FORM 8-K - CURRENT REPORT
(As last amended in Rel. No. 34-36968, eff. August 13, 1992.)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 9, 1999
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II
(Exact name of registrant as specified in its charter)
New York 2-85829 13-3202289
(State or other jurisdiction (Commission (I.R.S. Employer
of incorporation) File Number) Identification
Number)
55 Beattie Place
Post Office Box 1089
Greenville, South Carolina 29602
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (864) 239-1000
N/A
(Former name or former address, if changed since last report)
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
Wendover Business Park II located in Greensboro, North Carolina was sold by
Drexel Burnham Lambert Real Estate Associates II (the "Registrant") on September
9, 1999 to SB Orchard, LLC, an unrelated party, for $3,660,000.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(b) Pro forma financial information.
The required pro forma financial information will be provided in the
Registrant's quarterly report on Form 10-QSB for the quarter ended September 30,
1999.
(c) Exhibits
10.7 Purchase and Sale Contract between Registrant and SB Orchard, LLC, a
Colorado limited liability company, dated May 20, 1999.
10.8 Amendment to Purchase and Sale Contract between Registrant and SB Orchard,
LLC, a Colorado limited liability company, dated August 2, 1999.
10.9 Second Amendment to Purchase and Sale Contract between Registrant and SB
Orchard, LLC, a Colorado limited liability company, dated August 23,
1999.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II
By: DBL Properties Corporation
Its General Partner
By: /s/ Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date:September 24, 1999
Exhibit 10.7
PURCHASE AND SALE CONTRACT
BETWEEN
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP
AND
DREXEL BURNHAM LAMBERT REAL ESTATE
ASSOCIATES II LIMITED PARTNERSHIP
COLLECTIVELY, AS SELLER
AND
SB ORCHARD, LLC
AS PURCHASER
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of
the 20th day of May, 1999 (the "Effective Date") by and between DREXEL BURNHAM
LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a New York limited
partnership ("DBLREA I"), and DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II
LIMITED PARTNERSHIP, a New York limited partnership ("DBLREA II"), having a
principal address at 1873 South Bellaire Street, 17th Floor, Denver, Colorado
80222 (collectively, "Seller") and SB ORCHARD, LLC, a Colorado limited liability
company, having a principal address at 433 North Camden Drive, Suite 1070,
Beverly Hills, California 90210 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements herein after set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. DBLREA I holds legal title to the real estate located in Guilford County,
North Carolina, as more particularly described in Exhibit A-1 attached hereto
and made a part hereof ("Wendover I"). DBLREA II holds legal title to the real
estate located in Guilford County, North Carolina, as more particularly
described in Exhibit A-2 attached hereto and made a part hereof ("Wendover II").
Improvements have been constructed on the parcels described in this Recital.
R-2. Purchaser desires to purchase and Seller has agreed to sell such land,
improvements and certain associated property, defined below as the "Property" on
the terms and conditions set forth below, (which terms and conditions shall
control in the event of any conflict with these Recitals), such that on the
Closing Date (as hereinafter defined) the Property will be conveyed by special
warranty deed to Buyer.
R-3. Purchaser has agreed to pay to Seller the Purchase Price for the Property,
and Seller has agreed to sell the Property to Purchaser on the terms and
conditions set forth below.
R-4. Purchaser intends to make investigations regarding the Property, and
Purchaser's intended uses of each of the Property as Purchaser deems necessary
and desirable.
ARTICLE I
DEFINED TERMS
1.1 Unless otherwise defined herein, terms with initial capital letters in
this Purchase Contract shall have the meanings set forth in this Article 1
below.
(a) "BUSINESS DAY" means any day other than a Saturday or Sunday or
Federal holiday or legal holiday in the State of North Carolina.
(b) "CLOSING" means the consummation of the purchase and sale and
related transactions contemplated by this Purchase Contract in accordance with
the terms and conditions of this Purchase Contract.
(c) "CLOSING DATE" means the date on which date the Closing of the
conveyance of the Property is required to be held under the terms and conditions
of this Purchase Contract and on which date full payment of the Purchase Price
for the Property shall have been paid to the Title Company in immediately
available U.S. funds with irrevocable instructions to deliver immediately to
Seller, and the Title Company and Buyer are ready, willing and able to
immediately Close.
(d) "COMMERCIAL LEASE(S)" means the interest of Seller in and to all
leases, subleases and other occupancy agreements, whether or not of record,
which provide for the use or occupancy of space or facilities on or relating to
the Property and which are in force as of the Effective Date for the applicable
Property.
(e) "EXCLUDED PERMITS" means those Permits which, under applicable
law, are nontransferable and such other Permits as may be designated as Excluded
Permits on Exhibit 1.1.5, if any, attached hereto.
(f) Intentionally Omitted.
(g) "FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures,
furniture, furnishings, fittings, equipment, machinery, apparatus, appliances
and other articles of tangible personal property now located on the Land or in
the Improvements as of the date of this Purchase Contract and used or usable in
connection with any present or future occupation or operation of all or any part
of the Property. The term "Fixtures and Tangible Personal Property" does not
include (i) equipment leased by Seller and the interest of Seller in any
equipment provided to the Property for use, but not owned or leased by Seller,
or (ii) property owned or leased by Tenants and guests, employees or other
persons furnishing goods or services to the Property or (iii) property and
equipment owned by Seller, which in the ordinary course of business of the
Property is not used exclusively for the business, operation or management of
the Property or (iv) the property and equipment, if any, expressly identified in
Exhibit1.1.7.
(h) "IMPROVEMENTS" means all buildings and improvements, located on
the Land taken "as is".
(i) "LAND" means all of those certain tracts of land located in the
State of North Carolina, commonly known as Wendover I & II (described on
Exhibits "A-1" and "A-2" attached hereto), and all rights, privileges and
appurtenances pertaining thereto.
(j) "MISCELLANEOUS PROPERTY ASSETS" means all contract rights,
leases, concessions, warranties, plans, drawings and other items of intangible
personal property relating to the ownership or operation of the Property and
owned by Seller, excluding, however, (i) receivables, (ii) Property Contracts,
(iii) Commercial Leases, (iv) Permits, (v) cash or other funds, whether in petty
cash or house "banks," or on deposit in bank accounts or in transit for deposit,
(vi) refunds, rebates or other claims, or any interest thereon, for periods or
events occurring prior to the Closing Date, (vii) utility and similar deposits,
or (viii) insurance or other prepaid items or (ix) Seller's proprietary books
and records, except to the extent that Seller receives a credit on the closing
statement for any such item.
(k) "PERMITS" means all licenses and permits granted by governmental
authorities having jurisdiction over the Property in respect of the matter to
which the applicable license or permit applies and owned by Seller and used in
or relating to the ownership, occupancy or operation of the Property or any part
thereof not subject to a Commercial Lease.
(l) "PERMITTED EXCEPTIONS" means those exceptions or conditions
permitted to encumber the title to the Property in accordance with the
provisions of Section 6.2.
(m) "PROPERTY" means the Land and Improvements and all rights of
Seller relating to the Land and the Improvements, including without limitation,
any rights, title and interest of Seller, if any, in and to (i) any strips and
gores adjacent to the Land and any land lying in the bed of any street, road, or
avenue opened or proposed, in front of or adjoining the Land, to the center line
thereof; (ii) any unpaid award for any taking by condemnation or any damage to
the Property by reason of a change of grade of any street or highway; (iii) all
of the easements, rights, privileges, and appurtenances belonging or in any way
appertaining to the Property; together with all Fixtures and Tangible Personal
Property, the right, if any and only to the extent transferable, of Seller in
and to Property Contracts and Commercial Leases, Permits other than Excluded
Permits and the Miscellaneous Property Assets owned by Seller which are located
on the Property and used in its operation.
(n) "PROPERTY CONTRACTS" means all purchase orders, maintenance,
service, or utility contracts and similar contracts, which relate to the
ownership, maintenance, construction or repair and/or operation of the Property
and which are not cancelable on 30 days' or shorter Notice without penalty,
except Commercial Leases.
(o) "PURCHASE CONTRACT" means this Purchase and Sale Contract by and
between Seller and Purchaser.
(p) "PURCHASE PRICE" means the total consideration to be paid by
Purchaser to Seller for the purchase of the Property.
(q) "SURVEY" shall have the meaning ascribed thereto in Section (a).
(r) "TENANT" means any person or entity entitled to occupy any
portion of the Property under a Commercial Lease.
(s) "TITLE COMMITMENT" or "Title Commitments" shall have the meaning
ascribed thereto in Section 6.1.
(t) "TITLE INSURER" shall have the meaning set forth in Section 6.1.
ARTICLE II
PURCHASE AND SALE OF PROPERTY
2.1 Seller agrees to sell and convey the Property to Purchaser and
Purchaser agrees to purchase the Property from Seller, in accordance with the
terms and conditions set forth in this Purchase Contract.
ARTICLE III
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be
Three Million Nine Hundred Sixty Thousand Dollars ($3,960,000.00) for Wendover
II and Three Million Forty Thousand Dollars ($3,040,000.00) for Wendover I,
totaling Seven Million Dollars ($7,000,000.00), which shall be paid by
Purchaser, as follows:
(a) On the date hereof, Purchaser shall deliver to Fidelity National
Title Company ("Escrow Agent" or the "Title Insurer") a deposit in the sum of
One Hundred Fifty Thousand and no/100 Dollars ($150,000.00), in cash, (such sum
being hereinafter referred to and held as the "Deposit"). Purchaser shall also
deliver a quitclaim deed to the Escrow Agent in the form attached as
Exhibit 3.1.1. Purchaser and Seller each approve the form of Escrow Agreement
attached as Exhibit B.
(b) The Escrow Agent shall hold the Deposit and make delivery of the
Deposit to the party entitled thereto under the terms hereof. Escrow Agent
shall invest the Deposit in such short-term, high-grade securities,
interest-bearing bank accounts, money market funds or accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable, (provided that Escrow Agent shall invest the Deposit
as jointly directed by Seller and Purchaser should Seller and Purchaser each in
their respective sole discretion determine to issue such joint investment
instructions to the Escrow Agent) and all interest and income thereon shall
become part of the Deposit and shall be remitted to the party entitled to the
Deposit, as set forth below.
(c) If the sale of the Property is closed by the date fixed therefor
(or any extension date provided for by the mutual written consent of the parties
hereto, given or withheld in their respective sole discretion), monies held as
the Deposit shall be applied to the Purchase Price on the Date of Closing. If
the sale of the Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of satisfaction of a condition precedent to
Purchaser's obligations, the Deposit shall be returned and refunded to
Purchaser, and neither party shall have any further liability hereunder,
provided Seller is not in default subject to and except for Purchaser's
liability under Section 5.3.
(d) If the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of performance by Seller,
Purchaser shall be entitled to the remedies set forth in ARTICLE XII hereof. If
the sale of the Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of performance and default hereunder by
Purchaser, the Deposit shall be forfeited by Purchaser and the sum thereof shall
go to Seller forthwith as liquidated damages for the lost opportunity costs and
transaction expenses incurred by Seller, as more fully set forth in ARTICLE XII
below.
ARTICLE IV
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain the funds required for
settlement, and Purchaser's acquisition of such funds shall not be a contingency
to the Closing.
ARTICLE V
FEASIBILITY PERIOD
5.1 Subject to the terms of Section 5.3 below, for forty five (45)
calendar days following the Purchaser's receipt of the documents in Seller's
possession or control relating to the Property (excluding Seller's proprietary
information), but in no event later than July 12, 1999 (the "Feasibility
Period"), Purchaser, and its agents, contractors, engineers, surveyors,
attorneys, and employees ("Consultants") shall have the right from time to time
to enter onto the Property (which right to enter and inspect shall continue
following the expiration of the Feasibility Period, provided this Agreement has
not been terminated) and Seller's management office, where all of the books and
records pertaining to the Property are stored.
(a) To conduct and make any and all customary studies, tests,
examinations and inspections, or investigations of or concerning the Property
(including without limitation, engineering and feasibility studies, evaluation
of drainage and flood plain, soil tests for bearing capacity and percolation and
surveys, including topographical surveys).
(b) To confirm any and all matters which Purchaser may reasonably
desire to confirm with respect to the Property.
(c) To ascertain and confirm the suitability of the property for
Purchaser's intended use of the Property other than Seller's proprietary
information.
(d) To review all of the files, books, records and reports of Seller
or its agents pertaining to the Property other than Seller's proprietary
information.
5.2 Should the results of any of the matters referred to in sub-paragraphs
5.1., 5.1.2 and 5.1.3 above appear unsatisfactory to Purchaser for any reason,
then Purchaser shall have the right to terminate this Purchase Contract by
giving written Notice to that effect to Seller and Escrow Agent on or before
5:00 p.m. EST on the date of expiration of the Feasibility Period. If Purchaser
exercises such right to terminate, this Purchase Contract shall terminate and be
of no further force and effect, subject to and except for Purchaser's liability
under Section 5.3, and Escrow Agent shall forthwith deliver the Quitclaim Deed
of all of Purchaser's right and interest in the Property to Seller, and then
promptly return the Deposit to Purchaser. If Purchaser fails to provide Seller
with written Notice of cancellation prior to the end of the Feasibility Period
in strict accordance with the Notice provisions of this Purchase Contract, this
Purchase Contract shall remain in full force and effect and Purchaser's
obligation to purchase the Property shall be non-contingent and unconditional
except as otherwise set forth herein.
5.3 Purchaser shall indemnify and hold Seller harmless for any actions
taken by Purchaser and its Consultants on the Property. Purchaser shall
indemnify, defend (with attorneys to be selected by Purchaser but reasonably
approved by Seller) and hold Seller harmless from any and all claims, damages,
costs and liability which may arise due to such entries, surveys, tests,
investigations and the like. Seller shall have the right, without limitation,
to disapprove any and all entries, surveys, tests, investigations and the like
that in their reasonable judgment could result in any injury to the Property or
breach of any agreement, or expose Seller to any liability, costs, liens or
violations of applicable law, or otherwise adversely affect the Property or
Seller's interest therein. No consent by the Seller to any such activity shall
be deemed to constitute a waiver by Seller or assumption of liability or risk by
Seller. Purchaser hereby agrees to restore the Property to the same condition
existing immediately prior to Purchaser's exercise of its rights pursuant to
this ARTICLE V at Purchaser's sole cost and expense. Purchaser or its agent
entering the Property shall maintain comprehensive public liability insurance
with broad form contractual and personal injury liability endorsements with
respect to the Property and Purchaser's activities carried on therein, and
naming Seller as loss payee or additional insured. Such liability insurance
shall provide coverages of not less than $1,000,000.00 for injury or death to
any one person and $3,000,000.00 for injury or death to more than one person and
$500,000.00 with respect to property damage, by water or otherwise). The
provisions of this Section shall survive the Closing or termination of this
Purchase Contract.
5.4 Purchaser shall not permit any mechanic's or materialman.s liens or
any other liens to attach to the Property by reason of the performance of any
work or the purchase of any materials by Purchaser or any other party in
connection with any studies or tests conducted by or for Purchaser. Purchaser
shall give notice to Seller a reasonable time prior to entry onto the Property,
shall deliver proof of insurance coverage required above to Seller and shall
permit Seller to have a representative present during all investigations and
inspections conducted with respect to the Property. Purchaser shall take all
reasonable actions and implement all protections necessary to ensure that all
actions taken in connection with the investigations and inspections of the
Property, and all equipment, materials and substances generated, used or brought
onto the Property pose no material threat to the safety of persons or the
environment and cause no damage to the Property or other property of Seller or
other persons. All information made available by Seller to Purchaser in
accordance with this Purchase Contract or obtained by Purchaser in the course of
its investigations shall be treated as confidential information by Purchaser,
and, prior to the purchase of the Property by Purchaser, Purchaser shall use its
reasonable efforts to prevent its Consultants, agents and employees from
divulging such information to any unrelated third parties except as reasonably
necessary to third parties engaged by Purchaser for the limited purpose of
analyzing and investigating such information for the purpose of consummating the
transaction contemplated by this Purchase Contract, including Purchaser's
attorneys and representatives, prospective lenders and engineers.
ARTICLE VI
TITLE
6.1 Purchaser shall promptly secure a commitment for title insurance for
the Property in an amount equal to the Purchase Price ("Title Commitment,")
issued by Fidelity National Title Company ("Title Insurer") for an owner's title
insurance policy on the most recent standard American Land Title Association
("ALTA") Policy form, together with legible copies of all instruments identified
as exceptions therein and shall cause a copy thereof to be delivered to Seller
during the Feasibility Period. Purchaser agrees that it shall be solely
responsible for payment of all costs relating to procurement of the Title
Commitment and any owner's title policy.
6.2 Purchaser agrees to accept title to the Land and Improvements, so long
as the same is insurable at ordinary rates and any conveyance by special
warranty deed pursuant to this Purchase Contract shall be subject to the
following, all of which shall be deemed "Permitted Exceptions" and Purchaser
agrees to accept the deed and title subject thereto:
(a) Intentionally deleted; and
(b) Such exceptions and matters approved by Purchaser, or disapproved
by Purchaser and as the Title Company shall be willing to omit as exceptions to
coverage; and
(c) All Commercial Leases; and
(d) All Property Contracts which are not identified for termination
by Purchaser during the Feasibility Period; and
(e) Real estate and property taxes for the calendar year in which
closing occurs to the extent not due and payable;
(f) Intentionally deleted; and
(g) All matters of public record as of the effective time of the
Title Commitment (as approved by Purchaser).
6.3 The existence of other mortgages, liens, or encumbrances shall not be
objections to title, provided that properly executed instruments in recordable
form necessary to satisfy and remove the same of record are delivered to the
Purchaser at Closing or, in the alternative, with respect to any mortgage or
deed of trust liens, that payoff letters from the holder of the mortgage or deed
of trust liens shall have been delivered to and accepted by the Title Insurer
(sufficient to remove the same from the policy issued at Closing), together in
either case, with recording and/or filing fees.
