ATTACHMENT - 10-H
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PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT is made and entered into as of the 23rd day
of December, 1996, by and between GREENWAY ASSOCIATES, LTD., a Texas
limited partnership ("SELLER"), and FOLSOM MANAGEMENT, INC., a Texas
corporation ("BUYER").
R E C I T A L S
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A. Seller is a partner in Greenway Tower Joint Venture, a Texas
general partnership (the "OPERATING PARTNERSHIP"), which was created by
that certain partnership agreement captioned "JOINT VENTURE AGREEMENT OF
GREENWAY TOWER JOINT VENTURE", dated as of September 25, 1987 (the
"ORIGINAL OPERATING PARTNERSHIP AGREEMENT"), by and among Seller and Folsom
Investments, Inc., a Texas corporation ("FOLSOM").
X. Xxxxxx assigned its interest to Independence Development, Inc.,
a Texas corporation ("Independence") pursuant to an assignment dated
effective December 31, 1991 and the Original Operating Partnership
Agreement was amended by instrument captioned "AMENDMENT TO THE JOINT
VENTURE AGREEMENT OF GREENWAY TOWER JOINT VENTURE", dated as of October
29,
1992, between Independence and Seller (the Original Operating Partnership
Agreement as so amended being herein called the "OPERATING PARTNERSHIP
AGREEMENT").
C. Buyer desires to purchase, and Seller desires to sell, Seller's
partnership interest (the "SUBJECT PARTNERSHIP INTEREST") in the Operating
Partnership on the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual undertakings of the
parties hereto, it is hereby agreed as follows:
1. PURCHASE AND SALE. Seller shall sell to Buyer, and Buyer shall
purchase from Seller, the Subject Partnership Interest, on the terms and
conditions hereinafter set forth.
2. PURCHASE PRICE. The purchase price for the Subject Partnership
Interest shall be the sum of $850,000 (the "PURCHASE PRICE").
3. PAYMENT OF PURCHASE PRICE. The Purchase Price shall be paid to
Seller by wire transfer of immediately available federal funds (through the
escrow described in Section 5) on the "Closing Date", as hereinafter
defined.
4. CONDITIONS PRECEDENT.
4.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER. The obligations
of Buyer to consummate the transactions contemplated by this Agreement are
subject to the satisfaction on or prior to the Closing Date of each of the
following conditions (compliance with which or the occurrence of which may
be waived in whole or in part by Buyer):
4.1.1ACCURACY OF REPRESENTATION AND WARRANTIES. The
representations and warranties of Seller contained herein shall be true and
correct in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date.
4.1.2PERFORMANCE OF AGREEMENTS. Seller shall have performed
in all material respects all obligations and agreements and complied in all
material respects with all covenants and conditions contained in this
Agreement to be performed or complied with by it on or prior to the Closing
Date.
4.1.3COMPLIANCE CERTIFICATE OF SELLER. Seller shall have
furnished Buyer with a certificate, dated the Closing Date, to the effect
that the representations and warranties of Seller contained herein are true
and correct in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date.
4.1.4CONSENTS AND APPROVALS. All consents and approvals of
any third parties required in connection with the execution and delivery of
this Agreement and the consummation of the purchase and sale of the Subject
Partnership Interest shall have been obtained and delivered to Buyer.
4.1.5OTHER DELIVERIES. Seller shall have delivered the
documents and instruments required to be delivered by it under Section
5.2.1 of this Agreement.
4.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF SELLER. The obligations
of Seller to consummate the transactions contemplated by this Agreement are
subject to the satisfaction on or prior to the Closing Date of each of the
following conditions (compliance with which or the occurrence of which may
be waived in whole or in part by Seller):
4.2.1ACCURACY OF REPRESENTATION AND WARRANTIES. The
representations and warranties of Buyer contained herein shall be true and
correct in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date.
4.2.2PERFORMANCE OF AGREEMENTS. Buyer shall have performed in
all material respects all obligations and agreements and complied in all
material respects, with all covenants and conditions contained in this
Agreement to be performed or complied with by it on or prior to the Closing
Date.
4.2.3COMPLIANCE CERTIFICATE OF BUYER. Buyer shall have
furnished Seller with a certificate, dated the Closing Date, to the effect
that the representations and warranties of Buyer contained herein are true
and correct in all material respects on and as of the Closing Date with the
same force and effect as though made on and as of the Closing Date.
4.2.4CONSENTS AND APPROVALS. All consents and approvals of
any third parties required in connection with the execution and delivery of
this Agreement and the consummation of the purchase and sale of the Subject
Partnership Interest shall have been obtained and delivered by Seller.
4.2.5RELEASES. Seller shall have received releases,
reasonably satisfactory in form and substance reasonably satisfactory to
Seller and its counsel, from all liabilities and obligations under the
agreements and obligations listed in Exhibit "A".
4.2.6OTHER DELIVERIES. Buyer shall have delivered the
documents and instruments required to be delivered by it under Section
5.2.2 of this Agreement.
5. CLOSING PROCEDURE. Subject to the terms and conditions set
forth in this Agreement, the sale and purchase herein provided shall be
consummated (the "CLOSING") in accordance with such procedures as the
parties may reasonably agree. As used herein, "CLOSING DATE" means
December 23, 1996, or such earlier date as may be agreed upon by Seller and
Buyer.
5.1 ESCROW. On the Closing Date, Buyer shall wire to Southwest
Land Title Company, attn: Xxxxxxx Xxxxxx (the "Title Company") the Purchase
Price in immediately available federal funds. Such delivery shall be made
pursuant to escrow instructions ("ESCROW INSTRUCTIONS") to be executed
among Buyer, Seller and Title Company in form reasonably acceptable to such
parties in order to effectuate the intent hereof. The conditions to the
closing of such escrow shall include the Title Company's receipt of the
Purchase Price and a notice from Buyer and Seller authorizing Title Company
to close the transactions as contemplated herein (Buyer and Seller being
obligated to deliver such authorization notice at the Closing as soon as it
is reasonably satisfied that the conditions precedent to its obligations
under Section 4 have been fulfilled and that the other parties are in a
position to deliver the items to be delivered by such other party under
subsection 5.2 below).
