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) July 21, 1999
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III
(Exact name of registrant as specified in its charter)
New York 2-95502 13-32551176
(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.
Perimeter Square located in Tulsa, Oklahoma was sold by the Registrant on July
21, 1999, to P & H Properties, L.L.C., an unrelated party, for $2,175,000.
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 June 30,
1999.
(c) Exhibits
10.7 Purchase and Sale Contract between Registrant and P & H Properties,
L.L.C., an Oklahoma limited partnership, dated May 18, 1999.
10.8 First Amendment to Purchase and Sale Contract between Registrant and P
& H Properties, L.L.C., an Oklahoma limited partnership, dated June 4,
1999.
10.9 Second Amendment to Purchase and Sale Contract between Registrant and P
& H Properties, L.L.C., an Oklahoma limited partnership, dated June 30,
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 ASSOICATES III
By: DBL Properties Corporation
Its General Partner
By: /s/ Patrick J. Foye
Patrick J. Foye
Executive Vice President
Date:
Exhibit 10.7
PURCHASE AND SALE CONTRACT
BETWEEN
DREXEL BURNHAM LAMBERT REAL ESTATE
ASSOCIATES III
AS SELLER
AND
P & H PROPERTIES, L.L.C.
AS PURCHASER
DATED: MAY ___, 1999
FOR PREMISES KNOWN AS
PERIMETER SQUARE, 3100 GARNETT SQUARE, TULSA, OKLAHOMA
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINED TERMS 1
ARTICLE 2 PURCHASE AND SALE OF PROPERTY 4
ARTICLE 3 PURCHASE PRICE & DEPOSIT 4
ARTICLE 4 FINANCING 5
ARTICLE 5 FEASIBILITY PERIOD 5
ARTICLE 6 TITLE 10
ARTICLE 7 CLOSING 13
ARTICLE 8 REPRESENTATIONS, WARRANTIES AND COVENANTS OF SELLER AND PURCHASER
18
ARTICLE 9 CONDITIONS PRECEDENT TO CLOSING 22
ARTICLE 10 BROKERAGE 23
ARTICLE 11 POSSESSION 23
ARTICLE 12 DEFAULTS AND REMEDIES 24
ARTICLE 13 RISK OF LOSS OR CASUALTY 24
ARTICLE 14 RATIFICATION 25
ARTICLE 15 EMINENT DOMAIN 25
ARTICLE 16 MISCELLANEOUS 26
PURCHASE AND SALE CONTRACT
THIS PURCHASE AND SALE CONTRACT ("Purchase Contract") is entered into as of
the ___ day of May, 1999 (the "Effective Date") by and between, DREXEL BURNHAM
LAMBERT REAL ESTATE ASSOCIATES III, a New York limited partnership, having a
principal address at c/o AIMCO, 1873 Bellaire Street, Suite 1700, Denver,
Colorado 80222 ("Seller"), and P & H PROPERTIES, L.L.C., an Oklahoma limited
liability company, having a principal address at 8023 East 63rd Place, Tulsa,
Oklahoma 74133 ("Purchaser").
NOW, THEREFORE WITNESSETH: That for and in consideration of mutual
covenants and agreements hereinafter set forth, Seller and Purchaser hereby
agree as follows:
RECITALS
R-1. Seller holds legal title to a parcel of real estate more particularly
described in Exhibit A attached hereto and made a part hereof located in Tulsa
County, Tulsa Oklahoma on each of which improvements have been constructed.
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 defined in this Purchase Contract the Property will be conveyed
by special warranty deed to P & H Properties, L.L.C..
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 will make such investigations regarding the Property, and
Purchaser's intended uses of the Property as Purchaser deems necessary and
desirable, will approve the same in all respects, subject only to the
representations, warranties and covenants set forth in this Purchase Contract
and does hereby agree to consummate the transactions contemplated by this
Purchase Contract as set forth below.
ARTICLE 1DEFINED TERMS
1.1 Terms with initial capital letters in this Purchase Contract shall have the
meanings set forth in this ARTICLE 1.
1.1.1"BUSINESS DAY" means any day other than a Saturday or Sunday or federal
holiday or legal holiday in the Tulsa County, Tulsa, Oklahoma.
1.1.2"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.
1.1.3"CLOSING DATE" means the date set forth in Section 7.1.1 on which 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 and
received by Seller in immediately available U.S. funds.
1.1.4"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.
1.1.5"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.
1.1.6INTENTIONALLY DELETED.
1.1.7"FIXTURES AND TANGIBLE PERSONAL PROPERTY" means all fixtures, furniture,
furnishings, fittings, equipment, machinery, apparatus, appliances and
other articles of personal property now located on the Land or in the
Improvements as of the Effective Date 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 Exhibit 1.1.7.
1.1.8"IMPROVEMENTS" means all buildings and improvements, located on the Land
taken "as is" containing approximately 58,460 gross square feet of Retail
Shopping Center.
1.1.9"LAND" means all of that certain tract of land located in Tulsa County,
Tulsa, Oklahoma commonly known as 3100 South Garnett, Tulsa, Oklahoma more
particularly described in Exhibit A attached hereto and made a part hereof,
and all rights, privileges and appurtenances pertaining thereto.
1.1.10"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) Excluded 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, (viii) insurance or other
prepaid Items, or (ix) books and records, except to the extent that Seller
receives a credit on the Closing Statement for any such item.
1.1.11"PERMITS" means all licenses and permits (other than Excluded 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 or used in or relating to the ownership, occupancy or
operation of the Property or any part thereof not subject to a Commercial
Lease.
1.1.12"PERMITTED EXCEPTIONS" means those exceptions or conditions permitted to
encumber the title to the Property in accordance with the provisions of
Section 6.2.
1.1.13"PROPERTY" means the Land and Improvements described in the Recitals 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 issued 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.
1.1.14"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 ninety (90) days' or shorter Notice, except
Commercial Leases.
1.1.15"PURCHASE CONTRACT" means this Purchase and Sale Purchase Contract by and
between Seller and Purchaser.
1.1.16"PURCHASE PRICE" means the total consideration to be paid by Purchaser to
Seller for the purchase of the Property.
1.1.17"SURVEY" shall have the meaning ascribed thereto in Section 6.12.
1.1.18"TENANT" means any person or entity entitled to occupy any portion of the
Property under a Commercial Lease.
1.1.19"TITLE COMMITMENT" or "Title Commitments" shall have the meaning ascribed
thereto in Section 6.1.
1.1.20"TITLE INSURER" shall have the meaning set forth in Section 6.1.
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.
PURCHASE PRICE & DEPOSIT
3.1 The total purchase price ("Purchase Price") for the Property shall be Two
Million Two Hundred Thousand Dollars ($2,200,000), which shall be paid by
Purchaser, as follows:
3.1.1Within two (2) days of the Effective Date, Purchaser shall deliver to
Commercial Title & Escrow Services, as the local agent for Fidelity
National Title Insurance Company ("Escrow Agent" or the "Title Company") a
deposit in the sum of Twenty-Five Thousand Dollars ($25,000) in cash, which
sum shall be increased at the time of expiration of the Feasibility Period
(defined below) at which time Purchaser shall tender an additional sum of
Twenty-Five Thousand Dollars ($25,000) in cash, such that the total deposit
at the time of expiration of the Feasibility Period (as the same may be
extended under Section 5.9 below) shall equal Fifty Thousand Dollars
($50,000) (such sums being hereinafter collectively referred to and held as
the "Deposit"). Purchaser and Seller each approve the form of Escrow
Agreement attached as Exhibit B.
3.1.2The Escrow Agent shall hold the Deposit and make delivery of the Deposit to
the party entitled thereto under the terms of the Escrow Agreement and this
Purchase Contract. 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.
3.1.3If 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 (and paid over to the Seller) 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, subject to and except for Purchaser's
liability under Section 5.3.
3.1.4If the sale of the Property fails to close on the Closing Date (or any such
extension date) due to a failure of performance by Seller, Purchaser shall
be entitled to the remedies set forth in ARTICLE 12 hereof. If the sale of
the Property fails to close on the Closing Date (or any such extension
date) due to a failure of performance 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 12 below.
FINANCING
4.1 Purchaser assumes full responsibility to expeditiously and diligently
initiate and pursue all steps necessary to obtain appropriate financing for
the purchase of the Property.
FEASIBILITY PERIOD
5.1 Subject to the rights of the tenants of the Property and the terms of
Section 5.3 below, for thirty (30) calendar days following the Effective
Date (the "Feasibility Period") (as the same may be extended under Section
5.9 below), Purchaser, and its agents, contractors, engineers, surveyors,
attorneys, and employees (collectively, "Consultants") shall have the right
from time to time upon reasonable advance notice to Seller to enter onto
the Property:
5.1.1To 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). Notwithstanding the
foregoing, in no event shall Purchaser conduct any invasive environmental
assessment test or other inspection of the Property without the prior
written consent of Seller, which consent may be withheld, in Seller's sole
discretion.
5.1.2To confirm any and all matters which Purchaser may reasonably desire to
confirm with respect to the Property.
5.1.3To ascertain and confirm the suitability of the Property for Purchaser's
intended use of the Property.
5.2 Should the results of any of the matters referred to in
subparagraphs 5.1.1, 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. PST 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 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
noncontingent and unconditional except only for satisfaction of the
conditions expressly stated in this ARTICLE 5 and in ARTICLE 9.
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 selected by Purchaser, and approved by Seller, which
approval shall not be unreasonably withheld or delayed) 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 5 at Purchaser's sole cost and expense.