6.4 Unpaid liens for taxes, charges, and assessments shall not be
objections to title, but the amount thereof plus interest and penalties thereon
shall be deducted from the Purchase Price to be paid for the applicable Property
hereunder and allowed to Purchaser, subject to the provisions for apportionment
of taxes and charges contained in ARTICLE VII herein.
6.5 Intentionally deleted.
6.6 Intentionally deleted.
6.7 If on the Closing Date, the state of title is other than in accordance
with the requirements set forth in this Purchase Contract or if any condition to
be fulfilled by Seller shall not be satisfied, Purchaser shall provide Seller
with written Notice thereof at such time, or such title objection or unfulfilled
condition shall be deemed waived by Purchaser in which case Purchaser and Seller
shall proceed to consummate the Closing on the Closing Date. If Purchaser
timely gives Seller such Notice, Seller at its sole option and upon Notice to
Purchaser within Seven (7) calendar days following receipt of such Notice may
elect to cure such objection or unfulfilled condition for up to thirty (30)
calendar days. Should Seller be able to cure such title objection or condition,
or should Seller be able to cause title insurance over the same by the Closing
Date or any postponed Closing Date, or should Purchaser waive such objection or
condition within such period for cure, then the Closing shall take place on or
before ten (10) calendar days after Notice of such cure or waiver.
6.8 If Seller does not elect to cure such objection or unfulfilled
condition or during the period of cure Seller is unable or unwilling, in its
sole discretion or opinion, to eliminate such title objection or cause Title
Insurer to insure over such matter or satisfy such unfulfilled condition, Seller
shall give Purchaser written Notice thereof, and if Purchaser does not waive
such objection by written Notice delivered to Seller and the title company
issuing the Title Commitment on or before Seven (7) calendar days following the
date Seller gives such Notice, then this Purchase Contract shall automatically
terminate, in which event Purchaser shall release and quitclaim all of
Purchaser's right and interest in such Property to Seller, and the parties
hereto shall have no further obligations to each other, except for Purchaser's
obligations pursuant to Section 5.3 above, and the Deposit shall be immediately
returned to Purchaser.
6.9 Seller covenants that it will not voluntarily create or cause any lien
or encumbrance to attach to the Property between the date of this Purchase
Contract and the Closing Date; any such monetary lien or encumbrance so
attaching by voluntary act of Seller shall be discharged by the Seller at or
prior to Closing on the Closing Date or any postponed Closing Date. Except as
expressly provided above, Seller shall not be required to undertake efforts to
remove any other lien, encumbrance, security interest, exception, objection or
other matter, to make any expenditure of money or institute litigation or any
other judicial or administrative proceeding and Seller may elect not to
discharge the same.
6.10 Anything to the contrary notwithstanding, Purchaser shall not have any
right to terminate this Purchase Contract or object to any lien, encumbrance,
exception or other matter that is a Permitted Exception, that has been waived or
deemed to have been waived by Purchaser.
6.11 Intentionally deleted.
6.12 Purchaser at Purchaser's sole cost and expense, may cause to be
prepared a survey for the Property ("Survey"). Purchaser at Purchaser's sole
cost and expense, may cause to be prepared an environmental report for the
Property ("Environmental Report"). In the event the perimeter legal description
of the Property contained in the Survey differs from that contained in the deed
or deeds by which Seller took title to the Property, the latter description
shall be used in the special warranty deed delivered to Purchaser at Closing,
and the Survey legal shall be used in a quitclaim deed to the Property which
also shall be delivered to Purchaser at Closing.
(a) Should such Survey disclose conditions that give rise to a title
exception other than a Permitted Exception, Purchaser shall have the right to
object thereto within the Feasibility Period in accordance with the procedures
set forth in ARTICLE 5 above.
(b) Purchaser agrees to make payment in full of all costs of
obtaining Surveys required by this Purchase Contract on or before Closing or
termination of this Purchase Contract.
6.13 Condition and Use of Property. From and after the date of Seller's
execution hereof, Seller shall use commercially reasonable efforts to maintain
Property in good condition and repair, and in accordance with customary and
reasonable practices. From and after the date of Seller's execution hereof,
Seller shall not grant or convey any easement, lease, license, permit or any
other legal or beneficial interest in or to the Property without the prior
written consent of Purchaser which consent shall not be unreasonably withheld or
delayed. If during the Feasibility Period Purchaser unreasonably disapproves of
any proposed action, Seller shall have the option to terminate this Purchase
Contract upon five (5) days written notice to Purchaser (and Purchaser's failure
to approve a lease which is for market rent from a financially competent tenant
for a use which is not prohibited under any existing use restrictions shall be
deemed unreasonable for purposes of determining whether Purchaser unreasonably
disapproves a lease). Upon Purchaser's receipt of such termination notice,
Purchaser shall have the right to either accept the termination (in which case
the Deposit shall be returned to Purchaser and neither party shall have any
obligation to the other, except as expressly set forth herein for provisions
which survive termination), or Purchaser may approve the proposed action (which
was previously disapproved), and permit the Purchase Contract to continue. If
notice of approval of the proposed transaction or agreement is not delivered to
Seller within five (5) days after Purchaser's receipt of the termination notice,
Purchaser shall be deemed to have accepted Seller's termination. Seller shall
not have the foregoing right of termination after the expiration of the
Feasibility Period. Seller shall do or cause to be done all things reasonably
within its control to preserve intact and unimpaired any and all easements,
grants, appurtenances, privileges and licenses in favor of or constituting any
portion of the Property.
ARTICLE VII
CLOSING
7.1 DATES, PLACES OF CLOSING, PRORATIONS, DELINQUENT RENT AND CLOSING
COSTS.
(a) The Closing shall take place in the offices of such place as the
parties shall mutually agree upon at a time mutually agreed upon on or before
the Closing Date. If requested by Seller or Purchaser, the parties shall agree
to conduct closing through a pre-closing, an escrow or other arrangement
reasonably requested by Seller or Purchaser, whereby the Seller, Purchaser and
their attorneys need not be physically present at the Closing and may deliver
documents by overnight air courier or other means.
(b) The Closing Date shall be fifteen (15) days following the
expiration of the Feasibility Period and may be extended without penalty at the
option of Seller to a date not later than thirty (30) days following the Closing
Date specified above to satisfy a condition to be satisfied by Seller, or such
later date as is mutually acceptable to Seller and Purchaser.
(c) All normal and customarily proratable items, including, without
limitation, Rents (as defined below), operating expenses, personal property
taxes, other operating expenses and fees, shall be prorated as of the Closing
Date, Seller being charged or credited, as appropriate, for all of same
attributable to the period up to the Closing Date (and credited for any amounts
paid by Seller attributable to the period on or after the Closing Date, if
assumed by Purchaser) and Purchaser being responsible for, and credited or
charged, as the case may be, for all of same attributable to the period on and
after the Closing Date. All unapplied deposits under Tenant leases, if any,
shall be transferred by Seller to Purchaser at the Closing. Purchaser shall
assume at Closing the obligation to pay any accrued but unpaid tenant
improvement allowances and leasing commissions under Commercial Leases executed
after the Effective Date, together with any payments due parties under the
Property Contracts assumed by Purchaser, provided all of the foregoing have been
prorated. Any real estate ad valorem or similar taxes for the Property, or any
installment of assessments payable in installments which installment is payable
in the calendar year of Closing, shall be prorated to the date of Closing, based
upon actual days involved. The proration of real property taxes or installments
of assessments shall be based upon the assessed valuation and tax rate figures
for the year in which the Closing occurs to the extent the same are available;
provided, that in the event that actual figures (whether for the assessed value
of the Property or for the tax rate) for the year of Closing are not available
at the Closing Date, the proration shall be made using figures from the
preceding year. The proration shall be final and unadjustable except as
provided in the following paragraph. For purposes of this Section (c) and
Section (d) and (e) the terms "Rent" and "Rents" shall include, without
limitation, base rents, additional rents, percentage rents and common area
maintenance charges. The provisions of this Section (c) shall apply during the
Proration Period (as defined below).
(d) If any of the items subject to proration hereunder cannot be
prorated at the Closing because the information necessary to compute such
proration is unavailable, or if any errors or omissions in computing prorations
at the Closing are discovered subsequent to the Closing, then such item shall be
reapportioned and such errors and omissions corrected as soon as practicable
after the Closing Date and the proper party reimbursed, which obligation shall
survive the Closing for a period (the "Proration Period") from the Closing Date
until one (1) year after the Closing Date. Neither party hereto shall have the
right to require a recomputation of a Closing proration or a correction of an
error or omission in a Closing proration unless within the Proration Period one
of the parties hereto (i) has obtained the previously unavailable information or
has discovered the error or omission, and (ii) has given Notice thereof to the
other party together with a copy of its good faith recomputation of the
proration and copies of all substantiating information used in such
recomputation. The failure of a party to obtain any previously unavailable
information or discover an error or omission with respect to an item subject to
proration hereunder and to give Notice thereof as provided above within the
Proration Period shall be deemed a waiver of its right to cause a recomputation
or a correction of an error or omission with respect to such item after the
Closing Date.
(e) If on the Closing Date any Tenant is in arrears in any Rent
payment under any Tenant lease (the "Delinquent Rent"), any Delinquent Rent
received by Purchaser and Seller from such Tenant after the Closing shall be
applied to amounts due and payable by such Tenant during the following periods
in the following order of priority: (i) first, to the period of time after the
Closing Date, and (ii) second, to the period of time before the Closing Date.
If Delinquent Rent or any portion thereof received by Purchaser after the
Closing are due and payable to the other party by reason of this allocation, the
appropriate sum, less a proportionate share of any reasonable attorneys' fees
and costs and expenses expended in connection with the collection thereof, shall
be promptly paid to the other party. Any monies received by Seller after
closing shall be forwarded to Purchaser for disbursement in accordance with the
order of payment provided herein above. After the Closing, Seller shall
continue to have the right, but not the obligation, in its own name, to demand
payment of and to collect Delinquent Rent owed to Seller by any Tenant, which
right shall include, without limitation, the right to continue or commence legal
actions or proceedings against any Tenant (provided, that Seller shall not
commence any legal actions or proceedings against any Tenant which continues as
a Tenant at the Property after Closing without the prior consent of Purchaser,
which will not be unreasonably withheld or delayed), and the delivery of the
Assignment as defined in Section (iii) shall not constitute a waiver by Seller
of such right. Purchaser agrees to cooperate with Seller at no cost or
liability to Purchaser in connection with all efforts by Seller to collect such
Delinquent Rent and to take all steps, whether before or after the Closing Date,
as may be necessary to carry out the intention of the foregoing, including,
without limitation, the delivery to Seller, within seven (7) days after a
written request, of any relevant books and records (including, without
limitation, rent statements, receipted bills and copies of tenant checks used in
payment of such rent), the execution of any and all consents or other documents,
and the undertaking of any act reasonably necessary for the collection of such
Delinquent Rent by Seller; provided, however, that Purchaser's obligation to
cooperate with Seller pursuant to this sentence shall not obligate Purchaser to
terminate any Tenant lease with an existing Tenant or evict any existing Tenant
from the Property. The provisions of this Section (e) shall only apply during
the Proration Period.
(f) Seller shall pay the cost of all transfer taxes (e.g. excise
stamp taxes). Purchaser shall pay the recording costs with respect to the
Closing. Seller and Purchaser shall share equally in the costs of the Escrow
Agent for escrow fees.
7.2 ITEMS TO BE DELIVERED PRIOR TO OR AT CLOSING.
(a) SELLER. At Closing, Seller shall deliver to Purchaser, each of
the following items, as applicable:
(i) Special Warranty deed in the form attached as Exhibit
7.2.1.1 to Purchaser. The acceptance of the deed at Closing, shall be deemed to
be full performance of, and discharge of, every agreement and obligation on
Seller's part to be performed under this Purchase Contract, except for those
that this Purchase Contract specifically provides shall survive Closing.
(ii) A Bill of Sale without recourse or warranty in the form
attached as Exhibit 7.2.1.2 covering all Property Contracts, Commercial Leases,
Permits (other than Excluded Permits) and Fixtures and Tangible Personal
Property required to be transferred to Purchaser with respect to such Property.
Purchaser shall countersign the same so as to effect an assumption by Purchaser,
including, without limitation, of Seller's obligations thereunder.
(iii) An Assignment (to the extent assignable and in force
and effect) without recourse or warranty in the form attached as Exhibit 7.2.1.3
of all of Seller's right, title and interest in and to the Miscellaneous
Property Assets, subject to any required consents. Purchaser shall countersign
the same so as to effect an assumption by Purchaser, including, without
limitation, of Seller's obligations thereunder.
(iv) A closing statement executed by Seller.
(v) A vendor's affidavit, or at Seller's option an indemnity, as
applicable, in the customary form reasonably acceptable to Seller to enable
Title Insurer to delete the standard exceptions to the title insurance policy
set forth in this Purchase Contract to be issued pursuant to the Title
Commitments; and
(vi) A certification of Seller's non-foreign status pursuant to
Section 1445 of the Internal Revenue Code of 1986, as amended.
(vii) Except for the items expressly listed above to be
delivered at Closing, delivery of any other required items shall be deemed made
by Seller to Purchaser, if Seller leaves such documents at the Property in their
customary place of storage or in the custody of Purchaser's representatives.
(viii) To the extent in Seller's possession or control,
original copies of the Commercial Leases and Property Contracts, lease files,
keys to the property, Seller's books and records (other than proprietary
information) regarding the Property, and original copies of the tenant
estoppels.
(b) PURCHASER. At Closing, Purchaser shall deliver to the Title
Company (for disbursement to Seller upon the Closing) the following items with
respect to the Property being conveyed at such Closing:
(i) The full Purchase Price as required by ARTICLE III hereof
plus or minus the adjustments or prorations required by this Purchase Contract.
If at Closing there are any liens or encumbrances on the Property that Seller is
obligated or elects to pay and discharge, Seller may use any portion of the
Purchase Price for the Property(s) to satisfy the same, provided that Seller
shall have delivered to Title Company such Closing instruments in recordable
form sufficient to satisfy such liens and encumbrances of record (or, as to any
mortgages or deeds of trust, appropriate payoff letters, acceptable to the Title
Insurer), together with the cost of recording or filing such instruments.
(ii) A closing statement executed by Purchaser.
(iii) A countersigned counterpart of the Bill of Sale in the
form attached as Exhibit 7.2.1.2.
(iv) A countersigned counterpart of the Assignment in the form
attached as Exhibit 7.2.1.3.
(v) Such other instruments, documents or certificates as are
required to be delivered by Purchaser to Seller in accordance with any of the
other provisions of this Purchase Contract.
ARTICLE VIII
REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
(a) For the purpose of inducing Purchaser to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in accordance
herewith, each Seller on its own behalf with respect to its own Property only,
but not on behalf of the other Seller or Property it does not own, represents
and warrants to Purchaser the following as of the Effective Date and as of the
Closing Date:
(i) Seller identified in the Recitals is lawfully and duly
organized, and in good standing under the laws of the state of its formation set
forth in the initial paragraph of this Purchase Contract; and has the power and
authority to sell and convey the Property and to execute the documents to be
executed by Seller and has taken as applicable, all corporate, partnership,
limited liability company or equivalent entity actions required for the
execution and delivery of this Purchase Contract, and the consummation of the
transactions contemplated by this Purchase Contract. The compliance with or
fulfillment of the terms and conditions hereof will not conflict with, or result
in a breach of, the terms, conditions or provisions of, or constitute a default
under, any Purchase Contract to which Seller is a party or by which Seller is
otherwise bound. Seller has not made any other purchase contract for the sale
of, or given any other person the right to purchase, all or any part of any of
the Property;
(ii) Seller owns insurable, fee title to the Property, including
all real property contained therein required to be sold to Purchaser, subject
only to the Permitted Exceptions (provided, however, that if this representation
is or becomes untrue (other than as a result of Seller's willful misconduct in
violation of this Purchase Contract), Purchaser's remedies shall be limited to
the remedies set forth in Section 6.7 hereof and Seller shall have no other
liability as a result thereof, either before or after Closing);
(iii) There are no adverse or other parties in possession of
the Property, except for occupants, guests and tenants under the Commercial
Leases (provided, however, that if this representation is or becomes untrue,
Purchaser's remedies shall be limited to the remedies set forth in Section 6.7
hereof).
(iv) The joinder of no person or entity other than Seller is
necessary to convey the Property, fully and completely to Purchaser at Closing,
or to fulfill Seller's obligations and Seller has all necessary right and
authority to convey and assign to Purchaser all contract rights and warranties
required to be conveyed and assigned to Purchaser hereunder;
(v) Purchaser has no duty to collect withholding taxes for
Seller pursuant to the Foreign Investors Real Property Tax Act of 1980, as
amended;
(vi) To Seller's knowledge, there are no actions, proceedings,
litigation or governmental investigations or condemnation actions either pending
or threatened against the Property, as applicable;
(vii) Seller has no knowledge of any claims for labor
performed, materials furnished or services rendered in connection with
constructing, improving or repairing any of the Property, as applicable, caused
by Seller or its agents and which remain unpaid beyond the date for which
payment was due and in respect of which liens may or could be filed against any
of the Property, as applicable;
(viii) To Seller's best knowledge, Seller has complied with
all federal, state and local laws, mechanical and electrical codes, and
administrative measures relating to the operation of the Property, including
without limitation, applicable zoning and building ordinances;
(ix) To Seller's best knowledge, Seller has not received any
notices that the property is in violation of any environmental laws.
(x) To Seller's best knowledge, other than the Leases, Service
Contracts (which Purchaser agrees to assume), and tenant improvements and
leasing commissions for leases executed after the Effective Date, there are no
contracts or agreements entered into by Seller which Purchaser will be obligated
to pay or perform after the Closing Date.