5.2 DELIVERY TO THE PARTIES. Upon the satisfaction of the
conditions set forth in the Escrow Instructions, then (x) the Purchase
Price shall be paid to Seller in accordance with Section 3 and (y), the
following items shall be delivered:
5.2.1SELLER DELIVERIES. Seller shall deliver, or cause to be
delivered, to Buyer the following:
(a) A duly executed Assignment and Assumption Agreement
("ASSIGNMENT AND ASSUMPTION AGREEMENT") in the form of Exhibit "B";
(b) Evidence reasonably satisfactory to Buyer
respecting the due organization of Seller and the due authorization and
execution by Seller of this Agreement and the documents required to be
delivered by it hereunder;
(c) A duly executed Release in the form of Exhibit "C";
and
(d) Such additional documents as may be reasonably
required by Buyer or Title Company in order to consummate the transactions
hereunder (provided the same do not materially increase the costs to, or
liability or obligations of, Seller in a manner not otherwise provided for
herein).
5.2.2BUYER'S DELIVERIES. Buyer shall deliver, or cause to be
delivered to Seller the following:
(a) A duly executed and acknowledged Assignment and
Assumption Agreement;
(b) Evidence reasonably satisfactory to Seller
respecting the due organization of Buyer and the due authorization and
execution of this Agreement and the documents required to be delivered by
it hereunder:
(c) A Release, duly executed by the Operating
Partnership and Buyer in the form of Exhibit "D"; and
(d) Such additional documents as may be reasonably
required by Seller or Title Company in order to consummate the transactions
hereunder (provided the same do not materially increase the costs to, or
liability or obligations of, Buyer in a manner not otherwise provided for
herein).
5.3 CLOSING COSTS. Seller and Buyer shall each pay one-half of the
escrow fees of Escrow Holder.
5.4 PRORATIONS. THERE WILL BE NO PRORATIONS.
6. REPRESENTATIONS AND WARRANTIES.
6.1 REPRESENTATIONS AND WARRANTIES OF SELLER.
6.1.1GENERAL DISCLAIMER. Except as specifically set forth in
subsection 6.1.2 below, the sale of the Subject Partnership Interest
hereunder is and will be made on an "as is" basis, without representations
and warranties of any kind or nature, express, implied or otherwise,
including any representation or warranty concerning the Operating
Partnership or its assets. Buyer acknowledges that Independence, an
affiliate of Buyer, is the managing partner of the Operating Partnership
and is familiar with the Operating Partnership and its assets. Except as to
matters specifically set forth in subsection 6.1.2 below, Buyer will
proceed with the closing contemplated hereby solely on the basis of its own
physical, financial and other examinations, reviews and inspections.
6.1.2LIMITED REPRESENTATIONS AND WARRANTIES OF SELLER.
Subject to the provisions of subsection 6.1.1 above, Seller hereby
represents and warrants to Buyer as follows:
(a) ORGANIZATION, ETC. Seller is a limited partnership
duly formed and validly existing under the laws of the State of Texas and
has all requisite partnership power and partnership authority to own and
lease its properties, including the Subject Partnership Interest, and to
carry on its business as presently conducted.
(b) AUTHORIZATION. Seller has all requisite
partnership power and partnership authority to execute and deliver this
Agreement and the other agreements and instruments to be executed and
delivered by it hereunder and to consummate the transactions contemplated
hereby and thereby. The execution, delivery and performance by Seller of
this Agreement and such other agreements and instruments has been duly and
validly authorized by the partners of Seller, and no other partnership
action or authorization on behalf of Seller is required in connection
therewith.
(c) VALIDITY AND ENFORCEABILITY. This Agreement has
been duly authorized, executed and delivered by Seller and constitutes and
the other agreements and instruments to be executed and delivered hereunder
by Seller, when executed and delivered by Seller, will constitute, legal,
valid and binding obligations of Seller enforceable against Seller in
accordance with their respective terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting the enforcement of creditors' rights generally or
by general equitable principles.
(d) NO CONFLICT. Neither the execution and delivery of
this Agreement by Seller nor the execution and delivery by Seller of the
other agreements and instruments to be executed and delivered by it
hereunder, nor the consummation of the transactions contemplated hereunder
or thereunder, will (i) conflict with or result in a breach or violation
of, or constitute a default under, or result in the creation of any lien,
charge or encumbrance upon, any of the properties or assets of Seller
pursuant to the limited partnership agreement of Seller or any indenture,
mortgage, lease, loan agreement or other agreement or instrument to which
Seller is a party or by which it is bound or to which any of its properties
or assets is subject or (ii) violate any law, statute, rule, regulation,
judgment or decree applicable to Seller. Except for the consent of General
Electric Capital Corporation ("GE"), no third party consents are required
by the terms of any indenture, mortgage, lease, loan agreement or other
agreement or instrument to which Seller is a party or by which it is bound
or to which any of its properties or assets is subject for the execution
and delivery of this Agreement or any other agreement or instrument to be
executed and delivered by Seller hereunder or the consummation of the
transactions provided for herein or therein.
(e) NO GOVERNMENTAL CONSENT OR APPROVAL REQUIRED. No
consent, approval or authorization of, or declaration to or filing with,
any governmental or regulatory authority is required for the valid
execution and delivery by Seller of this Agreement or any other agreement
or instrument to be executed and delivered by Seller hereunder or the
consummation of the transactions provided for herein or therein.
(f) SUBJECT PARTNERSHIP INTEREST. Seller has not sold,
encumbered or otherwise transferred the Subject Partnership Interest or any
other interest in the Partnership except for (i) the assignment and
security interest provided for in Section 3.04 of the Operating Partnership
Agreement and (ii) the rights in favor of Buyer created by this Agreement.
