expressly waives the remedies of
specific performance and additional damages for such default by Buyer.
SELLER AND BUYER ACKNOWLEDGE THAT SELLER'S DAMAGES WOULD BE DIFFICULT
TO DETERMINE, AND THAT THE EARNEST MONEY IS A REASONABLE ESTIMATE OF
SELLER'S DAMAGES RESULTING FROM A DEFAULT BY BUYER IN ITS OBLIGATION
TO PURCHASE THE PROPERTY. SELLER AND BUYER FURTHER AGREE THAT THIS
PARAGRAPH 17(a)i) IS INTENDED TO AND DOES LIQUIDATE THE AMOUNT OF
DAMAGES DUE SELLER, AND SHALL BE SELLER'S
EXCLUSIVE REMEDY AGAINST BUYER, BOTH AT LAW AND IN EQUITY ARISING FROM
OR RELATED TO A BREACH BY BUYER OF ITS OBLIGATION TO CONSUMMATE THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
(ii) In the event of Buyer's continuing default after Closing in
any of its covenants in this Agreement which survive Closing or any
documents delivered by Buyer at Closing, and such default continues
for more than thirty (30) days after written notice of such default
from Seller, Seller shall be entitled to pursue any remedies available
at law or in equity.
(b) Buyer's Remedies.
(i) If Seller defaults in its obligation to sell the
Property as required by this Agreement, at Buyer's election,
either (A) this Agreement shall terminate, and all payments and
things of value, including the Earnest Money, provided by Buyer
hereunder shall be returned to Buyer and Buyer may recover, as
its sole recoverable damages (but without limiting its right to
receive a refund of the Earnest Money), its direct and actual
out-of-pocket expenses and costs in connection with Buyer's due
diligence activities related to the Property, together with legal
and accounting fees incurred in Buyer's syndication, which
damages shall not exceed $100,000.00 in any event, or (B) Buyer
may seek specific performance of this agreement (but not
damages). SELLER AND BUYER FURTHER AGREE THAT THIS PARAGRAPH
17(b)(i) IS INTENDED TO AND DOES LIMIT THE AMOUNT OF DAMAGES DUE
BUYER AND THE REMEDIES AVAILABLE TO BUYER, AND SHALL BE BUYER'S
EXCLUSIVE REMEDY AGAINST SELLER, BOTH AT LAW AND IN EQUITY
ARISING FROM OR RELATED TO A BREACH BY SELLER OF ITS OBLIGATION
TO CONSUMMATE THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
UNDER NO CIRCUMSTANCES MAY BUYER SEEK OR BE ENTITLED TO RECOVER
ANY SPECIAL, CONSEQUENTIAL, PUNITIVE, SPECULATIVE OR INDIRECT
DAMAGES, ALL OF WHICH BUYER SPECIFICALLY WAIVES, FROM SELLER FOR
ANY BREACH BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT.
BUYER SPECIFICALLY WAIVES THE RIGHT TO FILE ANY LIS PENDENS OR
ANY LIEN AGAINST THE PROPERTY UNLESS AND UNTIL IT HAS IRREVOCABLY
ELECTED TO SEEK SPECIFIC PERFORMANCE OF THIS AGREEMENT AND HAS
FILED AN ACTION SEEKING SUCH REMEDY.
(ii) In the event of Seller's continuing default after
Closing in any of its covenants in this Agreement which survive
Closing or any documents delivered by Seller at Closing, and such
default continues for more than thirty (30) days after either
written notice of such default from Buyer, Buyer shall be
entitled to pursue its actual and direct damages as limited above
or to sue for specific performance as Buyer's sole and exclusive
remedy for such default.
(c) Provisions Applicable to Buyer and Seller. Notwithstanding
anything to the contrary herein, in the event of any litigation arising out
of this Agreement, the court shall award to the prevailing party all
reasonable costs and expenses of litigation, including attorneys' fees,
courts costs, expert witness fees and other costs. The limitation on
remedies set forth elsewhere in this
Paragraph 17 shall not apply to limit the rights of a prevailing party
under this Paragraph 17(c). The provisions of this Paragraph 17 shall
survive Closing or termination of this Agreement.
18 NOTICES. All notices, requests or demands to a party hereunder shall be
in writing and shall be effective (a) when delivered personally, (b) when
received by overnight courier service or facsimile telecommunication (provided
that a copy of such notice, request or demand is deposited into the United
States mail within one (1) business day of the facsimile transmission), or (c)
three (3) days after being deposited into the United States mail (sent certified
or registered, return receipt requested), in each case addressed as follows (or
to such other address as Buyer or Seller may designate in writing in accordance
with this Paragraph 18):
If to Seller:
-------------
Wellsford Sonterra LLC
1623 Blake Street, Suite 270
Denver, Colorado 80202
Attention: David Strong
Telecopy No. (303) 534-4396
Confirmation No. (303) 534-4398
With a copy to:
---------------
Howard J. Pollack, Esq.
