AGREEMENT OF SALE AND PURCHASE
by and between
TE-TWO REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
as Seller
and
▇▇▇▇▇▇ RESIDENTIAL PROPERTIES, INC.,
a Maryland corporation
as Purchaser
TABLE OF CONTENTS
Article Page
I. Sale and Purchase; Property. . . . . . . . . . . . . .5
1.1 Sale and Purchase . . . . . . . . . . . . . . . .5
II. Consideration. . . . . . . . . . . . . . . . . . . . .6
2.1 Purchase Price. . . . . . . . . . . . . . . . . .6
2.2 ▇▇▇▇▇▇▇ Money . . . . . . . . . . . . . . . . . .6
III. Inspection . . . . . . . . . . . . . . . . . . . . . .6
3.1 Inspection Period . . . . . . . . . . . . . . . .6
3.2 Document Review . . . . . . . . . . . . . . . . .7
(a) Documents. . . . . . . . . . . . . . . . . .7
(b) Proprietary Information. . . . . . . . . . .7
(c) Return of Documents. . . . . . . . . . . . .7
(d) No Representation or Warranty by Seller. . .7
3.3 Inspection Obligations. . . . . . . . . . . . . .8
(a) Purchaser's Responsibilities . . . . . . . .8
(b) PURCHASER'S AGREEMENT TO INDEMNIFY . . . . .8
(c) Right of Termination . . . . . . . . . . . .8
3.4 Property Conveyed "As Is. . . . . . . . . . . . .8
(a) DISCLAIMER OF REPRESENTATIONS AND WARRANTIES
BY SELLER. . . . . . . . . . . . . . . . . .8
(c) "Hazardous Substances" Defined . . . . . . 10
3.5 Investigative Studies . . . . . . . . . . . . . 10
3.6 Purchaser Represented by Counsel. . . . . . . . 11
3.7 Purchaser's Release of Seller and Seller Parties11
IV. Survey . . . . . . . . . . . . . . . . . . . . . . . 11
4.1 Survey. . . . . . . . . . . . . . . . . . . . . 11
V. Title. . . . . . . . . . . . . . . . . . . . . . . . 11
5.1 Title Commitment. . . . . . . . . . . . . . . . 11
VI. Remedies . . . . . . . . . . . . . . . . . . . . . . 12
6.1 Seller's Remedies . . . . . . . . . . . . . . . 12
6.2 Purchaser's Remedies. . . . . . . . . . . . . . 12
6.3 Attorneys' Fees . . . . . . . . . . . . . . . . 13
6.4 Disposition of ▇▇▇▇▇▇▇ Money. . . . . . . . . . 13
VII. Closing. . . . . . . . . . . . . . . . . . . . . . . 13
7.1 Closing Date. . . . . . . . . . . . . . . . . . 13
7.2 Closing Matters . . . . . . . . . . . . . . . . 13
(a) Seller's Deliveries. . . . . . . . . . . . 13
(b) Purchaser's Deliveries . . . . . . . . . . 14
(c) Prorations . . . . . . . . . . . . . . . . 14
(d) Purchaser's Assumption . . . . . . . . . . 15
(e) Preparation of Documents . . . . . . . . . 15
(f) Survival Provisions. . . . . . . . . . . . 15
7.3 Closing Costs . . . . . . . . . . . . . . . . . 15
7.4 Real Estate Commissions . . . . . . . . . . . . 15
VIII. Condemnation . . . . . . . . . . . . . . . . . . . . 16
8.1 Condemnation. . . . . . . . . . . . . . . . . . 16
IX. Risk of Loss . . . . . . . . . . . . . . . . . . . . 16
9.1 Risk of Loss. . . . . . . . . . . . . . . . . . 16
9.2 Material Loss . . . . . . . . . . . . . . . . . 16
9.3 Non-Material Loss . . . . . . . . . . . . . . . 17
9.4 Delay in Completion of Repairs. . . . . . . . . 17
9.5 Postponement of Closing . . . . . . . . . . . . 17
X. Miscellaneous. . . . . . . . . . . . . . . . . . . . 17
10.1 Entire Agreement. . . . . . . . . . . . . . . . 17
10.2 Agreement Binding on Parties. . . . . . . . . . 18
10.3 Effective Date. . . . . . . . . . . . . . . . . 18
10.4 Notice. . . . . . . . . . . . . . . . . . . . . 18
10.5 Time of the Essence . . . . . . . . . . . . . . 19
10.6 Place of Performance. . . . . . . . . . . . . . 19
10.7 Currency. . . . . . . . . . . . . . . . . . . . 19
10.8 Section Headings. . . . . . . . . . . . . . . . 19
10.9 Obligations . . . . . . . . . . . . . . . . . . 19
10.10 Business Days. . . . . . . . . . . . . . . . . 19
10.11 Purchaser's Representations and Warranties . . 19
(a) Authority of Purchaser . . . . . . . . . . 19
(b) No Bankruptcy or Receivership. . . . . . . 19
10.12 Representations and Warranties of Seller . . . 19
10.13 Effect of Representations and Warranties . . . 20
10.14 No Recording . . . . . . . . . . . . . . . . . 20
10.15 Multiple Counterparts. . . . . . . . . . . . . 20
10.16 Severability . . . . . . . . . . . . . . . . . 20
10.17 Mandatory Arbitration. . . . . . . . . . . . . 20
10.18 Asset Manager; Designated Representative . . . 21
10.19 Confidentiality. . . . . . . . . . . . . . . . 21
10.20 Limited Liability of Officers. . . . . . . . . 21
10.21 Vesting of Title To Property . . . . . . . . . 21
JOINDER BY TITLE COMPANY . . . . . . . . . . . . . . . . . . . 23
LIST OF EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . 24
EXHIBIT "A" LEGAL DESCRIPTION OF LAND. . . . . . . . . . . . . .1
EXHIBIT "B" LIST OF DUE DILIGENCE DOCUMENTS. . . . . . . . . . .1
EXHIBIT "C" DEED . . . . . . . . . . . . . . . . . . . . . . . .1
EXHIBIT "D" ▇▇▇▇ OF SALE ASSIGNMENT AND ASSUMPTION . . . . . . .1
EXHIBIT "E" CERTIFICATION OF NON-FOREIGN STATUS. . . . . . . . .1
THIS AGREEMENT OF SALE AND PURCHASE ("Agreement") is made by
and between TE-TWO REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership ("Seller"), and ▇▇▇▇▇▇ RESIDENTIAL PROPERTIES,
a Maryland corporation ("Purchaser"), and is as follows:
W I T N E S S E T H:
WHEREAS, Seller desires to sell and Purchaser desires to
purchase the property described in Section 1. 1 below, on the terms
and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
I.
Sale and Purchase; Property
1.1 Sale and Purchase. Seller agrees to sell and convey unto
Purchaser, and Purchaser agrees to purchase and accept from Seller,
for the price and subject to the terms, covenants, conditions and
provisions herein set forth, the following:
(a) All of that certain land more particularly described
on Exhibit "A" attached hereto ("Land"), including all structures,
improvements and fixtures (collectively "Improvements") thereon.
The Land and the Improvements are sometimes referred to herein
collectively as the "Real Property" and consist primarily of a two
hundred eighteen (218) unit apartment complex (only Phase I of
Princeton ▇▇▇▇▇▇▇ Apartments) located at Jacksonville, ▇▇▇▇▇
County, Florida;
(b) All right, title and interest, if any, of Seller, in
and to any land lying in the bed of any street, road or access way,
opened or proposed, in front of, at a side of or adjoining the Real
Property("Property Rights");
(c) All right, title and interest of Seller, reversionary
or otherwise, in and to all easements in or upon the Land and all
other rights and appurtenances belonging or in Aeneas pertaining
thereto, if any ("Appurtenances");
(d) Any and all furniture, carpeting, draperies,
appliances, building supplies, equipment, machinery, inventory, and
other items of personal property owned by Seller and presently
affixed or attached to, placed or situated upon the Real Property
and used in connection with the ownership, operation and occupancy
of the Real Property, and specifically excluding any items of
personal property owned by lawful tenants at or on the Real
Property ("Tenants") and further excluding any items of personal
property owned by third parties and leased to Seller
("Personalty");
(e) Seller's interest in all leases ("Leases") now or
hereafter affecting the Real Property, together with all refundable
security deposits ("Security Deposits") of Tenants held by Seller;
and
(f) Seller's interest in all assignable leasing, service,
supply and maintenance contracts ("Contracts") relating to the Real
Property or Personalty (subject to Section 7-2(a)(i) hereof).
The items described in (a) through (f) of this Section 1. I are
hereinafter collectively called the "Property".
II.
Consideration
2.1 Purchase Price. The purchase price ("Purchase Price") to
be paid by Purchaser to Seller for the sale and conveyance of the
Property shall be SEVEN MILLION FIVE HUNDRED FIFTY-FOUR THOUSAND
AND 00/100 DOLLARS ($7,554,000.00), which shall be payable to
Seller at the closing of the transaction contemplated hereby
("Closing") by wire transfer and which funds must be delivered in
a manner to permit the Title Company (defined below) to deliver
good funds to the Seller or its designee on the Closing Date
(defined below) (and if requested by Seller, by wire transfer).
2.2 ▇▇▇▇▇▇▇ Money.
(a) It shall be a condition precedent to the effectiveness
of this Agreement that within two (2) business days following the
date upon which National Network Title Services, Ltd. ("Title
Company"), ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attn:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, Tel. No. ▇▇▇-▇▇▇-▇▇▇▇; Fax No. ▇▇▇-▇▇▇-▇▇▇▇),
receives a copy of this Agreement executed by both Seller
and Purchaser, Purchaser deposit with Title Company by wire
transfer of immediately available federal funds the amount of One
Hundred Thousand and No/ I 00 Dollars ($ 1 00,000.00) (the "▇▇▇▇▇▇▇
Money"). Simultaneously with the delivery of the ▇▇▇▇▇▇▇ Money to
the Title Company by the Purchaser, Purchaser shall deliver to
Seller the sum of One Hundred and No/ I 00 Dollars ($100.00) as
"Independent Consideration" (herein so called), which Independent
Consideration shall be retained by Seller in all instances and
shall not be applied against the Purchase Price. As used herein,
the term "▇▇▇▇▇▇▇ Money" shall mean the ▇▇▇▇▇▇▇ Money plus any
interest accrued thereon.