(g) RIGHT OF FIRST REFUSAL. Carlyle Real Estate
Limited Partnership-X, the general partner of Seller ("Carlyle"), has given
such notice to Las Colinas/First Dearborn Properties Limited Partnership
("First Dearborn") of the transactions contemplated hereby as required by
Seller's limited partnership agreement, and First Dearborn has not elected
to purchase Carlyle's interest in Seller.
(h) NO OBLIGATIONS. To the actual knowledge (without
imputation or any duty to investigate) of Seller's
representative, Xxxxx Xxxxxxxxx, Seller has not created any obligation or
liability of the Operating Partnership on behalf of the Operating
Partnership other than those created in accordance with the Operating
Partnership Agreement, or in a writing executed by Seller and Independence
or Folsom, or otherwise disclosed in writing to or known to Independence or
Folsom.
6.2 REPRESENTATIONS AND WARRANTIES OF BUYER. Buyer hereby
represents and warrants to Seller as follows:
6.2.1ORGANIZATION, ETC. Buyer is a corporation duly
organized, validly existing and in good standing under the laws of the
State of Texas and has all requisite corporate power and corporate
authority to own and lease its properties and to carry on its business as
presently conducted.
6.2.2AUTHORIZATION. Buyer has all requisite corporate power
and corporate authority to execute and deliver this Agreement and the other
agreements and instruments to be executed and delivered by it hereunder and
to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance by Buyer of this Agreement and such
other agreements and instruments has been duly and validly authorized by
the board of directors of Buyer, and no other action or authorization on
behalf of Buyer is required in connection therewith.
6.2.3VALIDITY AND ENFORCEABILITY. This Agreement has been
duly authorized, executed and delivered by Buyer and constitutes and the
other agreements and instruments to be executed and delivered hereunder by
Buyer, when executed and delivered by Buyer, will constitute, legal, valid
and binding obligations of Buyer enforceable against Buyer in accordance
with their respective terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other laws relating
to or affecting the enforcement of creditors' rights generally or by
general equitable principles.
6.2.4NO CONFLICT. Neither the execution and delivery of this
Agreement by Buyer nor the execution and delivery by Buyer of the other
agreements and instruments to be executed and delivered by it hereunder,
nor the consummation of the transactions contemplated hereunder or
thereunder, will (i) conflict with or result in a breach or violation of,
or constitute a default under, or result in the creation of any lien,
charge or encumbrance upon, any of the properties or assets of Buyer or the
Operating Partnership pursuant to the Operating Partnership Agreement, the
certificate of incorporation or by-laws of Buyer or any indenture,
mortgage, lease, loan agreement or other agreement or instrument to which
Buyer or the Operating Partnership is a party or by which it is bound or to
which any of its properties or assets is subject or (ii) violate any law,
statute, rule, regulation, judgment or decree applicable to Buyer or the
Operating Partnership. Except for the consent of GE, no third party
consents are required by the terms of any indenture, mortgage, lease, loan
agreement or other agreement or instrument to which Buyer or the Operating
Partnership is a party or by which any of them is bound or to which any of
their respective properties or assets is subject for the execution and
delivery of this Agreement or any other agreement or instrument to be
executed and delivered by Buyer hereunder or the consummation of the
transactions provided for herein or therein.
6.2.5NO GOVERNMENTAL CONSENT OR APPROVAL REQUIRED. No
consent, approval or authorization of, or declaration to or filing with,
any governmental or regulatory authority is required for the valid
execution and delivery by Buyer of this Agreement or any other agreement or
instrument to be executed and delivered by Buyer hereunder or the
consummation of the transactions provided for herein or therein.
6.2.6INVESTMENT INTENT, ETC. Buyer (i) is acquiring the
Subject Partnership Interest for its own account for investment, not as
nominee or agent, and not with a view to or for sale in connection with any
distribution of any part thereof and (ii) has no present intention of
selling, granting participations in, or otherwise distributing the same.
Buyer understands that the Subject Partnership Interest has not been
registered under the Securities Act of 1933, as amended (the "SECURITIES
ACT") by reason of, in the event the Subject Partnership Interest
constitutes a security under the Securities Act, the reliance by Seller on
exemptions from the registration requirements of the Securities Act
pursuant to Section 4(2) thereof or under any "Blue Sky" law of any state
by reason of the reliance by Seller on exemptions thereunder, and that
Seller's reliance is predicated in part on Buyer's representations set
forth herein. By reason of its business and financial experience, Buyer has
the capacity to protect its own interests in connection with the
transactions contemplated hereby and is able to bear the economic risk
thereof. Buyer understands that, in the event the Subject Partnership
Interest constitutes a security under the Securities Act, the Subject
Partnership Interest may not be sold, transferred, or otherwise disposed of
without registration under the Securities Act and applicable state "Blue
Sky" laws or exemptions therefrom, and that, in the event the Subject
Partnership Interest constitutes a security under the Securities Act, in
the absence of an effective registration statement covering the same or
available exemptions from registration under the Securities Act, the
Subject Partnership Interest must be held indefinitely.
6.2.7NO OBLIGATIONS. To the actual knowledge (without
imputation or any duty to investigate) of Buyer's representative, Xxxxxx X.
Xxxxxxx, neither Folsom nor Independence has created any obligation or
liability of the Operating Partnership on behalf of the Operating
Partnership other than those created in accordance with the Operating
Partnership Agreement, or in a writing executed by Buyer, Folsom or
Independence and Seller, or otherwise disclosed in writing to or known to
Seller.
7. COVENANTS.
7.1 INTERIM COVENANTS OF BUYER. Until the Closing Date or the
sooner termination of this Agreement:
7.1.1REPRESENTATIONS. Buyer covenants and agrees that it will not
take any action or enter into any transaction which would cause any
representation contained in Section 6.2 of this Agreement to be inaccurate
in any material respect if remade immediately after the occurrence of such
action or transaction.