Purchaser, or its agents, shall maintain casualty insurance and
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, in amounts (including deductible
amounts) and with such insurance carriers as shall be reasonably approved
by Seller and naming Seller and its affiliates as Loss Payees or Additional
Insureds (at the option of Seller), with endorsements reasonably acceptable
to Seller, including a waiver of defenses of the insurer based on the
actions or inaction of Purchaser. 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 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 Any and all information provided by Seller to Purchaser or obtained by
Purchaser relating to the Property in the course of its inspections or
review under or in connection with the rights under Section 5.1, including,
without limitation, any environmental assessment or audit, shall be treated
as confidential information by Purchaser and Purchaser shall instruct all
of its Consultants to the confidentiality of all such information.
Purchaser will not, except with the express prior written consent of
Seller, directly or indirectly, (i) disclose or permit the disclosure of
any information to any person or entity, except persons who are bound to
observe the terms hereof, or (ii) use or permit the use of all information
pertaining to the Property (1) in any way detrimental to the Seller or
(2) for any purpose other than evaluating the contemplated purchase of the
Property. Purchaser agrees, that if the Closing does not occur, Purchaser
will promptly return to the Seller or its authorized agent all written or
tangible information pertaining to the Property, including all copies or
extracts thereof, and all notes based upon the information. Purchaser
shall be strictly liable for all costs and expenses, and/or damage or
injury to any person or property resulting from any such review or
inspection or any failure to keep all such information confidential,
whether occasioned by the acts of Purchaser or any of its Consultants, and
whether seller or its authorized agents shall have been present at the same
or shall have consented to the same; and Purchaser agrees to indemnify and
hold harmless Seller from any liability, claims or expenses (including,
without limitation, mechanic's or construction liens and/or reasonable
attorneys' fees) resulting therefrom. Neither the Seller, nor any of its
officers, directors, employees, agents or representatives, shall be deemed
to make or to have made any representation or warranty as to the accuracy
or completeness of any information pertaining to the Property or whether or
not the information provided constitutes all of the information available
to the Seller; and neither the Seller nor any of its officers, directors,
employees, representatives or agents shall have any liability resulting
from Purchaser's use of any information pertaining to the Property.
Notwithstanding anything to the contrary set forth in this Agreement, the
obligations of Purchaser set forth in this Section 5.4 shall survive the
Closing or the termination of this Agreement, as applicable.
5.5 Purchaser shall not permit any mechanics' or materialmen'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 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 best efforts to prevent its 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.
5.6 Within fifteen (15) days of the Effective Date, Seller shall make a good
faith effort to deliver to Purchaser or make available at the Property the
following items, to the extent Seller has such items in its possession or
control:
5.6.1Copies of all Commercial Leases.
5.6.2Copies of all Property Contracts.
5.6.3A current rent roll certified as being true, accurate and completed, to the
best of Seller's knowledge, and in a form substantially similar to the rent
roll attached hereto as Exhibit 8.1.1.8.
5.6.4Copies of any environmental reports, audits, studies or tests of the
Property, if any, which Seller has in its possession or control.
5.6.5Annual year-end operating statements and monthly operating statements for
the Property, as prepared by Seller in its ordinary course of business.
5.6.6Plans, drawings, specifications and blueprints, if any, relating to the
structures and improvements located on the Property, which Seller has in
its possession or control.
5.6.7Copies of permits and Excluded Permits, if any, relating to the Property,
which Seller has in its possession or control.
5.7 Purchaser shall have the Feasibility Period within which to:
5.7.1Examine and review, at Purchaser's sole cost and expense, all items
referred to in Paragraph 5 above.
5.7.2Examine, analyze, review, inspect and secure reports, tests, etc., at
Purchaser's sole cost and expense with regard to any and all aspects of the
Property deemed necessary by Purchaser regarding the purchase of the
Property on the terms and conditions set forth herein.
5.8 If Purchaser is not satisfied with the Property or any of the matters set
forth in Paragraph 5 above, for any reason, in Purchaser's sole and
exclusive discretion, then Purchaser shall be entitled to: (i) either waive
any such matters and consummate this transaction; or (ii) terminate this
Contract without liability (other than any indemnification obligations that
are specified as surviving termination of this Purchase Contract, including
Section 5.3 above) upon written notification to Seller within the
Feasibility Period, and in such event the Deposit shall be returned to
Purchaser. In the event Purchaser elects to terminate this Contract,
Purchaser agrees to return to Seller all materials delivered to Purchaser
by Seller and any other materials obtained by Purchaser relating to the
Property within ten (10) business days after Purchaser elects to terminate
this Contract.
5.9 Purchaser shall be entitled to extend the Feasibility Period for an
additional fifteen (15) days upon payment of a non-refundable extension fee
in the amount of Twenty-Five Thousand Dollars ($25,000.00) (the "Extension
Fee") in cash paid to Seller at the time the Feasibility Period is extended
by Purchaser, which Extension Fee shall be applied toward the Purchase
Price at Closing. In the event the transaction contemplated hereunder
fails to close, then the Extension Fee shall be earned by Seller and shall
be non-refundable to Purchaser.
5.10 After the Effective Date, Seller shall not enter into any new or additional
tenant leases covering all or any part of the Property (collectively, the
"New Leases") without Purchaser's prior written consent, which consent
shall not be unreasonably withheld, delayed or conditioned. If Seller
desires to enter into a new Lease, Seller shall deliver a true and correct
copy of the proposed New Lease to Purchaser. Purchaser shall have five (5)
days after the date Seller gives a copy of the proposed New Lease to
Purchaser during which Purchaser may notify Seller in writing that
Purchaser does not approve of the proposed New Lease. If Seller elects to
enter into such New Lease without Purchaser's consent, then Purchaser, in
Purchaser's sole and exclusive discretion, shall be entitled to: (i) either
accept the New Lease and consummate this transaction; or (ii) terminate
this Contract without liability (other than any indemnification obligations
that are specified as surviving termination of this Purchase Contract,
including Section 5.3 above) upon written notification to Seller, and in
such event the Deposit shall be returned to Purchaser. In the event
Purchaser elects to terminate this Contract as set forth above, Purchaser
agrees to return to Seller all materials delivered to Purchaser by Seller
and any other materials obtained by Purchaser relating to the Property
within ten (10) business days after Purchaser elects to terminate this
Contract.
If Purchaser fails to provide Seller with written notice that Purchaser
does not approve of the proposed New Lease within such 5-day period,
Purchaser shall be conclusively deemed to have accepted and approved the
proposed New Lease and Seller shall be free to enter into the proposed New
Lease. At Closing, all leasing commissions, tenant finish expenses,
relocation expenses and other expenses of the "lessor" or "landlord" under
the New Leases (the "New Lease Expenses") shall be assumed by Purchaser in
writing and shall be the sole responsibility and obligation of Purchaser.
Any New Lease Expenses due and payable as of the date of Closing shall be
paid by Purchaser at Closing and any New Lease Expenses previously paid by
Seller as of the date of Closing, including, without limitation, lease
commissions, shall be reimbursed by Purchaser to Seller at Closing.
TITLE
6.1 Purchaser shall, at Purchaser's sole cost and expense, promptly secure a
commitment for title insurance for the Property in an amount equal to the
Purchase Price ("Title Commitment") issued by a title insurance company
which is licensed to do business in the jurisdiction in which the Property
is located ("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. Purchaser agrees that it shall be solely responsible for payment
of all costs relating to procurement of the Title Commitment, any Owner's
or Lender's title policies and any endorsements thereto.
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:
6.2.1All exceptions shown in the Title Commitment (other than mechanics' liens
and taxes due and payable in respect of the period preceding Closing) and
all exceptions noted in Exhibit 6.2.1 attached hereto; and
6.2.2Such exceptions and matters as the Title Company shall be willing to omit
as exceptions to coverage; and
6.2.3All Commercial Leases and any other occupancy, residency, lease, tenancy
and similar agreements entered into in the ordinary course of business; and
6.2.4All Property Contracts and any other existing contracts created in the
ordinary course of business by Seller, which are not identified for
termination by Purchaser during the Feasibility Period; and
6.2.5Real estate and property taxes to the extent not due and payable; and
6.2.6Defects and exceptions which do not materially and adversely affect the
condition of title to the Property and its use as of the Effective Date.
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 herein.
6.5 Unpaid franchise or business corporation taxes of any corporations in the
chain of title shall not be an objection to title, provided that the Title
Insurer agrees to insure against collection out of the Property or
otherwise against Purchaser or its affiliates, and provided further that
the Title Insurer agrees to omit such taxes as exceptions to coverage with
respect to any lender's mortgagee insurance policy.
6.6 If on the Closing Date there shall be conditional bills of sale or Uniform
Commercial Code financing statements that were filed on a day more than
five (5) years prior to such Closing, and such financing statements have
not been extended by the filing of UCC-3 continuation statements within the
past five (5) years prior to such Closing, such financing statements shall
not be deemed to be an objection to title.
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 within seven (7) calendar days following receipt of such Notice
may elect to cure such objection or unfulfilled condition for up to ninety
(90) 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 thirty (30) calendar days after
Notice of such cure or waiver.
6.8 If during the period of cure Seller is unable or unwilling, in its sole
discretion or opinion, to eliminate such title objection or cause a title
insurance company 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.
6.9 Seller covenants that it will not voluntarily create or cause any lien or
encumbrance (other than Commercial Leases and Property Contracts in the
ordinary course of business) to attach to the Property between the
Effective Date 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 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 or that has been waived or deemed to have been waived
by Purchaser.