(b) The Title Company shall deposit the ▇▇▇▇▇▇▇ Money into
an interest-bearing money market account maintained at a federally
insured bank or savings and loan association located in Dallas
County or Collin County, Texas. Such account shall have no penalty
for early withdrawal, and Purchaser accepts all risks with regard
to the account, specifically including the risk of closure of such
bank or savings and loan association by state and/or federal
regulators, and all losses occasioned thereby. If any portion of
the ▇▇▇▇▇▇▇ Money and the Independent Consideration are not
delivered by Purchaser to the Title Company within the required
periods, Seller may terminate this Agreement by delivering written
notice to Purchaser. Upon said termination, the Title Company
shall immediately return to Seller all executed originals of this
Agreement in its possession. Thereafter, neither party shall have
any further rights or obligations hereunder, except that if this
Agreement is terminated during or after the expiration of the
Inspection Period, then Purchaser's obligations to indemnify under
Section 3.3 shall survive such termination. If the transaction
contemplated hereby is consummated in accordance with the terms and
provisions hereof, the ▇▇▇▇▇▇▇ Money shall be credited against the
Purchase Price at Closing. If the transaction is not so
consummated, the ▇▇▇▇▇▇▇ Money shall be held and delivered by the
Title Company as hereinafter provided. All interest earned shall
be reported to the Internal Revenue Service as income of Purchaser.
Purchaser shall promptly execute all forms reasonably requested by
the Title Company.
(c) The balance of the Purchase Price, as adjusted by the
prorations and credits specified herein, less the ▇▇▇▇▇▇▇ Money,
shall be paid on the Closing Date in the manner set forth in
Section 7.2.
III.
Inspection
3.1 Inspection Period. Seller shall permit Purchaser and its
authorized agents and representatives to enter upon the Real
Property at all reasonable times during normal business hours to
inspect and conduct reasonably necessary tests which are approved
in writing by Seller, which approval shall not be unreasonably
withheld. Such entry and inspections may be conducted only during
the period ("Inspection Period") commencing on the Effective Date
(as defined in Section 10.3) and ending on the date which is thirty
(30) days after the Effective Date; provided, however, that so long
as this Agreement has not been terminated, Purchaser shall have the
right to enter upon the Real Property at all reasonable times
during normal business hours subsequent to the expiration of the
Inspection Period and prior to Closing for the purposes of
continuing its inspection of the same so long as Purchaser complies
with each of the provisions of this Article III relating to such
entry and inspection. Notwithstanding the foregoing, in no event
shall such entry and inspection subsequent to the expiration of the
Inspection Period serve to extend Purchaser's right to terminate
this Agreement prior to the expiration of the Inspection Period as
provided in Section 3.4 hereof. Purchaser shall notify Seller, in
writing, of its intention, or the intention of its agents or
representatives, to enter the Real Property at least forty-eight
(48) hours prior to such intended entry, and obtain Seller's prior
written consent to any tests to be conducted. Purchaser shall bear
the cost of all inspections and tests. At Seller's option, Seller
may be present for any inspection or test.
3.2 Document Review.
(a) Documents. Within five (5) days of the Effective
Date, Seller shall deliver to Purchaser, to the extent they are in
Seller's possession, copies of the documents described on Exhibit
"B" attached hereto and incorporated herein by reference
(collectively, the "Delivered Documents"). Seller agrees to allow
Purchaser, its authorized agents and representatives, to inspect
and make copies at its own expense, of environmental reports and
studies prepared for the benefit of Seller, assessments (special or
otherwise) statements, ad valorem and personal property tax bills,
notices and correspondence from governmental entities, lease
agreements, rent rolls, plans and specifications, operating
statements, certificates of occupancy, licenses, pleadings and
other documents filed in connection with litigation, and books,
records, files and related items relating exclusively to the
Property, if any, which are in Seller's possession at either the
office of Seller or at the Property (at Seller's option) (such
reports, studies, statements, bills, notices, correspondence, lease
agreements, rent rolls, plans and specifications, certificates,
licenses, pleadings, documents, books, records, files, and related
items, together with the Delivered Documents, are hereinafter
collectively referred to as the "Documents".)
(b) Proprietary Information. Purchaser acknowledges that
any and all of the Documents are proprietary and confidential in
nature and will be delivered to Purchaser solely to assist
Purchaser in determining the feasibility of purchasing the
Property. Purchaser agrees not to disclose the contents of the
Documents to any party outside of Purchaser's organization except
to certain of its attorneys, accountants, lenders, or investors
(collectively, the "Permitted Outside Parties"). Purchaser further
agrees that the Documents shall be disclosed and exhibited only to
those persons within Purchaser's organization or to those Permitted
Outside Parties who are responsible for determining the feasibility
of Purchaser's acquisition of the Property and who have agreed in
writing to preserve the confidentiality of such information as
required herein. In permitting the Permitted Outside Parties to
review the Documents or other information to assist Purchaser,
Seller has not waived any privilege or claim of confidentiality
with respect thereto, and no third party benefits or relationships
of any kind, either express or implied, have been offered, intended
or created by Seller and any such claims are expressly rejected by
Seller and waived by Purchaser and the Permitted Outside Parties,
for whom, by its execution of this Agreement, Purchaser is acting
as an agent with regard to such waiver.
(c) Return of Documents. Purchaser shall return all of
the Documents, any and all copies Purchaser has made of the
Documents, and all copies of any studies, reports or test results
obtained by Purchaser in connection with its inspection of the
Property (collectively, "Purchaser's Information") on the earlier
to occur of (i) such time as Purchaser determines that it shall not
acquire the Property, or (ii) such time as this Agreement is
terminated for any reason.
(d) No Representation or Warranty by Seller. Purchaser
hereby acknowledges that neither Seller nor Asset Manager
(hereinafter defined) has made and does not make any warranty or
representation regarding the truth, accuracy or completeness of the
Documents or the source(s) thereof, and that Seller and Asset
Manager have not undertaken any independent investigation as to the
truth, accuracy or completeness of the Documents and are providing
the Documents solely as an accommodation to Purchaser. Seller
expressly disclaims any and all liability for representations or
warranties, express or implied, statements of fact and other
matters contained in the Documents, or for any omissions from the
Documents, or in any other written or oral communications
transmitted or made available to Purchaser. Purchaser shall rely
solely upon its own investigation with respect to the Property,
including, without limitation, the Property's physical,
environmental or economic condition, compliance or lack of
compliance with any ordinance, order, permit or regulation or any
other attribute or matter relating thereto.
3.3 Inspection Obligations.
(a) Purchaser's Responsibilities. In conducting any
inspections, investigations or tests of the Property and/or
Documents, Purchaser and its agents and representatives shall: (i)
not disturb the Tenants or interfere with their use of the Property
pursuant to their respective Leases; (ii) not interfere with the
operation and maintenance of the Property; (iii) not damage any
part of the Property or any personal property owned or held by any
Tenant or third party; (iv) not injure or otherwise cause bodily
harm to Seller, Asset Manager, or their respective agents, guests,
invitees, contractors and employees or any Tenant or their guests
or invitees; (v) maintain comprehensive general liability
(occurrence) insurance in terms and amounts satisfactory to Seller
covering any accident arising in connection with the presence of
Purchaser, its agents and representatives on the Property and shall
deliver a certificate of insurance verifying such coverage to
Seller prior to entry upon the Property; (vi) promptly pay when due
the costs of all tests, investigations, and examinations done with
regard to the Property; (vii) not permit any liens to attach to the
Real Property by reason of the exercise of its rights hereunder;
(viii) fully restore the Land and the Improvements to the condition
in which the same were found before any such inspection or tests
were undertaken; (ix) not reveal or disclose any information
obtained during the Inspection Period concerning the
Property and the Documents to anyone outside Purchaser's
organization, except in accordance with the confidentiality
standards set forth in Section 3.2(d) hereof; and (x) deliver to
Seller a copy of all Purchaser's Information.
(b) PURCHASER'S AGREEMENT TO INDEMNIFY. PURCHASER HEREBY
INDEMNIFIES AND HOLDS SELLER AND ASSET MANAGER HARMLESS FROM AND
AGAINST ANY AND ALL LIENS, CLAIMS, CAUSES OF ACTION, DAMAGES,
LIABILITIES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES)
(COLLECTIVELY, "CLAIMS") ARISING OUT OF PURCHASER'S INSPECTIONS OR
TESTS OR ANY VIOLATION OF THE PROVISIONS OF THIS SECTION 3.3,
EXCEPT FOR SUCH CLAIMS AS MAY BE CAUSED BY THE GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT OF SELLER.
(c) Right of Termination. If, during the Inspection
Period, Purchaser shall, for any reason, in Purchaser's sole
discretion, judgment and opinion, be dissatisfied with any aspect
of the Property or any item examined by Purchaser pursuant to this
Agreement, Purchaser shall be entitled, as its sole remedy, to
terminate this Agreement by giving written notice to Seller on or
before the expiration of the Inspection Period, whereupon all of
the provisions of this Agreement (except Section 3.3) shall
terminate. Upon such termination, neither Seller nor Purchaser
shall have any further obligation or liability to the other
hereunder, except as provided in Sections 3.3 and 7.4 hereof. Upon
Purchaser's delivery to Seller of the Documents and Purchaser's
Information, the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser,
subject to the operation of Sections 3.3 and 7.4.