7.1.2ADDITIONAL ACTIONS. Buyer will use reasonable, diligent
efforts to take, or cause to be taken, all action, and to do, or cause to
be done, all things necessary proper or advisable to consummate the
transactions contemplated by this Agreement including obtaining the consent
of GE and releases of Seller under all agreements and obligations listed in
Exhibit "A", provided Buyer is not obligated to incur any significant cost
in connection therewith.
7.2 INTERIM COVENANTS OF SELLER. Until the Closing Date or the
sooner termination of this Agreement:
7.2.1REPRESENTATIONS. Seller covenants and agrees that it will not
take any action or enter into any transaction which would cause any
representation contained in Section 6.1.2 of this Agreement to be
inaccurate in any material respect if remade immediately after the
occurrence of such action or transaction.
7.2.2NO DISPOSITION OF SUBJECT PARTNERSHIP INTEREST. Seller will
not sell, transfer, encumber or otherwise dispose of the Subject
Partnership Interest.
7.2.3ADDITIONAL ACTIONS. Seller will use reasonable, diligent
efforts to take, or cause to be taken, all action, and to do, or cause to
be done, all things necessary proper or advisable to consummate the
transactions contemplated by this Agreement, provided Seller is not
obligated to incur any significant cost in connection therewith.
8. INDEMNIFICATION.
8.1 INDEMNIFICATION OF SELLER. If the Closing occurs, then Buyer
shall protect, defend, indemnify and hold Seller harmless from and against
(1) any Claim (as hereinafter defined) in any way related to the Operating
Partnership, the Operating Partnership Agreement or the assets of the
Operating Partnership, accruing on or after the Closing Date (including a
breach of contract or tort occurring on or after the Closing Date);
excluding only (a) any Claim to the extent based on an obligation or
liability of the Operating Partnership created by Seller in its capacity as
a partner of the Operating Partnership on behalf of the Operating
Partnership other than an obligation or liability created prior to the
Closing Date (i) in accordance with the Operating Partnership Agreement, or
(ii) in a writing executed by Seller and Independence or Folsom, or (iii)
otherwise disclosed in writing to or known to Independence or Folsom, and
(b) any breach or default of this Agreement by Seller, or (2) any Claim to
the extent based on an obligation or liability created by Folsom or
Independence the non-disclosure of which is a breach of the representation
contained in Section 6.2.7 of this Agreement, or the bad faith or willful
misconduct of Folsom or Independence. "CLAIM" means any obligation,
liability, claim (including any claim for damage to property or injury to
or death of any persons), lien or encumbrance, loss, damage, cost or
expense (including any judgment, award, settlement, reasonable attorneys'
fees and other costs and expenses incurred in connection with the defense
of any actual or threatened action, proceeding or claim [including
appellate proceedings], and any collection costs or enforcement costs).
8.2 INDEMNIFICATION OF BUYER. If the Closing occurs, then Seller
shall protect, defend, indemnify and hold Buyer and the Operating
Partnership harmless from and against any claim by any third party (i.e.,
any party not associated or affiliated with Seller) against Buyer or the
Operating Partnership for any action taken by Seller in its capacity as a
partner of the Operating Partnership where such action has been taken in
bad faith or constituted willful misconduct or to the extent based on an
obligation or liability incurred by Seller the non-disclosure of which is a
breach of the representation contained in Section 6.1.2(h) of this
Agreement.
8.3 GENERAL PROVISIONS. The indemnification obligations under this
Agreement shall be subject to the following provisions:
8.3.1PROCEDURE. The party seeking indemnification ("INDEMNITEE")
shall notify the other party ("INDEMNITOR") of any Claim against Indemnitee
within fifteen (15) days after it has notice of such Claim, but failure to
notify Indemnitor shall in no case prejudice the rights of Indemnitee under
this Agreement unless Indemnitor shall be prejudiced by such failure and
then only to the extent of such prejudice. Indemnitee shall have the right
to employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of Indemnitee unless: (a) the
employment of such counsel shall have been authorized in writing by
Indemnitor in connection with the defense of such action, (b) Indemnitor
shall not have employed counsel reasonably approved by Indemnitee to direct
the defense of such action or such counsel has not reasonably and
diligently defended such action, or (c) Indemnitee shall have reasonably
concluded that there may be defenses available to it which are different
from or additional to those available to Indemnitor (in which case
Indemnitor shall not have the right to direct the defense of such action or
of Indemnitee), in any of which events such fees and expenses shall be
borne by Indemnitor.
8.3.2BENEFICIARIES. The indemnification obligations under this
Agreement shall also extend to any present or future advisor, trustee,
director, officer, partner, member, employee, beneficiary, shareholder,
participant or agent of or in Indemnitee or any entity now or hereafter
having a direct or indirect ownership interest in Indemnitee.
9. TAX MATTERS.
9.1 PREPARATION OF 1996 TAX RETURN. Seller shall cause to be
prepared the tax return of the Operating Partnership for calendar year 1996
(the "1996 Tax Return"). The cost of preparing the Tax Return shall be
shared equally by Buyer and Seller.
9.2 DECISIONS AS TO THE 1996 TAX RETURN; TAX MATTERS PARTNER.
Seller shall be the Tax Matters Partner with respect to the 1996 Tax
Return. Without limitation on the foregoing, Seller shall retain the right
to make all decisions as to accounting matters and tax elections required
or permitted to be made by in connection with or on the 1996 Tax Return,
provided, however, the 1996 Tax Return shall be subject to the review and
approval of Buyer, which approval shall not be delayed or withheld if the
1996 Tax Return is prepared in accordance with Operating Partnership
Agreement.