Brownstein Hyatt & Farber, P.C.
410 17th Street, 22nd Floor
Denver, Colorado 80202
Telecopy No.: (303) 223-1111
Confirmation No.: (303) 223-1100
If to Buyer:
------------
Thayer Residential
4550 177th Avenue, S.E.
Bellevue, Washington 98006
Attention: Bruce Thayer
Telecopy No. ( )
----- -----------------
Confirmation No. ( )
------ ---------------
With a copy to:
Matthew Straight, Esq.
Oseran, Hahn, Spring & Watts, P.S.
850 Skyline Tower
10900 Northeast 4th Street
Bellevue, Washington 98004
Telecopy No.: (425) 462-7114
Confirmation No.: (425) 455-3900
19 MISCELLANEOUS.
(a) No Waiver. No waiver by any party of the performance or
satisfaction of any covenant or condition shall be valid unless in writing
and shall not be considered to be a waiver by such party of any other
covenant or condition hereunder.
(b) Entire Agreement. This Agreement contains the entire agreement
between the parties regarding the Property and supersedes any and all prior
agreements, whether written or oral, between the parties regarding the same
subject. This Agreement may only be modified in writing.
(c) Survival. Except for (i) the representations and indemnity
obligations of Buyer and Seller under this Agreement, (ii) the post-closing
obligations of Buyer and Seller under this Agreement, and (iii) as
otherwise specifically provided in this Agreement, none of the agreements,
warranties and representations contained herein shall survive Closing.
(d) Successors. Subject to Paragraph 19(e) hereof, this Agreement
shall bind and inure to the benefit of the parties hereto and to their
respective legal representatives, successors and permitted assigns.
(e) Binding Effect; Assignment. Buyer shall not have any right to
assign, transfer or encumber its rights under this Agreement without the
prior written consent of Seller, which Seller may withhold in its sole and
absolute discretion, except that Buyer shall have the right to assign this
Agreement to an entity managed by a limited liability company wholly-owned
by Bruce Thayer and created for the purpose of this transaction. Any
assignment permitted under this Agreement shall not relieve Buyer from any
liability it has under this Agreement. Buyer represents, warrants and
certifies to Seller that Buyer has not assigned, transferred or encumbered
or agreed to assign, transfer or encumber, directly or indirectly, all or
any portion of its rights or obligations under this Agreement.
(f) Relationship of the Parties. The parties acknowledge that neither
party is an agent for the other party, and that neither party shall or can
bind or enter into agreements for the other party.
(g) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Arizona without reference to
principles of conflicts of law.
(h) Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws, such
provision shall be fully severable; this Agreement shall be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part of this Agreement; and the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected
by the illegal, invalid or unenforceable provision or by its severance from
this Agreement.
(i) Possession; Risk of Loss. Seller shall deliver to Buyer possession
of the Property on the Closing Date, subject to the Leases and the matters
set forth in the Approved Title Commitment. All risk of loss or damage with
respect to the Property shall pass from Seller to Buyer on the Closing
Date.
(j) Review by Counsel. The parties acknowledge that each party and its
counsel have reviewed and approved this Agreement, and the parties hereby
agree that the normal rule of construction to the effect that any
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.
(k) Return of Documents. Upon termination of this Agreement for any
reason by either party, Buyer shall have the obligation to return to Seller
all documents and copies thereof and any other information or documentation
prepared by any third party in conjunction with the Buyer's inspection of
the Property.
(l) Exhibits. The Exhibits attached hereto form a part of this
Agreement and are incorporated herein by this reference.
(m) No Recording. The provisions hereof shall not constitute a lien on
the Property and this Agreement shall not be placed or suffered to be
placed by Buyer for recording with the office of the recorder (clerk) for
the county in which the Property is located. Buyer hereby appoints Seller
as Buyer's true and lawful attorney-in-fact, coupled with an interest, for
the purposes of the execution of such documents and doing such acts as
shall be necessary to effect the discharge of the recording of this
Agreement if such recording shall have been accomplished in violation of
this Paragraph. Recordation of this Agreement or any memorandum hereof by
Buyer or its agents shall constitute a breach of this Agreement and shall
entitle Seller at its option to terminate this Agreement and to pursue its
remedies resulting from such breach.