(b) Except for the representations and warranties expressly set forth
above in Subsection 8.1(a), Subsections (i-vii), the Property is expressly
purchased and sold "AS IS," "WHERE IS," and "WITH ALL FAULTS." The Purchase
Price and the terms and conditions set forth herein are the result of
arm's-length bargaining between entities familiar with transactions of this
kind, and said price, terms and conditions reflect the fact that Purchaser shall
have the benefit of, and is not relying upon any information provided by Seller
or Broker or statements, representations or warranties, express or implied, made
by or enforceable directly against Seller or Broker, including, without
limitation, any relating to the value of the Property, the physical or
environmental condition of the Property, any state, federal, county or local
law, ordinance, order or permit; or the suitability, compliance or lack of
compliance of the Property with any regulation, or any other attribute or matter
of or relating to the Property (other than any covenants of title contained in
the deeds conveying the Property and the representations set forth above).
Purchaser represents and warrants that as of the date hereof and as of the
Closing Date, it has and shall have reviewed and conducted such independent
analyses, studies, reports, investigations and inspections as it deems
appropriate in connection with the Property. If Seller provides or has
provided any documents, summaries, opinions or work product of consultants,
surveyors, architects, engineers, title companies, governmental authorities or
any other person or entity with respect to the Property, including, without
limitation, the Offering prepared by Broker, Purchaser and Seller agree that
Seller has done so or shall do so only for the convenience of both parties,
Purchaser shall not rely thereon and the reliance by Purchaser upon any such
documents, summaries, opinions or work product shall not create or give rise to
any liability of or against Seller, Seller's partners or affiliates or any of
their respective partners, officers, directors, participants, employees,
contractors, attorneys, consultants, representatives, agents, successors,
assigns or predecessors-in-interest. Except as set forth in the special
warranty deed, Purchaser shall rely only upon any title insurance obtained by
Purchaser with respect to title to the Property. Purchaser acknowledges and
agrees that, except as otherwise set forth herein, no representation has been
made and no responsibility is assumed by Seller with respect to current and
future applicable zoning or building code requirements or the compliance of the
Property with any other laws, rules, ordinances or regulations, the financial
earning capacity or expense history of the Property, the continuation of
contracts, continued occupancy levels of the Property, or any part thereof, or
the continued occupancy by tenants of any Commercial Leases or, without limiting
any of the foregoing, occupancy at Closing. Prior to Closing, Seller shall have
the right, but not the obligation, to enforce its rights against any and all
Property occupants, guests or tenants. Except as otherwise set forth herein,
Purchaser agrees that the departure or removal, prior to Closing, of any of such
guests, occupants or tenants shall not be the basis for, nor shall it give rise
to, any claim on the part of Purchaser, nor shall it affect the obligations of
Purchaser under this Purchase Contract in any manner whatsoever; and Purchaser
shall close title and accept delivery of the deed with or without such tenants
in possession and without any allowance or reduction in the Purchase Price under
this Purchase Contract. Purchaser hereby releases Seller from any and all
claims and liabilities relating to the foregoing matters, except as provided in
Section (c) below.
(c) Seller and Purchaser agree that those representations contained
in Section 8.1 shall survive Closing for a period of One (1) year (that is, any
proceeding based on the breach of a representation contained in Section 8.1 that
survives Closing must be commenced within One (1) year subsequent to the date of
such representation).
(d) Representations and warranties above made to the knowledge of
Seller shall not be deemed to imply any duty of inquiry. For purposes of this
Purchase Contract, the term Seller's "knowledge" shall mean and refer to only
actual knowledge of the Designated Representative (as hereinafter defined) of
the Seller and shall not be construed to refer to the knowledge of any other
partner, officer, director, agent, employee or representative of the Seller, or
any affiliate of the Seller, or to impose upon such Designated Representative
any duty to investigate the matter to which such actual knowledge or the absence
thereof pertains, or to impose upon such Designated Representative any
individual personal liability. As used herein, the term .Designated
Representative. shall refer to Christy Couch, Assistant Property Manager,
Insignia/ESG, P. O. Box 1027, Greenville, SC 29602 at (864) 298-8584 (Phone);
and (864) 298-8528 (Fax).
8.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER
(a) For the purpose of inducing Seller to enter into this Purchase
Contract and to consummate the sale and purchase of the Property in accordance
herewith, Purchaser represents and warrants to Seller the following as of the
Effective Date and as of the Closing Date:
(b) With respect to Purchaser and its business, Purchaser represents
and warrants, in particular, that:
(i) Purchaser is limited liability company duly organized,
validly existing and in good standing under the laws of Colorado.
(ii) Purchaser, acting through any of its or their duly empowered
and authorized officers or members, has all necessary power and authority to own
and use its properties and to transact the business in which it is engaged, and
has full power and authority to enter into this Purchase Contract, to execute
and deliver the documents and instruments required of Purchaser herein, and to
perform its obligations hereunder; and no consent of any of Purchaser's officers
or members are required to so empower or authorize Purchaser.
(iii) No pending or, to the knowledge of Purchaser,
threatened litigation exists which if determined adversely would restrain the
consummation of the transactions contemplated by this Purchase Contract or would
declare illegal, invalid or non-binding any of Purchaser's obligations or
covenants to Seller.
(iv) Purchaser is duly authorized to execute and deliver, acting
through its duly empowered and authorized officers and members, respectively,
and perform this Purchase Contract and all documents and instruments and
transactions contemplated hereby or incidental hereto, and such execution,
delivery and performance by Purchaser does not (i) violate any of the provisions
of their respective articles of organization or operating agreement, (ii)
violate any provision of any law, governmental rule or regulation currently in
effect, (iii) violate any judgment, decree, writ, injunction, award,
determination or order currently in effect that names or is specifically
directed at Purchaser or its property, and (iv) require the consent, approval,
order or authorization of, or any filing with or notice to, any court or other
governmental authority.
(v) The joinder of no person or entity other than Purchaser is
necessary to consummate the transactions to be performed by Purchaser and
Purchaser has all necessary right and authority to perform such acts as are
required and contemplated by this Purchase Contract.
(c) Purchaser has not dealt with any broker, finder or any other
person, in connection with the purchase of or the negotiation of the purchase of
the Property that might give rise to any claim for commission against Seller or
lien or claim against the Property.
(d) Intentionally Omitted.
ARTICLE IX
CONDITIONS PRECEDENT TO CLOSING
9.1 Purchaser's obligation to close under this Purchase Contract, shall be
subject to and conditioned upon the fulfillment of each and all of the following
conditions precedent:
(a) All of the documents required to be delivered by Seller to
Purchaser at the Closing pursuant to the terms and conditions hereof shall have
been delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
(b) Each of the representations and warranties of Seller contained
herein shall be true in all material respects as of the Closing Date;
(c) Seller shall have complied with, fulfilled and performed in all
material respects each of the covenants, terms and conditions to be complied
with, fulfilled or performed by Seller hereunder;
(d) The issuance of the Title Policy as contemplated by Section 5 of
this Agreement.
(e) Seller shall have delivered to Purchaser estoppel certificates
required below. On or before five (5) days prior to Closing, Seller shall
deliver to Purchaser estoppel certificates, dated within forty-five (45) days of
Closing on a form attached hereto as Exhibit 9.1.5 (the "Tenant Estoppels"),
from at least 70% of the tenants. To the extent that less than 100% of the
tenant's have delivered estoppels, Seller shall provide a Seller estoppel of
equivalent form to its best knowledge.
(f) The absence on the Closing Date of:
(i) Any material violation of any federal, state or local law,
rule, regulation or ordinance affecting the use, occupancy or condition of the
Property which has not been cured, remedied or waived; and
Any material default by the landlord under any lease.
(g) Notwithstanding anything to the contrary, there are no other
conditions on Purchaser's obligation to Close except as expressly set forth
above.
9.2 Without limiting any of the rights of Seller elsewhere provided for in
this Purchase Contract, Seller's obligation to close with respect to conveyance
of a particular Property under this Purchase Contract shall be subject to and
conditioned upon the fulfillment of each and all of the following conditions
precedent:
(a) Purchaser's representations and warranties set forth in this
Purchase Contract shall have been true and correct in all material respects when
made, and shall be true and correct in all material respects on the Closing Date
and as of the Effective Date as though such representations and warranties were
made at and as of such date and time.
(b) Purchaser shall have fully performed and complied with all
covenants, conditions, and other obligations in this Purchase Contract to be
performed or complied with by it at or prior to Closing including, without
limitation, payment in full of the Purchase Price, after notice and cure rights
if violated.
(c) There shall not be pending or, to the knowledge of either
Purchaser or Seller, any litigation or threatened litigation which, if
determined adversely, would restrain the consummation of any of the transactions
contemplated by this Purchase Contract or declare illegal, invalid or nonbinding
any of the covenants or obligations of the Purchaser.
ARTICLE X
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only
with Pinnacle Realty Management Company, 7316 Wisconsin Avenue, Suite 300,
Bethesda, Maryland 20814-2925 ("Broker") in connection with this Purchase
Contract. Seller and Purchaser each represents and warrants to the other that
other than Broker, it has not dealt with or utilized the services of any other
real estate broker, sales person or finder in connection with this Purchase
Contract, and each party agrees to indemnify the other party from and against
all claims for brokerage commissions and finder's fees arising from or
attributable to the acts of omissions of the indemnifying party.
10.2 Seller agrees to pay Broker a commission according to the terms of a
separate agreement. Broker shall not be deemed a party or third party
beneficiary of this Purchase Contract.
10.3 Broker assumes no responsibility for the condition of the Property or
representation for the performance of this Purchase Contract by the Seller or
Purchaser.
ARTICLE XI
POSSESSION
11.1 Possession of the Property subject to the Permitted Exceptions shall
be delivered to Purchaser at the Closing, subject to Purchaser's right of entry
for inspection as set forth in ARTICLE V.
ARTICLE XII
DEFAULTS AND REMEDIES
12.1 In the Event Purchaser defaults in its performance under this Purchase
Contract on or prior to the Closing Date and consummation of the Closing does
not occur by reason of such default by Purchaser, Seller and Purchaser agree
that it would be impractical and extremely difficult to estimate the damages
which Seller may suffer. Therefore, Seller and Purchaser hereby agree that,
except for the Purchaser's obligations to Seller under Section 5.3, the
reasonable estimate of the total net detriment that Seller would suffer in the
event that Purchaser defaults hereunder on or prior to the Closing Date is and
shall be, as Seller's sole remedy (whether at law or in equity), the right to
receive from the Escrow Agent and retain the full amount of the Deposit. The
payment and performance of the above as liquidated damages is not intended as a
forfeiture or penalty within the meaning of applicable law and is intended to
settle all issues and questions about the amount of damages suffered by Seller
in the applicable event, except only for damages under Section 5.3 above,
irrespective of the time when the inquiry about such damages may take place.
Upon any such failure by Purchaser hereunder, this Purchase Contract shall be
terminated, and neither party shall have any further rights or obligations
hereunder, each to the other, except for the Purchaser's obligations to Seller
under Section 5.3 above, and the right of Seller to collect such liquidated
damages to the extent not theretofore paid by Purchaser.
12.2 Provided that Purchaser has not terminated this Purchase Contract and
is not otherwise in default hereunder, if the Closing does not occur as a result
of Seller's default hereunder, Purchaser's sole remedy shall be to elect to
terminate this Purchase Contract and receive reimbursement of the Deposit (or so
much thereof as has been received by Escrow Agent) or to seek specific
performance of this Purchase Contract.
ARTICLE XIII
RISK OF LOSS OR CASUALTY
The risk of loss or damage to the Property by fire or other casualty until
the deed of conveyance is recorded is assumed by the Seller, provided that the
Seller's responsibility shall be only to the extent of any recovery from
insurance now carried on the Property plus applicable deductibles. Upon
assignment to Purchaser of any insurance proceeds in respect of fire or other
casualty occurring between the Effective Date of this contract and the time of
settlement plus a credit for applicable deductibles, Purchaser shall have no
right to terminate this Purchase Contract on account thereof (unless the damage
is estimated to be in excess of $200,000, in which case Purchaser may terminate
this Agreement and receive the return of the Deposit), but Seller shall assign
to Purchaser its interest in and to any insurance policies and proceeds thereof
payable as a result of such damage or destruction. Seller shall not, in any
event, be obligated to effect any repair, replacement, and/or restoration, but
may do so at its option in which case Seller may apply the insurance proceeds to
the costs of restoration.
ARTICLE XIV
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before May 27, 1999.
ARTICLE XV
EMINENT DOMAIN
15.1 In the event that at the time of Closing all or any part of the
Property is (or has previously been) acquired, or is about to be acquired, by
authority of any governmental agency in purchase in lieu thereof (or in the
event that at such time there is any notice of any such acquisition or intent to
acquire by any such governmental agency), Purchaser shall have the right, at
Purchaser's option, to terminate this Purchase Contract by giving written Notice
within Fifteen (15) days of Purchaser's receipt from Seller of the occurrence of
such event and recover the Deposit hereunder, or to settle in accordance with
the terms of this Purchase Contract for the full Purchase Price and receive the
full benefit or any condemnation award.
ARTICLE XVI
MISCELLANEOUS
16.1 EXHIBITS AND SCHEDULES
All Exhibits and Schedules annexed hereto are a part of this Purchase
Contract for all purposes.
16.2 ASSIGNABILITY
Subject to Section 16.18, this Purchase Contract is not assignable without
first obtaining the prior written approval of the non-assigning party, except
that Purchaser may assign all or an undivided interest in this Purchaser
Contract to one or more entities so long as (i) Purchaser or its affiliate
remains a part of the purchasing entity(ies), and (ii) Seller consents thereto
(which consent shall not be unreasonably withheld or delayed).
16.3 BINDING EFFECT
This Purchase Contract shall be binding upon and inure to the benefit of
Seller and Purchaser, and their respective successors, heirs and permitted
assigns.
16.4 CAPTIONS
The captions, headings, and arrangements used in this Purchase Contract are
for convenience only and do not in any way affect, limit, amplify, or modify the
terms and provisions hereof.
16.5 NUMBER AND GENDER OF WORDS
Whenever herein the singular number is used, the same shall include the
plural where appropriate, and words of any gender shall include each other
gender where appropriate.
16.6 NOTICES
All Notices, demands, requests and other communications required pursuant
to the provisions of this Purchase Contract ("Notice") shall be in writing and
shall be deemed to have been properly given or served for all purposes (i) if
sent by Federal Express or another nationally recognized overnight carrier for
next business day delivery, on the first business day following deposit of such
Notice with such carrier addressed as set forth below, or (ii) if personally
delivered, on the actual date of delivery or (iii) if sent by certified mail,
return receipt requested postage prepaid, on the Fifth (5th) business day
following the date of mailing addressed as follows:
If to Seller: If to Purchaser:
Drexel Burnham Lambert Real Estate SB Orchard, LLC
Associates Limited Partnership c/o Black Equities
1873 South Bellaire Street, 17th 433 North Camden Drive, Suite
Floor 1070
Denver, Colorado 80222 Beverly Hills, California
Attn: Mr. Harry Alcock 90210
Attn: Mr. Sam Rosenwald
And
Drexel Burnham Lambert Real Estate With a copy to:
Associates II Limited Partnership Brownstein Hyatt Farber &
1873 South Bellaire Street, 17th Strickland, P.C.
Floor 410 Seventeenth Street, 22nd
Denver, Colorado 80222 Floor
Attn: Mr. Harry Alcock Denver, Colorado 80202-4437
Attn: Robert Kaufmann, Esq.
And
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Attn: Mr. David Marquette
with a copy to:
Loeb & Loeb
1000 Wilshire Boulevard, Suite
1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
Karen N. Higgins, Esq.
Any of the parties may designate a change of address by Notice in writing
to the other parties. Whenever in this Purchase Contract the giving of Notice
by mail or otherwise is required, the giving of such Notice may be waived in
writing by the person or persons entitled to receive such Notice.
16.7 GOVERNING LAW AND VENUE
The laws of the State of North Carolina shall govern the validity,
construction, enforcement, and interpretation of this Purchase Contract, unless
otherwise specified herein except for the conflict of laws provisions thereof.
All claims, disputes and other matters in question arising out of or relating to
this Purchase Contract, or the breach thereof, shall be decided by proceedings
instituted and litigated in the United States District Court for the district in
which the Property is situated, and the parties hereto expressly consent to the
venue and jurisdiction of such court.
16.8 ENTIRETY AND AMENDMENTS
This Purchase Contract embodies the entire Purchase Contract between the
parties and supersedes all prior Purchase Contracts and understandings, if any,
relating to the Property, and may be amended or supplemented only by an
instrument in writing executed by the party against whom enforcement is sought.
16.9 SEVERABILITY
If any provision of this Purchase Contract is held to be illegal, invalid,
or unenforceable under present or future laws, such provision shall be fully
severable. The Purchase Contract shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part of this
Purchase Contract; and the remaining provisions of this Purchase Contract 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 Purchase
Contract. In lieu of such illegal, invalid, or unenforceable provision, there
shall be added automatically as a part of this Purchase Contract a provision as
similar in terms to such illegal, invalid, or unenforceable provision as may be
possible to make such provision legal, valid, and enforceable.
16.10 MULTIPLE COUNTERPARTS
This Purchase Contract may be executed in a number of identical
counterparts. If so executed, each of such counterparts is to be deemed an
original for all purposes and all such counterparts shall, collectively,
constitute one Purchase Contract. In making proof of this Purchase Contract, it
shall not be necessary to produce or account for more than one such
counterparts.
16.11 FURTHER ACTS
In addition to the acts and deeds recited herein and contemplated and
performed, executed and/or delivered by Seller and Purchaser, Seller and
Purchaser agree to perform, execute and/or deliver or cause to be performed,
executed and/or delivered any and all such further acts, deeds, and assurances
as may be necessary to consummate the transactions contemplated hereby.
16.12 CONSTRUCTION
No provision of this Purchase Contract shall be construed in favor of, or
against, any particular party by reason of any presumption with respect to the
drafting of this Purchase Contract; both parties, being represented by counsel,
having fully participated in the negotiation of this instrument.
16.13 CONFIDENTIALITY
Purchaser shall not disclose the terms and conditions contained in this
Purchase Contract, shall keep the same confidential, provided that Purchaser may
disclose the terms and conditions of this Purchase Contract (i) as required by
law, (ii) to consummate the terms of this Purchase Contract, or any financing
relating thereto, or (iii) to Purchaser's or Seller's lenders, attorneys,
affiliates, and accountants,. Any information provided by Seller to Purchaser
under the terms of this Purchase Contract is for informational purposes only.