9.3 CLOSING OF BOOKS IN CONNECTION WITH SALE OF SUBJECT
PARTNERSHIP
INTEREST. Without limiting the generality of the foregoing, Buyer and
Seller agree that, in connection with the sale of the Subject Partnership
Interest, the books of the Operating Partnership shall be closed in
accordance with Section 706(d) of the Code, and consistent therewith: (a)
items of income, deduction, gain, loss or credit of the Operating
Partnership that are recognized prior to the Closing Date shall be
allocated among those persons or entities who are Partners in the Operating
Partnership as constituted prior to the Closing; and (b) items of income,
deduction, gain, loss or credit of the Operating Partnership that are
recognized on or after the Closing Date shall be allocated among the
persons or entities who are Partners in the Operating Partnership as
constituted after the Closing.
9.4 COOPERATION. Buyer shall cause the Operating Partnership (as
constituted after the Closing) to cooperate fully and to the extent
reasonably requested by Seller in connection with the preparation of the
1996 Tax Return and any audit, litigation or other proceeding with respect
to the Operating Partnership (as constituted prior to the Closing). Such
cooperation shall include the retention and revision of Operating
Partnership records and other information which is reasonably relevant to
any such audit, litigation or other proceeding and making employees
available on a mutually convenient basis to provide additional information
and explanation of any material provided hereunder. The costs and expenses
of Seller in accordance with this Section 9.4 shall be shared equally by
Buyer and Seller.
9.5 TAX RECORDS. Seller shall provide Buyer with the 1996 Tax
Return and shall reasonably cooperated with Buyer (at Buyer's expense) in
obtaining copies of all prior year Operating Partnership tax returns
prepared by accountants engaged by Seller for the Operating Partnership,
and all workpapers and schedules related thereto.
10. MISCELLANEOUS.
10.1 BROKERS. Seller represents and warrants to Buyer, and Buyer
represents and warrants to Seller that no broker or finder has been engaged
by it, respectively, in connection with any of the transactions
contemplated by this Agreement or to its knowledge is in any way connected
with any of such transactions. In the event of a claim for broker's or
finder's fee or commissions in connection herewith, then Seller shall
indemnify and defend Buyer from the same if it shall be based upon any
statement or agreement alleged to have been made by Seller; and Buyer shall
defend and indemnify Seller from the same if it shall be based upon any
statement or agreement alleged to have been made by Buyer. The
indemnification obligations under this Section 10.1 shall survive the
closing of the transactions hereunder or the earlier termination of this
Agreement.
10.2 LIMITATION OF LIABILITY. No constituent member in or agent of
Seller, nor any advisor, trustee, director, officer, employee, beneficiary,
shareholder, partner, member, participant, representative or agent of any
partnership, limited liability company, corporation or trust that is or
becomes a constituent partner in Seller shall have any personal liability,
directly or indirectly, under or in connection with this Agreement or any
agreement made or entered into under or pursuant to the provisions of this
Agreement, or any amendment or amendments to any of the foregoing made at
any time or times, heretofore or hereafter, and Buyer and its successors
and assigns and, without limitation, all other persons and entities, shall
look solely to Seller's assets for the payment of any claim or for any
performance, and Buyer, on behalf of itself and its successors and assigns,
hereby waives any and all such personal liability. Notwithstanding anything
to the contrary contained in this Agreement, neither the negative capital
account of any constituent member in Seller (or in any other constituent
member or partner of Seller), nor any obligation of any constituent partner
in Seller (or in any other constituent member of Seller) to restore a
negative capital account or to contribute capital to Seller (or to any
other constituent member of Seller), shall at any time be deemed to be the
property or an asset of Seller or any such other constituent member (and
neither Buyer nor any of its successors or assigns shall have any right to
collect, enforce or proceed against or with respect to any such negative
capital account of member's or partner's obligation to restore or
contribute). No constituent member in or agent of Buyer, nor any advisor,
trustee, director, officer, employee, beneficiary, shareholder, partner,
member, participant, representative or agent of any partnership, limited
liability company, corporation or trust that is or becomes a constituent
partner in Buyer shall have any personal liability, directly or indirectly,
under or in connection with this Agreement or any agreement made or entered
into under or pursuant to the provisions of this Agreement, or any
amendment or amendments to any of the foregoing made at any time or times,
heretofore or hereafter, and Seller and its successors and assigns and,
without limitation, all other persons and entities, shall look solely to
Buyer's assets for the payment of any claim or for any performance, and
Seller, on behalf of itself and its successors and assigns, hereby waives
any and all such personal liability.
10.3 MODIFICATION. This Agreement may not be modified or amended
except by written agreement signed by all parties.
10.4 MATTERS OF CONSTRUCTION.
10.4.1 INCORPORATION OF EXHIBITS. All exhibits attached and
referred to in this Agreement are hereby incorporated herein as fully set
forth in (and shall be deemed to be a part of) this Agreement.
10.4.2 ENTIRE AGREEMENT. This Agreement contains the entire
agreement between the parties respecting the matters herein set forth and
supersedes all prior agreements between the parties hereto respecting such
matters.
10.4.3 TIME OF THE ESSENCE. Subject to subsection 10.4.4 below,
time is of the essence of this Agreement.
10.4.4 NON-BUSINESS DAYS. Whenever action must be taken
(including the giving of notice or the delivery of documents) under this
Agreement during a certain period of time (or by a particular date) that
ends (or occurs) on a non-business day, then such period (or date) shall be
extended until the immediately following business day. As used herein,
"BUSINESS DAY" means any day other than a Saturday, Sunday or federal or
Texas or Illinois state holiday.
10.4.5 SEVERABILITY. If any term or provision of this Agreement
or the application thereof to any person or circumstance shall, to any
extent, be invalid or unenforceable, the remainder of this Agreement, or
the application of such term or provision to persons or circumstances other
than those as to which it is held invalid or unenforceable, shall not be
affected thereby, and each such term and provision of this Agreement shall
be valid and be enforced to the fullest extent permitted by law.