6.12 Within two (2) business days of the Effective Date, Purchaser at
Purchaser's sole cost and expense, shall order a survey for the Property
("Survey") to be delivered to Purchaser and Seller within the Feasibility
Period. The Survey (i) shall be prepared in accordance with and shall
comply with the minimum requirements of the ALTA; (ii) shall be in a form,
and shall be certified as of a date satisfactory to Title Insurer to enable
Title Insurer to delete standard survey exceptions from the title insurance
policy to be issued pursuant to the Title Commitments, except for any
Permitted Exceptions; (iii) shall specifically show all improvements,
recorded easements to the extent locatable, setback lines, and such other
matters shown as exceptions by the Title Commitments; (iv) shall
specifically show the right-of-way for all adjacent public streets;
(v) shall specifically disclose whether (and, if so, what part of) any of
the Property is in an area designated as requiring flood insurance under
applicable federal laws regulating lenders; (vi) shall (if the Property is
not platted) contain a perimeter legal description of the Property which
may be used in the special warranty deed; (vii) shall be certified to
Purchaser, Purchaser's lender, Seller and Title Insurer as being true and
correct; and (viii) shall certify that the legal description set forth
therein describes the same and comprises all of the real estate comprising
the Property to be purchased by Purchaser pursuant to the terms of this
Purchase Contract. 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.
6.12.1Should 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.
6.12.2Purchaser agrees to make payment in full of all costs of obtaining the
Survey on or before Closing or termination of this Purchase Contract.
6.13 Notwithstanding the above, Purchaser shall have the Feasibility Period
within which to examine the Title Commitment and the Survey and to approve
or object to the Title Commitment and the Survey in writing. In the event
that Seller is unable or elects not to cure any such title and survey
objections within the Feasibility Period, then, at Purchaser's election, to
be exercised in writing during the Feasibility Period, Purchaser shall, in
Purchaser's sole and exclusive discretion, be entitled to: (i) either waive
any such matters and consummate this transaction; or (ii) terminate this
Contract without liability (other than any indemnification obligations that
are specified as surviving termination of this Purchase Contract, including
Section 5.3 above) upon written notification to Seller within the
Feasibility Period, and in such event the Deposit shall be returned to
Purchaser. In the event Purchaser elects to terminate this Contract,
Purchaser agrees to return to Seller all materials delivered to Purchaser
by Seller and any other materials obtained by Purchaser relating to the
Property within ten (10) business days after Purchaser elects to terminate
this Contract
CLOSING
7.1 DATES, PLACES OF CLOSING, PRORATIONS, AND DELINQUENT RENT.
7.1.1The Closing shall take place in the offices of Commercial Title & Escrow
Services, as the local agent for Fidelity National Title Insurance Company,
or such other place as the parties shall mutually agree upon at a time
mutually agreed upon on the Closing Date. If requested by Seller,
Purchaser shall agree to conduct closing through a preclosing, an escrow or
other arrangement reasonably requested by Seller, whereby the Seller and
its attorneys need not be physically present at the Closing and may deliver
documents by overnight air courier or other means.
7.1.2The Closing Date may be extended without penalty at the option of Seller to
a date not later than sixty (60) 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.
7.1.3All normal and customarily proratable items, including, without limitation,
Rents (as defined below), operating expenses, personal property taxes, and
other operating expenses and fees, shall be prorated as of the Closing
Date, Seller being charged and credited 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) 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.
Documentary stamps, if any, shall be paid by Seller at Closing. The
closing fee payable to the Escrow Agent shall be split evenly between
Purchaser and Seller. 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 payments due parties to
agreements affecting the Property which survive Closing. 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
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 7.1.3 and Sections 7.1.4 and 7.1.5, 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 7.1.3 shall apply during the Proration Period (as defined
below). Notwithstanding the above, any New Lease Expenses paid by Seller
under the New Leases from and after the Effective Date through the Closing
Date shall be reimbursed by Purchaser to Seller at Closing.
7.1.4If 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. Any Rents that have accrued, but have not yet been paid,
shall be prorated in accordance with estimates based upon the prior years'
information (or reasonable estimates of Seller if no such prior years'
information is available), and shall be subsequently readjusted and
reapportioned upon receipt. Purchaser shall pay Seller for Rents that have
accrued, but are not yet due and payable, at Closing.
7.1.5If 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 Seller or
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. 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 7.2.1.3 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, upon demand, 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, and Purchaser shall
continue to bill the tenants as a "balance forward" line item as part of
any regular billing process (but in any event no less frequently than
monthly); 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, but if Purchaser shall institute any legal proceedings or
assert any claim against any Tenant, Purchaser shall include and prosecute
a demand for the Delinquent Rent. The provisions of this Section 7.1.5
shall apply during the Proration Period.
7.2 ITEMS TO BE DELIVERED PRIOR TO OR AT CLOSING.
7.2.1SELLER. At Closing, Seller shall deliver to Purchaser each of the
following items, as applicable:
7.2.1.1Special warranty or equivalent deed in the form attached as
Exhibit 7.2.1.1 to P & H Properties, L.L.C. 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.
7.2.1.2A 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.
7.2.1.3An General 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.
7.2.1.4A closing statement executed by Seller.
7.2.1.5A 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 (other than matters constituting
any Permitted Exceptions to the title insurance policy set forth in this
Purchase Contract and matters which are to be completed or performed post-
Closing), to be issued pursuant to the Title Commitments; provided that
such affidavit does not subject Seller to any greater liability, or impose
any additional obligations, other than as set forth in this Purchase
Contract.
7.2.1.6A certification of Seller's nonforeign status pursuant to Section 1445 of
the Internal Revenue Code of 1986, as amended.
7.2.1.7Except 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.
7.2.1.8The original of all Commercial Leases, to the extent the same is in
Seller's possession or control.
7.2.1.9A current rent roll certified by Seller to be true, accurate and
complete, to the best of Seller's knowledge, and in form substantially
similar to the rent roll attached hereto as Exhibit 8.1.1.8.
7.2.1.10The abstract of title covering the Property, if in Seller's possession
or control.
7.2.1.11All keys to the Property that Seller has in its possession or control.
7.2.1.12Such other instruments, documents or certificates as are reasonably
required to be delivered by Seller to Purchaser in accordance with any of
the other provisions of this Purchase Contract.
7.2.2PURCHASER. At Closing, Purchaser shall deliver to Seller the following
items with respect to each Property being conveyed or transferred by merger
at such Closing:
7.2.2.1The full Purchase Price as required by ARTICLE 3 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 to satisfy the same, provided that
Seller shall have delivered to Purchaser, or to Purchaser's designee, on
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.
Purchaser, if request is made within a reasonable time prior to Closing,
agrees to provide at Closing separate certified or cashier's checks as
requested, aggregating not more than the amount of the balance of the
portion of Purchase Price, to facilitate the satisfaction of any such
liens or encumbrances. The existence of any such liens or encumbrances
shall not be deemed objections to title if Seller shall comply with the
foregoing requirements.
7.2.2.2A closing statement executed by Purchaser.
7.2.2.3A countersigned counterpart of the Bill of Sale in the form attached as
Exhibit 7.2.1.2.
7.2.2.4A countersigned counterpart of the Assignment in the form attached as
Exhibit 7.2.1.3.
7.2.2.5Such 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.
REPRESENTATIONS, WARRANTIES AND
COVENANTS OF SELLER AND PURCHASER
8.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
8.1.1For the purpose of inducing Purchaser to enter into this Purchase Contract
and to consummate the sale and purchase of the Property in accordance
herewith, Seller represents and warrants to Purchaser the following as of
the Effective Date and as of the Closing Date:
8.1.1.1Seller 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 or at Closing shall have the power and
authority to sell and convey the Property and to execute the documents to
be executed by Seller and prior to Closing will have 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 contract
to which Seller is a party or by which Seller or any affiliate entity is
otherwise bound. Seller has not made any other contract for the sale of,
or given any other person the right to purchase, all or any part of any of
the Property applicable to the foregoing representation;
8.1.1.2Seller owns insurable fee simple title to the Property, including all
real property contained therein required to be sold to Purchaser, subject
only to the Permitted Exceptions;
8.1.1.3There are no adverse or other parties in possession of the Property,
except for occupants, guests and tenants under the Commercial Leases or
otherwise as set forth in Exhibit 6.2.1;
8.1.1.4The 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;
8.1.1.5Purchaser has no duty to collect withholding taxes for Seller pursuant to
the Foreign Investors Real Property Tax Act of 1980, as amended;
8.1.1.6To Seller's knowledge, there are no actions, proceedings, litigation or
governmental investigations or condemnation actions either pending or
threatened against the Property, as applicable;
8.1.1.7Seller 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 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;
8.1.1.8To the best of Seller's knowledge, as of the Effective Date, the rent
roll attached hereto as Exhibit 8.1.1.8 is true and correct.
8.1.1.9To the best of Seller's knowledge, as of the Effective Date, there are no
leases or tenancies affecting the Property, other than represented on the
rent roll and delivered to Purchaser pursuant to Paragraph 5.
8.1.1.10As of the Closing, to the best of Seller's knowledge, there shall be no
outstanding contracts (including Commercial Leases) made by Seller for any
improvements to the Property which have not been fully performed and paid
and Seller shall pay or statutorily discharge all mechanic's or
materialman's liens arising from any labor performed or materials
furnished to the Property on or prior to the Closing.
8.1.1.11To the best of Seller's knowledge, there is no action, proceeding or
investigation pending or threatened which materially affects Seller's
ability to perform its obligations under this Contract or which materially
or adversely affect the Property.
8.1.2Except for the representations and warranties expressly set forth above in
Subsection 8.1, 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 relying upon, no information provided by Seller and no
statements, representations or warranties, express or implied, made by or
enforceable directly against Seller, including, without limitation, any
relating to the value of the Property, the physical or environmental
condition of the Property, the state, federal, county or local law,
ordinance, order, permit or 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, opinions or work product of consultants, surveyors,
architects, engineers, title companies, governmental authorities or any
other person or entity with respect to the Property, 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, opinions or work product shall not
create or give rise to any liability of or against Seller, any Subsidiary
Owner, 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. Purchaser shall rely only upon any title
insurance obtained by Purchaser with respect to title to the Property.