3.4 Property Conveyed "As Is."
(a) DISCLAIMER OF REPRESENTATIONS AND WARRANTIES BY
SELLER. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY,
IT IS UNDERSTOOD AND AGREED THAT EXCEPT AS SET FORTH IN SECTION
10.12 HEREOF, SELLER AND ASSET MANAGER HAVE NOT MADE AND ARE NOT
NOW MAKING, AND THEY SPECIFICALLY DISCLAIM, ANY WARRANTIES,
REPRESENTATIONS OR GUARANTIES OF ANY KIND OR CHARACTER, EXPRESS OR
ENTITLED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH RESPECT TO
THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES,
REPRESENTATIONS OR GUARANTIES AS TO (i) MATTERS OF TITLE (OTHER
THAN SELLER'S WARRANTY OF TITLE SET FORTH IN THE DEED [HEREINAFTER
DEFINED) TO BE DELIVERED AT CLOSING); (ii) ENVIRONMENTAL MATTERS
RELATING TO THE PROPERTY OR ANY PORTION THEREOF; (iii) GEOLOGICAL
CONDITIONS, INCLUDING, WITHOUT LIMITATION, SUBSIDENCE, SUBSURFACE
CONDITIONS, WATER TABLE, UNDERGROUND WATER RESERVOIRS, LIMITATIONS
REGARDING THE WITHDRAWAL OF WATER AND EARTHQUAKE FAULTS AND THE
RESULTING DAMAGE OF PAST AND/OR FUTURE EARTHQUAKES; (iv) WHETHER, AND
THE EXTENT TO WHICH, THE PROPERTY OR ANY PORTION THEREOF IS
AFFECTED BY ANY STREAM (SURFACE OR UNDERGROUND), BODY OF WATER,
FLOOD PRONE AREA, FLOOD PLAIN, FLOODWAY OR SPECIAL FLOOD HAZARD;
(v) DRAINAGE; (vi) SOIL CONDITIONS, INCLUDING THE EXISTENCE OF
INSTABILITY, PAST SOIL REPAIRS, SOIL ADDITIONS OR CONDITIONS OF
SOIL FILL, OR SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF
ANY UNDERSHORING; (vii) ZONING TO WHICH THE PROPERTY OR ANY PORTION
THEREOF MAY BE SUBJECT; (viii) THE AVAILABILITY OF ANY UTILITIES TO
THE PROPERTY OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION,
WATER, SEWAGE, GAS AND ELECTRIC; (ix) USAGES OF ADJOINING PROPERTY;
(x) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF; (xi) THE VALUE,
COMPLIANCE WITH THE PLANS AND SPECIFICATIONS, SIZE, LOCATION, AGE,
USE, DESIGN, QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL
INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION
OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY INCOMEE, EXPENSES,
CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING OR
PERTAINING TO THE PROPERTY OR ANY PART THEREOF; (xii) THE PRESENCE
OF HAZARDOUS SUBSTANCES (HEREINAFTER DEFINED) IN OR ON, UNDER OR IN
THE VICINITY OF THE PROPERTY; (xiii) THE CONDITION OR USE OF THE
PROPERTY OR COMPLIANCE OF THE PROPERTY WITH ANY OR ALL PAST,
PRESENT OR FUTURE FEDERAL, STATE OR LOCAL ORDINANCES, RULES,
REGULATIONS OR LAWS, BUILDING, FIRE OR ZONING ORDINANCES, CODES OR
OTHER SIMILAR LAWS;(xiv) THE EXISTENCE OR NON-EXISTENCE OF
UNDERGROUND STORAGE TANKS; (xv) ANY OTHER MATTER AFFECTING THE
STABILITY OR INTEGRITY OF THE REAL PROPERTY; (xvi) THE POTENTIAL
FOR FURTHER DEVELOPMENT OF THE PROPERTY; (xvii) THE EXISTENCE OF
VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING THE
PROPERTY; (xviii) THE MERCHANTABILITY OF THE PROPERTY OR FITNESS OF
THE PROPERTY FOR ANY PARTICULAR PURPOSE (PURCHASER AFFIRMING THAT
PURCHASER HAS NOT RELIED ON SELLER'S OR ASSET MANAGER'S SKILL OR
JUDGMENT TO SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR
PURPOSE, AND THAT SELLER MAKES NO WARRANTY THAT THE PROPERTY IS FIT
FOR ANY PARTICULAR PURPOSE); OR (xix) TAX CONSEQUENCES (INCLUDING,
BUT NOT LIMITED TO, THE AMOUNT, USE OR PROVISIONS RELATING TO ANY
TAX CREDITS).
(b) Sale "As Is". EXCEPT AS SET FORTH IN SECTION 10.12
HEREOF, PURCHASER HAS NOT RELIED UPON AND WILL NOT RELY UPON,
EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF
SELLER OR ASSET MANAGER OR ANY OF THEIR RESPECTIVE AGENTS AND
ACKNOWLEDGES THAT NO SUCH REPRESENTATIONS HAVE BEEN MADE.
PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND
SOPHISTICATED PURCHASER OF REAL ESTATE AND THAT IT IS RELYING
SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER'S CONSULTANTS IN
PURCHASING THE PROPERTY. PURCHASER WILL CONDUCT SUCH INSPECTIONS
AND INVESTIGATIONS OF THE PROPERTY AS PURCHASER DEEMS NECESSARY,
INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL
CONDITIONS THEREOF, AND SHALL RELY UPON SAME. UPON CLOSING,
PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING,
BUT NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS,
MAY NOT RAVE BEEN REVEALED BY PURCHASER'S INSPECTIONS AND
INVESTIGATIONS. PURCHASER ACKNOWLEDGES AND AGREES THAT UPON
CLOSING, SELLER SHALL SELL AND CONVEY TO PURCHASER AND PURCHASER
SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS," WITH ALL FAULTS.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL
AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR
AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF SELLER OR ANY THIRD
PARTY. THE TERMS AND CONDITIONS OF TIES SECTION 3.5 SHALL
EXPRESSLY SURVIVE THE CLOSING, NOT MERGE WITH THE PROVISIONS OF ANY
CLOSING DOCUMENTS AND SHALL BE INCORPORATED INTO THE DEED. SELLER
IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR WRITTEN
STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE
PROPERTY FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE,
SERVANT OR OTHER PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH
OR REFERRED TO HEREIN. PURCHASER ACKNOWLEDGES THAT THE PURCHASE
PRICE REFLECTS THE "AS IS" NATURE OF THIS SALE AND ANY FAULTS,
LIABILITIES, DEFECTS OR OTHER ADVERSE MATTERS THAT MAY BE
ASSOCIATED WITH THE PROPERTY. PURCHASER HAS FULLY REVIEWED THE
DISCLAIMERS AND WAIVERS SET FORTH IN THIS AGREEMENT WITH ITS
COUNSEL AND UNDERSTANDS THE SIGNIFICANCE AND EFFECT THEREOF.
PURCHASER FURTHER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF
THIS ARTICLE III AND IN PARTICULAR THIS SECTION 3.5 ARE AN INTEGRAL
PART OF THIS AGREEMENT AND THAT SELLER WOULD NOT HAVE AGREED TO
SELL THE PROPERTY TO PURCHASER FOR THE PURCHASE PRICE WITHOUT SUCH
PROVISIONS.
(c) "Hazardous Substances" Defined. For purposes hereof,
"Hazardous Substances" means any hazardous, toxic or dangerous
waste, substance or material, pollutant or contaminant, as defined
for purposes of the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Sections 9601 et
seq.), as amended ("CERCLA"), or the Resource Conservation and
Recovery Act (42 U.S.C. Sections 6901 et seq.), as amended
("RCRA"), or any other federal, state or local law, ordinance,
rule or regulation applicable to the Property, or any substance
which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous, or any
substance which contains gasoline, diesel fuel or other petroleum
hydrocarbons, polychlorinated biphenyls (pcbs), radon gas, urea
formaldehyde, asbestos, lead or electromagnetic waves.
3.5 Investigative Studies. As additional consideration for the
transaction contemplated herein, Purchaser agrees that it will
provide to Seller, immediately following the receipt of same by
Purchaser, copies of any and all reports, tests or studies
involving structural or geologic conditions or environmental,
hazardous waste or hazardous substances contamination of the
Property which reports, tests or studies shall be addressed to both
Seller and Purchaser at no cost to Seller; provided, however,
Purchaser shall have no obligation to cause any such tests or
studies to be performed on the Property. In the event that such
reports, tests or studies indicate that additional investigation
may be required, either Seller or Purchaser may request (at the
cost of the party requesting same) that such additional
investigation be completed, provided that neither Seller nor
Purchaser shall be obligated to undertake any such additional
investigation and either Purchaser or Seller shall be entitled to
terminate this Agreement rather than proceed with any such
additional investigation. In the event such additional
investigation is undertaken, the right to terminate as provided in
this Section shall continue until ten (10) days after receipt of
such supplemental reports, tests or studies, which receipt of
reports shall be accomplished within fifteen (I 5) days from the
request for same unless a longer period is mutually agreed upon by
Seller and Purchaser. Seller hereby acknowledges that Purchaser
has not made and does not make any warranty or representation
regarding the truth or accuracy of any such studies or reports and
has not undertaken any independent investigation as to the truth or
accuracy thereof. Purchaser shall have no liability or culpability
of any nature as a result of having provided such information to
Seller or as a result of Seller's reliance thereon. Purchaser
shall be responsible for any and all costs, claims, damages and
liabilities caused by any testing performed or requested by
Purchaser.
3.6 Purchaser Represented by Counsel. Purchaser hereby
represents and warrants to Seller that: (i) Purchaser is not in a
significantly disparate bargaining position in relation to Seller;
(ii) Purchaser is represented by legal counsel in connection with
the transaction contemplated by this Agreement; and (iii) Purchaser
is purchasing the Property for business, commercial, investment or
other similar purpose and not for use as Purchaser's residence.