In providing such information to Purchaser, except as otherwise expressly set
forth herein, Seller makes no representation or warranty, express, written,
oral, statutory, or implied, and all such representations and warranties are
hereby expressly excluded. Other than the express representations and
warranties set forth herein, Purchaser shall not in any way be entitled to rely
upon the accuracy of such information. Such information is also confidential
and Purchaser shall be prohibited from making such information public to any
other person or entity other than its agents, lenders, attorneys, affiliates,
and legal representatives, without Seller's prior written authorization, which
may be granted or denied in Seller's sole discretion.
16.14 TIME OF THE ESSENCE
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.15 CUMULATIVE REMEDIES AND WAIVER
No remedy herein conferred or reserved is intended to be exclusive of any
other available remedy or remedies herein conferred or referred, but each and
every such remedy shall be cumulative and shall be in addition to every other
remedy given under this Purchase Contract. No delay or omission to exercise any
right or power accruing upon any default, omission, or failure of performance
hereunder shall impair any right or power or shall be construed to be a waiver
thereof, but any such right and power may be exercised from time to time and as
often as may be deemed expedient. No waiver, amendment, release, or
modification of this Purchase Contract shall be established by conduct, custom,
or course of dealing.
16.16 LITIGATION EXPENSES
In the event either party hereto commences litigation against the other to
enforce its rights hereunder, the prevailing party in such litigation shall be
entitled to recover from the other party its reasonable attorneys' fees and
expenses incidental to such litigation.
16.17 TIME PERIODS
Should the last day of a time period fall on a weekend or legal holiday,
the next Business Day thereafter shall be considered the end of the time period.
16.18 EXCHANGE
At Seller's sole cost and expense, Seller may structure the sale of the
Property to Purchaser as a Like Kind Exchange under Internal Revenue Code
Section 1031 whereby Seller will acquire certain property (the "Like Kind
Exchange Property") in conjunction with the sale of the Property (the "Like Kind
Exchange"). Purchaser shall cooperate fully and promptly with Seller's conduct
of the Like Kind Exchange, provided that all costs and expenses generated in
connection with the Like Kind Exchange shall be borne solely by Seller, and
Purchaser shall not be required to take title to or contract for the purchase of
any other property. If Seller uses a qualified intermediary to effectuate the
exchange, any assignment of the rights or obligations of Seller hereunder shall
not relieve, release or absolve Seller of its obligations to Purchaser. In no
event shall the Closing Date be delayed by the Like Kind Exchange. Seller shall
indemnify and hold harmless Purchaser from and against any and all liability
arising from and out of the Like Kind Exchange.
At Purchaser's sole cost and expense, Purchaser may structure the purchase
of the Property from Seller as a Like Kind Exchange under Internal Revenue Code
Section 1031. Seller shall cooperate fully and promptly with Purchaser's
conduct of the Like Kind Exchange, provided that all costs and expenses
generated in connection with the Like Kind Exchange shall be borne solely by
Purchaser, and Seller shall not be required to take title to or contract for the
purchase of any other property. If Purchaser uses a qualified intermediary to
effectuate the exchange, any assignment of the rights or obligations of
Purchaser hereunder shall not relieve, release or absolve Purchaser of its
obligations to Seller. In no event shall the Closing Date be delayed by the
Like Kind Exchange. Purchaser shall indemnify and hold harmless Seller from and
against any and all liability arising from and out of the Like Kind Exchange.
16.19 NO PERSONAL LIABILITY OF OFFICERS, TRUSTEES OR DIRECTORS OF
SELLER
Purchaser acknowledges that this Agreement is entered into by each Seller
which is a New York limited partnership, and Purchaser agrees that no individual
officer, partner, trustee, director or representative of Seller or its' partners
shall have any personal liability under this Agreement or any document executed
in connection with the transactions contemplated by this Agreement.
Seller acknowledges that this Agreement is entered into by Purchaser which
is a Colorado limited liability company, and Seller agrees that no individual
officer, trustee, member, manager, director or representative of Purchaser shall
have any personal liability under this Agreement or any document executed in
connection with the transactions contemplated by this Agreement.
16.20 NO EXCLUSIVE NEGOTIATIONS
Seller shall have the right, at all times, to solicit backup offers and
enter into discussions, negotiations, or any other communications concerning or
related to the sale of the Property with any third-party; provided, however,
that such communications are subject to the terms of this Agreement, and that
Seller shall not enter into any contract or binding agreement with a third-party
for the sale of the Property unless such agreement is contingent on the
termination of this Agreement without the Property having been conveyed to
Purchaser.
NOW WHEREFORE, the parties hereto have executed this Purchase Contract
under seal as of the date first set forth above.
SELLER: DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a
New York limited partnership [SEAL]
[Corporate Seal] By: DBL Properties Corporation, a New York
corporation, Its General Partner
By: _____________________________
Its __________________________
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP,
a New York limited partnership [SEAL]
[Corporate Seal] By: DBL Properties Corporation, a New York
corporation, Its General Partner
By: _____________________________
Its __________________________
PURCHASER: SB ORCHARD, LLC, a Colorado limited liability company [SEAL]
By: Tymar, LLC, a California limited
liability company, Its Manager [SEAL]
By:____________________ [SEAL]
Robert K. Barth
Its Managing Member
STATE OF ________________
COUNTY OF ______________
I, _____________________________________, a Notary Public of the County and
State aforesaid, certify that ____________________________ personally came
before me this day and acknowledged that ____he is _____________________
Secretary of DBL Properties Corporation, a New York corporation and general
partner of Drexel Burnham Lambert Real Estate Associates Limited Partnership, a
New York limited partnership, and that, by authority duly given and as the act
of the corporation in its capacity as general partner of Drexel Burnham Lambert
Real Estate Associates Limited Partnership, and as the act of said limited
partnership, the foregoing agreement was signed in its name by its
__________________ President, sealed with its corporate seal, and attested by
_____self as its ______________________Secretary.
WITNESS my hand and notarial seal, this _____ day of ___________________,
1999.
_______________________________________
Notary Public
My commission expires:
____________________
[NOTARY SEAL]
STATE OF ________________
COUNTY OF ______________
I, _____________________________________, a Notary Public of the County and
State aforesaid, certify that ____________________________ personally came
before me this day and acknowledged that ____he is _____________________
Secretary of DBL Properties Corporation, a New York corporation and general
partner of Drexel Burnham Lambert Real Estate Associates II Limited Partnership,
a New York limited partnership, and that, by authority duly given and as the act
of the corporation in its capacity as general partner of Drexel Burnham Lambert
Real Estate Associates II Limited Partnership, and as the act of said limited
partnership, the foregoing agreement was signed in its name by its
__________________ President, sealed with its corporate seal, and attested by
_____self as its ______________________Secretary.
WITNESS my hand and notarial seal, this _____ day of ___________________,
1999.
_______________________________________
Notary Public
My commission expires:
____________________
[NOTARY SEAL]
STATE OF ________________
COUNTY OF ______________
I, _____________________________, a Notary Public of the County and State
aforesaid, certify that Robert K. Barth, managing member of Tymar, LLC, a
California limited liability company which is manager of SB Orchard, LLC, a
Colorado limited liability company, personally appeared before me this day and
acknowledged the execution of the foregoing agreement in his capacity as
managing member of Tymar, LLC and as the act of SB Orchard, LLC.
WITNESS my hand and official stamp or seal, this ______ day of
_________________,
1999.
_________________________________________
Notary Public
My Commission expires:
_____________________
[NOTARY SEAL]
EXHIBIT A-1
LEGAL DESCRIPTION FOR WENDOVER I
Tract I
Morehead Township, Guilford County, North Carolina:
Beginning at an iron stake in the north right of way line of West Wendover
Avenue, said stake being situated at North State Pyrophyllite Company's
Southeast corner; thence with North State Pyrophyllite Company's East line North
0. 01' 40" East 730 feet to a point, corner with Lot 1-A, as shown on Plat Book
66, Page 38, Guilford County Public Registry; thence with the south line of Lot
1-A. South 89. 58' 20" East 241.64 feet to a point in the west line of a 40
foot access easement South 0. 01' 40" West 579.87 feet to a point; thence South
30. 27' 30" East 37.92 feet to a point in the north right of way line of West
Wendover Avenue; thence with the north right of way line of West Wendover Avenue
South 59. 32' 30" West 80.78 feet and South 68. 12' 30" West 209.97 feet (chord
distance) to the point and place of Beginning. Containing 3.776 acres, more or
less as shown on plat of survey by Robert E. Wilson, Inc., Job No. 32.154, as
dated April 17, 1980 and being all of Lot 1 of a re-subdivision of Lot 1,
American Construction, Inc. property, as per plat thereof recorded in Plat Book
66, Page 38, Office of the Registrar of Deeds, of Guilford County, North
Carolina.
Tract II
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Being a part of that certain tract of land designated as a 40.0' access
easement, utility and drainage easement for Lots 1, 1A & 2 on plat of American
Construction, Inc. property recorded in Plat Book 66, page 38, Guilford County
Registry, and being a portion of Lot 2 as shown on said plat, which tract is
more particularly described as follows:
Beginning at a point on the northwesterly side of West Wendover Avenue at the
centerline of a 40' Access Easement shown on the above-referenced plat;
Running thence along said centerline, N 30. 27' 30" W 32.70' and N 00. 01' 40" E
574.17' to a point;
Running thence S 89. 58' 20" E 20' to the easterly side of the 40' Access
Easement area;
Running thence along said easterly side, S 00. 01' 40" W 524.31' and S 30. 27'
30" E 65.54' to the northwesterly side of West Wendover Avenue:
Running thence along said northwesterly side of West Wendover Avenue, S 59. 32'
30" W 42.50' to the point or place of beginning.
Save and except a perpetual non-exclusive easement for ingress, egress and
regress over said tract and an easement for the installation and maintenance of
utilities therein and thereunder which is reserved by the grantor for the non-
exclusive use of their customers, employees, independent contractors and
invitees, and their successors and assigns.
Tract III
Together with a perpetual non-exclusive easement from ingress, egress and
regress across the following described tract of land:
Beginning at a point in the southerly margin of Spring Garden Street at the
centerline of the 40' Access Easement area shown on Plat Book 66, page 38;
Running thence along said centerline, S 00. 0l' 40" W 172.74';
Running thence S 89. 58' 20" E 20' to the easterly side of the 40' Access
Easement Area;
Running thence along said easterly side N 00. 01' 40" E 162.50' to the southerly
margin of Spring Garden Street.
Running thence along said southerly margin, N 61. 17' 35" W 21' more or less to
the point or place of beginning.
EXHIBIT A-2
LEGAL DESCRIPTION FOR WENDOVER II
TRACT I
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Beginning at a point in the North Right-of-Way of West Wendover Avenue, said
point being the southeast corner of lot 1 of the American Construction, Inc.
Subdivision as recorded in Plat Book 65, Page 41 and also being a point on the
east line of a 40' access easement; thence from said point North 30. - 27' - 20"
West 65.54' to a point; thence North 00. - 01' - 40" East 524.31' along the east
line of an access easement to a point; thence North 89. - 59' - 20" West 20.0'
to a point, said points being the northeast corner of lot 1 and the northeast
corner of lot 1-A; thence North 00. - 01' - 40" East 172.74' along the common
lot line of lot 1-A and lot 2 to a point; thence South 61.-17'-35" East 90.0' to
a point; thence South 60.-42'-35" East 693.24' to a point; said point being the
north Right-of-Way line of West Wendover Avenue; thence with the Right-of-Way of
West Wendover Avenue South 59.-32'-30" West 731.86' to the point of beginning
being part of lot 2 of the American Construction, Inc. Subdivision recorded in
Plat Book 65, Page 41 and containing 5.859 Acres more or less.
TRACT II
Together with a perpetual non-exclusive easement for ingress, egress and regress
and an easement for the installation and maintenance of utilities therein and
thereunder that certain tract of land described in deed by Southmark Corporation
to Drexel Burnham Lambert Real East Associates recorded in Book 3298, page 0064,
aforesaid records, for the non-exclusive use of their customers, employees,
independent contractors and invitees, and their successors and assigns.
TRACT III
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Being a part of that certain tract of land designated as a 40.0' access
easement; utility and drainage easement for Lots 1, 1A & 2 on plat of American
Construction, Inc. property recorded in Plat Book 66, page 38, Guilford County
Registry, and being a portion of Lot 1A as shown on said plat, which tract is
more particularly described as follows:
Beginning at a point located at the southeasterly corner of Lot 1 as shown on a
resubdivision of American Construction, Inc. Property as shown on plat recorded
in Plat Book 66, page 38, Guilford County Registry;
Running thence along the easterly side of Lot 1, N 30.27'30" W 37.92' and N
00.01'40" E 579.87' to the northeast corner of Lot 1;
Running thence S 89.58'20" E 20' to the centerline of the 40' Access Easement
area;
Running thence along said centerline, S 00.01'40" W 574.17' to a point;
Running thence S 30.27'30" E 32.70' to the northwesterly side of West Wendover
Avenue;
Running thence along same, S 59.32'30" W 20' to the point or place of beginning.
Save and except as a perpetual non-exclusive easement for ingress, egress and
regress over said tract and an easement for the installation and maintenance of
utilities therein and thereunder which is reserved by the grantor for the non-
exclusive use of their customers, employees, independent contractors or
invitees, and their successors and assigns.
TRACT IV
Together with a perpetual non-exclusive easement for ingress, egress and regress
across the following described tract of land:
Beginning at a point located at the northeasterly corner of Lot 1 as shown on a
resubdivision of American Construction, Inc., property as shown on plat recorded
in Plat Book 66, page 38, Guilford County Registry:
Running thence N 00.01'40" E 182.50' to a point in the margin of Spring Garden
Street;
Running thence with the margin of Spring Garden Street, (2) calls as follows:
- S 64.21'20" E 11.50'
- S 61.17'35" E 8.41'
to the centerline of the 40' Access Easement Area;
Running thence along said centerline, S 00.01'40" W 172.24'; to a point;
Running thence N 89.58'20" W 20' to the point or place of beginning.
TRACT V
Together with a perpetual non-exclusive easement for ingress, egress and regress
across the southerly 25 feet of Lot 1A which easement is more particularly
described as follows:
Beginning at the northwesterly corner of Lot 1 and the southwesterly corner of
Lot 1A as shown on a resubdivision of American Construction Inc. property as per
plat recorded in Plat Book 66, page 38 in the Guilford County Registry and
running thence from said beginning point
N 00.01'40" E 25 feet to a point; thence S 89.58'20" E 241.64 feet to a point;
thence
S 00.01'40" W 25 feet to a point, thence N 29.58'20" W 241.64 feet to the point
or place of beginning.
EXHIBIT 1.1.5
LIST OF EXCLUDED PERMITS
To Be Inserted, If Any
EXHIBIT 1.1.7
LIST OF EXCLUDED PERSONAL PROPERTY OR EQUIPMENT
To Be Inserted, If Any
EXHIBIT 3.1.1
FORM OF QUITCLAIM DEEDS
[SEE ATTACHED]
[FORM OF WENDOVER I QUITCLAIM DEED]
Drawn by and
Return after recording to: Randall A. Underwood, Esq.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P.
P. O. Box 26000, Greensboro, NC 27420
================================================================================
=
NON-WARRANTY DEED
THIS DEED made this _____ day of _________________, 1999, by and between SB
Orchard, LLC, a Colorado limited liability company having an address of 433
North Camden Drive, Suite 1070, Beverly Hills, California 90210 ("GRANTOR") and
Drexel Burnham Lambert Real Estate Associates Limited Partnership, a New York
limited partnership having an address of 1873 South Bellaire Street, 17th Floor,
Denver, Colorado 80222 ("GRANTEE") (the designation Grantor and Grantee as used
herein shall include said parties, their heirs, successors and assigns, and
shall include singular, plural, masculine, feminine or neuter as required by
context);
WITNESSETH:
That Grantor, for a valuable consideration paid by the Grantee, the receipt
of which is hereby acknowledged, has granted and sold and by these presents does
grant, bargain, sell and convey unto the Grantee in fee simple Grantor's right,
title and interest in and to those certain lots or parcels of land situated in
Morehead Township, Guilford County, North Carolina, which are more particularly
described as follows:
See Exhibit A attached hereto.
TO HAVE AND TO HOLD the aforesaid lots or parcels of land and all
privileges and appurtenances thereto belonging to the Grantee in fee simple.
THE GRANTOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO TITLE TO THE
PROPERTY HEREINABOVE DESCRIBED.
IN WITNESS WHEREOF, the managing member of Tymar, LLC, manager of Grantor,
has executed this instrument under seal for and on behalf of Tymar, LLC and as
the act of Grantor, the day and year first above written.
GRANTOR: SB ORCHARD, LLC, a Colorado limited liability company [SEAL]
By: Tymar, LLC, a California limited liability company, Its Manager [SEAL]
By:____________________[SEAL]
Robert K. Barth
Its Managing Member
STATE OF ________________
COUNTY OF ______________
I, _____________________________, a Notary Public of the County and State
aforesaid, certify that Robert K. Barth, managing member of Tymar, LLC, a
California limited liability company which is manager of SB Orchard, LLC, a
Colorado limited liability company, personally appeared before me this day and
acknowledged the execution of the foregoing agreement in his capacity as
managing member of Tymar, LLC and as the act of SB Orchard, LLC.
WITNESS my hand and official stamp or seal, this ______ day of
_________________,
1999.