10.4.6 INTERPRETATION. Words used in the singular shall include
the plural, and vice-versa, and any gender shall be deemed to include the
other. Whenever the words "including", "include" or "includes" are used in
this Agreement, they should be interpreted in a non-exclusive manner. The
captions and headings of the Sections of this Agreement are for convenience
of reference only, and shall not be deemed to define or limit the
provisions hereof. Except as otherwise indicated, all Exhibit and Section
references in this Agreement shall be deemed to refer to the Exhibits and
Sections in this Agreement. Each party acknowledges and agrees that this
Agreement (a) has been reviewed by it and its counsel; (b) is the product
of negotiations between the parties, and (c) shall not be deemed prepared
or drafted by any one party. In the event of any dispute between the
parties concerning this Agreement, the parties agree that any ambiguity in
the language of the Agreement is to not to be resolved against Seller or
Buyer, but shall be given a reasonable interpretation in accordance with
the plain meaning of the terms of this Agreement and the intent of the
parties as manifested hereby.
10.4.7 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF TEXAS
(WITHOUT REGARD TO CONFLICTS OF LAW).
10.4.8 THIRD PARTY BENEFICIARIES. Except as provided in
Sections 8.3.2 and 10.2, Seller and Buyer do not intend by any provision of
this Agreement to confer any right, remedy or benefit upon any third party,
and no third party shall be entitled to enforce or otherwise shall acquire
any right, remedy or benefit by reason of any provision of this Agreement.
10.5 EFFECTIVENESS OF AGREEMENT. In no event shall any draft of
this Agreement create any obligations or liabilities, it being intended
that only a fully executed and delivered copy of this Agreement will bind
the parties hereto.
10.6 POST-CLOSING ACCESS. For a period of five years subsequent to
the Closing, Seller and its respective employees, agents and
representatives shall be entitled to access during normal business hours to
all documents, books and records of the Operating Partnership applicable to
the period Seller was a partner of the Operating Partnership upon
reasonable prior notice to Buyer, and shall have the right to make copies
of such documents, books and records at Seller's expense.
10.7 SUCCESSORS AND ASSIGNS. Buyer may not assign or transfer its
rights or obligations under this Agreement without the prior written
consent of Seller (in which event such transferee shall assume in writing
all of the transferor's obligations hereunder, but such transferor shall
not be released from its obligations hereunder); provided, however, that,
upon delivery of an Assumption Agreement satisfactory to Seller, Seller
will not withhold its consent to the assignment by Buyer to a limited
partnership in which Buyer is the managing general partner and has not less
than a 51% interest in capital and profits in such limited partnership. No
consent given by Seller to any transfer or assignment of Buyer's rights or
obligations hereunder shall be construed as a consent to any other transfer
or assignment of Buyer's rights or obligations hereunder. No transfer or
assignment in violation of the provisions hereof shall be valid or
enforceable. Subject to the foregoing, this Agreement and the terms and
provisions hereof shall inure to the benefit of and be binding upon the
successors and assigns of the parties.
10.8 NOTICES. Any notice which a party is required or may desire to
give the other shall be in writing and shall be sent by personal delivery
or by mail (either [i] by United States registered or certified mail,
return receipt requested, postage prepaid, or [ii] by Federal Express or
similar generally recognized overnight carrier regularly providing proof of
delivery), addressed as follows (subject to the right of a party to
designate a different address for itself by notice similarly given):
TO BUYER:
c/o Folsom Investments, Inc.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With Copy To:
Xxxxx, Xxxxxx & Xxxxxxx, P.C.
00000 Xxxxxx Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
TO SELLER:
c/o JMB Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxx X. Xxxxxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
With Copy To:
Pircher, Xxxxxxx & Xxxxx
1999 Avenue of the Stars
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Real Estate Notices (SAC)
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
TO ESCROW AGENT:
Southwest Land Title Company
0000 Xxxxxxx Xxxxx
000 Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Any notice so given by mail shall be deemed to have been given as of the
date of delivery (whether accepted or refused) established by U.S. Post
Office return receipt or the overnight carrier's proof of delivery, as the
case may be. Any such notice not so given shall be deemed given upon
receipt of the same by the party to whom the same is to be given.
10.9 LEGAL COSTS. The parties hereto agree that they shall pay
directly any and all legal costs which they have incurred on their own
behalf in the preparation of this Agreement, all other agreements
pertaining to this transaction and that such legal costs shall not be part
of the closing costs. In addition, if any party hereto brings any suit or
other proceeding with respect to the subject matter or the enforcement of
this Agreement, the prevailing party or parties (as determined by the
court, agency or other authority before which such suit or proceeding is
commenced), in addition to such other relief as may be awarded, shall be
entitled to recover reasonable attorneys' fees, expenses and costs of
investigation actually incurred from the non-prevailing party or parties.
The foregoing includes attorneys' fees, expenses and costs of investigation
(including those incurred in appellate proceedings), costs incurred in
establishing the right to indemnification, or in any action or
participation in, or in connection with, any case or proceeding under
Chapter 7, 11 or 13 of the Bankruptcy Code (11 United States Code Sections
101 et seq.), or any successor statutes.
10.10COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same document.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
SELLER:
GREENWAY ASSOCIATES, LTD.,
a Texas limited partnership
By: CARLYLE REAL ESTATE
LIMITED PARTNERSHIP-X,
an Illinois limited partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation,
General Partner
By:
-------------------------
Name:
-------------------------
Title:
-------------------------
BUYER:
FOLSOM MANAGEMENT, INC.
a Texas corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
ESCROW HOLDER'S ACKNOWLEDGEMENT
-------------------------------
The undersigned hereby executes this Agreement to evidence its agreement to
act as Escrow Holder in accordance with the terms of this Agreement.