Purchaser acknowledges and agrees that 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
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. 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 8.1.3
below.
8.1.3Seller 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).
8.1.4Representations 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 a
representative of the management company which manages the Property as of
the date of this Purchase Contract. The form of certification by such
Designated Representative is attached hereto as Exhibit 8.1.4.
8.2 REPRESENTATIONS AND WARRANTIES OF PURCHASER.
8.2.1For 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:
8.2.2With respect to Purchaser and its business, Purchaser represents and
warrants, in particular, that:
8.2.2.1P & H Properties, L.L.C. is an Oklahoma Limited Liability Company duly
organized, validly existing and in good standing under the laws of the
State of Oklahoma.
8.2.2.2Purchaser, 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 is required to so empower or
authorize Purchaser.
8.2.2.3No 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 nonbinding any of Purchaser's obligations or covenants
to Seller.
8.2.2.4Purchaser 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 certificates of incorporation or bylaws,
(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.
8.2.2.5The 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.
8.2.3Purchaser has not dealt with any broker, finder or any other person other
than Matt Davis of the Davis Group, 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.
8.2.4INTENTIONALLY DELETED.
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:
9.1.1All of the documents required to be delivered by Seller to Purchaser at
each Closing pursuant to the terms and conditions hereof shall have been
delivered and shall be in form and substance reasonably satisfactory to
Purchaser;
9.1.2Each of the representations and warranties of Seller contained herein shall
be true in all material respects as of the Closing Date;
9.1.3Seller 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;
9.1.4Purchaser shall have received from Seller, at or prior to Closing a fully
executed tenant estoppel certificate by tenants of the Property leasing in
the aggregate eighty (80%) of the gross leasable floor area of the Property
in the form and substance of the tenant estoppel certificate set forth on
Exhibit 9.1.4 attached hereto. Purchaser shall accept an estoppel
certificate from Seller as landlord in substantially the form and substance
of Exhibit 9.1.4 for the remaining tenants which lease up to twenty percent
(20%) of the gross leasable floor area of the Property. In the event
Purchaser fails to receive tenant estoppel certificates from such 80% of
the tenants of the Property in the form and substance of the tenant
estoppel certificate set forth on Exhibit 9.1.4, then Purchaser shall be
entitled to terminate this Agreement in accordance with Section 5.2 above;
9.1.5Notwithstanding 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:
9.2.1Purchaser'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.
9.2.2Purchaser 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.
9.2.3There 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.
BROKERAGE
10.1 Seller represents and warrants to Purchaser that it has dealt only with
Matt Davis of the Davis Group ("Broker") in connection with this Purchase
Contract. Seller and Purchaser each represent and warrant to the other
that other than Matt Davis of the Davis Group, 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 or
omissions of the indemnifying party.
10.2 Seller agrees to pay Matt Davis of the Davis Group 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.
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 5.
DEFAULTS AND REMEDIES
12.1 In the Event Purchaser terminates this Purchase Contract following the
Feasibility Period for any reason other than Seller's failure to perform in
accordance with this Purchase Contract or inability to convey title as
required by this Purchase Contract, or defaults hereunder prior to the
Closing Date and consummation of the Closing does not occur by reason of
such termination or 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 terminates this Purchase Contract or defaults
hereunder 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. Seller specifically waives all other remedies it may have at
law or in equity, including, without limitation, its right to pursue the
remedy of specific performance. 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.
RISK OF LOSS OR CASUALTY
13.1 The risk of loss or damage to the Property by fire or other casualty until
the date of Closing is assumed by Seller, provided that Seller's
responsibility shall be only to the extent of any recovery from insurance
now carried on the Property. If any of the Improvements shall be destroyed
or damaged prior to the Closing, and the estimated cost of repair or
replacement (as reasonably estimated by an independent contractor selected
by Seller) exceeds One Hundred Fifty Thousand and No/100 Dollars
($150,000.00), Purchaser may, by Notice given to Seller within five (5)
days after receipt of Notice from Seller of such damage or destruction,
elect to terminate this Purchase Contract, in which event the Deposit shall
immediately be returned by Escrow Agent to Purchaser and except as
expressly provided herein, subject to and except for Purchaser's liability
under Sections 5.3 and 5.4, the rights, duties, obligations, and
liabilities of the parties hereunder shall immediately terminate and be of
no further force or effect. If Purchaser does not elect to terminate this
Purchase Contract pursuant to this Section 13.1, or has no right to
terminate this Purchase Contract (because the estimated cost of repairing
or replacing the damage or destruction does not exceed $150,000.00), and
the sale of the Property is consummated, Purchaser shall be entitled to
receive all insurance proceeds paid or payable to Seller by reason of such
destruction or damage under the insurance policies carried by Seller (less
amounts of insurance theretofore received and applied by Seller to
restoration); provided that in the event the insurance proceeds, if any,
shall be insufficient to defray the estimated cost of repairing or
replacing the damage or destruction, then to the extent the amount of the
insufficiency shall exceed $15,000.00 (determined by reference to such
estimated cost and Seller's statement of the available insurance proceeds)
the amount of the insufficiency may be claimed by Purchaser, by Notice of
such claim given to Seller prior to Closing, as an additional adjustment at
Closing pursuant to Section 7.1.3 above, provided further in such event
that upon receipt of any such Notice from Purchaser, Seller may elect, at
its sole option, by so advising Purchaser in writing at or prior to the
Closing, to terminate this Purchase Contract, in which event the Deposit
shall be returned to Purchaser and except as expressly provided herein,
subject to and except for Purchaser's liability under Section 5.3, the
rights, duties, obligations and liabilities of the parties hereunder shall
immediately terminate and be of no further force and effect. If the amount
of said casualty proceeds is not settled by the date of Closing, Seller
shall execute at Closing all proofs of loss, assignments of claim, and
other similar instruments to ensure that Purchaser shall receive all of
Seller's right, title, and interest in and under said insurance proceeds.
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.
RATIFICATION
14.1 This Purchase Contract shall be null and void unless fully ratified by
Purchaser and Seller on or before April 30, 1999.
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 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 after receipt of written Notice 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. It is
expressly agreed between the parties hereto that this paragraph shall in no
way apply to customary dedications for public purposes which may be
necessary for the development of the Property.
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.
Purchaser may assign its rights under this Purchase Contract to an entity
that is controlled by, controls or is under common control with Purchaser
or any entity that is controlled by the principals of Purchaser (a
"Purchaser Affiliate"); provided, however, that no such assignment to a
Purchaser Affiliate shall relieve Purchaser from any of its liability under
this Purchase Contract and Purchaser shall remain liable therefor. Except
as set forth in the preceding sentence, Purchaser shall not assign its
rights under this Purchase Contract except with the prior written consent
of Seller, which consent may be given or withheld in Seller's sole and
absolute discretion. Any assignment or attempt at assignment in violation
of this Section 16.2 shall be null and void and shall constitute a default
by Purchaser.
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 the nationally recognized overnight
carrier for next business day delivery, on the first business day following
deposit of such Notice with such carrier, 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, or (iv) immediately upon receipt by the
recipient party if by facsimile transmission as follows:
If to Seller:
Drexel Burnham Lambert Real Estate Associates III
c/o AIMCO
1873 South Bellaire Street, Suite 1700
Denver, Colorado 80222
Attn: Tim Works, Harry Alcock and Martha Carlin
with a copy to: Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Facsimile: (35) 371-6898
Attn: Mr. David Marquette
with a copy to: Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
Facsimile: (202) 508-6200
Attn: Richard A. Cohn, Esq.
with a copy to: Bryan Cave LLP
3500 One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Attn: John L. Snyder, Esq.
Facsimile: (816) 374-3300
If to Purchaser: P & H Properties, L.L.C.
8023 East 63rd Place, Suite 350
Tulsa, Oklahoma 74133
Attn: Robert E. Phillips
Fax (918) 250-2335
with a copy to: Eller & Detrich
2727 East 21st Street, Suite 200
Tulsa, Oklahoma 74114
Attn: R. Louis Reynolds
Fax: (918) 747-2665
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.
16.1 GOVERNING LAW AND VENUE.
The laws of the State of Oklahoma 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.
16.2 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.
16.3 SEVERABILITY.
If any of the provisions 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.
16.4 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.
16.5 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.
16.6 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.
16.7 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 and accountants. Any information provided by
Seller to Purchaser under the terms of this Purchase Contract is for
informational purposes only. 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 and legal representatives,
without Seller's prior written authorization, which may be granted or
denied in Seller's sole discretion.
16.8 TIME OF THE ESSENCE.
It is expressly agreed by the parties hereto that time is of the essence
with respect to this Purchase Contract.
16.9 CUMULATIVE REMEDIES AND WAIVER.
Except as otherwise provided herein, no remedy herein conferred or reserved
is intended to be exclusive of any other available remedy or remedies, but
each and every such remedy shall be cumulative and shall be in addition to
every other remedy given under this Purchase Contract or now or hereafter
existing at law or in equity. 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.
16.10LITIGATION 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.
16.11TIME 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.
16.12EXCHANGE.
Purchaser and Seller understand that it may be the preference of the other
party to effectuate an exchange pursuant to the provisions of Section 1031
of the Internal Revenue Code. Both Purchaser and Seller agree that they
will reasonably cooperate with the other with respect to such exchange and
execute any and all documentation reasonably necessary to effectuate such
exchange, provided that the other party will not be required to take title
to any other real property for any instant in time and provided that
neither party shall incur any costs or expenses which it would not have
otherwise incurred in the absence of an exchange. Both Seller and
Purchaser hereby agree, understand and acknowledge that Seller's sale of
the Property and Purchaser's purchase of the Property are not subject to or
conditioned upon the purchase or sale of any other such property.