_________________________________________
Notary Public
My Commission expires:
_____________________
[NOTARY SEAL]
EXHIBIT "A"
LEGAL DESCRIPTION
Tract I
Morehead Township, Guilford County, North Carolina:
Beginning at an iron stake in the north right of way line of West Wendover
Avenue, said stake being situated at North State Pyrophyllite Company's
Southeast corner; thence with North State Pyrophyllite Company's East line North
0. 01' 40" East 730 feet to a point, corner with Lot 1-A, as shown on Plat Book
66, Page 38, Guilford County Public Registry; thence with the south line of Lot
1-A. South 89. 58' 20" East 241.64 feet to a point in the west line of a 40
foot access easement South 0. 01' 40" West 579.87 feet to a point; thence South
30. 27' 30" East 37.92 feet to a point in the north right of way line of West
Wendover Avenue; thence with the north right of way line of West Wendover Avenue
South 59. 32' 30" West 80.78 feet and South 68. 12' 30" West 209.97 feet (chord
distance) to the point and place of Beginning. Containing 3.776 acres, more or
less as shown on plat of survey by Robert E. Wilson, Inc., Job No. 32.154, as
dated April 17, 1980 and being all of Lot 1 of a re-subdivision of Lot 1,
American Construction, Inc. property, as per plat thereof recorded in Plat Book
66, Page 38, Office of the Registrar of Deeds, of Guilford County, North
Carolina.
Tract II
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Being a part of that certain tract of land designated as a 40.0' access
easement, utility and drainage easement for Lots 1, 1A & 2 on plat of American
Construction, Inc. property recorded in Plat Book 66, page 38, Guilford County
Registry, and being a portion of Lot 2 as shown on said plat, which tract is
more particularly described as follows:
Beginning at a point on the northwesterly side of West Wendover Avenue at the
centerline of a 40' Access Easement shown on the above-referenced plat;
Running thence along said centerline, N 30. 27' 30" W 32.70' and N 00. 01' 40" E
574.17' to a point;
Running thence S 89. 58' 20" E 20' to the easterly side of the 40' Access
Easement area;
Running thence along said easterly side, S 00. 01' 40" W 524.31' and S 30. 27'
30" E 65.54' to the northwesterly side of West Wendover Avenue:
Running thence along said northwesterly side of West Wendover Avenue, S 59. 32'
30" W 42.50' to the point or place of beginning.
Save and except a perpetual non-exclusive easement for ingress, egress and
regress over said tract and an easement for the installation and maintenance of
utilities therein and thereunder which is reserved by the grantor for the non-
exclusive use of their customers, employees, independent contractors and
invitees, and their successors and assigns.
Tract III
Together with a perpetual non-exclusive easement from ingress, egress and
regress across the following described tract of land:
Beginning at a point in the southerly margin of Spring Garden Street at the
centerline of the 40' Access Easement area shown on Plat Book 66, page 38;
Running thence along said centerline, S 00. 0l' 40" W 172.74';
Running thence S 89. 58' 20" E 20' to the easterly side of the 40' Access
Easement Area;
Running thence along said easterly side N 00. 01' 40" E 162.50' to the southerly
margin of Spring Garden Street.
Running thence along said southerly margin, N 61. 17' 35" W 21' more or less to
the point or place of beginning.
[FORM OF WENDOVER II QUITCLAIM DEED]
Drawn by and
Return after recording to: Randall A. Underwood, Esq.
Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P.
P. O. Box 26000, Greensboro, NC 27420
================================================================================
=
NON-WARRANTY DEED
THIS DEED made this _____ day of _________________, 1999, by and between SB
Orchard, LLC, a Colorado limited liability company having an address of 433
North Camden Drive, Suite 1070, Beverly Hills, California 90210 ("GRANTOR") and
Drexel Burnham Lambert Real Estate Associates II Limited Partnership, a New York
limited partnership having an address of 1873 South Bellaire Street, 17th Floor,
Denver, Colorado 80222 ("GRANTEE") (the designation Grantor and Grantee as used
herein shall include said parties, their heirs, successors and assigns, and
shall include singular, plural, masculine, feminine or neuter as required by
context);
WITNESSETH:
That Grantor, for a valuable consideration paid by the Grantee, the receipt
of which is hereby acknowledged, has granted and sold and by these presents does
grant, bargain, sell and convey unto the Grantee in fee simple Grantor's right,
title and interest in and to those certain lots or parcels of land situated in
Morehead Township, Guilford County, North Carolina, which are more particularly
described as follows:
See Exhibit A attached hereto.
TO HAVE AND TO HOLD the aforesaid lots or parcels of land and all
privileges and appurtenances thereto belonging to the Grantee in fee simple.
THE GRANTOR MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO TITLE TO THE
PROPERTY HEREINABOVE DESCRIBED.
IN WITNESS WHEREOF, the managing member of Tymar, LLC, manager of Grantor,
has executed this instrument under seal for and on behalf of Tymar, LLC and as
the act of Grantor, the day and year first above written.
GRANTOR: SB ORCHARD, LLC, a Colorado limited liability company [SEAL]
By: Tymar, LLC, a California limited liability company, Its Manager [SEAL]
By:____________________[SEAL]
Robert K. Barth
Its Managing Member
STATE OF ________________
COUNTY OF ______________
I, _____________________________, a Notary Public of the County and State
aforesaid, certify that Robert K. Barth, managing member of Tymar, LLC, a
California limited liability company which is manager of SB Orchard, LLC, a
Colorado limited liability company, personally appeared before me this day and
acknowledged the execution of the foregoing agreement in his capacity as
managing member of Tymar, LLC and as the act of SB Orchard, LLC.
WITNESS my hand and official stamp or seal, this ______ day of
_________________,
1999.
_________________________________________
Notary Public
My Commission expires:
_____________________
[NOTARY SEAL]
EXHIBIT "A"
LEGAL DESCRIPTION
TRACT I
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Beginning at a point in the North Right-of-Way of West Wendover Avenue, said
point being the southeast corner of lot 1 of the American Construction, Inc.
Subdivision as recorded in Plat Book 65, Page 41 and also being a point on the
east line of a 40' access easement; thence from said point North 30. - 27' - 20"
West 65.54' to a point; thence North 00. - 01' - 40" East 524.31' along the east
line of an access easement to a point; thence North 89. - 59' - 20" West 20.0'
to a point, said points being the northeast corner of lot 1 and the northeast
corner of lot 1-A; thence North 00. - 01' - 40" East 172.74' along the common
lot line of lot 1-A and lot 2 to a point; thence South 61.-17'-35" East 90.0' to
a point; thence South 60.-42'-35" East 693.24' to a point; said point being the
north Right-of-Way line of West Wendover Avenue; thence with the Right-of-Way of
West Wendover Avenue South 59.-32'-30" West 731.86' to the point of beginning
being part of lot 2 of the American Construction, Inc. Subdivision recorded in
Plat Book 65, Page 41 and containing 5.859 Acres more or less.
TRACT II
Together with a perpetual non-exclusive easement for ingress, egress and regress
and an easement for the installation and maintenance of utilities therein and
thereunder that certain tract of land described in deed by Southmark Corporation
to Drexel Burnham Lambert Real East Associates recorded in Book 3298, page 0064,
aforesaid records, for the non-exclusive use of their customers, employees,
independent contractors and invitees, and their successors and assigns.
TRACT III
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Being a part of that certain tract of land designated as a 40.0' access
easement; utility and drainage easement for Lots 1, 1A & 2 on plat of American
Construction, Inc. property recorded in Plat Book 66, page 38, Guilford County
Registry, and being a portion of Lot 1A as shown on said plat, which tract is
more particularly described as follows:
Beginning at a point located at the southeasterly corner of Lot 1 as shown on a
resubdivision of American Construction, Inc. Property as shown on plat recorded
in Plat Book 66, page 38, Guilford County Registry;
Running thence along the easterly side of Lot 1, N 30.27'30" W 37.92' and N
00.01'40" E 579.87' to the northeast corner of Lot 1;
Running thence S 89.58'20" E 20' to the centerline of the 40' Access Easement
area;
Running thence along said centerline, S 00.01'40" W 574.17' to a point;
Running thence S 30.27'30" E 32.70' to the northwesterly side of West Wendover
Avenue;
Running thence along same, S 59.32'30" W 20' to the point or place of beginning.
Save and except as a perpetual non-exclusive easement for ingress, egress and
regress over said tract and an easement for the installation and maintenance of
utilities therein and thereunder which is reserved by the grantor for the non-
exclusive use of their customers, employees, independent contractors or
invitees, and their successors and assigns.
TRACT IV
Together with a perpetual non-exclusive easement for ingress, egress and regress
across the following described tract of land:
Beginning at a point located at the northeasterly corner of Lot 1 as shown on a
resubdivision of American Construction, Inc., property as shown on plat recorded
in Plat Book 66, page 38, Guilford County Registry:
Running thence N 00.01'40" E 182.50' to a point in the margin of Spring Garden
Street;
Running thence with the margin of Spring Garden Street, (2) calls as follows:
- S 64.21'20" E 11.50'
- S 61.17'35" E 8.41'
to the centerline of the 40' Access Easement Area;
Running thence along said centerline, S 00.01'40" W 172.24'; to a point;
Running thence N 89.58'20" W 20' to the point or place of beginning.
TRACT V
Together with a perpetual non-exclusive easement for ingress, egress and regress
across the southerly 25 feet of Lot 1A which easement is more particularly
described as follows:
Beginning at the northwesterly corner of Lot 1 and the southwesterly corner of
Lot 1A as shown on a resubdivision of American Construction Inc. property as per
plat recorded in Plat Book 66, page 38 in the Guilford County Registry and
running thence from said beginning point
N 00.01'40" E 25 feet to a point; thence S 89.58'20" E 241.64 feet to a point;
thence
S 00.01'40" W 25 feet to a point, thence N 29.58'20" W 241.64 feet to the point
or place of beginning.
EXHIBIT 6.2.1
ADDITIONAL TITLE EXCEPTIONS
[To Be Attached]
EXHIBIT 7.2.1.1
FORM OF LIMITED WARRANTY DEED
Drawn by and
Return after recording to: Robert Kaufmann, Esq.
Brownstein Hyatt & Farber, P.C.
410 17th Street, 22nd Floor, Denver, CO 80202-4437
================================================================================
=
SPECIAL WARRANTY DEED
THIS DEED made this _____ day of _________________, 1999, by and between
Drexel Burnham Lambert Real Estate Associates, a New York limited partnership
Limited Partnership (formerly known as Drexel Burnham Lambert Associates)
("DBLREA I"), and Drexel Burnham Lambert Real Estate Associates II Limited
Partnership, a New York limited partnership (formerly known as Drexel Burnham
Lambert Real Estate Associates II) ("DBLREA II"), having a principal address at
1873 South Bellaire Street, 17th Floor, Denver, Colorado 80222 (collectively,
"GRANTOR") and SB Orchard, LLC, a Colorado limited liability company having an
address of 433 North Camden Drive, Suite 1070, Beverly Hills, California 90210
("GRANTEE") (the designation Grantor and Grantee as used herein shall include
said parties, their heirs, successors and assigns, and shall include singular,
plural, masculine, feminine or neuter as required by context);
WITNESSETH:
That Grantor, for a valuable consideration paid by the Grantee, the receipt
of which is hereby acknowledged, has granted and sold and by these presents does
grant, bargain, sell and convey unto the Grantee in fee simple those certain
lots or parcels of land situated in Morehead Township, Guilford County, North
Carolina, which are more particularly described as follows:
See Exhibit A attached hereto and incorporated herein.
TOGETHER with all and singular the hereditaments and appurtenances thereto
belonging, or in anywise appertaining, and the reversion and reversions,
remainder and remainders, rents, issues and profits thereof, and all the estate,
right, title interest, claim and demand whatsoever of Grantor, either in law or
equity, of, in and to the above bargained premises, with the hereditaments,
easements, rights of way and appurtenances, and with all of Grantor's interest,
if any, in and to any and all minerals, water, ditches, wells, reservoirs and
drains, and all water, ditch, well, reservoir and drainage rights which are
appurtenant to, located on, now or hereafter acquired under or above or used in
connection with the property.
The property hereinabove described was acquired by Grantor by instrument
recorded in Book ____, Page ______, and Book _____, Page _______, Guilford
County, North Carolina Public Registry.
TO HAVE AND TO HOLD the aforesaid lots or parcels of land and all
privileges and appurtenances thereto belonging to the Grantee in fee simple.
And the Grantor covenants with the Grantee, that Grantor has done nothing
to impair such title as Grantor received, and that Grantor will warrant and
defend the title against the lawful claims of all persons claiming by, under or
through Grantor, except for the exceptions hereinafter stated.
Title to the property hereinabove described is subject to the following
exceptions:
All easements, rights of way, conditions and restrictions of record, and ad
valorem taxes for the year 1999.
IN WITNESS WHEREOF, the Grantors' general partner has caused this
instrument to be duly executed by its duly authorized officers and its seal to
be hereunto affixed for and on behalf of and under seal of Grantor, the day and
year first above written.
GRANTOR: DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a
New York limited partnership [SEAL]
[Corporate Seal] By: DBL Properties Corporation, a New York
corporation, Its General Partner
ATTEST: By: ____________________________
Its _________________________
___________________________
___________________Secretary
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP,
a New York limited partnership [SEAL]
[Corporate Seal] By: DBL Properties Corporation, a New York
corporation, Its General Partner
ATTEST: By: ____________________________
Its _________________________
___________________________
___________________Secretary
STATE OF ________________
COUNTY OF ______________
I, _____________________________________, a Notary Public of the County and
State aforesaid, certify that ____________________________ personally came
before me this day and acknowledged that ____he is _____________________
Secretary of DBL Properties Corporation, a New York corporation and general
partner of Drexel Burnham Lambert Real Estate Associates Limited Partnership, a
New York limited partnership, and that, by authority duly given and as the act
of the corporation in its capacity as general partner of Drexel Burnham Lambert
Real Estate Associates Limited Partnership, and as the act of said limited
partnership, the foregoing agreement was signed in its name by its
__________________ President, sealed with its corporate seal, and attested by
_____self as its ______________________Secretary.
WITNESS my hand and notarial seal, this _____ day of ___________________,
1999.
_______________________________________
Notary Public
My commission expires:
____________________
[NOTARY SEAL]
STATE OF ________________
COUNTY OF ______________
I, _____________________________________, a Notary Public of the County and
State aforesaid, certify that ____________________________ personally came
before me this day and acknowledged that ____he is _____________________
Secretary of DBL Properties Corporation, a New York corporation and general
partner of Drexel Burnham Lambert Real Estate Associates II Limited Partnership,
a New York limited partnership, and that, by authority duly given and as the act
of the corporation in its capacity as general partner of Drexel Burnham Lambert
Real Estate Associates II Limited Partnership, and as the act of said limited
partnership, the foregoing agreement was signed in its name by its
__________________ President, sealed with its corporate seal, and attested by
_____self as its ______________________Secretary.
WITNESS my hand and notarial seal, this _____ day of ___________________,
1999.
_______________________________________
Notary Public
My commission expires:
____________________
[NOTARY SEAL]
EXHIBIT "A"
LEGAL DESCRIPTION
WENDOVER I
(DBLREA I PROPERTY)
Tract I
Morehead Township, Guilford County, North Carolina:
Beginning at an iron stake in the north right of way line of West Wendover
Avenue, said stake being situated at North State Pyrophyllite Company's
Southeast corner; thence with North State Pyrophyllite Company's East line North
0. 01' 40" East 730 feet to a point, corner with Lot 1-A, as shown on Plat Book
66, Page 38, Guilford County Public Registry; thence with the south line of Lot
1-A. South 89. 58' 20" East 241.64 feet to a point in the west line of a 40
foot access easement South 0. 01' 40" West 579.87 feet to a point; thence South
30. 27' 30" East 37.92 feet to a point in the north right of way line of West
Wendover Avenue; thence with the north right of way line of West Wendover Avenue
South 59. 32' 30" West 80.78 feet and South 68. 12' 30" West 209.97 feet (chord
distance) to the point and place of Beginning. Containing 3.776 acres, more or
less as shown on plat of survey by Robert E. Wilson, Inc., Job No. 32.154, as
dated April 17, 1980 and being all of Lot 1 of a re-subdivision of Lot 1,
American Construction, Inc. property, as per plat thereof recorded in Plat Book
66, Page 38, Office of the Registrar of Deeds, of Guilford County, North
Carolina.
Tract II
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Being a part of that certain tract of land designated as a 40.0' access
easement, utility and drainage easement for Lots 1, 1A & 2 on plat of American
Construction, Inc. property recorded in Plat Book 66, page 38, Guilford County
Registry, and being a portion of Lot 2 as shown on said plat, which tract is
more particularly described as follows:
Beginning at a point on the northwesterly side of West Wendover Avenue at the
centerline of a 40' Access Easement shown on the above-referenced plat;
Running thence along said centerline, N 30. 27' 30" W 32.70' and N 00. 01' 40" E
574.17' to a point;
Running thence S 89. 58' 20" E 20' to the easterly side of the 40' Access
Easement area;
Running thence along said easterly side, S 00. 01' 40" W 524.31' and S 30. 27'
30" E 65.54' to the northwesterly side of West Wendover Avenue:
Running thence along said northwesterly side of West Wendover Avenue, S 59. 32'
30" W 42.50' to the point or place of beginning.
Save and except a perpetual non-exclusive easement for ingress, egress and
regress over said tract and an easement for the installation and maintenance of
utilities therein and thereunder which is reserved by the grantor for the non-
exclusive use of their customers, employees, independent contractors and
invitees, and their successors and assigns.
Tract III
Together with a perpetual non-exclusive easement from ingress, egress and
regress across the following described tract of land:
Beginning at a point in the southerly margin of Spring Garden Street at the
centerline of the 40' Access Easement area shown on Plat Book 66, page 38;
Running thence along said centerline, S 00. 0l' 40" W 172.74';
Running thence S 89. 58' 20" E 20' to the easterly side of the 40' Access
Easement Area;
Running thence along said easterly side N 00. 01' 40" E 162.50' to the southerly
margin of Spring Garden Street.
Running thence along said southerly margin, N 61. 17' 35" W 21' more or less to
the point or place of beginning.
WENDOVER II
(DBLREA II PROPERTY)
TRACT I
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Beginning at a point in the North Right-of-Way of West Wendover Avenue, said
point being the southeast corner of lot 1 of the American Construction, Inc.