Date: _______________, 1996 SOUTHWEST LAND TITLE COMPANY
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT LIST
------------
"A" - List of Agreements and Obligations to be Released
"B" - Assignment and Assumption Agreement
"C" - Form of Release to be executed by Seller
"D" - Form of Release to be executed by Buyer and
Operating Partnership
EXHIBIT "A"
-----------
ALL LOAN DOCUMENTS WITH GENERAL ELECTRIC CAPITAL CORPORATION
EXHIBIT "B"
-----------
[Assignment and Assumption Agreement]
ASSIGNMENT OF PARTNERSHIP INTEREST AND ASSUMPTION
THIS ASSIGNMENT OF PARTNERSHIP INTEREST AND ASSUMPTION, dated as of
the ______ day of December, 1996, by and between GREENWAY ASSOCIATES, LTD.,
a Texas limited partnership ("Assignor"), and FOLSOM MANAGEMENT, INC., a
Texas corporation ("Assignee").
W I T N E S S E T H:
WHEREAS, Assignor is a partner in that certain Texas general
partnership known as "GREENWAY TOWER JOINT VENTURE" (the "Partnership"),
which is currently governed by that certain partnership agreement (the
"Partnership Agreement") captioned "JOINT VENTURE AGREEMENT OF GREENWAY
TOWER JOINT VENTURE", dated as of September 25, 1987, by and between
Assignor and Folsom Investments, Inc., a Texas corporation ("Folsom"); and
WHEREAS, Assignor desires to assign to Assignee Assignor's entire
partnership interest in the Partnership (the "Partnership Interest") and
Assignee desires to acquire the Partnership Interest; and
WHEREAS, it is intended that Assignee become a substituted partner in
the Partnership;
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Assignor hereby unconditionally assigns, sells, transfers,
conveys and sets over to Assignee all of Assignor's right, title and
interest in and to the Partnership Interest, including without limitation,
all of Assignor's interest in the capital and the profits and losses of the
Partnership and all rights to receive distributions of money, profits and
other assets from the Partnership. Except as specifically set forth in
subsection 6.1.2 of that certain purchase agreement (the "Purchase
Agreement") captioned "PURCHASE AGREEMENT", dated as of December 23, 1996,
among Assignor and Assignee, the Partnership Interest is being assigned,
sold, transferred, conveyed and set over by Assignor to Assignee on an "AS
IS" basis without representations and warranties of any kind or nature,
express, implied or otherwise, including any representation or warranty
concerning the Partnership or its assets. Nothing in this Assignment of
Partnership Interest and Assumption shall limit Assignor's or Assignee's
rights under the Purchase Agreement.
2. Assignee hereby accepts the assignment of the Partnership
Interest and hereby expressly assumes all of Assignor's obligations to the
Partnership whether now existing or hereafter incurred, including, without
limitation, any obligation of Assignor to make capital contributions
pursuant to the provisions of the Partnership Agreement, but excluding any
of Assignor's obligations pursuant to the Purchase Agreement.
3. This Assignment of Partnership Interest and Assumption shall be
interpreted, construed and enforced in accordance with the laws of the
State of Texas.
4. This Assignment of Partnership Interest and Assumption shall be
binding upon and shall inure to the benefit of the respective parties
hereto and their respective legal representatives, successors and assigns.
5. This Assignment of Partnership Interest and Assumption may be
executed in counterparts, each of which shall constitute an original and
all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment
of Partnership Interest and Assumption as of the day and year first above
written.
ASSIGNOR:
GREENWAY ASSOCIATES, LTD.
a Texas limited partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-X, an Illinois limited partnership, General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation, General
Partner
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
ASSIGNEE:
FOLSOM MANAGEMENT, INC.,
a Texas corporation
By:
------------------------------
Name:
------------------------------
Title:
------------------------------
EXHIBIT "C"
-----------
[Form of Release to be Executed by Seller]
GENERAL RELEASE
1. RELEASE. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, GREENWAY ASSOCIATES, LTD., a
Texas limited partnership ("Seller"), for itself, its successors and
assigns and all persons claiming by, under or through it (collectively, the
"Releasing Parties"), does hereby absolutely and irrevocably waive,
release, and forever discharge each of GREENWAY TOWER JOINT VENTURE, a
Texas general partnership (the "Partnership"), and FOLSOM INVESTMENTS,
INC., a Texas corporation ("Folsom"), INDEPENDENCE DEVELOPMENT, INC., a
Texas corporation, and SABRE REALTY MANAGEMENT, INC., a Texas corporation,
and their direct and indirect partners, and their respective partners,
trustees, beneficiaries, officers, shareholders, directors, agents,
servants, contractors, employees, associated or affiliated corporations,
partnerships, and limited liability companies and predecessors-in-interest
(collectively the "Released Parties") from any and all claims, rights,
demands, actions, suits, causes of actions, damages, counterclaims,
defenses, losses, costs, obligations, liabilities and expenses of every
kind or nature (collectively, "Claims"), known or unknown, suspected or
unsuspected, fixed or contingent, foreseen or unforeseen, arising out of or
relating directly or indirectly to any circumstances or state of facts
pertaining to the Partnership or the partnership agreement (the
"Partnership Agreement") of the Partnership captioned "JOINT VENTURE
AGREEMENT OF GREENWAY TOWER JOINT VENTURE", dated as of September 25, 1987,
by and between Seller and Folsom, or any nonperformance of any agreement or
obligation related thereto, or any statements, representations, acts or
omissions, intentional, willful, negligent or innocent, by any of the
Released Parties in any way connected with, relating to or affecting,
directly or indirectly, the Partnership or the Partnership Agreement;
provided, however, that the foregoing shall not constitute a release of (i)
any of the obligations of FOLSOM MANAGEMENT, INC., a Texas corporation
("Buyer"), its successors and assigns, or any other Released Party under
that certain purchase agreement captioned "PURCHASE AGREEMENT", dated as of
December 23, 1996, between Seller and Buyer or (ii) any of the obligations
of Buyer, its successors and assigns, or any of the Released Parties under
any agreement, instrument or other document executed and delivered in
connection therewith.
2. NON-RELIANCE. Seller hereby acknowledges that it has not
relied upon any representation of any kind made by the Partnership or
Folsom in making the foregoing release.