[The remainder of this page is intentionally left blank]
NOW WHEREFORE, the parties hereto have executed this Purchase Contract as
of the date first set forth above.
SELLER:
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III
a New York limited partnership
By: DBL Properties Corporation,
a New York corporation,
its General Partner
By:
Printed:
Title:
PURCHASER:
P & H PROPERTIES, L.L.C.
an Oklahoma limited liability company
By:
Printed: Robert E. Phillips
Title: Managing Member
EXHIBIT A
LEGAL DESCRIPTION
Lot Three (3) and part of Lot Two (2), Block One (1), 3100 GARNETT SQUARE, an
Addition to the City of Tulsa, Tulsa County, State of Oklahoma, according to the
recorded Plat thereof, said part of Lot Two (2) being more particularly
described as follows, to-wit:
BEGINNING at the Southeast corner of said Lot 2; thence due West along the South
line of said Lot 2, a distance of 474.70 feet to a point; thence North 45.00'00"
West along the Southwesterly line of said Lot 2, a distance of 490.81 feet to a
point on the West line of Block 1, "3100 GARNETT SQUARE"; thence North 0.05'30"
West along said West line a distance of 37.94 feet to the West common corner of
Lot 1 and Lot 2, Block 1, "3100 GARNETT SQUARE"; thence due East along a common
line of said Lot 1 and Lot 2 a distance of 605.50 feet to the Southeast corner
of said Lot 1; thence North 0.05'30" West along a common line of said Lot 1 and
Lot 2 a distance of 355.00 feet to a point on the North line of Block 1, "3100
GARNETT SQUARE"; and the South Right-of-Way line of East 31st Street South;
thence due East along said South Right-of-Way line a distance of 35.70 feet to
the Northwest corner of Lot 3, Block 1, "3100 GARNETT SQUARE"; thence South
0.05'30" East along a common line of said Lot 2 and Lot 3 a distance of 200.00
feet to the Southwest corner of said Lot 3; thence due East along a common line
of said Lot 2 and Lot 3 a distance of 180.00 feet to the Southeast corner of
said Lot 3, Block 1, and the West Right-of-Way line of South Garnett Road;
thence South 0.05'30" East along said West Right-of-Way line a distance of
295.00 feet to the Northeast corner of Lot 4, Block 1, "3100 GARNETT SQUARE";
thence due West a distance of 327.00 feet to a point; thence due South a
distance of 215.00 feet to a point; thence due East a distance of 327.34 feet to
the Southeast corner of said Lot 4, Block 1 and the West Right-of-Way line of
South Garnett Road; thence South 0.05'30" East along said West Right-of-Way line
a distance of 30.00 feet to the Point 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 III, a New York
limited partnership ("Seller"), P & H Properties, L.L.C. ("Purchaser"); and
Commercial Title & Escrow Services, as the local agent for 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 May ____, 1999; and
Whereas, the Purchase Contract requires that Purchaser provide a Deposit in
cash in the amount of Twenty Five Thousand Dollars ($25,000) (the "Initial
Deposit") as of the date hereof, and the Contract provides for an additional
escrow deposit in the amount of Twenty Five Thousand Dollars ($25,000) (the
"Additional Deposit") (the Initial Deposit and Additional Deposit are
collectively the "Deposit"), 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 the
Initial Deposit (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. Upon receipt of the Additional Deposit, such Additional Deposit shall
be considered part of the Escrow Fund.
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
therefore (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 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, (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, (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 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.
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 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 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 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:
If to Seller: Drexel Burnham Lambert Real Estate Associates III
c/o AIMCO
1873 South Bellaire Street, Suite 1700
Denver, Colorado 80222
Attn: Tim Works, Harry Alcock and Martha Carlin
with a copy to: Argent Real Estate
1401 Brickell Avenue, Suite 520
Miami, Florida 33131
Facsimile: (305) 371-6898
Attn: Mr. David Marquette
with a copy to: Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, D.C. 20005-3960
Facsimile: (202) 508-6200
Attn: Richard A. Cohn, Esq.
with a copy to: Bryan Cave LLP
3500 One Kansas City Place
1200 Main Street
Kansas City, Missouri 64105
Attn: John L. Snyder, Esq.
Facsimile: (816) 374-3300
If to Purchaser: P & H Properties, L.L.C.
8023 East 63rd Place, Suite 350
Tulsa, Oklahoma 74133
Attn: Robert E. Phillips
Fax (918) 250-2335
with a copy to: Eller & Detrich
2727 East 21st Street, Suite 200
Tulsa, Oklahoma 74114
Attn: R. Louis Reynolds
Fax: (918) 747-2665
If to Escrow Agent: Fidelity National Title Insurance Co.
Bank of America Center
700 Louisiana, Suite 2600
Houston, TX 77002
Attention: Lolly Avant
Phone: 713-228-3009
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 Three Hundred Dollars ($300.00)
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, all amounts to be
payable by Purchaser 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 any Seller 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 Oklahoma.
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 on its behalf duly authorized persons, all as of the
day and year first above written.
SELLER:
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III
a New York limited partnership
By: DBL Properties Corporation,
a New York corporation,
its General Partner
By:
Printed:
Title:
PURCHASER:
P & H PROPERTIES, L.L.C.
an Oklahoma limited liability company
By:
Printed: Robert E. Phillips
Title: Managing Member
ESCROW AGENT:
COMMERCIAL TITLE & ESCROW SERVICES
By:
Name:
Its:
EXHIBIT 1.1.5
EXCLUDED PERMITS
NONE.
EXHIBIT 1.1.8
PERSONAL PROPERTY
NONE.
EXHIBIT 6.2.1
PERMITTED EXCEPTIONS
1. General and personal property taxes for the year 1999 and all subsequent
years.
2. Special taxes or assessments becoming a lien or payable after the date of
the Deed.
3. Unrecorded easements, discrepancies or conflicts in boundary lines,
shortage in area and encroachments which an accurate and complete survey
would disclose.
4. Rights of eminent domain, governmental rights of police power and other
governmental or quasi-governmental rights.
5. Rights of tenants in possession of the Property pursuant to unrecorded
leases, as tenants only.
6. Visible and apparent easements and all underground easements, if any, the
existence of which may arise by unrecorded grant or by use.
7. Present and future laws, ordinances, restrictions, resolutions, orders and
regulations and all present and future ordinances, laws, regulations and
orders of all federal, state, county, municipal or other governments,
agencies, boards, bureaus, commissions, authorities and bodies now or
hereafter having or acquiring jurisdiction of the Property and the use and
improvement thereof, including any restricting or regulating or prohibiting
the occupancy, use or enjoyment of the Property, or regulating the
character, dimensions or location of any improvement now or hereafter
erected on the Property, or prohibiting a separation in ownership or a
reduction in the dimensions or area of the Property, and the effect of any
violation of such law, ordinance or governmental regulation.
8. Covenants, conditions, restrictions, easements and setback lines contained
in the Certificate of Dedication of the Plat of 3100 GARNETT SQUARE, dated
July 7, 1981, filed July 15, 1981, and recorded as Plat 4121, and in the
Easements with Covenants and Restrictions Affecting Land, dated July 14,
1981, filed July 16, 1981, recorded in Book 4557 at Page 1009, as amended
by First Amendment to Easements with Covenants and Restrictions Affecting
Land, filed February 11, 1982, and recorded in Book 4595 at Page 183 in the
Office of the Tulsa County Clerk.
9. Easements, setback lines, and restrictions, as shown on the Plat of 3100
GARNETT SQUARE, and as provided in the Certificate of Dedication thereof,
dated July 7, 1981, filed July 15, 1981, recorded as Plat No. 4121 and
filed in the Office of the Tulsa County Clerk.
10. Terms, conditions, and provisions of Easements with Covenants and
Restrictions Affecting Land, dated July 14, 1981, filed July 16, 1981, and
recorded in Book 4557 at Page 1009, as amended by First Amendment to
Easements with Covenants and Restrictions Affecting Land, dated January 12,
1982, filed February 11, 1982, and recorded in Book 4595 at Page 183 in the
Office of the Tulsa County Clerk.
11. Utility Easement in favor of the public, dated July 31, 1981, filed
December 3, 1981, and recorded in Book 4583 at Page 195 in the Office of
the Tulsa County Clerk.
12. Terms, conditions, and provisions of Agreement Permitting Foundation
Footing Encroachments, dated November 3, 1981, filed December 4, 1981, and
recorded in Book 4583 at Page 519 in the Office of the Tulsa County Clerk.
13. Water Easement in favor of the City of Tulsa, dated July 31, 1981, filed
December 7, 1981, and recorded in Book 4583 at Page 1643 in the Office of
the Tulsa County Clerk.
14. Water Easement in favor of the City of Tulsa, dated April 15, 1982, filed
May 24, 1982, and recorded in Book 4615 at Page 22 in the Office of the
Tulsa County Clerk.
15. Water Easement in favor of the City of Tulsa, dated April 5, 1982, filed
May 24, 1982, and recorded in Book 4615 at Page 24 in the Office of the
Tulsa County Clerk.
16. Easement in favor of Tierco Group, Inc., its successors or assigns, dated
September 10, 1982, filed September 17, 1982, and recorded in Book 4638 at
page 1409 in the Office of the Tulsa County Clerk.
17. Drainage Way Easement in favor of Tierco Group, Inc., its successors or
assigns, dated October 10, 1986, filed October 28, 1986, and recorded in
Book 4978 at Page 2660, and a Drainage Way Easement in favor of Perimeter
Square Joint Venture, dated October 10, 1986, filed October 23, 1986, and
recorded in Book 4978 at Page 2664 in the Office of the Tulsa County Clerk.