3.7 Purchaser's Release of Seller and Seller Parties. Seller
and Asset Manager are hereby released from all responsibility and
liability regarding the condition (including the presence in the
soil, air, structures and surface and subsurface waters, of
materials or substances that have been or may in the future be
determined to be toxic, hazardous, undesirable or subject to
regulation and that may need to be specially treated, handled
and/or removed from the Property under current or future federal,
state and local laws, regulations or guidelines), valuation,
marketability or utility of the Property, or its suitability for
any purpose whatsoever. Purchaser expressly acknowledges that
Purchaser has not relied on any warranties, promises,
understandings or representations, express or implied, oral or
written, of Seller or Asset Manager or of any of their respective
agents, relating to the Property which are not contained in this
Agreement, and/that Purchaser is acquiring the Property in its
present condition and state of repair, "as is, where is", with all
defects, latent or apparent. Purchaser acknowledges that any
information of any type which Purchaser has received or may receive
from Seller, Asset Manager or their respective agents, including,
without limitation, any environmental reports and surveys, is
furnished on the express condition that Purchaser shall make an
independent verification of the accuracy of such information, all
such information being furnished without any warranty whatsoever.
Purchaser agrees that Purchaser will not attempt to assert any
liability against Seller, its officers, employees, agents,
controlling persons or affiliates ("Seller Parties") for furnishing
such information, and Purchaser agrees to indemnify and hold the
Seller Parties free and harmless for, from and against any and all
such claims of liability by Purchaser. This indemnity shall
survive Closing or the earlier termination of this Agreement.
IV.
Survey
4.1 Survey. Within ten (10) days of the Effective Date, Seller
shall deliver to Purchaser a copy of the survey ("Survey") of the
Real Property currently in the possession of Seller, if any. If
revisions, modifications, or recertifications to the Survey are
necessary in order for the Title Company to delete the survey
exception from the Title Policy (as defined in Section 5. 1.) or
for the Title Company to issue the Title Policy without the
standard exceptions, or to otherwise satisfy Purchaser's
objectives, all such costs shall be borne exclusively by Purchaser.
V.
Title
5.1 Title Commitment. Within ten (10) days after the Effective
Date, Seller shall furnish to Purchaser a title commitment (the
"Commitment"), by the terms of which Title Company, as issuing
agent for Chicago Title Insurance Corporation, agrees to issue to
Purchaser at Closing an owner's policy of title insurance (the
"Title Policy") in the amount of the Purchase Price on the standard
ALTA form used in the State of Florida, insuring Purchaser's fee
simple title to the Real Property to be good and marketable,
subject to the terms of such policy and the title exceptions. As
used herein, the term "Title Objection Period" shall mean a period
commencing on the first day following Seller's delivery to
Purchaser of the Survey and Commitment and ending ten (10) days
thereafter. All matters shown on the Survey and exceptions listed
in the Commitment which are not objected to by Purchaser by
delivery of written notice to Seller within the Title Objection
Period shall be conclusively deemed to be acceptable to Purchaser.
In the event Purchaser timely objects to any title exception or
Survey matter ("Title Objection"), Seller may, but shall not be
obligated to, cure such Title Objection; provided, however, if
Seller is able and willing to eliminate or cure such Title
Objection, Seller shall notify Purchaser in writing within five (5)
days after the Title Objection Period ("Seller's Notice Period") of
such facts (said notice hereinafter called "Seller's Title
Notice"), in which case the elimination or curing of the Title
Objection shall be completed on or before the Closing Date (as
defined in Section 7.1). In the event Seller does not deliver
Seller's Title Notice to Purchaser within Seller's Notice Period,
Purchaser is deemed to be notified that Seller is unable or
unwilling to cure the Title Objection. In the event Seller (i)
does not deliver Seller's Title Notice, or (ii) notifies Purchaser
that Seller is unable or unwilling to cure any Title Objection,
Purchaser shall be deemed to have waived the Title Objections
unless, within five (5) days following the expiration of Seller's
Notice Period, Purchaser delivers to Seller written notice
terminating this Agreement. Notwithstanding anything herein to the
contrary, in the event that Purchaser's right to terminate this
Agreement pursuant to any provision of this Section 5.1 has not
expired prior thereto, it shall expire upon expiration of the
Inspection Period. As used in this Agreement, the term "Permitted
Exceptions" shall mean all matters either shown on the Survey or
listed in the Commitment as either exceptions or exclusions to
which Purchaser does not raise a Title Objection within the Title
Objection Period or, having objected, Purchaser waives or is deemed
to have waived in accordance with the provisions of this Section 5.
1. Notwithstanding the foregoing, Purchaser and Seller acknowledge
that although Seller has no obligation to cure any title matters
(whether or not the same constitute Title Objections), Seller does
agree (subject to Purchaser's full performance hereunder) to
deliver title to the Property at Closing free and clear of any and
all liens of the deeds of trust and/or mortgages created by Seller,
as reflected on the Commitment. Furthermore, Seller has no
obligation to ensure that the Title Company will provide extended
or comprehensive coverage or any endorsements or amendments
thereto, all of which, if Purchaser elects to obtain such coverage,
shall be Purchaser's responsibility and shall be at Purchaser's
expense.
In the event of termination of this Agreement pursuant to this
Section 5.1, upon Purchaser's delivery of the Documents and the
Purchaser's Information, the ▇▇▇▇▇▇▇ Money shall be delivered to
Purchaser and thereafter neither party shall have any further
rights or obligations hereunder, except for the rights and
obligations arising pursuant to Sections 3.3, 3.5 and 7.4.
VI.
Remedies
6.1 Seller's Remedies. Other than the matters provided in
Sections 3.3 and 7.4 hereof, in the event Purchaser fails to
perform its obligations pursuant to this Agreement for any reason
except failure by Seller to perform hereunder, Seller shall be
entitled to terminate this Agreement and recover the ▇▇▇▇▇▇▇ Money
as liquidated damages and not as penalty, in full satisfaction of
claims against Purchaser hereunder. Seller and Purchaser agree
that the Seller's damages resulting from Purchaser's default are
difficult, if not impossible, to determine and the ▇▇▇▇▇▇▇ Money is
a fair and reasonable estimate of those damages which has been
agreed to in an effort to cause the amount of said damages to be
certain. Provided further, however, in the event of Purchaser's
default or a termination of this Agreement and notwithstanding
anything in this Section 6.1 to the contrary, Seller shall have the
right to submit its claims to arbitration in accordance with the
provisions of Section 10.16 in the event Purchaser or any party
related to or affiliated with Purchaser is asserting any claims or
right to the Property that would otherwise delay or prevent Seller
from having clear, indefeasible and marketable title to the
Property. In all other events Seller's remedies shall be limited
to those described in Sections 3.3. 6.1. 6.3, 6.4 and 7.4.
6.2 Purchaser's Remedies. In the event Seller fails to perform
its obligations pursuant to this Agreement for any reason except
failure by Purchaser to perform hereunder, Purchaser shall elect,
as its sole remedy, either to (i) terminate this Agreement by
giving Seller timely written notice of such election prior to or at
Closing and, upon delivery of the Documents and the Purchaser's
Information, recover the ▇▇▇▇▇▇▇ Money in accordance with Section
6.4, or (ii) enforce specific performance. Notwithstanding
anything herein to the contrary, Purchaser shall be deemed to have
elected to terminate this Agreement if Purchaser fails to deliver
to Seller written notice of its intent to file a claim or assert a
cause of action for specific performance against Seller on or
before ninety (90) days following the Closing Date or, having given
such notice fails to file a lawsuit asserting said claim or cause
of action in ▇▇▇▇▇ County, Florida, within one hundred eighty (I
80) days following the Closing Date. Purchaser's remedies shall be
limited to those described in Sections 6.2. 6.3 and 6.4. IN NO
EVENT SHALL SELLER, ITS DIRECT OR INDIRECT PARTNERS, SHAREHOLDERS,
OWNERS OR AFFILIATES, ANY OFFICER, DIRECTOR, EMPLOYEE OR AGENT OF
THE FOREGOING, OR ANY AFFILIATE OR CONTROLLING PERSON THEREOF HAVE
ANY LIABILITY, BEYOND ITS INTEREST IN THE PROPERTY, FOR ANY CLAIM,
CAUSE OF ACTION OR OTHER LIABILITY ARISING OUT OF OR RELATING TO
THIS AGREEMENT OR THE PROPERTY, WHETHER BASED ON CONTRACT, COMMON
LAW, STATUTE, EQUITY OR OTHERWISE.
6.3 Attorneys' Fees. In the event either party hereto is
required to employ an attorney in connection with claims by one
party against the other arising from the operation of this
Agreement, the non-prevailing party shall pay the prevailing party
all reasonable fees and expenses, including attorneys' fees,
incurred in connection with such transaction.
6.4 Disposition of ▇▇▇▇▇▇▇ Money. In the event of a
termination of this Agreement by either Seller or Purchaser, Title
Company is authorized to deliver the ▇▇▇▇▇▇▇ Money to the party
hereto entitled to same pursuant to the terms hereof on or before
the fifth (5th) day following receipt by the Title Company and
non-terminating party of written notice of such termination from the
terminating party, unless the other party hereto notifies the Title
Company that it disputes the right of the other party to receive
the ▇▇▇▇▇▇▇ Money. In such event, the Title Company shall
interplead the ▇▇▇▇▇▇▇ Money into a court of competent jurisdiction
in ▇▇▇▇▇ County, Florida. All attorneys' fees and costs and Title
Company's costs and expenses incurred in connection with such
interpleader shall be assessed against the party that is not
awarded the ▇▇▇▇▇▇▇ Money or if the ▇▇▇▇▇▇▇ Money is distributed in
part to both parties, then in the inverse proportion of such
distribution. Notwithstanding the foregoing, in the event this
Agreement is terminated and Purchaser is entitled to receive the
▇▇▇▇▇▇▇ Money, Title Company is not authorized to deliver the
▇▇▇▇▇▇▇ Money to Purchaser unless and until Seller notifies Title
Company in writing that it has received the Documents and the
Purchaser's Information. Seller agrees to deliver said notice
promptly following its receipt of the Documents and the Purchaser's
Information.
VII.