Subdivision as recorded in Plat Book 65, Page 41 and also being a point on the
east line of a 40' access easement; thence from said point North 30. - 27' - 20"
West 65.54' to a point; thence North 00. - 01' - 40" East 524.31' along the east
line of an access easement to a point; thence North 89. - 59' - 20" West 20.0'
to a point, said points being the northeast corner of lot 1 and the northeast
corner of lot 1-A; thence North 00. - 01' - 40" East 172.74' along the common
lot line of lot 1-A and lot 2 to a point; thence South 61.-17'-35" East 90.0' to
a point; thence South 60.-42'-35" East 693.24' to a point; said point being the
north Right-of-Way line of West Wendover Avenue; thence with the Right-of-Way of
West Wendover Avenue South 59.-32'-30" West 731.86' to the point of beginning
being part of lot 2 of the American Construction, Inc. Subdivision recorded in
Plat Book 65, Page 41 and containing 5.859 Acres more or less.
TRACT II
Together with a perpetual non-exclusive easement for ingress, egress and regress
and an easement for the installation and maintenance of utilities therein and
thereunder that certain tract of land described in deed by Southmark Corporation
to Drexel Burnham Lambert Real East Associates recorded in Book 3298, page 0064,
aforesaid records, for the non-exclusive use of their customers, employees,
independent contractors and invitees, and their successors and assigns.
TRACT III
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Being a part of that certain tract of land designated as a 40.0' access
easement; utility and drainage easement for Lots 1, 1A & 2 on plat of American
Construction, Inc. property recorded in Plat Book 66, page 38, Guilford County
Registry, and being a portion of Lot 1A as shown on said plat, which tract is
more particularly described as follows:
Beginning at a point located at the southeasterly corner of Lot 1 as shown on a
resubdivision of American Construction, Inc. Property as shown on plat recorded
in Plat Book 66, page 38, Guilford County Registry;
Running thence along the easterly side of Lot 1, N 30.27'30" W 37.92' and N
00.01'40" E 579.87' to the northeast corner of Lot 1;
Running thence S 89.58'20" E 20' to the centerline of the 40' Access Easement
area;
Running thence along said centerline, S 00.01'40" W 574.17' to a point;
Running thence S 30.27'30" E 32.70' to the northwesterly side of West Wendover
Avenue;
Running thence along same, S 59.32'30" W 20' to the point or place of beginning.
Save and except as a perpetual non-exclusive easement for ingress, egress and
regress over said tract and an easement for the installation and maintenance of
utilities therein and thereunder which is reserved by the grantor for the non-
exclusive use of their customers, employees, independent contractors or
invitees, and their successors and assigns.
TRACT IV
Together with a perpetual non-exclusive easement for ingress, egress and regress
across the following described tract of land:
Beginning at a point located at the northeasterly corner of Lot 1 as shown on a
resubdivision of American Construction, Inc., property as shown on plat recorded
in Plat Book 66, page 38, Guilford County Registry:
Running thence N 00.01'40" E 182.50' to a point in the margin of Spring Garden
Street;
Running thence with the margin of Spring Garden Street, (2) calls as follows:
- S 64.21'20" E 11.50'
- S 61.17'35" E 8.41'
to the centerline of the 40' Access Easement Area;
Running thence along said centerline, S 00.01'40" W 172.24'; to a point;
Running thence N 89.58'20" W 20' to the point or place of beginning.
TRACT V
Together with a perpetual non-exclusive easement for ingress, egress and regress
across the southerly 25 feet of Lot 1A which easement is more particularly
described as follows:
Beginning at the northwesterly corner of Lot 1 and the southwesterly corner of
Lot 1A as shown on a resubdivision of American Construction Inc. property as per
plat recorded in Plat Book 66, page 38 in the Guilford County Registry and
running thence from said beginning point
N 00.01'40" E 25 feet to a point; thence S 89.58'20" E 241.64 feet to a point;
thence
S 00.01'40" W 25 feet to a point, thence N 29.58'20" W 241.64 feet to the point
or place of beginning.
EXHIBIT 7.2.1.2
FORM OF BILL OF SALE
This Bill of Sale ("ASSIGNMENT") is executed by DREXEL BURNHAM LAMBERT REAL
ESTATE ASSOCIATES LIMITED PARTNERSHIP, a New York limited partnership ("DBLREA
I"), and DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP, a
New York limited partnership ("DBLREA II") (collectively "SELLER"), in favor of
SB ORCHARD, LLC, a Colorado limited liability company ("PURCHASER").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract dated as of May ____, 1999 ("PURCHASE CONTRACT"), in which Seller has
agreed to sell and Purchaser has agreed to purchase the real properties
described in Exhibit "A" attached thereto and the improvements located thereon
(collectively, the "PROJECT").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "PROPERTY" shall mean the following property
to the extent said property is owned by Seller and used in, held for use in
connection with, or necessary for the operation of the Project:
a. Property Contracts. All of Seller's rights and interests in and to
purchase orders, maintenance, service or utility contracts or similar
contracts which relate to the ownership, maintenance, construction or repair
or operation of the Project.
b. Leases. All of Seller's rights and interests in and to leases, subleases,
and other occupancy agreements, whether or not of record, which provide for
use or occupancy of space or facilities on or relating to the Project.
c. Licenses and Permits. All of Seller's rights and interests in and to all
licenses or permits granted by governmental authorities having jurisdiction
over the Project and utilized with respect to the Project.
d. Fixtures and Tangible Personal Property. All of Sellers rights and
interests in and to all fixtures, furniture, furnishings, fittings,
equipment, machinery, apparatus, appliances and other articles of tangible
personal property now located on the Project or in the improvements thereon
and used in connection with any present or future occupation or operation of
all or any part of the Project.
The term "PROPERTY" shall not include any of the foregoing: (i) to the
extent the same are excluded or reserved to Seller pursuant to the Purchase
Contract to which Seller and Purchaser are parties; and (ii) to the extent that
the sale or transfer thereof requires consent or approval of any third party,
which consent or approval is not obtained by Seller. Nothing herein shall
create a transfer or assignment of intellectual property or similar assets of
Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Property, subject to any rights of consent as provided
therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the Property
attributable to acts arising from and after the date hereof and agrees to
perform all of the covenants and obligations of Seller thereunder attributable
to acts arising from and after the date hereof. Purchaser further agrees to
indemnify, defend and hold Seller harmless from and against any and all cost,
loss, harm or damage which may arise in connection with the Property
attributable to acts arising from and after the date hereof. Seller further
agrees to indemnify, defend and hold Purchaser harmless from and against any and
all cost, loss, harm or damage which may arise in connection with the Property
attributable to acts arising prior to the date hereof.
4. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Miscellaneous. This Assignment shall be binding on the parties and
their respective successors and assigns. The headings to paragraphs of this
Assignment are for convenient reference only and shall not be used in
interpreting this Assignment.
6. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
7. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of North Carolina.
8. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
9. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns.
10. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT MAY ARISE BY OPERATION OF LAW OR UNDER THE
UNIFORM COMMERCIAL CODE FOR THE STATE IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 1999
SELLER: DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a
New York limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By: ______________________
Its __________________________
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP, a New York
limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By: ______________________
Its __________________________
AGREED AND ACCPTED:
PURCHASER: SB ORCHARD, LLC, a Colorado limited liability company [SEAL]
By: Tymar, LLC, a California limited liability company [SEAL]
By: _________________________[SEAL]
Robert K. Barth
Its Managing Member
EXHIBIT "A"
LEGAL DESCRIPTION
WENDOVER I
(DBLREA I PROPERTY)
Tract I
Morehead Township, Guilford County, North Carolina:
Beginning at an iron stake in the north right of way line of West Wendover
Avenue, said stake being situated at North State Pyrophyllite Company's
Southeast corner; thence with North State Pyrophyllite Company's East line North
0. 01' 40" East 730 feet to a point, corner with Lot 1-A, as shown on Plat Book
66, Page 38, Guilford County Public Registry; thence with the south line of Lot
1-A. South 89. 58' 20" East 241.64 feet to a point in the west line of a 40
foot access easement South 0. 01' 40" West 579.87 feet to a point; thence South
30. 27' 30" East 37.92 feet to a point in the north right of way line of West
Wendover Avenue; thence with the north right of way line of West Wendover Avenue
South 59. 32' 30" West 80.78 feet and South 68. 12' 30" West 209.97 feet (chord
distance) to the point and place of Beginning. Containing 3.776 acres, more or
less as shown on plat of survey by Robert E. Wilson, Inc., Job No. 32.154, as
dated April 17, 1980 and being all of Lot 1 of a re-subdivision of Lot 1,
American Construction, Inc. property, as per plat thereof recorded in Plat Book
66, Page 38, Office of the Registrar of Deeds, of Guilford County, North
Carolina.
Tract II
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Being a part of that certain tract of land designated as a 40.0' access
easement, utility and drainage easement for Lots 1, 1A & 2 on plat of American
Construction, Inc. property recorded in Plat Book 66, page 38, Guilford County
Registry, and being a portion of Lot 2 as shown on said plat, which tract is
more particularly described as follows:
Beginning at a point on the northwesterly side of West Wendover Avenue at the
centerline of a 40' Access Easement shown on the above-referenced plat;
Running thence along said centerline, N 30. 27' 30" W 32.70' and N 00. 01' 40" E
574.17' to a point;
Running thence S 89. 58' 20" E 20' to the easterly side of the 40' Access
Easement area;
Running thence along said easterly side, S 00. 01' 40" W 524.31' and S 30. 27'
30" E 65.54' to the northwesterly side of West Wendover Avenue:
Running thence along said northwesterly side of West Wendover Avenue, S 59. 32'
30" W 42.50' to the point or place of beginning.
Save and except a perpetual non-exclusive easement for ingress, egress and
regress over said tract and an easement for the installation and maintenance of
utilities therein and thereunder which is reserved by the grantor for the non-
exclusive use of their customers, employees, independent contractors and
invitees, and their successors and assigns.
Tract III
Together with a perpetual non-exclusive easement from ingress, egress and
regress across the following described tract of land:
Beginning at a point in the southerly margin of Spring Garden Street at the
centerline of the 40' Access Easement area shown on Plat Book 66, page 38;
Running thence along said centerline, S 00. 0l' 40" W 172.74';
Running thence S 89. 58' 20" E 20' to the easterly side of the 40' Access
Easement Area;
Running thence along said easterly side N 00. 01' 40" E 162.50' to the southerly
margin of Spring Garden Street.
Running thence along said southerly margin, N 61. 17' 35" W 21' more or less to
the point or place of beginning.
WENDOVER II
(DBLREA II PROPERTY)
TRACT I
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Beginning at a point in the North Right-of-Way of West Wendover Avenue, said
point being the southeast corner of lot 1 of the American Construction, Inc.
Subdivision as recorded in Plat Book 65, Page 41 and also being a point on the
east line of a 40' access easement; thence from said point North 30. - 27' - 20"
West 65.54' to a point; thence North 00. - 01' - 40" East 524.31' along the east
line of an access easement to a point; thence North 89. - 59' - 20" West 20.0'
to a point, said points being the northeast corner of lot 1 and the northeast
corner of lot 1-A; thence North 00. - 01' - 40" East 172.74' along the common
lot line of lot 1-A and lot 2 to a point; thence South 61.-17'-35" East 90.0' to
a point; thence South 60.-42'-35" East 693.24' to a point; said point being the
north Right-of-Way line of West Wendover Avenue; thence with the Right-of-Way of
West Wendover Avenue South 59.-32'-30" West 731.86' to the point of beginning
being part of lot 2 of the American Construction, Inc. Subdivision recorded in
Plat Book 65, Page 41 and containing 5.859 Acres more or less.
TRACT II
Together with a perpetual non-exclusive easement for ingress, egress and regress
and an easement for the installation and maintenance of utilities therein and
thereunder that certain tract of land described in deed by Southmark Corporation
to Drexel Burnham Lambert Real East Associates recorded in Book 3298, page 0064,
aforesaid records, for the non-exclusive use of their customers, employees,
independent contractors and invitees, and their successors and assigns.
TRACT III
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Being a part of that certain tract of land designated as a 40.0' access
easement; utility and drainage easement for Lots 1, 1A & 2 on plat of American
Construction, Inc. property recorded in Plat Book 66, page 38, Guilford County
Registry, and being a portion of Lot 1A as shown on said plat, which tract is
more particularly described as follows:
Beginning at a point located at the southeasterly corner of Lot 1 as shown on a
resubdivision of American Construction, Inc. Property as shown on plat recorded
in Plat Book 66, page 38, Guilford County Registry;
Running thence along the easterly side of Lot 1, N 30.27'30" W 37.92' and N
00.01'40" E 579.87' to the northeast corner of Lot 1;
Running thence S 89.58'20" E 20' to the centerline of the 40' Access Easement
area;
Running thence along said centerline, S 00.01'40" W 574.17' to a point;
Running thence S 30.27'30" E 32.70' to the northwesterly side of West Wendover
Avenue;
Running thence along same, S 59.32'30" W 20' to the point or place of beginning.
Save and except as a perpetual non-exclusive easement for ingress, egress and
regress over said tract and an easement for the installation and maintenance of
utilities therein and thereunder which is reserved by the grantor for the non-
exclusive use of their customers, employees, independent contractors or
invitees, and their successors and assigns.
TRACT IV
Together with a perpetual non-exclusive easement for ingress, egress and regress
across the following described tract of land:
Beginning at a point located at the northeasterly corner of Lot 1 as shown on a
resubdivision of American Construction, Inc., property as shown on plat recorded
in Plat Book 66, page 38, Guilford County Registry:
Running thence N 00.01'40" E 182.50' to a point in the margin of Spring Garden
Street;
Running thence with the margin of Spring Garden Street, (2) calls as follows:
- S 64.21'20" E 11.50'
- S 61.17'35" E 8.41'
to the centerline of the 40' Access Easement Area;
Running thence along said centerline, S 00.01'40" W 172.24'; to a point;
Running thence N 89.58'20" W 20' to the point or place of beginning.
TRACT V
Together with a perpetual non-exclusive easement for ingress, egress and regress
across the southerly 25 feet of Lot 1A which easement is more particularly
described as follows:
Beginning at the northwesterly corner of Lot 1 and the southwesterly corner of
Lot 1A as shown on a resubdivision of American Construction Inc. property as per
plat recorded in Plat Book 66, page 38 in the Guilford County Registry and
running thence from said beginning point
N 00.01'40" E 25 feet to a point; thence S 89.58'20" E 241.64 feet to a point;
thence
S 00.01'40" W 25 feet to a point, thence N 29.58'20" W 241.64 feet to the point
or place of beginning.
EXHIBIT 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("ASSIGNMENT") is executed by DREXEL BURNHAM
LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a New York limited
partnership ("DBLREA I"), and DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II
LIMITED PARTNERSHIP, a New York limited partnership ("DBLREA II") (collectively,
"SELLER"), in favor of SB ORCHARD, LLC, a Colorado limited liability company
("PURCHASER").
Seller and Purchaser, have entered into that certain Purchase and Sale
Contract dated as of May ____, 1999 ("PURCHASE CONTRACT"), in which Seller has
agreed to sell and Purchaser has agreed to purchase the real properties
described in Exhibit "A" attached thereto and the improvements located thereon
collectively, the "PROJECT").
Pursuant to the Purchase Contract, Seller has agreed to assign, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets (as hereinafter defined).
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Seller and Purchaser agree as
follows:
1. As used herein, the term "MISCELLANEOUS PROPERTY ASSETS" shall mean
all contract rights, leases, concessions, warranties, plans, drawings, and other
items of intangible personal property to the extent said property is owned by
Seller and used in, held for use in connection with, or necessary for the
operation of the Project.
The term "MISCELLANEOUS PROPERTY ASSETS" shall not include any of the
foregoing: (i) to the extent the same are excluded or reserved to Seller
pursuant to the Purchase Contract to which Seller and Purchaser are parties; and
(ii) to the extent that the sale or transfer thereof requires consent or
approval of any third party, which consent or approval is not obtained by
Seller. Nothing herein shall create a transfer or assignment of intellectual
property or similar assets of Seller.
2. Assignment. Seller hereby assigns, sells and transfers, without
recourse or warranty, to Purchaser all of Seller's right, title and interest, if
any, in and to the Miscellaneous Property Assets, subject to any rights of
consent as provided therein.
3. Assumption. Purchaser expressly agrees to assume and hereby assumes
all liabilities and obligations of the Seller in connection with the
Miscellaneous Property Assets arising from and after the date hereof and agrees
to perform all of the covenants and obligations of Seller thereunder arising
from and after the date hereof. Purchaser further agrees to indemnify, defend
and hold Seller harmless from and against any and all cost, loss, harm or damage
which may arise in connection with the Miscellaneous Property Assets, pertaining
to acts arising on and after the date hereof. Seller further agrees to
indemnify, defend and hold Purchaser harmless from and against any and all cost,
loss, harm or damage which may arise in connection with the Miscellaneous
Property Assets, pertaining to acts arising prior to the date hereof.
4. Counterparts. This Assignment may be executed in counterparts, each
of which shall be deemed an original, and both of which together shall
constitute one and the same instrument.
5. Attorneys' Fees. If any action or proceeding is commenced by either
party to enforce its rights under this Assignment, the prevailing party in such
action or proceeding shall be entitled to recover all reasonable costs and
expenses incurred in such action or proceeding, including reasonable attorneys'
fees and costs, in addition to any other relief awarded by the court.
6. Applicable Law. This Assignment shall be governed by and interpreted
in accordance with the laws of the State of North Carolina.
7. Titles and Section Headings. Titles of sections and subsections
contained in this Assignment are inserted for convenience of reference only, and
neither form a part of this Assignment or are to be used in its construction or
interpretation.