(n) Counterparts. This Agreement may be executed in any number of
counterparts each of which, when taken together, shall constitute one
agreement. This Agreement shall only be effective if a counterpart is
signed by both Seller and Buyer.
(o) Time of Essence. Time is of the essence in the performance of all
obligations under this Agreement.
(p) Confidentiality. Subject to the last sentence of this Paragraph,
the parties hereto agree that neither party shall make an announcement of
the transaction contemplated herein to third parties without the prior
written consent of the other party hereto. Subject to the last sentence
of this Paragraph and except as required by court order or by operation of
law, the contents of this Agreement and of all information in the Property
Files shall remain confidential and shall only be disclosed to those third
parties necessary to facilitate the consummation of the transaction
contemplated hereby.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first set forth above.
SELLER:
WELLSFORD SONTERRA LLC,
an Arizona limited liability company
By: WELLSFORD REAL PROPERTIES, INC., a Maryland corporation,
Its Manager
By: /s/ David M. Strong
-----------------------------------------------------
Name: David M. Strong
Title: Vice President
BUYER:
THAYER RESIDENTIAL, INC.
a Washington Corporation
By: /s/ Bruce Thayer
-----------------------------------------------------
Name: Bruce Thayer
Title: President
EXHIBIT A
LEGAL DESCRIPTION
Blocks 19, 21, 22, 23 of the Resubdivision of Williams Centre, Pima County,
Arizona, according to the plat of record in the office of the Pima County
Recorder in Book 39 of Maps at Page 28.
EXHIBIT B
PERSONAL PROPERTY
EXHIBIT C
RENT ROLL CERTIFICATION
The undersigned hereby certifies to ___________________________________
that, to the best of the undersigned's knowledge and based on information
provided to it by its property manager, attached hereto and incorporated herein
by this reference is an accurate current rent roll for Sonterra at Williams
Centre Apartments, which describes all of the Leases as of the date of this
Certification, including a schedule of security deposits.
This Certification shall survive for a period of one year from the date
hereof, and any action for a breach hereof must be made and filed within said
one-year period. As used herein, "undersigned's knowledge" means the current,
actual knowledge of David Strong, Vice President of Wellsford Real Properties,
Inc the only employee/officer of Seller charged with the day-to-day operation
and ownership of the Property.
EXECUTED this _______ day of _________________, 2000.
WELLSFORD SONTERRA LLC,
an Arizona limited liability company
By: WELLSFORD REAL PROPERTIES, INC.
a Maryland corporation, Its Manager
By:
-----------------------------------------------------
Name:
Title:
EXHIBIT D
ASSIGNED CONTRACTS
1 The following service contracts and other contracts and agreements which
affect or relate to the Property which Seller requires that Buyer assume in
connection with the closing of the Property:
[TO BE INSERTED]
2 All contracts and agreements which constitute Permitted Exceptions.
3 Any other contracts and agreements that Buyer and Seller agree in writing.
WHEN RECORDED RETURN TO:
[Buyer's address]
EXHIBIT E
SPECIAL WARRANTY DEED
Wellsford Sonterra LLC, an Arizona limited liability company, ("Grantor"),
for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other
good and valuable consideration in hand paid by
____________________________________ (hereinafter _____ called _____ "Grantee"),
_____ whose _____ mailing _____ address _____ is
________________________________________________ Attention:
__________________________, the receipt and sufficiency of which are hereby
acknowledged, does hereby GRANT, SELL, CONVEY, ASSIGN and DELIVER to Grantee the
real property situated in Pima County, Arizona, described in Exhibit "A"
attached hereto and made a part hereof (hereinafter called the "Real Property")
together with all improvements, fixtures and appurtenances affixed thereto
(hereinafter called the "Improvements") (all of the foregoing hereinafter called
the "Property"), subject to general real estate taxes on the Property for the
current year and all encumbrances and all other matters of record and such
additional matters as would be disclosed by an accurate survey of the Property
or a visual inspection thereof (all of the foregoing hereinafter called the
"Permitted Encumbrances").
TO HAVE AND TO HOLD the Property, together with all and singular the rights
and appurtenances thereto in anyways belonging unto Grantee, its successors and
assigns forever, and Grantor does hereby bind itself and its successors and
assigns to warrant and forever defend all and singular the Property unto
Grantee, its successors and assigns against every person whomsoever lawfully
claiming, or to claim the same, or any part thereof by, through or under
Grantor, but not otherwise, subject however, to the Permitted Encumbrances.
Current ad valorem taxes on the Property having been prorated, Grantee
hereby assumes the payment thereof.