Closing
7.1 Closing Date. The Closing shall be held in the offices of
the Title Company (or such other location as may be mutually agreed
upon by Seller and Purchaser) at 10:00 a.m. (Central Daylight
Savings Time) on or before the fifteenth (15th) day following the
expiration of the Inspection Period.
7.2 Closing Matters.
(a) Seller's Deliveries. At Closing, Seller shall
deliver:
(i) to the extent available and in Seller's
possession or control, originals of all Leases and Contracts
affecting the Real Property;
(ii) possession of the Property, subject to the rights
of Tenants and the Permitted Exceptions;
(iii) to the extent available and in Seller's
possession, copies of all necessary permits issued by appropriate
governmental authorities and utility companies relating to the
Property;
(iv) an executed and acknowledged special warranty
deed ("Deed") in the form set forth in Exhibit "C" conveying the
Real Property;
(v) a ▇▇▇▇ of sale, assignment and assumption in the
form of Exhibit "D" ("▇▇▇▇ of Sale, Assignment and Assumption"),
executed and acknowledged by Seller, conveying without warranty the
Personalty and assigning Seller's interest in the Leases and all
assignable non-cancelable or approved (by Purchaser) cancelable
Contracts. Seller shall assign the Leases and Contracts to
Purchaser at Closing, and Purchaser shall assume all liability
thereunder. Purchaser hereby agrees (which agreement shall survive
the closing) to indemnify, defend, and hold Seller free and
harmless from any loss, injury, liability, damage, claim, lien,
cost or expense, including attorneys' fees and costs, arising out
of any claims related to such Leases and Contracts relating to acts
or omissions occurring from and after the Closing Date; and
(vi) a certificate of Seller respecting the "non-foreign"
status of Seller in the form set forth in Exhibit "E" attached hereto.
(b) Purchaser's Deliveries. At Closing, Purchaser shall
deliver:
(i) the remaining funds for the Purchase Price to the
Title Company (all monies Purchaser is required to deliver shall be
sent by wire transfer of immediately available federal funds to the
account-designated by Title Company and available for disbursement
no later than 2:00 p.m. [Central Daylight Savings Time] on the
Closing Date);
(ii) the ▇▇▇▇ of Sale, Assignment and Assumption, duly
executed and acknowledged by Purchaser; and
(iii) such other documents as may be reasonably
required by Seller or Title Company, including, but not limited to,
a certified copy of a resolution of the board of directors of
Purchaser (if a corporation) authorizing Purchaser to consummate
the purchase of the Property in accordance with this Agreement and
designating those persons authorized to execute and deliver all
necessary documents at Closing.
(c) Prorations. At Closing, the following items shall be
prorated as of the date of Closing with all items of income and
expense for the Property being borne by Purchaser for the date of
Closing: Rents; fees and assessments; prepaid expenses and
obligations under Contracts; accrued expenses; ad valorem taxes and
other personal property taxes and assessments (collectively, "Ad
Valorem Taxes") for the year of Closing on a due date basis paid in
advance; and tax service costs ("Tax Service Costs"), if any,
incurred by Seller in connection with obtaining a reduction in the
ad valorem tax valuation of the Property for the year of Closing.
(i) If the Ad Valorem Taxes for the year of Closing
are not known or cannot be reasonably estimated, taxes shall be
adjusted based on taxes for the year prior to closing. If the Tax
Service Costs incurred in the year of Closing are not known, the
costs will be adjusted based on the best information available to
Seller at the time of Closing. Any additional Ad Valorem Taxes
relating to the year of Closing or prior years arising out of a
change in the use of the Real Property or a change in ownership
shall be paid by Purchaser when assessed. The provisions of this
Section 7.2(.Q) shall survive Closing.
(ii) Purchaser shall take all steps necessary to
effectuate the transfer of all utilities to its name as of the
Closing Date and, where necessary, post deposits with the utility
companies. Purchaser shall further ensure that all utility meters
are read as of the Closing Date. Seller shall pay all utilities up
to and including the Closing Date and all utilities thereafter
shall be paid for by Purchaser. Seller shall be entitled to
recover any and all deposits held by any utility company as of the
Closing Date. To the extent Purchaser fails to provide, where
required, deposits to any such utility company(ies) so as to
prevent the timely release of Seller's deposit(s) by the utility
company(ies) on the Closing Date, the amount of such deposit(s)
shall be credited to Seller and the Purchase Price shall be
adjusted accordingly. In such event, the deposit(s) will be
assigned to Purchaser, who shall have rights to have the deposit(s)
released to it upon satisfaction of the conditions imposed by the
utility company(ies).
(iii) Seller shall retain the Security Deposits,
if any, and the amount thereof (as reflected in the lease files)
shall be credited to the Purchase Price.
(iv) At Closing, Seller shall pay to the Purchaser, in
cash, the amount of any rents paid to the Seller by Tenants for the
Closing Date and periods subsequent to the Closing Date. No
proration shall be made for rents and other charges delinquent as
of the Closing Date (collectively, "Delinquent Rents"). All
Delinquent Rents collected on or after the Closing Date shall be
allocated to the earliest month for which rental is still due for
that Tenant. Any Delinquent Rents collected by Purchaser after
Closing, shall be forthwith paid by Purchaser to Seller. Seller
shall be entitled to collect all Delinquent Rents. Once any
Delinquent Rents are in excess of ninety (90) days past due, all
rights to pursue collection of such amounts shall vest solely in
Seller; provided, however, that Seller shall not be entitled to
pursue eviction proceedings in connection with any such legal
action.
(d) Purchaser's Assumption. Purchaser agrees to: (i)
assume and perform all of the covenants of Seller and Seller's
predecessor in title pursuant to the Leases and Contracts, which
are performable subsequent to the Closing Date; (ii) deliver
written notice ("Security Deposit Notice") to each of the Tenants
of the Property in form reasonably satisfactory to Seller, to the
effect, among other things, that Purchaser has assumed all
liability with respect to the Security Deposits; (iii) on or before
ten (10) days following the Closing Date, deliver to Seller a
certification to the effect that the Security Deposit Notices have
been delivered to all Tenants of the Property; and (iv) collect on
behalf of Seller all Delinquent Rents and deliver all such sums
collected to Seller promptly thereafter. Purchaser indemnifies and
holds Seller harmless from and against any and all claims, costs
and expenses (including reasonable attorneys' fees) asserted
against or incurred by Seller and arising out of the failure of
Purchaser to perform its obligations pursuant to this Section
7.2(d).
(e) Preparation of Documents. All of the documents to be
executed at Closing shall be in the form prepared to the
satisfaction of Seller's counsel and delivered to Purchaser on or
before two (2) days prior to the Closing Date.
(f) Survival Provisions. The agreements set forth in
Section 7.2(c) and (d) shall survive the Closing and be enforceable
until fully performed.
7.3 Closing Costs. Except as otherwise provided in Sections
6.3 and 6.4, each party shall be responsible for the payment of its
own attorneys' fees incurred in connection with the transaction
that is the subject of this Agreement. Any escrow fee charged by
the Title Company shall be paid 1/2 by Seller and 1/2 by Purchaser.
Subject to the foregoing in this Section 7.3, Seller shall pay only
the costs for the Commitment, the Title Policy (except for extended
or comprehensive coverage, any endorsements or amendments thereto
or any Title Company inspection fees, which shall all be at the
cost and expense of Purchaser) and one-half (1/2) of any and all
recording, transfer and documentary stamp fees or taxes. Other
than the costs and fees which are to be paid by Seller pursuant to
the preceding sentence, Purchaser shall pay any and all other
costs, fees or taxes, including, without limitation, the other one-half
(1/2) of all recording, transfer and documentary stamp fees or
taxes and any and all mortgage fees or taxes, and all other closing
costs of any nature and costs of any inspections or tests Purchaser
authorizes or conducts.
7.4 Real Estate Commissions. Seller and Purchaser each
represent and warrant to the other that no real estate brokerage
commission is payable to any person or entity in connection with
the transaction contemplated hereby, and each agrees to and does
hereby indemnify and hold the other harmless against the payment of
any commission to any person or entity claiming by, through or
under Seller or Purchaser, as applicable. This indemnification
shall extend to any and all claims, liabilities, costs and expenses
(including reasonable attorneys' fees and litigation costs) arising
as a result of such claims and shall survive the Closing.
VIII.
Condemnation
8.1 Condemnation. If, prior to Closing, any governmental
authority or other entity having condemnation authority shall
institute an eminent domain proceeding or take any steps
preliminary thereto (including the giving of any direct or indirect
notice of intent to institute such proceedings) with regard to a
Material Portion (as hereinafter defined) of the Real Property, and
the same is not dismissed on or before ten (IO) days prior to
Closing, Purchaser shall be entitled, as its sole remedy, to
terminate this Agreement by giving written notice to Seller on or
before the earlier to occur of (a) ten (10) days following notice
by Seller to Purchaser of such condemnation, or (b) the Closing
Date. In the event Purchaser does not terminate this Agreement
pursuant to the preceding sentence, Purchaser shall be conclusively
deemed to have elected to close the acquisition of the Property
subject to such condemnation and waives any right to terminate this
Agreement as a result thereof. For purposes of this Section, a
"Material Portion" shall mean that portion of the Real Property
which, if taken or condemned, would reduce the value of the
Property by not less than $1,000,000.00 or twenty-five percent
(25%) of the Purchase Price, whichever is greater. Notwithstanding
anything to the contrary herein, if any eminent domain proceeding
is instituted (or notice of which shall be given) solely for the
taking of any subsurface rights for utility easements or for any
right-of-way easement, and the surface may, after such taking, be
used in substantially the same manner as though such rights had not
been taken, Purchaser shall not be entitled to terminate this
Agreement as to any part of the Real Property, but any award
resulting therefrom shall be the exclusive property of Purchaser
upon Closing. In the event Purchaser elects to terminate this
Agreement under this Section 8.1, the ▇▇▇▇▇▇▇ Money shall be
returned to Purchaser upon Seller's receipt of the Documents and
Purchaser's Information in accordance with Section 6.4, and neither
party to this Agreement shall thereafter have any further rights or
obligations hereunder except as otherwise provided in Sections 3.3
and 7.4 hereof. If Purchaser waives (or is deemed to have waived)
the right to terminate this Agreement as a result of such a
condemnation, despite such condemnation, Seller and Purchaser shall
close this Agreement in accordance with the terms hereof with no
reduction in the Purchase Price, and Seller shall assign to
Purchaser at Closing all of Seller's right, title and interest in
and to all proceeds resulting or to result from said condemnation.