18. Easement Agreement in favor of Tulsa Cable Television, Inc., d/b/a TCI
Cablevision of Tulsa, dated May 26, 1993, filed July 12, 1995, and recorded
in Book 5727 at Page 1394 in the Office of the Tulsa County Clerk.
19. Short Form Lease by and between GSMI, Inc., landlord, and Eckerd Drugs of
Texas, Inc., tenant, dated September 6, 1983, filed January 12, 1984, and
recorded in Book 4758 at Page 1464 in the Office of the Tulsa County Clerk.
20. Memorandum of Lease by and between GMSI, Inc., landlord, and Fabri-Centers
of America, Inc., tenant, dated July 20, 1984, filed October 1, 1984, and
recorded in Book 4820 at Page 188 in the Office of the Tulsa County Clerk.
21. All oil, gas, and other minerals in, on or under the subject property and
the rights therein and appurtenant thereto.
22. Instruments filed under the Uniform Commercial Code affecting the property.
23. Other covenants, conditions, limitations, restrictions, rights, rights-of-
way, liens, encumbrances, encroachments, defects, reservations, easements,
agreements and other matters of record, if any.
EXHIBIT 7.2.1.1
OKLAHOMA SPECIAL WARRANTY DEED
KNOW ALL PERSONS BY THESE PRESENTS:
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III, a New York limited
partnership ("Grantor"), with a mailing address of c/o AIMCO, 1873 Bellaire
Street, Suite 1700, Denver, Colorado 80222, party of the first part, in
consideration of the sum of Ten Dollars ($10.00), in hand paid, and other good
and valuable consideration, the receipt and sufficient of which is hereby
acknowledge, grants, bargains, sells and conveys to P & H PROPERTIES, L.L.C.
("Grantee"), with a mailing address of 8023 East 63rd Place, Suite 350, Tulsa,
Oklahoma 74133, party of the second part, that certain real estate, situated in
the County of Tulsa, State of Oklahoma, more particularly described on Exhibit A
attached hereto, subject to all rights of way, easements, restrictions, liens
and encumbrances described on Exhibit B attached hereto, together with all of
the improvements thereon and the appurtenances belonging to such property.
TO HAVE AND TO HOLD THE SAME, together with all and singular the
tenements, hereditaments and appurtenances thereunto belonging or in any wise
appertaining, forever. And said Grantor, for itself, its successors and
assigns, does hereby covenant, promise and agree to and with said Grantee, that
at the delivery of these presents it is lawfully seized in its own right of an
absolute and indefeasible estate of inheritance, in fee simple, of and in all
and singular the above granted and described Premises, with the appurtenances;
that the same are free, clear, discharged and unencumbered of and from all
former and other grants, titles, charges, estates, judgments, taxes, assessments
and encumbrances, of any nature or kind whatsoever by, through, or under the
Grantor, except as set forth above; and that it will warrant and forever defend
the same unto the said Grantee, its successors and assigns, against said
Grantor, its successors and all and every person or persons whomsoever, lawfully
claiming or to claim the same by, through or under the Grantor.
Signed and delivered _________________, 1999.
GRANTOR:
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III
a New York limited partnership
By: DBL Properties Corporation,
a New York corporation,
its General Partner
By:
Printed:
Title:
ACKNOWLEDGMENT
STATE OF ______________ )
) ss.
COUNTY OF ____________ )
On this the ____ day of __________________, 1999, before me, the
undersigned, a Notary Public, within and for the above County and State duly
commissioned, qualified and acting to me appeared in person the within named
_________________________, who stated that he/she is the _______________ of DBL
Properties Corporation, a New York corporation, the general partner of Drexel
Burnham Lambert Real Estate Associates III, a New York limited partnership and
is duly authorized to execute the foregoing instrument for and in the name and
behalf of said limited partnership, and further stated and acknowledged that
he/she had so signed, executed, and delivered said foregoing instrument for the
consideration, uses and purposes therein mentioned and set forth and I so
certify.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal as such
Notary Public at the County and State aforesaid on this ____ day of
____________, 1999.
__________________________
Notary Public
My Commission Expires:
____________________
EXHIBIT A
LEGAL DESCRIPTION
Lot Three (3) and part of Lot Two (2), Block One (1), 3100 GARNETT SQUARE, an
Addition to the City of Tulsa, Tulsa County, State of Oklahoma, according to the
recorded Plat thereof, said part of Lot Two (2) being more particularly
described as follows, to-wit:
BEGINNING at the Southeast corner of said Lot 2; thence due West along the South
line of said Lot 2, a distance of 474.70 feet to a point; thence North 45.00'00"
West along the Southwesterly line of said Lot 2, a distance of 490.81 feet to a
point on the West line of Block 1, "3100 GARNETT SQUARE"; thence North 0.05'30"
West along said West line a distance of 37.94 feet to the West common corner of
Lot 1 and Lot 2, Block 1, "3100 GARNETT SQUARE"; thence due East along a common
line of said Lot 1 and Lot 2 a distance of 605.50 feet to the Southeast corner
of said Lot 1; thence North 0.05'30" West along a common line of said Lot 1 and
Lot 2 a distance of 355.00 feet to a point on the North line of Block 1, "3100
GARNETT SQUARE"; and the South Right-of-Way line of East 31st Street South;
thence due East along said South Right-of-Way line a distance of 35.70 feet to
the Northwest corner of Lot 3, Block 1, "3100 GARNETT SQUARE"; thence South
0.05'30" East along a common line of said Lot 2 and Lot 3 a distance of 200.00
feet to the Southwest corner of said Lot 3; thence due East along a common line
of said Lot 2 and Lot 3 a distance of 180.00 feet to the Southeast corner of
said Lot 3, Block 1, and the West Right-of-Way line of South Garnett Road;
thence South 0.05'30" East along said West Right-of-Way line a distance of
295.00 feet to the Northeast corner of Lot 4, Block 1, "3100 GARNETT SQUARE";
thence due West a distance of 327.00 feet to a point; thence due South a
distance of 215.00 feet to a point; thence due East a distance of 327.34 feet to
the Southeast corner of said Lot 4, Block 1 and the West Right-of-Way line of
South Garnett Road; thence South 0.05'30" East along said West Right-of-Way line
a distance of 30.00 feet to the Point of Beginning.
EXHIBIT B
PERMITTED ENCUMBRANCES
1. General and personal property taxes for the year 1999 and all subsequent
years.
2. Special taxes or assessments becoming a lien or payable after the date of
the Deed.
3. Unrecorded easements, discrepancies or conflicts in boundary lines,
shortage in area and encroachments which an accurate and complete survey
would disclose.
4. Rights of eminent domain, governmental rights of police power and other
governmental or quasi-governmental rights.
5. Rights of tenants in possession of the Property pursuant to unrecorded
leases, as tenants only.
6. Visible and apparent easements and all underground easements, if any, the
existence of which may arise by unrecorded grant or by use.
7. Present and future laws, ordinances, restrictions, resolutions, orders and
regulations and all present and future ordinances, laws, regulations and
orders of all federal, state, county, municipal or other governments,
agencies, boards, bureaus, commissions, authorities and bodies now or
hereafter having or acquiring jurisdiction of the Property and the use and
improvement thereof, including any restricting or regulating or prohibiting
the occupancy, use or enjoyment of the Property, or regulating the
character, dimensions or location of any improvement now or hereafter
erected on the Property, or prohibiting a separation in ownership or a
reduction in the dimensions or area of the Property, and the effect of any
violation of such law, ordinance or governmental regulation.
8. Covenants, conditions, restrictions, easements and setback lines contained
in the Certificate of Dedication of the Plat of 3100 GARNETT SQUARE, dated
July 7, 1981, filed July 15, 1981, and recorded as Plat 4121, and in the
Easements with Covenants and Restrictions Affecting Land, dated July 14,
1981, filed July 16, 1981, recorded in Book 4557 at Page 1009, as amended
by First Amendment to Easements with Covenants and Restrictions Affecting
Land, filed February 11, 1982, and recorded in Book 4595 at Page 183 in the
Office of the Tulsa County Clerk.
9. Easements, setback lines, and restrictions, as shown on the Plat of 3100
GARNETT SQUARE, and as provided in the Certificate of Dedication thereof,
dated July 7, 1981, filed July 15, 1981, recorded as Plat No. 4121 and
filed in the Office of the Tulsa County Clerk.
10. Terms, conditions, and provisions of Easements with Covenants and
Restrictions Affecting Land, dated July 14, 1981, filed July 16, 1981, and
recorded in Book 4557 at Page 1009, as amended by First Amendment to
Easements with Covenants and Restrictions Affecting Land, dated January 12,
1982, filed February 11, 1982, and recorded in Book 4595 at Page 183 in the
Office of the Tulsa County Clerk.
11. Utility Easement in favor of the public, dated July 31, 1981, filed
December 3, 1981, and recorded in Book 4583 at Page 195 in the Office of
the Tulsa County Clerk.
12. Terms, conditions, and provisions of Agreement Permitting Foundation
Footing Encroachments, dated November 3, 1981, filed December 4, 1981, and
recorded in Book 4583 at Page 519 in the Office of the Tulsa County Clerk.
13. Water Easement in favor of the City of Tulsa, dated July 31, 1981, filed
December 7, 1981, and recorded in Book 4583 at Page 1643 in the Office of
the Tulsa County Clerk.
14. Water Easement in favor of the City of Tulsa, dated April 15, 1982, filed
May 24, 1982, and recorded in Book 4615 at Page 22 in the Office of the
Tulsa County Clerk.
15. Water Easement in favor of the City of Tulsa, dated April 5, 1982, filed
May 24, 1982, and recorded in Book 4615 at Page 24 in the Office of the
Tulsa County Clerk.