8. Binding Effect. This Assignment shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns.
9. Entire Agreement; Modification. This Assignment supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
WITH RESPECT TO ALL MATTERS TRANSFERRED, WHETHER TANGIBLE OR
INTANGIBLE, PERSONAL OR REAL, SELLER EXPRESSLY DISCLAIMS A WARRANTY OF
MERCHANTABILITY AND WARRANTY FOR FITNESS FOR A PARTICULAR USE OR ANY OTHER
WARRANTY EXPRESSED OR IMPLIED THAT
MAY ARISE BY OPERATION OF LAW OR UNDER THE UNIFORM COMMERCIAL CODE FOR THE STATE
IN WHICH THE PROPERTY IS LOCATED.
WITNESS the signatures and seals of the undersigned.
Dated: , 1999
SELLER: DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a
New York limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By: ______________________
Its __________________________
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP, a New York
limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By: ______________________
Its __________________________
AGREED AND ACCPTED:
PURCHASER: SB ORCHARD, LLC, a Colorado limited liability company [SEAL]
By: Tymar, LLC, a California limited liability company [SEAL]
By: ______________________[SEAL]
Robert K. Barth
Its Managing Member
EXHIBIT "A"
LEGAL DESCRIPTION
WENDOVER I
(DBLREA I PROPERTY)
Tract I
Morehead Township, Guilford County, North Carolina:
Beginning at an iron stake in the north right of way line of West Wendover
Avenue, said stake being situated at North State Pyrophyllite Company's
Southeast corner; thence with North State Pyrophyllite Company's East line North
0. 01' 40" East 730 feet to a point, corner with Lot 1-A, as shown on Plat Book
66, Page 38, Guilford County Public Registry; thence with the south line of Lot
1-A. South 89. 58' 20" East 241.64 feet to a point in the west line of a 40
foot access easement South 0. 01' 40" West 579.87 feet to a point; thence South
30. 27' 30" East 37.92 feet to a point in the north right of way line of West
Wendover Avenue; thence with the north right of way line of West Wendover Avenue
South 59. 32' 30" West 80.78 feet and South 68. 12' 30" West 209.97 feet (chord
distance) to the point and place of Beginning. Containing 3.776 acres, more or
less as shown on plat of survey by Robert E. Wilson, Inc., Job No. 32.154, as
dated April 17, 1980 and being all of Lot 1 of a re-subdivision of Lot 1,
American Construction, Inc. property, as per plat thereof recorded in Plat Book
66, Page 38, Office of the Registrar of Deeds, of Guilford County, North
Carolina.
Tract II
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Being a part of that certain tract of land designated as a 40.0' access
easement, utility and drainage easement for Lots 1, 1A & 2 on plat of American
Construction, Inc. property recorded in Plat Book 66, page 38, Guilford County
Registry, and being a portion of Lot 2 as shown on said plat, which tract is
more particularly described as follows:
Beginning at a point on the northwesterly side of West Wendover Avenue at the
centerline of a 40' Access Easement shown on the above-referenced plat;
Running thence along said centerline, N 30. 27' 30" W 32.70' and N 00. 01' 40" E
574.17' to a point;
Running thence S 89. 58' 20" E 20' to the easterly side of the 40' Access
Easement area;
Running thence along said easterly side, S 00. 01' 40" W 524.31' and S 30. 27'
30" E 65.54' to the northwesterly side of West Wendover Avenue:
Running thence along said northwesterly side of West Wendover Avenue, S 59. 32'
30" W 42.50' to the point or place of beginning.
Save and except a perpetual non-exclusive easement for ingress, egress and
regress over said tract and an easement for the installation and maintenance of
utilities therein and thereunder which is reserved by the grantor for the non-
exclusive use of their customers, employees, independent contractors and
invitees, and their successors and assigns.
Tract III
Together with a perpetual non-exclusive easement from ingress, egress and
regress across the following described tract of land:
Beginning at a point in the southerly margin of Spring Garden Street at the
centerline of the 40' Access Easement area shown on Plat Book 66, page 38;
Running thence along said centerline, S 00. 0l' 40" W 172.74';
Running thence S 89. 58' 20" E 20' to the easterly side of the 40' Access
Easement Area;
Running thence along said easterly side N 00. 01' 40" E 162.50' to the southerly
margin of Spring Garden Street.
Running thence along said southerly margin, N 61. 17' 35" W 21' more or less to
the point or place of beginning.
WENDOVER II
(DBLREA II PROPERTY)
TRACT I
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Beginning at a point in the North Right-of-Way of West Wendover Avenue, said
point being the southeast corner of lot 1 of the American Construction, Inc.
Subdivision as recorded in Plat Book 65, Page 41 and also being a point on the
east line of a 40' access easement; thence from said point North 30. - 27' - 20"
West 65.54' to a point; thence North 00. - 01' - 40" East 524.31' along the east
line of an access easement to a point; thence North 89. - 59' - 20" West 20.0'
to a point, said points being the northeast corner of lot 1 and the northeast
corner of lot 1-A; thence North 00. - 01' - 40" East 172.74' along the common
lot line of lot 1-A and lot 2 to a point; thence South 61.-17'-35" East 90.0' to
a point; thence South 60.-42'-35" East 693.24' to a point; said point being the
north Right-of-Way line of West Wendover Avenue; thence with the Right-of-Way of
West Wendover Avenue South 59.-32'-30" West 731.86' to the point of beginning
being part of lot 2 of the American Construction, Inc. Subdivision recorded in
Plat Book 65, Page 41 and containing 5.859 Acres more or less.
TRACT II
Together with a perpetual non-exclusive easement for ingress, egress and regress
and an easement for the installation and maintenance of utilities therein and
thereunder that certain tract of land described in deed by Southmark Corporation
to Drexel Burnham Lambert Real East Associates recorded in Book 3298, page 0064,
aforesaid records, for the non-exclusive use of their customers, employees,
independent contractors and invitees, and their successors and assigns.
TRACT III
Located in Guilford County, State of North Carolina and is hereby described as
follows:
Being a part of that certain tract of land designated as a 40.0' access
easement; utility and drainage easement for Lots 1, 1A & 2 on plat of American
Construction, Inc. property recorded in Plat Book 66, page 38, Guilford County
Registry, and being a portion of Lot 1A as shown on said plat, which tract is
more particularly described as follows:
Beginning at a point located at the southeasterly corner of Lot 1 as shown on a
resubdivision of American Construction, Inc. Property as shown on plat recorded
in Plat Book 66, page 38, Guilford County Registry;
Running thence along the easterly side of Lot 1, N 30.27'30" W 37.92' and N
00.01'40" E 579.87' to the northeast corner of Lot 1;
Running thence S 89.58'20" E 20' to the centerline of the 40' Access Easement
area;
Running thence along said centerline, S 00.01'40" W 574.17' to a point;
Running thence S 30.27'30" E 32.70' to the northwesterly side of West Wendover
Avenue;
Running thence along same, S 59.32'30" W 20' to the point or place of beginning.
Save and except as a perpetual non-exclusive easement for ingress, egress and
regress over said tract and an easement for the installation and maintenance of
utilities therein and thereunder which is reserved by the grantor for the non-
exclusive use of their customers, employees, independent contractors or
invitees, and their successors and assigns.
TRACT IV
Together with a perpetual non-exclusive easement for ingress, egress and regress
across the following described tract of land:
Beginning at a point located at the northeasterly corner of Lot 1 as shown on a
resubdivision of American Construction, Inc., property as shown on plat recorded
in Plat Book 66, page 38, Guilford County Registry:
Running thence N 00.01'40" E 182.50' to a point in the margin of Spring Garden
Street;
Running thence with the margin of Spring Garden Street, (2) calls as follows:
- S 64.21'20" E 11.50'
- S 61.17'35" E 8.41'
to the centerline of the 40' Access Easement Area;
Running thence along said centerline, S 00.01'40" W 172.24'; to a point;
Running thence N 89.58'20" W 20' to the point or place of beginning.
TRACT V
Together with a perpetual non-exclusive easement for ingress, egress and regress
across the southerly 25 feet of Lot 1A which easement is more particularly
described as follows:
Beginning at the northwesterly corner of Lot 1 and the southwesterly corner of
Lot 1A as shown on a resubdivision of American Construction Inc. property as per
plat recorded in Plat Book 66, page 38 in the Guilford County Registry and
running thence from said beginning point
N 00.01'40" E 25 feet to a point; thence S 89.58'20" E 241.64 feet to a point;
thence
S 00.01'40" W 25 feet to a point, thence N 29.58'20" W 241.64 feet to the point
or place of beginning.
EXHIBIT B
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("Escrow Agreement") made this day of May,
1999 by and among DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES LIMITED
PARTNERSHIP, a New York limited partnership, and DREXEL BURNHAM LAMBERT REAL
ESTATE ASSOCIATES II LIMITED PARTNERSHIP, a New York limited partnership
(collectively"SELLER"), and SB ORCHARD, LLC, a Colorado limited liability
company ("PURCHASER"); and FIDELITY NATIONAL TITLE INSURANCE COMPANY ("ESCROW
AGENT");
WITNESSETH:
Whereas Purchaser and Seller are parties to a certain Purchase and Sale
Contract (the "Purchase Contract") made and dated as of the _____ day of May,
1999; and
Whereas, the Purchase Contract requires that Purchaser provide a Deposit in
the amount of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) in
cash to be held pursuant to an escrow agreement approved by Purchaser and
Seller.
Now, therefore, the parties agree to the following:
1. Establishment of Escrow. Escrow Agent hereby acknowledges receipt of One
Hundred Fifty Thousand and No/100 dollars ($150,000.00) in cash (the "Escrow
Fund"), to be deposited, held, invested, and disbursed for the benefit of Seller
and Purchaser and their respective successors and assigns, as provided herein
and as provided in the Purchase Contract. Escrow Agent also hereby acknowledges
receipt of a quitclaim deed executed by Purchaser a copy of which is attached
(the "Quitclaim Deed") and agrees to hold and release the Quitclaim Deed in
accordance with the terms of this Escrow Agreement.
2. Investment of Escrow Fund. All funds received by Escrow Agent shall be
held in insured accounts and invested in such short-term, high-grade securities,
money market funds or accounts, interest bearing bank accounts, bank
certificates of deposit or bank repurchase agreements as Escrow Agent, in its
discretion, deems suitable (provided that Escrow Agent shall invest the Escrow
Fund as jointly directed by Seller and Purchaser should Seller and Purchaser
each in their respective sole discretion determine to issue such joint
investment instructions to the Escrow Agent) and all interest and income thereon
shall become part of the Escrow Fund and shall be remitted to the party entitled
to the Escrow Fund, as set forth below.
3. Application of Escrow Fund. Escrow Agent shall hold the Escrow Fund as
provided above and (a) if the sale of the Property is closed by the date fixed
therefor (or any extension date provided for by mutual written consent of the
parties hereto, given or withheld in their respective sole discretion), Escrow
Agent shall return the Quitclaim Deed to Purchaser and deliver the Escrow Fund
to Seller in immediately available funds by wire transfer in accordance with the
instructions of Seller on the Closing Date as set forth in the Purchase
Contract, (b) if the sale of the Property is not closed by the date fixed
therefor (or any such extension date) owing to failure of satisfaction of a
condition precedent to Purchaser's obligations, the Escrow Agent shall return
and refund the Escrow Fund to Purchaser and shall forthwith deliver the
Quitclaim Deed to Seller, (c) if the sale of the Property is not closed by the
date fixed therefor (or any such extension date) owing to failure of performance
by Seller, Purchaser shall give Notice to the Escrow Agent and Seller and in
such Notice shall state whether it elects as its remedy return of the Escrow
Fund or specific performance of the Purchase Contract; if Purchaser elects
return of the Escrow Fund, Escrow Agent shall return and refund the Escrow Fund
to Purchaser and shall forthwith deliver the Quitclaim Deed to Seller, (d) if
the sale of the Property is not closed by the date fixed therefor (or any such
extension date) owing to failure of performance by Purchaser, Escrow Agent shall
forthwith deliver to Seller the Quitclaim Deed and the Escrow Fund in
immediately available funds by wire transfer in accordance with the instructions
of Seller, and (e) if Purchaser shall have canceled the Purchase Contract on or
before the expiration of the Feasibility Period (as defined in the Purchase
Contract), the Escrow Agent shall return and refund the Escrow Fund to Purchaser
and shall forthwith deliver the Quitclaim Deed to Seller.
If on or prior to the termination of the Escrow Agreement, a party claims
to be entitled to payment of the Escrow Fund under the provisions referred to,
such party shall give Notice to the Escrow Agent and the other party of the
claim in writing, describing in such Notice the nature of the claim, and the
provisions of the Purchase Contract on which the claim is based. Unless the
other party sends the Escrow Agent a written objection to the claim, with a copy
concurrently to the claiming party, within Ten (10) days after delivery of the
Notice of claim, the claim shall be conclusively presumed to have been approved.
In such case, or in the event of mutual written consent of the parties hereto,
given or withheld in their respective sole discretion, Escrow Agent shall,
within Two (2) business days thereafter, pay the claim as demanded.
Notwithstanding the foregoing, Escrow Agent shall deliver the Escrow Fund to
Seller forthwith upon Closing in accordance with the terms of subpart (a) of the
immediately preceding paragraph.
When all monies held by Escrow Agent have been finally distributed in
accordance herewith, this Escrow Agreement shall terminate.
4. Liability. Escrow Agent will be obligated to perform only the duties that
are expressly set forth herein. In case of conflicting demands upon Escrow
Agent, it may (i) refuse to comply therewith as long as such disagreement
continues and make no delivery or other disposition of any funds or property
then held (and Escrow Agent shall not be or become liable in any way for such
failure or refusal to comply with such conflicting or adverse claims or demands,
except for its failure to exercise due care, willful breach and willful
misconduct); and (ii) continue to so refrain and so refuse to act until all
differences have been adjusted by agreement and, Escrow Agent has been notified
thereof in writing signed jointly by Seller and Purchaser or (iii) to interplead
the portion of Escrow Fund in dispute.
5. No Obligation to Take Legal Action. Escrow Agent shall not be under any
obligation to take any legal action in connection with this Escrow Agreement or
for its enforcement, or to appear in, prosecute, or defend any action or legal
proceeding which, in its opinion, would or might involve it in any costs,
expense, loss, or liability, unless and as often as required by it, it is
furnished with satisfactory security and indemnity against all such costs,
expenses, losses, or liabilities.
6. Status of Escrow Agent. Escrow Agent is to be considered and regarded as a
depository only, and shall not be responsible or liable (except for its failure
to exercise due care, willful breach or willful misconduct) for the sufficiency
or correctness as to form, manner of execution, or validity of any instrument
deposited pursuant to this Escrow Agreement, nor as to the identity, authority,
or rights of any person executing the same. Escrow Agent's duties hereunder
shall be limited to the safekeeping of the Quitclaim Deed and the safekeeping
and investment of money, instruments, and securities received by it as Escrow
Agent and for their disbursement in accordance with the written escrow
instructions given it in accordance with this Escrow Agreement.
7. Written Instructions of Parties. Notwithstanding any contrary provision
contained herein, Escrow Agent shall, at all times, have full right and
authority and the duty and obligation to pay over and disburse the principal and
interest of the Escrow Fund and Quitclaim Deed in accordance with the joint
written instructions signed by Seller and Purchaser.
8. Notices. Any required or permitted Notice or other communication under
this Escrow Agreement ("Notice") shall be given as follows. All Notices,
requests, demands and other communications hereunder shall be deemed to have
been duly given if the same shall be in writing and shall be delivered
personally or sent by federal express or other recognized national overnight
courier service maintaining records of delivery, or sent by registered or
certified mail, postage pre-paid, and addressed as set forth below:
(a) If to Seller:
Drexel Burnham Lambert Real Estate Associates Limited Partnership
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attn: Mr. Harry Alcock
and
Drexel Burnham Lambert Real Estate Associates II Limited Partnership
1873 South Bellaire Street, 17th Floor
Denver, Colorado 80222
Attn: Mr. Harry Alcock
and
Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Attn: Mr. David Marquette
With a copy to:
Loeb & Loeb, LLP
1000 Wilshire Boulevard, Suite 1800
Los Angeles, California 90017
Attn: Andrew S. Clare, Esq.
Karen N. Higgins, Esq.
(b) If to Purchaser:
SB Orchard, LLC
c/o Black Equities
433 North Camden Drive, Suite 1070
Beverly Hills, California 90210
Attn: Mr. Sam Rosenwald
With a copy to:
Brownstein Hyatt Farber & Strickland, P.C.
410 Seventeenth Street, 22nd Floor
Denver, Colorado 80202-4437
Attn: Robert Kaufmann, Esq.
(c) If to Escrow Agent:
Fidelity National Title Insurance Company
700 Louisiana Street, Suite 2400
Houston, Texas 77002
Attn: Ms. Lolly Avant
Any party may change the address to which Notices are to be addressed by
giving the other parties Notice in the manner herein set forth. All such
Notices, requests, demands and other communications shall be deemed to have been
delivered (i) as of the day of receipt, in the case of personal delivery, or
(ii) as of the day of receipt or attempted delivery date in the case of delivery
by air courier, or (iii) as of the date of receipt or first attempted delivery,
as evidenced by the return receipt card, in the case of mailing by certified or
registered United States mail.
9. Fee. Escrow Agent shall receive a fee of $600.00 for its services
hereunder, and be paid or reimbursed for all expenses, disbursements and
advances, including reasonable attorney's fees, incurred or paid in connection
with carrying out its duties hereunder, the payment of all amounts to be shared
by Purchaser and Seller equally, and not out of the Escrow Fund. Non-payment of
such fee by Purchaser shall not entitle Escrow Agent to refuse or fail to act as
required by this Escrow Agreement.
10. Titles and Section Headings. Titles of sections and subsections contained
in this Escrow Agreement are inserted for convenience of reference only, and
neither form a part of this Escrow Agreement or are to be used in its
construction or interpretation.
11. Counterparts. This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which shall
constitute one and the same instrument.
12. Non-Waiver. No waiver by either party of any breach of any term or
condition of this Escrow Agreement shall operate as a waiver of any other breach
of such term or condition or of any other term or condition. No failure to
enforce such provision shall operate as a waiver of such provision or of any
other provision hereof, or constitute or be deemed a waiver or release of any
other party for anything arising out of, connected with, or based upon this
Escrow Agreement.