IN WITNESS WHEREOF, this Special Warranty Deed is executed by Grantor as of
the date set forth in the acknowledgment to be effective the _______ day of
______________, 2000.
GRANTOR:
WELLSFORD SONTERRA LLC,
an Arizona limited liability company
By: WELLSFORD REAL PROPERTIES, INC.,
a Maryland corporation, Its Manager
By:
-----------------------------------------------------
Name:
Title:
STATE OF )
---------------------------
)
COUNTY OF )
-----------------
This instrument was acknowledged before me on this ____ day of
______________, 2000, by _______________, the _____________ of Wellsford Real
Properties, Inc., as sole manager of Wellsford Sonterra LLC, an Arizona limited
liability company.
WITNESS my hand and official seal.
My commission expires:
-----------------------------------
Notary Public
EXHIBIT A
TO SPECIAL WARRANTY DEED
LEGAL DESCRIPTION
EXHIBIT B
TO SPECIAL WARRANTY DEED
PERMITTED ENCUMBRANCES
EXHIBIT F
SPECIAL WARRANTY BILL OF SALE
Wellsford Sonterra LLC, an Arizona limited liability company ("Grantor"),
for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other
good an valuable consideration in hand paid by
__________________________________ ("Grantee") the receipt and sufficiency of
which are hereby acknowledged, does hereby GRANT, SELL, CONVEY, ASSIGN and
DELIVER to Grantee all right, title and interest of Assignor in the following
property, excluding without limitation any personal property owned by the
tenants of the real property more particularly described on Exhibit A attached
hereto and incorporated herein by this reference (the "Real Property") and the
property manager of the Property (all of the following being hereinafter
collectively referred to as the "Personal Property"):
(a) All fixtures, equipment, appliances, and other items of personal
property owned by Assignor and attached to or located on the Real Property;
and
(b) All assignable or transferable intangible property used in
connection with the Real Property, including (A) any guaranties and
warranties pertaining to the Real Property, (B) all rights to obtain
utility service in connection with the Real Property, (C) assignable
licenses and other governmental permits and permissions relating to the
Real Property, and (D) any assignable interest in the trade name "Sonterra
at Williams Centre Apartments."
Attached hereto as Exhibit B and incorporated herein by this reference is a
list of the tangible personal property for Sonterra at Williams Centre
Apartments.
TO HAVE AND TO HOLD the Personal Property, together with all and singular
the rights and appurtenances thereto in anywise belonging unto Grantee, its
successors and assigns forever, and Grantor does hereby bind itself and its
successors and assigns to warrant and forever defend all and singular the
Personal Property unto Grantee, its successors and assigns against every person
whomsoever lawfully claiming, or to claim the same, or any part thereof by,
through or under Grantor, but not otherwise, subject however, to the permitted
encumbrances described in Exhibit C attached hereto and made a part hereof and
any other matters of record.
GRANTOR HAS NOT MADE, AND DOES NOT HEREBY MAKE, ANY REPRESENTATION,
WARRANTY OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO THE HABITABILITY,
MERCHANTABILITY, SUITABILITY OR FITNESS FOR PARTICULAR USE OF THE PERSONAL
PROPERTY OR ANY COMPONENT THEREOF, IN ANY RESPECT WHATSOEVER OR IN CONNECTION
WITH OR FOR THE PURPOSES AND USES OF GRANTEE, OR, EXCEPT FOR THE WARRANTIES
EXPRESSLY CONTAINED HEREIN, ANY OTHER REPRESENTATION, WARRANTY OR COVENANT OF
ANY KIND AND CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO; AND THE
PERSONAL PROPERTY IS SOLD, TRANSFERRED AND ASSIGNED TO GRANTEE "AS IS" AND
"WHERE IS."
IN WITNESS WHEREOF, this Bill of Sale and Assignment is executed by Grantor
the ___ day of ___________, 2000.
GRANTOR:
WELLSFORD SONTERRA LLC,
an Arizona limited liability company
By: WELLSFORD REAL PROPERTIES, INC.,
a Maryland corporation, Its Manager
By:
-----------------------------------------------------
Name:
Title:
STATE OF )
---------------------------
)
COUNTY OF )
-----------------
This instrument was acknowledged before me on this ____ day of
______________, 2000, by _______________________ as ____________ of Wellsford
Real Properties, Inc., the sole manager of Wellsford Sonterra LLC, an Arizona
limited liability company.
WITNESS my hand and official seal.