16. Easement in favor of Tierco Group, Inc., its successors or assigns, dated
September 10, 1982, filed September 17, 1982, and recorded in Book 4638 at
page 1409 in the Office of the Tulsa County Clerk.
17. Drainage Way Easement in favor of Tierco Group, Inc., its successors or
assigns, dated October 10, 1986, filed October 28, 1986, and recorded in
Book 4978 at Page 2660, and a Drainage Way Easement in favor of Perimeter
Square Joint Venture, dated October 10, 1986, filed October 23, 1986, and
recorded in Book 4978 at Page 2664 in the Office of the Tulsa County Clerk.
18. Easement Agreement in favor of Tulsa Cable Television, Inc., d/b/a TCI
Cablevision of Tulsa, dated May 26, 1993, filed July 12, 1995, and recorded
in Book 5727 at Page 1394 in the Office of the Tulsa County Clerk.
19. Short Form Lease by and between GSMI, Inc., landlord, and Eckerd Drugs of
Texas, Inc., tenant, dated September 6, 1983, filed January 12, 1984, and
recorded in Book 4758 at Page 1464 in the Office of the Tulsa County Clerk.
20. Memorandum of Lease by and between GMSI, Inc., landlord, and Fabri-Centers
of America, Inc., tenant, dated July 20, 1984, filed October 1, 1984, and
recorded in Book 4820 at Page 188 in the Office of the Tulsa County Clerk.
21. All oil, gas, and other minerals in, on or under the subject property and
the rights therein and appurtenant thereto.
22. Instruments filed under the Uniform Commercial Code affecting the property.
23. Other covenants, conditions, limitations, restrictions, rights, rights-of-
way, liens, encumbrances, encroachments, defects, reservations, easements,
agreements and other matters of record, if any.
EXHIBIT 7.2.1.2
BILL OF SALE
Dated: , 1999.
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III, a
New York limited partnership ("SELLER"), in connection with the sale of certain
real property ("PROPERTY") located in Tulsa County, State of Oklahoma, which is
more particularly described on Exhibit A attached hereto and by this reference
incorporated herein, hereby quitclaim to P & H PROPERTIES, L.L.C. ("PURCHASER"),
without recourse or warranty to Seller, all of Seller's right, title and
interest in and to the personal property more particularly described on
Exhibit B hereto ("PERSONAL PROPERTY") used in, held for use in connection with,
or necessary for the operation of the Property as of the date hereof.
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.
SELLER:
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III
a New York limited partnership
By: DBL Properties Corporation,
a New York corporation,
its General Partner
By:
Printed:
Title:
EXHIBIT A
LEGAL DESCRIPTION OF REAL PROPERTY
Lot Three (3) and part of Lot Two (2), Block One (1), 3100 GARNETT SQUARE, an
Addition to the City of Tulsa, Tulsa County, State of Oklahoma, according to the
recorded Plat thereof, said part of Lot Two (2) being more particularly
described as follows, to-wit:
BEGINNING at the Southeast corner of said Lot 2; thence due West along the South
line of said Lot 2, a distance of 474.70 feet to a point; thence North 45.00'00"
West along the Southwesterly line of said Lot 2, a distance of 490.81 feet to a
point on the West line of Block 1, "3100 GARNETT SQUARE"; thence North 0.05'30"
West along said West line a distance of 37.94 feet to the West common corner of
Lot 1 and Lot 2, Block 1, "3100 GARNETT SQUARE"; thence due East along a common
line of said Lot 1 and Lot 2 a distance of 605.50 feet to the Southeast corner
of said Lot 1; thence North 0.05'30" West along a common line of said Lot 1 and
Lot 2 a distance of 355.00 feet to a point on the North line of Block 1, "3100
GARNETT SQUARE"; and the South Right-of-Way line of East 31st Street South;
thence due East along said South Right-of-Way line a distance of 35.70 feet to
the Northwest corner of Lot 3, Block 1, "3100 GARNETT SQUARE"; thence South
0.05'30" East along a common line of said Lot 2 and Lot 3 a distance of 200.00
feet to the Southwest corner of said Lot 3; thence due East along a common line
of said Lot 2 and Lot 3 a distance of 180.00 feet to the Southeast corner of
said Lot 3, Block 1, and the West Right-of-Way line of South Garnett Road;
thence South 0.05'30" East along said West Right-of-Way line a distance of
295.00 feet to the Northeast corner of Lot 4, Block 1, "3100 GARNETT SQUARE";
thence due West a distance of 327.00 feet to a point; thence due South a
distance of 215.00 feet to a point; thence due East a distance of 327.34 feet to
the Southeast corner of said Lot 4, Block 1 and the West Right-of-Way line of
South Garnett Road; thence South 0.05'30" East along said West Right-of-Way line
a distance of 30.00 feet to the Point of Beginning.
EXHIBIT B
DESCRIPTION OF PERSONAL PROPERTY
NONE.
EXHIBIT 7.2.1.3
GENERAL ASSIGNMENT
This General Assignment ("ASSIGNMENT") is executed by DREXEL BURNHAM
LAMBERT REAL ESTATE ASSOCIATES III, a New York limited partnership ("SELLER"),
in favor of P & H PROPERTIES, L.L.C. ("PURCHASER").
Seller and Purchaser, have entered into that certain Agreement of Purchase
and Sale and Escrow Instructions dated as of May ____, 1999 ("PURCHASE
CONTRACT"), in which Seller has agreed to sell and Purchaser has agreed to
purchase the real property 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. Books and Records. All of Seller's rights in and to files,
records, and books of account of the Project.
b. Licenses and Permits. All of Seller's rights and interests in
and to plans, specifications, reports, rights, privileges, licenses, permits,
surveys, entitlements, maps, agreements, and authorizations utilized with
respect to the Project.
c. Service Contracts. All of Seller's rights and interests in
and to maintenance, service or utility contracts which relate to the
maintenance, repair or operation of the Project.
d. 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.
The term "PROPERTY" shall not include any of the foregoing: (i) to the
extent the same are 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
and agrees to perform all of the covenants and obligations of Seller thereunder.
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.
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 Oklahoma.
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.
Dated: , 1999
SELLER:
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III
a New York limited partnership
By: DBL Properties Corporation,
a New York corporation,
its General Partner
By:
Printed:
Title:
Accepted and Agreed:
PURCHASER:
P & H PROPERTIES, L.L.C.
By:
Name:
Its:
EXHIBIT A
LEGAL DESCRIPTION
Lot Three (3) and part of Lot Two (2), Block One (1), 3100 GARNETT SQUARE, an
Addition to the City of Tulsa, Tulsa County, State of Oklahoma, according to the
recorded Plat thereof, said part of Lot Two (2) being more particularly
described as follows, to-wit:
BEGINNING at the Southeast corner of said Lot 2; thence due West along the South
line of said Lot 2, a distance of 474.70 feet to a point; thence North 45.00'00"
West along the Southwesterly line of said Lot 2, a distance of 490.81 feet to a
point on the West line of Block 1, "3100 GARNETT SQUARE"; thence North 0.05'30"
West along said West line a distance of 37.94 feet to the West common corner of
Lot 1 and Lot 2, Block 1, "3100 GARNETT SQUARE"; thence due East along a common
line of said Lot 1 and Lot 2 a distance of 605.50 feet to the Southeast corner
of said Lot 1; thence North 0.05'30" West along a common line of said Lot 1 and
Lot 2 a distance of 355.00 feet to a point on the North line of Block 1, "3100
GARNETT SQUARE"; and the South Right-of-Way line of East 31st Street South;
thence due East along said South Right-of-Way line a distance of 35.70 feet to
the Northwest corner of Lot 3, Block 1, "3100 GARNETT SQUARE"; thence South
0.05'30" East along a common line of said Lot 2 and Lot 3 a distance of 200.00
feet to the Southwest corner of said Lot 3; thence due East along a common line
of said Lot 2 and Lot 3 a distance of 180.00 feet to the Southeast corner of
said Lot 3, Block 1, and the West Right-of-Way line of South Garnett Road;
thence South 0.05'30" East along said West Right-of-Way line a distance of
295.00 feet to the Northeast corner of Lot 4, Block 1, "3100 GARNETT SQUARE";
thence due West a distance of 327.00 feet to a point; thence due South a
distance of 215.00 feet to a point; thence due East a distance of 327.34 feet to
the Southeast corner of said Lot 4, Block 1 and the West Right-of-Way line of
South Garnett Road; thence South 0.05'30" East along said West Right-of-Way line
a distance of 30.00 feet to the Point of Beginning.
EXHIBIT 8.1.4
CERTIFICATION OF DESIGNATED REPRESENTATIVE
CERTIFICATION
The undersigned, ____________, a representative of
_____________________, the property manager of Perimeter Square in Tulsa,
Oklahoma (the "Property"), does hereby certify to Drexel Burnham Lambert Real
Estate Associates III that, as of the date of this Certification, to the best of
the undersigned's knowledge:
1.The Rent Roll attached to this Certification is true and correct as
of the date noted thereon. The copies of the leases delivered to P & H
Properties, L.L.C. are true and complete copies of the leases scheduled on the
Rent Roll attached to this Certification, with all amendments, supplements and
exhibits. There are no tenants of the Property as the date of this
Certification other than those tenants under the leases listed on the Rent Roll.
Except as noted on the Rent Roll or contained in the leases listed on the Rent
Roll, (i) there are no claims of offset accrued in favor of any tenants,
(ii) there are no unpaid or unperformed commitments to pay or perform any tenant
improvement allowances or tenant improvement work under the leases, (iii) there
are no periods of free rent or other rent concessions owing to the tenants, and
(iv) there are no commitments, now owing or contingent upon renewals, to pay
commissions in connection with the leases.
2.There are no parties in possession of the Property, except for
occupants, guests and tenants under the leases referenced in paragraph 1 above,
and there are no subleases, licenses, concessions or other arrangements, if any,
under the leases.