3. NO TRANSFER OF CLAIMS. Seller represents and warrants that it
has not heretofore assigned, or transferred, or purported to assign or to
transfer, to any person or entity, any Claim released hereunder or any
portion thereof or interest therein, and each of the Releasing Parties
agrees to indemnify, defend and hold the Released Parties harmless from and
against any and all such Claims based on or arising out of any such
assignment or transfer or purported assignment or transfer.
4. ADVICE OF COUNSEL. Seller hereby agrees, represents and
warrants that it has had advice of counsel of its own choosing in
negotiations for and the preparation of this Release, including the
foregoing release, that it has read the provisions of this Release, and
that it is fully aware of its contents and legal effect.
5. DAMAGES AND ATTORNEY'S FEES. Each of the Releasing Parties
agrees that if it hereafter commences, joins in, or in any manner seeks,
relief through any suit arising out of, based upon, or relating to any of
the Claims or in any manner asserts against such Released Parties, or any
of them, any of the Claims, then the undersigned will pay to such Released
Parties, and each of them, in addition to any other damages caused to such
Released Parties thereby, all attorneys' fees incurred by such Released
Parties in defending or otherwise responding to said suit or claim.
Dated: December 23, 1996.
GREENWAY ASSOCIATES, LTD.,
a Texas limited partnership
By: CARLYLE REAL ESTATE LIMITED
PARTNERSHIP-X, an Illinois limited
partnership,
General Partner
By: JMB REALTY CORPORATION,
a Delaware corporation, General
Partner
By:
--------------------------
Name:
--------------------------
Title:
--------------------------
EXHIBIT "D"
-----------
[Form of Release to be Executed by Operating Partnership and Buyer]
GENERAL RELEASE
1. RELEASE. For good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, each of GREENWAY TOWER JOINT
VENTURE, a Texas general partnership (the "Partnership"), and FOLSOM
INVESTMENTS, INC., a Texas corporation ("Folsom"), INDEPENDENCE
DEVELOPMENT, INC., a Texas corporation, and SABRE REALTY MANAGEMENT, INC.,
a Texas corporation ("Manager"), for themselves, their respective
successors and assigns and all persons claiming by, under or through them
(collectively, the "Releasing Parties"), does hereby absolutely and
irrevocably waive, release, and forever discharge GREENWAY ASSOCIATES,
LTD., a Texas limited partnership ("Seller"), and its direct and indirect
partners, and their respective partners, trustees, beneficiaries, officers,
shareholders, directors, agents, servants, contractors, employees,
associated or affiliated corporations, partnerships, and limited liability
companies and predecessors-in-interest (collectively the "Released
Parties") from any and all claims, rights, demands, actions, suits, causes
of action, damages, counterclaims, defenses, losses, costs, obligations,
liabilities and expenses of every kind or nature (collectively, "Claims"),
known or unknown, suspected or unsuspected, fixed or contingent, foreseen
or unforeseen, arising out of or relating directly or indirectly to any
circumstances or state of facts pertaining to the Partnership or the
partnership agreement (the "Partnership Agreement") of the Partnership
captioned "JOINT VENTURE AGREEMENT OF GREENWAY TOWER JOINT VENTURE",
dated
as of September 25, 1987, by and between Seller and Folsom, or any
nonperformance of any agreement or obligation related thereto (including,
without limitation, any management agreement between the Partnership and
Manager), or any statements, representations, acts or omissions,
intentional, willful, negligent or innocent, by any of the Released Parties
in any way connected with, relating to or affecting, directly or
indirectly, the Partnership or the Partnership Agreement; provided,
however, that the foregoing shall not constitute a release of (i) any of
the obligations of Seller or any other Released Party under that certain
purchase agreement captioned "PURCHASE AGREEMENT", dated as of December 23,
1996, between Seller and Folsom Management, Inc., a Texas corporation
("Buyer") or (ii) any of the obligations of any of the Released Parties
under any agreement, instrument or other document executed and delivered in
connection therewith.
2. NON-RELIANCE. Each of the Releasing Parties hereby
acknowledges that it has not relied upon any representation of any kind
made by Seller in making the foregoing release.
3. NO TRANSFER OF CLAIMS. Each of the Releasing Parties
represents and warrants that it has not heretofore assigned, or
transferred, or purported to assign or to transfer, to any person or
entity, any Claim released hereunder or any portion thereof or interest
therein, and each of the Releasing Parties agrees to indemnify, defend and
hold the Released Parties harmless from and against any and all such Claims
based on or arising out of any such assignment or transfer or purported
assignment or transfer.
4. ADVICE OF COUNSEL. Each of the Releasing Parties hereby
agrees, represents and warrants that it has had advice of counsel of its
own choosing in negotiations for and the preparation of this Release,
including the foregoing release, that it has read the provisions of this
Release, and that it is fully aware of its contents and legal effect.
5. DAMAGES AND ATTORNEY'S FEES. Each of the Releasing Parties
agrees that if it hereafter commences, joins in, or in any manner seeks,
relief through any suit arising out of, based upon, or relating to any of
the Claims or in any manner asserts against such Released Parties, or any
of them, any of the Claims, then the undersigned will pay to such Released
Parties, and each of them, in addition to any other damages caused to such
Released Parties thereby, all attorneys' fees incurred by such Released
Parties in defending or otherwise responding to said suit or claim.
Dated: December 23, 1996.
FOLSOM: THE PARTNERSHIP:
FOLSOM INVESTMENTS, INC., GREENWAY TOWER JOINT VENTURE,
a Texas corporation a Texas general partnership
By: ______________________ By: INDEPENDENCE DEVELOPMENT,
Name: ____________________ INC., a Texas corporation
Title: ___________________
By:
---------------------------
Name:
---------------------------
Title:
---------------------------
MANAGER: INDEPENDENCE:
SABRE REALTY MANAGEMENT, INC., INDEPENDENCE DEVELOPMENT,
a Texas corporation INC., a Texas corporation
By: By:
-------------------- --------------------
Name: Name:
-------------------- --------------------
Title: Title:
-------------------- --------------------