My commission expires:
-----------------------------------
Notary Public
EXHIBIT A
TO SPECIAL WARRANTY BILL OF SALE
LEGAL DESCRIPTION
EXHIBIT B
TO SPECIAL WARRANTY BILL OF SALE
PERSONAL PROPERTY
EXHIBIT C
TO SPECIAL WARRANTY BILL OF SALE
PERMITTED ENCUMBRANCES
EXHIBIT G
ASSIGNMENT AND ASSUMPTION AGREEMENT
Wellsford Sonterra LLC, an Arizona limited liability company, ("Assignor"),
for and in consideration of the sum of TEN AND NO/100 DOLLARS ($10.00) and other
good and valuable consideration in hand paid by
__________________________________ ("Assignee"), the receipt and sufficiency of
which are hereby acknowledged, does hereby assign to Assignee, all of Assignor's
right, title and interest in and to the following:
1 All tenant leases (the "Tenant Leases") affecting or related to the
real property more particularly described on Exhibit A attached hereto and
made a part hereof (the "Property"), including, but not limited to, those
Tenant Leases described on Exhibit "B" attached hereto and made a part
hereof; and
2 Those service contracts and other contracts affecting or relating to
the Property more particularly described on Exhibit B attached hereto and
made a part hereof (the "Assigned Contracts").
Assignee hereby accepts the foregoing assignment and hereby assumes the
obligations, liabilities and responsibilities of Assignor under and agrees to be
bound by the terms and provisions of the Tenant Leases and the Assigned
Contracts, including, without limitation, all obligations of the landlord under
the Tenant Leases relating to security deposits. Assignor shall remain liable
for the payment of any amounts due with respect to the Tenant Leases and the
Assigned Contracts relating to the period prior to the date hereof.
If any litigation between Assignor and Assignee arises out of the
obligations of the parties under this Assignment or concerning the meaning or
interpretation of any provision contained herein, the losing party shall pay the
prevailing party's costs and expenses of such litigation or mandatory
arbitration including, without limitation, reasonable attorneys' fees.
This Assignment shall be binding on and inure to the benefit of the parties
hereto, their successors and assigns.
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment on
the dates set forth below.
ASSIGNOR:
WELLSFORD SONTERRA LLC,
an Arizona limited liability company
By: WELLSFORD REAL PROPERTIES, INC.,
a Maryland corporation, Its Manager
By:
-----------------------------------------------------
Name:
Title:
ASSIGNEE:
a
---------------------------------------------------
By:
-----------------------------------------------------
Name:
Title:
Date:
EXHIBIT A
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
LEGAL DESCRIPTION
EXHIBIT B
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
TENANT LEASES AND SECURITY DEPOSITS
EXHIBIT C
TO ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNED CONTRACTS
EXHIBIT H
------------------
(Date)
To Tenants of Sonterra at Williams Centre Apartments
Ladies and Gentlemen:
This is to advise you that, effective this date, Sonterra at Williams
Centre Apartments has been sold to ___________________________ ("Buyer").
Effective immediately, please make all rent checks payable to
_________________ and make all rental payments to _______________. Any security
deposit you made at the time of signing your lease has also been transferred to
Buyer, and Buyer is solely responsible for returning any security deposit to
which you are entitled at the termination of your lease.
Please contact _________________ at _____________ if you have any questions
regarding this transfer.
Very truly yours,
WELLSFORD SONTERRA LLC,
an Arizona limited liability company
By: WELLSFORD REAL PROPERTIES, INC.,
a Maryland corporation, Its Manager
By:
-----------------------------------------------------
Name:
Title:
,
a
---------------------------------------------------
By:
-----------------------------------------------------
Name:
Title:
EXHIBIT I
BUYER'S CERTIFICATE
In connection with the closing of the purchase and sale transaction
contemplated by that certain Purchase and Sale Agreement dated _______________,
2000 (the "Agreement"), executed by and between Wellsford Sonterra LLC and
______________________________ ("Buyer"), hereby represents and warrants to and
for the benefit of Seller, its successors and assigns, that Buyer has had full
and complete access to the Property and the Property Files in order to inspect
same and has satisfied itself as to all aspects of the Property, including,
without limitation, its physical, environmental and financial condition.
Terms not otherwise defined herein shall have the meanings ascribed in the
Agreement.
EXECUTED this ______ day of ___________, 2000.
a
---------------------------------------------------
By:
-----------------------------------------------------
Name:
Title:
STATE OF __________________ )
) ss.
County of _________________ )
The foregoing instrument was acknowledged before me this ____ day of
______________, 2000, by __________________________________ as
_______________________________ of ____________________________, a
__________________________________ .
WITNESS my hand and official seal.
My commission expires:
-----------------------------------
Notary Public