3.There are no actions, proceedings, litigation or governmental
investigations or condemnation actions either pending or threatened against the
Property, as applicable.
4.There are no claims for labor performed, materials furnished or
services rendered in connection with constructing, improving or repairing any of
the Property, as applicable, 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.
5.No written notice has been received of a violation of, or outstanding
obligation with respect to, any zoning, building, health, fire,
environmental, safety or similar law or ordinance, order or regulation, or of
any certificate of occupancy issued or to be issued for the Property, and no
written notice has been received of violation of any rights, ordinances,
orders, regulations or requirements affecting any portion of the Property.
6.No written notice has been received that any of the utilities water, storm
and sanitary sewers, gas, electricity and telephone facilities available at
the Property are insufficient to adequately service the existing usage of the
Property.
7.No written notice has been received of any attachments, executions,
assignments for the benefit of creditors, or voluntary or involuntary
proceedings in bankruptcy pending against any tenant of the Property under
the leases.
This certification may be relied upon by Drexel Burnham Lambert Real
Estate Associates III and its successors and assigns, and P & H Properties,
L.L.C. and its affiliates, as well as any other persons and entities with whom
or with which Drexel Burnham Lambert Real Estate Associates III may contract in
connection with transactions pertaining to the Property.
Dated as of this ____ day of ________, 1999.
Authorized Representative
EXHIBIT 8.1.1.8
RENT ROLL
EXHIBIT 9.1.4
TENANT STOPPEL CERTIFICATE
TO: P & H Properties, L.L.C.
8023 East 63rd Place, Suite 350
Tulsa, Oklahoma 74133
Attn: Robert E. Phillips
RE: LEASE AGREEMENT (THE "LEASE") DATED ______________, BY AND BETWEEN
____________________________ ("LANDLORD") AND
_____________________("TENANT")
The undersigned is the tenant under the Lease, whereby Tenant leases
from Landlord certain office space in the office building known as Perimeter
Square located at 3100 Garnett Square, Tulsa, Oklahoma, on the real property
described in Exhibit A attached hereto (the "PROPERTY"). Tenant understands
that P & H Properties, L.L.C. ("PROSPECTIVE PURCHASER") may be purchasing the
Property from Landlord and Tenant certifies to Landlord and Prospective
Purchaser as follows:
1.The Lease is in full force and effect on the date hereof.
2.The term of the Lease began on _____________________. The termination date
of the present term of the Lease, excluding unexercised renewals, is
___________________.
3.Tenant has paid rent for the Property for the period up to and including
________________.
4.As of the date hereof, Tenant is occupying the Property and is open for
business.
5.To Tenant's knowledge, Landlord is not in default under the Lease beyond
applicable cure periods in the performance of any covenant, agreement, term,
provision or condition contained in the Lease.
6.The undersigned is authorized to execute this Tenant Estoppel Certificate on
behalf of Tenant.
Date this _____ day of _____________, 1999.
TENANT:
___________________________________,
a ______________ ___________________
By:________________________________
Name:______________________________
Title:_______________________________
Exhibit 10.8
FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT
THIS FIRST AMENDMENT TO PURCHASE AND SALE CONTRACT (this "First Amendment")
is made and entered into to be effective as of the 4th day of June, 1999, by and
between P & H PROPERTIES, L.L.C., AN OKLAHOMA LIMITED LIABILITY COMPANY
("Purchaser"), and DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III, A NEW YORK
LIMITED PARTNERSHIP ("Seller").
RECITALS:
A. On May 18, 1999, Purchaser and Seller entered into a certain Purchase
and Sale Contract regarding certain real property located in the City of Tulsa,
Tulsa County, State of Oklahoma, more particularly described on Exhibit "A-1", a
copy of which is attached hereto and incorporated herein by reference (the
"Contract").
B. The parties desire to amend the Contract all as set forth with more
particularity herein below.
NOW, THEREFORE, in consideration of the foregoing, the adequacy and receipt
of which is hereby acknowledged as consideration, the parties do hereby agree as
follows:
1. All the capitalized terms used in this Second Amendment shall have the
meaning ascribed to them in the Purchase Contract unless otherwise defined
herein.
2. The first two lines of Section 3.1 of the Purchase Contract are hereby
deleted in their entirety and replaced with the following:
3.1 The total purchase price (the "Purchase Price") for the Property shall
be Two Million Two Hundred Fifty Thousand and No/100 Dollars ($2,250,000.00),
which shall be paid by Purchaser as follows:
3. Article 10, Brokerage, of the Contract is hereby amended by deleting
Sections 10.1 and 10.2 in their entirety and replaced with the following:
10.1 Seller has agreed, pursuant to a separate agreement, to pay Matt Davis
or the Davis Group at Closing, a real estate commission with respect to this
transaction. Additionally, Seller has agreed to pay Commercial Management
Group, Inc. at Closing, real estate commission in the amount of $50,000. Davis
Group and Commercial Management Group, Inc. are sometimes collectively referred
to as the "Brokers". Each party represents and warrants to the other that it
has incurred no other obligations for the payment of any commissions with
respect to this transaction, finder's fees or other monies due to any other
person or entity by virtue of this transaction. Each party shall indemnify and
hold the other harmless from and against any and all loss, costs, liability or
expense (including, without limitation, attorneys' fees and court costs)
resulting from any claim for any fee, commission or similar payment made by any
broker, agent, finder or salesman in connection with this transaction, claiming
by, or through or under the indemnifying party.
10.2 The Brokers shall not be deemed to be a party or third party beneficiary of
this Purchase Contract. Robert E. Phillips hereby discloses that he is a
principle in Commercial Management Group and the Purchaser and that this
disclosure is intended to comply with the requirements of the rules and
regulations of the Oklahoma Real Estate Commission.
4. Except as amended hereby, all the other terms, conditions and
provisions of the Purchase Contract are hereby ratified, affirmed and adopted.
IN WITNESS WHEREOF, this First Amendment has been executed as of (but not
necessarily on) the date and year first above written.
P & H PROPERTIES, L.L.C.,
AN OKLAHOMA LIMITED LIABILITY COMPANY
By: _____________________________________
Robert E. Phillips
Its Member/Manager
"PURCHASER"
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III,
A NEW YORK LIMITED PARTNERSHIP
By: DBL PROPERTIES CORPORATION,
A NEW YORK CORPORATION,
ITS GENERAL PARTNER
By: _______________________________
Name:_______________________
Title: Its ______ President
"SELLER"
I:\PhillipsRobert\Perimeter Center-RET\second4.doc
EXHIBIT "A-1"
(LEGAL DESCRIPTION)
Exhibit 10.9
SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT
THIS SECOND AMENDMENT TO PURCHASE AND SALE CONTRACT (this "Second
Amendment") is made and entered into to be effective as of the 30th day of June,
1999, by and between P & H PROPERTIES, L.L.C., AN OKLAHOMA LIMITED LIABILITY
COMPANY ("Purchaser"), and DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III, A
NEW YORK LIMITED PARTNERSHIP ("Seller").
RECITALS:
A. On May 18, 1999, Purchaser and Seller entered into a certain Purchase
and Sale Contract regarding certain real property located in the City of Tulsa,
Tulsa County, State of Oklahoma, more particularly described on Exhibit "A-1", a
copy of which is attached hereto and incorporated herein by reference (the
"Purchase Contract").
B. On May 27, 1999, Purchaser and Seller by and through their attorneys,
entered into a certain Letter Agreement amending the Purchase Contract.
C. On June 17, 1999, Purchaser and Seller entered into a certain First
Amendment to Purchase and Sale Contract (the "First Amendment").
D. On June 28, 1999, Purchaser and Seller, by and through their
attorneys, entered into a certain Letter Agreement amending the Purchase
Contract.
E. The parties desire to amend the Purchase Contract all as set forth
with more particularity herein below.
NOW, THEREFORE, in consideration of the foregoing, the adequacy and receipt
of which is hereby acknowledged as consideration, the parties do hereby agree as
follows:
1. All the capitalized terms used in this Second Amendment shall have the
meaning ascribed to them in the Purchase Contract unless otherwise defined
herein.
2. The first two lines of Section 3.1 of the Purchase Contract are hereby
deleted in their entirety and replaced with the following:
3.1 The total purchase price (the "Purchase Price") for the Property shall
be Two Million One Hundred Seventy-Five Thousand and No/100 Dollars
($2,175,000.00), which shall be paid by Purchaser as follows:
3. This Second Amendment may be executed in a number of identical
counterparts. If so executed, each of such counterparts is deemed to be an
original for all purposes and all such counterparts shall, collectively,
constitute one Second Amendment. In making proof of the Second Amendment, it
shall not be necessary to produce or account for more than one (1) such
counterparts.
4. Except as amended hereby, all the other terms, conditions and
provisions of the Purchase Contract are hereby ratified, affirmed and adopted.
[Remainder of this page is intentionally left blank.]
IN WITNESS WHEREOF, this Second Amendment has been executed as of (but not
necessarily on) the date and year first above written.
P & H PROPERTIES, L.L.C.,
AN OKLAHOMA LIMITED LIABILITY COMPANY
By: _____________________________________
Robert E. Phillips
Its Member/Manager
"PURCHASER"
DREXEL BURNHAM LAMBERT REAL ESTATE ASSOCIATES III,
A NEW YORK LIMITED PARTNERSHIP
By: DBL PROPERTIES CORPORATION,
A NEW YORK CORPORATION,
ITS GENERAL PARTNER
By:_______________________________
Name:_______________________
Title: Its ______ President
"SELLER"
I:\PhillipsRobert\Perimeter Center-RET\second4.doc
EXHIBIT "A-1"
(LEGAL DESCRIPTION)