IX.
Risk of Loss
9.1 Risk of Loss. Until Closing, Seller alone shall bear the
risk of loss should there be damage to any of the Improvements by
fire or other casualty (collectively, "Casualty"). If, prior to
the Closing, any of the Improvements shall be damaged by a
Casualty, Seller shall deliver to Purchaser written notice
("Casualty Loss Notice") of such Casualty after it has made its
termination determination provided for in Section 9.2 hereof.
9.2 Material Loss. For the purposes of Section 9.2 and 9.3,
"Material Damage" shall mean damage to the Improvements of such
nature that the cost of restoring the same to their condition prior
to the Casualty will, in Seller's determination, exceed the greater
of $ 1,000,000.00 or twenty-five percent (25%) of the Purchase
Price, whether or not such damage is covered by insurance. If, in
Seller's determination, the Improvements have sustained Material
Damage by a Casualty, Seller may, at its option, terminate this
Agreement by delivering written notice to Purchaser on or before
Closing, and neither party hereto shall have any further rights or
obligations hereunder (except pursuant to Section 3.3 and 7.4
hereof). In the event Seller does not so terminate this Agreement,
Purchaser may, at its sole option, within fifteen (15) days after
delivery of the Casualty Loss Notice, either (a) terminate this
Agreement by delivering written notice of same to Seller, or (b)
waive its right of termination and proceed to close this
transaction in accordance with the terms hereof (clause (b) shall
be referred to herein as the "Waiver Option"). Failure of
Purchaser to deliver written notice of termination within said
fifteen (I 5) day period shall be conclusively deemed to be an
election by Purchaser of the Waiver Option. In the event Seller or
Purchaser elects to terminate this-Agreement under this Section
9.2, the ▇▇▇▇▇▇▇ Money shall be returned to Purchaser upon Seller's
receipt of the Documents and Purchaser's Information and thereafter
neither party to this Agreement shall thereafter have any further
rights or obligations hereunder, except as otherwise provided in
Sections 3.3 and 7.4 hereof. If Purchaser elects the Waiver
Option, then at the option of Seller, (a) Seller shall repair the
Improvements to substantially their condition prior to such damage,
or (b) Seller shall deliver to Purchaser an amount equal to the
deductible and assign to Purchaser all of its rights in the
resulting casualty insurance proceeds [but the amount of such
deductible plus insurance proceeds shall not exceed the lesser of
(i) the cost of repair or (ii) the Purchase Price] and a pro rata
share of the rental or business loss proceeds, if any, from the
insurance coverage. In the event Seller elects to assign insurance
proceeds, (A) Purchaser may notify all appropriate insurance
companies of its interest in the insurance proceeds, and (B) all
casualty insurance proceeds payable as a result of the loss
(subject to the limitation herein described) and Purchaser's pro
rata share of any rental or business loss proceeds shall be
assigned to Purchaser at Closing.
9.3 Non-Material Loss. In the event, in Seller's
determination, the Improvements have sustained less than Material
Damage by a Casualty, the rights and obligations of the parties
shall not be affected thereby and at the option of Seller, (a)
Seller shall repair the Improvements to substantially their
condition prior to such damage, or (b) Seller shall deliver to
Purchaser an amount equal to the deductible and assign to Purchaser
all of its rights in the resulting casualty insurance proceeds [but
the amount of such deductible plus insurance proceeds shall not
exceed the lesser of (i) the cost of repair or (ii) the Purchase
Price) and a pro rata share of the rental or business loss
proceeds, if any, from the insurance coverage. In the event Seller
elects to assign insurance proceeds, (A) Purchaser may notify all
appropriate insurance companies of its interest in the insurance
proceeds, and (B) all casualty insurance proceeds payable as a
result of the loss (subject to the limitation herein described) and
Purchaser's pro rata share of any rental or business loss proceeds
shall be assigned to Purchaser at Closing.
9.4 Delay in Completion of Repairs. If Seller has elected to
repair and if the repairs cannot be completed by the Closing Date,
the Seller may, at Seller's option, and following notice to
Purchaser of Seller's exercise of such option on or before Closing,
postpone the Closing Date until five (5) days following substantial
completion of the repairs, notwithstanding anything in Section 7.1
of this Agreement to the contrary.
9.5 Postponement of Closing. If, as a result of a Casualty,
any determination (including, but not limited to, a determination
by arbitration), election or agreement required by the terms of
this Article IX is not made by the Closing Date, the Closing Date
shall be extended until twenty (20) days after said determination,
election or agreement is made, subject to such further extension as
may be allowed by the terms of this Article IX, notwithstanding
anything in Section 7.1 of this Agreement to the contrary;
provided, however, if said determination, election or agreement has
not been made within thirty (30) days following the originally
scheduled Closing Date, this Agreement shall automatically
terminate and, provided that Purchaser is not in default hereunder,
neither party shall have any further rights or obligations
hereunder (except pursuant to Sections 3.3 and 7.4 hereof) and the
▇▇▇▇▇▇▇ Money shall be returned to Purchaser following Purchaser's
delivery of the Documents and Purchaser's Information in accordance
with Section 6.4.
X.
Miscellaneous
10.1 Entire Agreement. This Agreement contains the entire
agreement of the parties hereto. There are no other agreements,
oral or written, and this Agreement can be amended only by written
agreement signed by the parties hereto, and by reference, made a
part hereof.
10.2 Agreement Binding on Parties. This Agreement, and the
terms, covenants, and conditions herein contained, shall inure to
the benefit of and be binding upon the heirs, personal
representatives, successors, and assigns of each of the parties
hereto. Purchaser may assign its rights under this Agreement upon
the following conditions: (i) the assignee of Purchaser must be an
affiliate of Purchaser or an entity controlling, controlled by, or
under common control with Purchaser, (ii) all of the ▇▇▇▇▇▇▇ Money
must have been delivered in accordance with Section 2.2, (iii) the
Inspection Period shall be deemed to have ended, (iv) Purchaser
shall remain primarily liable for the performance of Purchaser's
obligations, (v) Purchaser shall agree to reimburse Seller for its
attorneys' fees and expenses, if any, incurred in connection with
revisions to the closing documents, and (vi) a copy of the fully
executed written assignment and assumption agreement shall be
delivered to Seller at least ten (10) days prior to Closing.
10.3 Effective Date. The Effective Date of this Agreement shall
be the date on which the Title Company acknowledges (by execution
of the Joinder by Title Company) its receipt of a copy of this
Agreement executed by both Seller and Purchaser and receipt of the
▇▇▇▇▇▇▇ Money. The execution hereof by Purchaser shall constitute
an offer by Purchaser to Seller to purchase the Property on the
terms and conditions herein stated, which must be accepted by
Seller on or before 5:00 P.M. on or before the third (3rd) day
after receipt, by the execution hereof by Seller. If Purchaser's
offer is not timely accepted, this Agreement shall be thereafter
null and void.
10.4 Notice. Any notice, communication, request, reply or
advice (collectively, "Notice") provided for or permitted by this
Agreement to be made or accepted by either party must be in
writing. Notice may, unless otherwise provided herein, be given or
served by (i) depositing the same in the United States mail,
postage paid, certified, and addressed to the party to be notified,
with return receipt requested, (ii) by delivering the same to such
party, or an agent of such party, in person or by commercial
courier, (iii) by facsimile, evidenced by confirmed receipt, such
facsimile notice to be followed by notice by one of the other
delivery methods described in this Section 10.4, or (iv) by
depositing the same into custody of a nationally recognized
overnight delivery service such as Federal Express Corporation,
Airborne Express, ▇▇▇▇▇ or Purolator. Notice deposited in the mail
in the manner hereinabove described shall be effective on the third
day after such deposit. Notice given in any other manner shall be
effective only if and when received by the party to be notified
between the hours of 8:00 A.M. and 5:00 P.M. [Central Daylight
Savings Time] of any business day, with delivery made after such
hours to be deemed received the following business day. For the
purposes of notice, the addresses of the parties shall, until
changed as hereinafter provided, be as follows:
Seller: Mr. ▇▇▇▇ ▇▇▇▇▇▇
TE-Two Real Estate Limited Partnership
c/o ▇.▇. ▇▇▇▇▇▇ Companies, Inc.
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. and
▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Purchaser: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ Residential Properties, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copy to: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
The parties hereto shall have the right from time to time to
change their respective addresses, and each shall have the right to
specify as its address any other address within the United States
of America by at least five (5) days written notice to the other
party.
10.5 Time of the Essence. Time is of the essence in all things
pertaining to the performance of this Agreement.
10.6 Place of Performance. This Agreement is made and shall be
performable in ▇▇▇▇▇ County, Florida, and shall be construed in
accordance with the laws of the State of Florida.
10.7 Currency. All dollar amounts are expressed in United
States currency.
10.8 Section Headings. The section headings contained in this
Agreement are for convenience only and shall in no way enlarge or
limit the scope or meaning of the various and several sections
hereof.
10.9 Obligations. To the extent necessary to carry out the
terms and provisions hereof, and unless otherwise specifically
provided elsewhere herein, the terms, conditions, obligations and
rights set forth herein shall not be deemed terminated at the time
of Closing, nor will they merge into the various documents executed
and delivered at the time of Closing.
10.10 Business Days. To the extent available and in
Seller's possession or control, originals of all Leases and
Contracts affecting the Real Property.
10.11 Purchaser's Representations and Warranties.
(a) Authority of Purchaser. Purchaser represents and
warrants that Purchaser has full right, power and authority to
enter into this Agreement and, at Closing, will have full right,
power and authority to consummate the sale provided for herein.