13. Binding Effect. This Escrow Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective transferees, successors,
and assigns. The parties recognize and acknowledge that the powers and
authority granted Escrow Agent herein are each irrevocable and coupled with an
interest. Escrow Agent shall have no liability to Seller or Purchaser for any
mistakes in judgment in the performance of any function hereunder, except for
failure to exercise due care, willful breach and willful misconduct.
14. Nonlimitation of Liability. Nothing contained herein shall in any way
limit the liabilities, obligations and remedies of Seller and Purchaser as set
forth in the Purchase Contract.
15. Governing Law. This Escrow Agreement shall be governed by and construed in
accordance with the laws of the State of North Carolina.
16. Time of Essence. Time is of the essence of this Escrow Agreement.
17. Entire Agreement; Modification. This Escrow Agreement supersedes all prior
agreements and constitutes the entire agreement with respect to the subject
matter hereof. It may not be altered or modified without the written consent of
all parties.
In witness whereof each of the parties hereto has caused this Escrow
Agreement to be executed under seal on its behalf by duly authorized persons,
all as of the day and year first above written.
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a
New York limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By:____________________________
Its _____________________________
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP,
a New York limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By:____________________________
Its _____________________________
SB ORCHARD, LLC, a Colorado limited liability company [SEAL]
By: Tymar, LLC, a California limited
liability company [SEAL]
By: ____________________[SEAL]
Robert K. Barth,
Its Managing Member
FIDELITY NATIONAL TITLE INSURANCE COMPANY [SEAL]
By: _____________________________________
[Corporate Seal] Title:
EXHIBIT 9.1.5
FORM OF TENANT ESTOPPEL
[SEE ATTACHED]
TENANT ESTOPPEL CERTIFICATE - TENANT
FROM:
("Tenant")
TO:
("Buyer")
("Landlord")
Re: Lease between _________________________ pertaining to premises at the
following address _________________________ (the "Premises")
Gentlemen:
Tenant hereby certifies to Landlord and Buyer as follows:
1. The copy of the Lease attached hereto as Exhibit A is a true, correct and
complete copy of the Lease, including all amendments, supplements and
modifications thereof. The Lease is in full force and effect, in good standing,
and constitutes the full and complete understanding and agreement between
Landlord and Tenant concerning the letting of the Premises covered by the Lease.
2. The current minimum monthly or base rent to be paid by Tenant for the
Premises pursuant to the terms of the Lease is $ . Tenant's
percentage share of operating expenses is . The last rent was paid on
________________ and the next rent is due on ____________.
3. Tenant has no right to expand the Premises or to relocate to different
space, except that Tenant has a right of first refusal to lease the following
(if none, so state) _____________________
4. Tenant acknowledges that the current term of the Lease shall expire on
_____________, 19 , unless sooner terminated in accordance with the terms of
the Lease. Tenant has no option to renew or extend the lease term, except as
follows (if none, so state): _____________________
5. No default or event that with the giving of notice or the passage of time,
or both, would constitute a default (hereinafter collectively a "default") on
the part of Tenant exists under the Lease in the performance of the terms,
covenants and conditions of the Lease required to be performed on the part of
Tenant.
6. No default on the part of Landlord exists under the Lease in the
performance of the terms, covenants and conditions of the Lease required to be
performed on the part of the Landlord.
7. Tenant possesses no right, title, interest or estate in and to the Premises
or any part thereof except as Tenant, and Tenant has no option or right to
purchase the property of which the Premises are a part, or any part thereof.
8. Tenant has not assigned, sublet, or transferred its interest in the Lease
and/or the Premises, or any part thereof and is in occupancy of the Premises.
9. There have been no promises or representations made to Tenant by Landlord
concerning the Lease or the Premises not contained in the Lease.
10. Neither the Lease nor any obligations of Tenant thereunder have been
guaranteed by any person or entity, except as follows (if none, so state):
_______________
11. No rentals are accrued and unpaid under the Lease.
12. With respect to the Premises, all items required to have been constructed
or installed by Landlord have been completed in accordance with any applicable
plans and specifications and within the time periods set forth in the Lease and
have been paid for in full. No "punch list" or other items remain to be
completed by Landlord and no sums are due from Landlord to Tenant in connection
with such work. The Premises are in satisfactory condition and are acceptable
to Tenant in all respects.
13. Any payments, free rent, partial rent, rent credit, rebate of rent, moving
allowances, tenant improvement allowances, or other payments, credits,
allowances, concessions or abatements required to be given by Landlord to Tenant
have already been received by Tenant, except
.
14. No prepayments of rentals due under the Lease have been made more than one
month in advance. Further, no security deposits have been made under the Lease,
except for the sum of $ which has been deposited by Tenant with
Landlord pursuant to the terms of the Lease.
15. Tenant has received no notice of any prior sale, transfer or assignment,
hypothecation or pledge of the said Lease or of the rents received therein,
except
.
16. Tenant has no defense as to its obligations under the Lease and claims no
setoff, lien, or counterclaim against Landlord.
17. Tenant's current address for notices under the Lease is
____________________.
18. Tenant understands that this certificate is required in connection with a
potential sale and financing of the Premises, and Tenant agrees that Buyer, any
parties providing financing for the Premises and the Landlord, and their
respective successors and assigns, will, and shall be entitled to, rely on the
truth of this Certificate.
Very truly yours,
By:
Name:
Title:
Date: _____________, 19____
ARTICLE I DEFINED TERMS 3
ARTICLE II PURCHASE AND SALE OF PROPERTY 6
ARTICLE III PURCHASE PRICE & DEPOSIT 6
ARTICLE IV FINANCING 7
ARTICLE V FEASIBILITY PERIOD 7
ARTICLE VI TITLE 10
ARTICLE VII CLOSING 15
ARTICLE VIII REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
20
ARTICLE IX CONDITIONS PRECEDENT TO CLOSING 26
ARTICLE X BROKERAGE 27
ARTICLE XI POSSESSION 28
ARTICLE XII DEFAULTS AND REMEDIES 28
ARTICLE XIII RISK OF LOSS OR CASUALTY 29
ARTICLE XIV RATIFICATION 29
ARTICLE XV EMINENT DOMAIN 30
ARTICLE XVI MISCELLANEOUS 30
Exhibit 10.8
AMENDMENT TO PURCHASE AND SALE CONTRACT
(WENDOVER I & II)
This Amendment To Purchase and Sale Contract (this "Amendment") is entered
into as of the 2nd day of August, 1999, by and between DREXEL BURNHAM LAMBERT
REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a New York limited partnership, and
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP, a New York
limited partnership (collectively, "Seller"), and SB ORCHARD, LLC, a Colorado
limited liability company ("Purchaser"), and WENGREEN, LLC, a Delaware limited
liability company ("Assignee") with respect an escrow established with Fidelity
National Title Insurance Company.
Reference is made to that certain Purchase and Sale Contract dated as of
May 20, 1999 between Purchaser and Seller (the "Contract"). Capitalized terms
not otherwise defined herein shall have the meanings ascribed to them in the
Contract.
Purchaser and Seller desire to amend the Contract pursuant to the terms set
forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows:
1. WAIVER OF CONTINGENCIES OTHER THAN TITLE AND SURVEY/DEPOSIT NON-
REFUNDABLE. Purchaser hereby rescinds its notice of termination dated as of
July 12, 1999. Purchaser hereby agrees and acknowledges that other than the
title and survey contingency described below, all of the contingencies relating
to the Feasibility Period have been satisfied or waived. Seller and Purchaser
agree that Purchaser shall have until August 10, 1999 to satisfy its due
diligence relating to the title and survey. Purchaser acknowledges that at 5:00
p.m., Pacific Daylight Savings Time on August 10, 1999, the Feasibility Period
shall expire and unless Purchaser exercises its right to terminate this
Agreement on or before said date and time, the Deposit shall become non-
refundable to Purchaser (subject to Seller performing under the terms of the
Contract, and the other applicable express provisions set forth in the
Contract).
2. PURCHASE PRICE. For valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Purchase Price is hereby
reduced by the sum of $530,400 from $7,000,000 to $6,469,600. As between the
parties comprising Seller, the Purchase Price shall be allocated as follows:
Purchase Price for Wendover I is $2,809,600 and Purchase Price for Wendover II
is $3,660,000.
3. CLOSING DATE. The Closing Date shall occur on August 27, 1999
(subject to Seller's right to extend the Closing Date for an additional 30 day
period as expressly set forth under the Contract).
4. ASSIGNMENT BY PURCHASER. Purchaser hereby nominates Wengreen, LLC, a
Delaware limited liability company ("Assignee"), as Purchaser under the
Contract. Purchaser hereby assigns to Assignee Purchaser's interests under the
Contract, and Assignee hereby agrees to assume all of Purchaser's obligations
and liabilities under the Contract. Seller hereby agrees to the foregoing
nomination, assignment and assumption on the condition that Purchaser shall not
be released from its liability and obligations under the Contract in the event
of a breach of the Contract by Assignee.
5. TENANT ESTOPPEL FORM. The Tenant Estoppel Certificate form attached to
the Contract as Exhibit 9.1.5 is hereby deleted and the form attached hereto as
"Revised Exhibit 9.1.5." is substituted in its place.
6. COUNTERPARTS. This Amendment may be executed in counterparts, each of
which when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
IN WITNESS WHEREOF, Seller, Purchaser and Assignee have entered into this
Amendment as of the date written above.
"SELLER"
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a
New York limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By:____________________________
Its _____________________________
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP,
a New York limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By:____________________________
Its _____________________________
[signatures continue on following page]
"PURCHASER"
SB ORCHARD, LLC, a Colorado limited liability company [SEAL]
By: Tymar, LLC, a California limited
liability company [SEAL]
By: ____________________[SEAL]
Sam Rosenwald,
Its _________________
"ASSIGNEE"
WENGREEN, LLC, a Delaware limited liability company
By: BRG Properties, LLC, a Delaware limited liability company
By:
Sam Rosenwald, Its Manager
REVISED EXHIBIT 9.1.5.
TENANT ESTOPPEL
________________, 1999
GMAC Commercial Mortgage Corporation
650 Dresher Road
Horsham, PA 19044-8015
Re: Lease between ___________________________________, as Landlord or
its assignees ("Landlord"), and ______________________________ as
Tenant ("Tenant"), dated _____________, 19__ for approximately
______________ square feet of space in [name, city, state of project]
____________________
______________________________________________________________ (the
"Project") as amended by the following amendments [list; if none, say
None"]: ___
(the "Lease")
Ladies and Gentlemen:
Tenant understands that GMAC COMMERCIAL MORTGAGE CORPORATION, a California
corporation ("Lender"), intends to make a loan to _________________ ("Borrower")
to be secured by the Project. Tenant presently leases premises within the
Project pursuant to the Lease, and, in connection with the foregoing, Tenant
does hereby certify to Borrower and Lender as follows:
i. Attached hereto as Exhibit "A" is a true, complete and accurate copy of the
Lease and all amendments and modifications thereto.
ii. The Lease is in full force and effect; there are no amendments or
modifications of any kind to the Lease except as referenced above, there
are no other promises, agreements, understandings, or commitments between
Landlord and Tenant relating to the premises leased under the Lease; and
Tenant has not given Landlord any notice of termination under the Lease;
iii. There has not been and is now no subletting of the leased premises, or any
part thereof, or assignment by Tenant of the Lease, or any rights therein,
to any party;
iv. A security deposit in the amount of $_________ has been given by Tenant
under the terms of, or with respect to, the Lease;
v. No uncured default, event of default, or breach by Landlord exists under
the Lease, no facts or circumstances exist that, with the passage of time
or the giving of notice, or both, will or could constitute a default, event
of default, or breach under the Lease. Tenant has made no claim against
Landlord alleging Landlord's default under the Lease;
vi. Tenant is in full and complete possession of its leased premises in the
Project and has accepted its leased premises in the Project, including any
work of Landlord performed thereon pursuant to the terms and provisions of
the Lease, and all common areas of the Project (including, without
limitation, parking areas, sidewalks, access ways and landscaping) are in
compliance with the Lease and are satisfactory for Tenant's purposes;
vii. Tenant is obligated to pay rent to Landlord at the rate set forth in the
Lease. Tenant is current with respect to, and is paying the full rent and
other charges stipulated in the Lease (including, without limitation,
common areas maintenance charges) with no offsets, deductions, defenses or
claims; and Tenant has not prepaid any rent or other amounts to Landlord
other than rent and other charges due and payable in the calendar month of
this certification. None of the rent which Tenant is required to pay under
the Lease has been prepaid more than (1) month in advance and Tenant agrees
not to pay rent more than one (1) month in advance unless otherwise
specified in the Lease. Tenant agrees that upon notification by Lender in
writing that rental payments are to be made to Lender because of a default
under the Loan, Tenant will cease making rental payments to Landlord, or
its successors and assigns, and will begin making such rental payments
directly to Lender as required by the terms of Landlord's collateral
assignment of the Lease to Lender.
viii. Tenant is not entitled to any concession or rebate of rent or other
charges from time to time due and payable under the Lease, and there are no
unpaid or unreimbursed construction allowances or other offsets due Tenant
under the Lease;
ix. The current monthly estimated "common area maintenance" charge paid by
Tenant under the Lease is $__________;
x. The current monthly estimated charge for taxes paid by Tenant under the
Lease is $__________;
xi. The current monthly estimated charge for insurance paid by Tenant under the
Lease is $__________;
xii. The monthly base rent under the Lease is $__________ and has been paid by
Tenant through __________, 19__;
xiii. Tenant acknowledges that the initial term of the Lease commenced on
_________, 19__, and shall expire on __________, 19__, unless sooner
terminated in accordance with the terms of the Lease. Tenant has no option
to renew or extend the lease term, except as follows (if none, so state):
________________________________________________________________
________________________________________________________________
________________________________________________________________;
xiv. The undersigned representative of Tenant is duly authorized and fully
qualified to execute this instrument on behalf of Tenant thereby binding
Tenant;
xv. Tenant has no option or right to purchase the property of which the demised
premises are a part, or any part thereof; and
xvi. Tenant acknowledges and agrees that Landlord and Lender shall be entitled
to rely on Tenant's certifications set forth herein. Tenant hereby further
agrees for a period of thirty (30) days from the date hereof to notify
Landlord and Lender in writing at the address set forth above of any
changes in the truth and accuracy of any of the certifications contained
herein promptly upon Tenant's learning of each such change.
IN WITNESS WHEREOF, Tenant has executed this instrument this ____ day of
__________, 19__.
TENANT:
By:
Title:
GUARANTOR'S ACKNOWLEDGEMENT
The undersigned, _____________________________ ("Guarantor"), (i)
acknowledges and agrees that the documents attached hereto as Exhibit B
constitute a complete and accurate copy of Guarantor's Guaranty of the Lease
(the "Guaranty") and that the Guaranty is in full force and effect and is
enforceable in accordance with its terms, with no offset, deduction, defense or
claim by Guarantor and (ii) certifies that the certifications of Tenant herein
are true and correct.
GUARANTOR:
By:
Title:
EXHIBIT A
LEASE
EXHIBIT B
GUARANTY
Exhibit 10.9
SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT
(WENDOVER I & II)
This Second Amendment To Purchase and Sale Contract (this "Amendment") is
entered into as of the 23rd day of August, 1999, by and between DREXEL BURNHAM
LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a New York limited
partnership, and DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II LIMITED
PARTNERSHIP, a New York limited partnership (collectively, "Seller"), and SB
ORCHARD, LLC, a Colorado limited liability company ("Purchaser"), and WENGREEN,
LLC, a Delaware limited liability company ("Assignee") with respect an escrow
established with Fidelity National Title Insurance Company.
Reference is made to that certain Purchase and Sale Contract dated as of
May 20, 1999 between Purchaser and Seller, as modified by an Amendment dated as
of August 2, 1999 between Purchaser, Assignee and Seller (collectively, the
"Contract"). Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Contract.
Purchaser, Assignee and Seller desire to further amend the Contract
pursuant to the terms set forth below.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Contract is hereby amended as follows:
1. CLOSING DATE. The Closing Date is currently set at August 27, 1999,
subject to Seller's right to extend the Closing Date for an additional 30 days.
Seller has elected to exercise said 30 day extension option, but has agreed that
if the Closing Date can occur on September 7, 1999 or September 8, 1999 (so that
funds can be delivered to Seller's lender no later than 2:00 P.M. Central Time
on September 9, 1999), Seller will be willing to close on September 7, 1999 or
September 8, 1999. If for any reason the Closing Date cannot occur by September
8, 1999, then the Closing Date shall be September 26, 1999; provided, however,
that if the Closing Date is extended to September 26, 1999, Purchaser and
Assignee shall have the right to close earlier than September 26, 1999 on the
condition that Purchaser or Assignee pays Seller for the interest costs charged
by Seller's lender for the period from September 8, 1999 through September 26,
1999. Seller, Purchaser and Assignee agree to use their best efforts to make
the Closing Date occur on September 7, 1999.
2. COUNTERPARTS. This Amendment may be executed in counterparts, each of
which when compiled together shall constitute one and the same original.
All other terms and conditions of the Contract remain unmodified and in
full force and effect.
IN WITNESS WHEREOF, Seller, Purchaser and Assignee have entered into this
Second Amendment as of the date written above.
"SELLER"
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES LIMITED PARTNERSHIP, a
New York limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By:____________________________
Its _____________________________
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES II LIMITED PARTNERSHIP,
a New York limited partnership [SEAL]
By: DBL Properties Corporation, a New York corporation, Its General Partner
[Corporate Seal] By:____________________________
Its _____________________________
[signatures continue on following page]
"PURCHASER"
SB ORCHARD, LLC, a Colorado limited liability company [SEAL]
By: Tymar, LLC, a California limited
liability company [SEAL]
By: ____________________[SEAL]
Sam Rosenwald,
Its _________________
"ASSIGNEE"
WENGREEN, LLC, a Delaware limited liability company
By: BRG Properties, LLC, a Delaware limited liability company
By:
Sam Rosenwald, Its Manager