(b) No Bankruptcy or Receivership. That at no time on or
before the Closing Date, shall any of the following have occurred
with respect to Purchaser, and if Purchaser is a partnership, to
any general partners of Purchaser: (i) the commencement of a case
under Title I I of the United States Code, as now constituted or
hereafter amended, or under any other applicable federal or state
bankruptcy law or other similar law; (ii) the appointment of a
trustee or receiver of any property interest; (iii) an assignment
for the benefit of creditors; (iv) an attachment, execution or
other judicial seizure of a substantial property interest; (v) the
taking of, failure to take, or submission to any action indicating
an inability to meet its financial obligations as they accrue; or
(vi) a dissolution or liquidation, death or incapacity.
10.12 Representations and Warranties of Seller. Seller
hereby represents, warrants and covenants to Purchaser as follows:
(a) Seller has full right, power and authority to enter
into this Agreement and, at Closing will have full right, power and
authority to consummate the sale provided for herein.
(b) Seller has no actual knowledge of any breach or
violation of any legal requirement, ordinance, regulation, order,
decree, law or statute pertaining to the Real Property or any
portion thereof and, to the best of Seller's actual knowledge, the
Real Property is not currently subject to any pending condemnation
action.
10.13 Effect of Representations and Warranties. Where the
foregoing representations, warranties and covenants of Seller or
Purchaser are qualified to the best of such party's knowledge or
words of similar import, such phrase shall mean matters of which
such party has current, actual knowledge, without the obligation or
duty to undertake any independent investigation or inquiry
whatsoever. Neither party shall be entitled to bring any action,
suit or proceeding or seek any other right or remedy against the
other party for a breach of any warranty or covenant hereunder or
as a result of any misrepresentation made by such party herein
unless the aggrieved party has given the defaulting party
reasonably detailed written notice of such breach within twelve
(12) months after Closing.
10.14 No Recording. Without the prior written consent of
Seller, there shall be no recordation of either this Agreement or
any memorandum hereof, or any affidavit pertaining hereto and any
such recordation of this Agreement or memorandum hereto by
Purchaser without the prior written consent of Seller shall
constitute a default hereunder by Purchaser, whereupon this
Agreement shall, at the option of Seller, terminate and be of no
further force and effect. Upon termination all ▇▇▇▇▇▇▇ Money shall
be immediately delivered to Seller, whereupon the parties shall
have no further duties or obligations one to the other except as
provided in Sections 3.3 and 7.4.
10.15 Multiple Counterparts. This Agreement may be executed
in multiple counterparts, each of which is to be deemed an original
for all purposes.
10.16 Severability. If any provision of this Agreement or
application to any party or circumstance shall be determined by any
court of competent jurisdiction to be invalid and unenforceable to
any extent, the remainder of this Agreement or the application of
such provision to such person or circumstances, other than those as
to which it is so determined invalid or unenforceable, shall not be
affected thereby, and each provision hereof shall be valid and
shall be enforced to the fullest extent permitted by law.
10.17 Mandatory Arbitration. The parties hereby agree to
submit all controversies, claims and matters of difference arising
out of or relating to this Agreement and the transactions
contemplated hereby to binding arbitration in the County of ▇▇▇▇▇,
State of Florida, in accordance with the rules and practices of The
American Arbitration Association from time to time in effect (the
"Rules"). This submission and agreement to arbitrate shall be
mandatory, exclusive and specifically enforceable. All references
in this Agreement to litigation between Purchaser and Seller, shall
be governed by the provisions of this Section 10, 16. Without
limiting the generality of the foregoing, the following shall be
considered controversies for this purpose:
(a) All questions relating to the breach of any
obligation, warranty, representation, covenant or agreement
hereunder or under any Exhibit hereto and all questions relating to
the construction and interpretation thereof,
(b) All questions relating to representations,
negotiations and other proceedings leading to the execution hereof
and all modifications of this Agreement of every nature and
description;
(c) Failure of any party to deny or reject a claim or
demand of another party;
(d) All questions as to whether the right to arbitrate any
questions exists or as to the existence of any agreement to
arbitrate; and
(e) All issues raised by any subsequent alleged amendment
hereto, whether written or oral, unless such amendment expressly
cancels this arbitration provision in writing signed by all
affected parties hereto.
The parties may agree on a retired judge as sole arbitrator. In
the absence of such agreement, there shall be three (3)
arbitrators, selected in accordance with the Rules: one (1)
attorney and/or retired judge, one (1) expert in commercial
mortgage and real estate transactions, and one (1) certified public
accountant. A decision agreed on by two (2) of the arbitrators
shall be the decision of the arbitration panel; provided however,
that in the case of monetary damages, if there is no agreement of
two arbitrators as to the amount of the award, then the final award
of the arbitration panel for the purpose of this Agreement shall be
the amount left after excluding the highest and lowest amounts.
The parties agree to abide by all awards rendered in such
proceedings. Any award shall include costs and reasonable
attorneys' fees to the successful party. Such awards shall be
final and binding on all parties. There shall be no appeal
therefrom, other than for fraud or misconduct. All awards may be
filed with the clerk of one or more courts, State or Federal,
having jurisdiction over the party against whom such an award is
rendered or its property as a basis of judgment and of the issuance
of an order authorizing execution for collection. Nothing in this
Agreement and/or the Exhibits hereto shall be deemed to prevent the
arbitration panel from exercising authority to permit exercise by
a party of its legal and/or equitable remedies, including the right
of offset. It is understood by the parties that there is not
intended in this Agreement or any Exhibit hereto that there be a
waiver of a party's right to any remedy which may be enforced
through arbitration, specifically including, without limitation,
the right of setoff and injunctive relief.
10.18 Asset Manager; Designated Representative. Owner has
engaged ▇.▇. ▇▇▇▇▇▇ Companies, Inc. ("Asset Manager") to provide
certain asset management services with respect to the Property,
including acting as a liaison between Owner and Purchaser in
connection with the Property and this Agreement. The Asset Manager
will appoint one or more representatives ("Designated
Representative(s)") to deal with Purchaser. Purchaser understands
and agrees that the Asset Manager and its Designated
Representative(s) have the authority to take any actions, grant any
approvals, consents, acceptances or directions, on behalf of Owner
(including entering into this Agreement on behalf of Owner) unless
and until Owner has given written notice to Purchaser that such
authority has been amended, modified or terminated.
10.19 Confidentiality. The parties hereto hereby agree that
they will maintain the confidentiality of all information and
materials provided to each other in connection herewith and the
terms of the transaction contemplated hereby, the contents of this
Agreement and related documents, if any, except that Purchaser may
disclose material terms which are required to be disclosed by
applicable securities laws or as required by any national
securities exchange on which Purchaser's common stock may be listed
and Purchaser may include a copy of this Agreement and in its
filings with the Securities and Exchange Commission.
10.20 Limited Liability of Officers. This Agreement and all
documents, agreements, understandings, and arrangements relating to
this transaction have been executed by the undersigned in his/her
capacity as an officer or director of Purchaser which has been
formed as a Maryland corporation pursuant to the Articles of
Incorporation of Purchaser, and not individually, and neither the
directors, officers or stockholders of Purchaser shall be bound or
have any personal liability hereunder or thereunder. Seller shall
look solely to the assets of Purchaser for satisfaction of any
liability of the Purchaser in respect of this Agreement and all
documents, agreements, understandings and arrangements relating to
the transaction contemplated by this Agreement and will not seek
recourse or commence any action against any of the directors,
officers or stockholders of Purchaser or any of their personal
assets for the performance or payment of any obligation hereunder
or thereunder. The foregoing shall also apply to any future
documents, agreements, understandings, arrangements and
transactions between the parties hereto.
10.21 Vesting of Title To Property. Purchaser may assign
its rights and obligations under this Agreement to an affiliate of
Purchaser upon written notice to Seller not less than five (5) days
prior to Closing; provided, however, that such assignee must
expressly assume the obligations of Purchaser hereunder; and
notwithstanding such assumption by Assignee, Purchaser shall remain
fully liable for the obligations of Purchaser under this Agreement.
SELLER:
TE-TWO REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: WH-JER TE-Two Investors, L.P.,
a Delaware limited partnership,
its general partner
By: JER TE-Two Services, Inc.,
a Virginia corporation,
its general partner
DATE: July ____, 1996 By: _________________________
Name: _________________________
Title: _________________________
PURCHASER
▇▇▇▇▇▇ RESIDENTIAL PROPERTIES, INC.,
a Maryland corporation
DATE: July ____, 1996 By: _________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
JOINDER BY TITLE COMPANY
National Network Title Services, Ltd., referred to in this
Agreement as the "Title Company," hereby acknowledges that it
received this Agreement executed by Seller and Purchaser on the day
of July, 1996, and accepts the obligations of the Title Company as
set forth herein. It further acknowledges that it received the
▇▇▇▇▇▇▇ Money on the _____ day of July, 1996. The Title Company
hereby agrees to hold and distribute the ▇▇▇▇▇▇▇ Money in
accordance with the terms and provisions of this Agreement.
NATIONAL NETWORK TITLE SERVICES, LTD.
DATE: July ____, 1996 By: _________________________
Name: _________________________
Title: _________________________
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
LIST OF EXHIBITS
Exhibit "A" - Legal Description of Land
Exhibit "B" - List of Due Diligence Documents
Exhibit "C" - Deed
Exhibit "D" - ▇▇▇▇ of Sale, Assignment and Assumption
Exhibit "E" - Certificate of Non-Foreign Status
EXHIBIT "A"
LEGAL DESCRIPTION OF LAND
PARCEL A:
A portion of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 27 East. ▇▇▇▇▇
County, Florida, being more particularly described as follows:
Commence at the corner common to Sections 23 24, 25 and 26, said
point being located in the centerline of Baymeadows Road (formerly
San Clarc Road, a 100 foot right of way as now established): thence
South 00 Degrees 29' 04" East, along the line dividing said Sections 25
and 26, 234.09 feet to the Southerly right of way line of
Baymeadows Bypass Road (a 100 foot right of way as described and
recorded in Official Records Volume 3310 page 1198 of the public
records of said county); thence Northwesterly along said Southerly
right of way line and along and around the arc of a curve concave
Southwesterly and rating a radius of 1859.86 feet, an arc distance
of 799.06 feet, said arc being subtended by a chord bearing and
distance of North 75 Degrees 57' 58" West, 783.16 feet to the POINT OF
BEGINNING) thence continue along said Southerly of way line, along
and around the arc of said curve, an arc distance of 45.33 feet,
said arc being subtended by a chord bearing and distance of North
88 Degrees 31' 00" West, 45.33 feet to the point of tangency of said
curve; thence North 89 Degrees 31' 00" West, along the Southerly line of
Baymeadows Road (a 100 foot right of way as now established),
130.29 feet; thence South 00 Degrees 29' 00" West, 707.81 feet; thence
South 89 Degrees 31' 00" East, 266.97 feet to an intersection with a curve
leading Northerly; thence along and around concave Easterly and
having a radius of 1386.50 feet, an arc distance of 361.91 feet,
said arc being subtended by a chord bearing and distance of North
06 Degrees 59' 40" West, 360.88 feet to the point of tangency of said
curve; thence North 00 Degrees 29' 00" East, 324.46 feet to the point of
curvature of a curve to the left, thence along and a concave
Southwesterly and having a radius of 25.00 feet, an arc distance of
38.66 feet, said arc being subtended by a chord bearing and
distance of North feet to the point of beginning.
PARCEL B:
A portion of ▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇, ▇▇▇▇▇ 27 East, ▇▇▇▇▇
County, Florida, being more particularly described as follows:
Commence at the corner common to Sections 23 24, 25 and 26; thence
South 00 Degrees 19' 04" East, along the line dividing said Sections 25
and 26, 234.09 feet to the Southerly right of way line of
Baymeadows Bypass Road (a 100 foot right of way as described and
recorded in Official Records Volume 3310 page 1198 of the public
records of said county); thence Northwesterly along said Southerly
right of way Iine and along and around the arc of a curve concave
Southwesterly and having a radius of !859.96 feet, an arc distance
of 789.06 feet, said arc being subtended by a chord bearing and
distance of North 75 degrees 57' 56" West, 793.16 feet to the point of
reverse curvature of a curve leading Southeasterly; thence along
and around the arc of a curve concave Southwesterly and having a
radius of 25.00 feet, an arc distance of 38.66 feet, said arc being
subtended by a chord bearing and distance of South 43 degrees 49' 09"
East, 34.92 feet to the point of tangency of said curve; thence
South 00 degrees 29' 00" West, 324.46 feet to the Point of curvature of a
curve to the left; thence along and around the arc of a curve
concave Easterly and having a radius of 1386.50 feet, an arc
distance of 361.91 feet, said arc being subtended by a chord
bearing and distance of South 06 degrees 59' 40" East, 360.88 feet to the
POINT OF BEGINNING, thence continue along and around the arc of
said curve, an arc distance of 116.02 feet, said arc being
subtended by a chord bearing and distance of South 16 degrees 52' 10"
East, 115.99 feet to a point on said curve; thence South 19 degrees 15'
56" East, 266.37 feet to the intersection of a curve leading
Southwesterly; thence along and around the arc of a curve concave
Northwesterly and having a radius of 270.00 feet an arc distance of
517.18 feet, said arc being subtended by a chord bearing and
distance of West, 441.67 feet to the point of tangency of said
curve; thence North 89 degrees 31' 00" West, 237.47 feet; thence North 00
degrees 29' 00" East, 22.65 feet; thence North 29 degrees 17' 14" West, 35.10
feet; thence North 00 degrees 29' 00" East, 396.10 feet; thence South 89
degrees 31' 00" East, 540.82 feet to the point of beginning.
EXHIBIT "B"
LIST OF DUE DILIGENCE DOCUMENTS
A. Rent Roll dated June 1996
B. Monthly Operating Statements for the calendar year 1995 and
the months of January 1996 through May 1996
C. 1995 Ad Valorem Tax ▇▇▇▇
▇. Environmental Report
E. Service Contracts
F. Schedule of Capital Expenditures for the calendar year 1995
and the months of January 1996 through May 1996
G. Current Personal Property Inventory
EXHIBIT "C"
DEED
This Deed, made this _____ day of ____________________,1996,
by and between TE-TWO REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership ("Grantor"), the address of which is c/o
▇.▇. ▇▇▇▇▇▇ Companies, ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
and ▇▇▇▇▇▇ RESIDENTIAL PROPERTIES, INC., a Maryland corporation
("Grantee"), the address of which is One Lincoln Centre - Lock Box 45,
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇.
WITNESSETH:
For valuable consideration paid to Grantor by Grantee, the
receipt of which is hereby acknowledged, Grantor does hereby grant,
bargain, sell and convey to Grantee that certain real property
situated in the City of Jacksonville, ▇▇▇▇▇ County, Florida, more
particularly described in Exhibit "A" attached hereto and made a
part hereof, together with all and singular the tenements,
hereditaments and appurtenances thereunto belonging or in anywise
appertaining (the "Premises"), and all the estate, right, title,
interest, claim or demand whatsoever, of Grantor, either in law or
equity, of, in and to the above described Premises, subject to
those matters set forth in Exhibit "B" attached hereto and made a
part hereof.
Grantor does hereby wan-ant and will defend the title to the
Premises, subject to those matters set forth on Exhibit "B"
attached hereto, against the lawful claims of all persons
whomsoever claiming by, through or under Grantor but not otherwise.
EXCEPT AS SPECIFICALLY STATED HEREIN, GRANTOR HAS NOT MADE AND
IS NOT NOW MAKING, AND GRANTOR SPECIFICALLY DISCLAIMS, ANY
WARRANTIES, REPRESENTATIONS OR GUARANTEES OF ANY KIND OR CHARACTER,
EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT OR FUTURE, WITH
RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES,
REPRESENTATIONS OR GUARANTIES AS TO (I) MATTERS OF TITLE (OTHER
THAN GRANTOR'S WARRANTY OF TITLE SET FORTH HEREIN); (II)
ENVIRONMENTAL MATTERS RELATING TO THE PROPERTY OR ANY PORTION
THEREOF; (III) GEOLOGICAL CONDITIONS, INCLUDING, WITHOUT LIMITATION,
SUBSIDENCE, SUBSURFACE CONDITIONS, WATER TABLE, UNDERGROUND WATER
RESERVOIRS, LIMITATIONS REGARDING THE WITHDRAWAL OF WATER AND
EARTHQUAKE FAULTS AND THE RESULTING DAMAGE OF PAST AND/OR FUTURE
EARTHQUAKES; (IV) WHETHER, AND THE EXTENT TO WHICH, THE PROPERTY OR
ANY PORTION THEREOF IS AFFECTED BY ANY STREAM (SURFACE OR
UNDERGROUND), BODY OF WATER, FLOOD PRONE AREA, FLOOD PLAIN,
FLOODWAY OR SPECIAL FLOOD HAZARD; (V) DRAINAGE; (VI) SOIL
CONDITIONS, INCLUDING THE EXISTENCE OF INSTABILITY, PAST SOIL
REPAIRS, SOIL ADDITIONS OR CONDITIONS OF SOIL FELL, OR
SUSCEPTIBILITY TO LANDSLIDES, OR THE SUFFICIENCY OF ANY
UNDERSHORING; (VII) ZONING TO WHICH THE PROPERTY OR ANY PORTION
THEREOF MAY BE SUBJECT; (VIII) THE AVAILABILITY OF ANY UTILITIES TO
THE PROPERTY OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION,
WATER, SEWAGE, GAS AND ELECTRIC; (DC) USAGES OF ADJOINING PROPERTY;
(X) ACCESS TO THE PROPERTY OR ANY PORTION THEREOF; (XI) THE VALUE,
COMPLIANCE WITH THE PLANS AND SPECIFICATIONS, SIZE, LOCATION, AGE,
USE, DESIGN, QUALITY, DESCRIPTION, SUITABILITY, STRUCTURAL
INTEGRITY, OPERATION, TITLE TO, OR PHYSICAL OR FINANCIAL CONDITION
OF THE PROPERTY OR ANY PORTION THEREOF, OR ANY INCOME, EXPENSES,
CHARGES, LIENS, ENCUMBRANCES, RIGHTS OR CLAIMS ON OR AFFECTING OR
PERTAINING TO THE PROPERTY OR ANY PART THEREOF; (XII) THE PRESENCE
OF HAZARDOUS SUBSTANCES (AS DEFINED IN FEDERAL, STATE OR LOCAL LAWS
AND REGULATIONS) IN OR ON, UNDER OR IN THE VICINITY OF THE
PROPERTY; (XIII) THE CONDITION OR USE OF THE PROPERTY OR COMPLIANCE
OF THE PROPERTY WITH ANY OR ALL PAST, PRESENT OR FUTURE FEDERAL,
STATE OR LOCAL ORDINANCES, RULES, REGULATIONS OR LAWS, BUILDING,
FIRE OR ZONING ORDINANCES, CODES OR OTHER SIMILAR LAWS; (UV) THE
EXISTENCE OR NONEXISTENCE OF UNDERGROUND STORAGE TANKS; (XV) ANY
OTHER MATTER AFFECTING THE STABILITY OR INTEGRITY OF THE REAL
PROPERTY; (XVI) THE POTENTIAL FOR FURTHER DEVELOPMENT OF THE
PROPERTY; (XVII) THE EXISTENCE OF VESTED LAND USE, ZONING OR
BUILDING ENTITLEMENTS AFFECTING THE PROPERTY; (XVIII) THE
MERCHANTABILITY OF THE PROPERTY OR FITNESS OF THE PROPERTY FOR ANY
PARTICULAR PURPOSE (PURCHASER, BY ITS ACCEPTANCE HEREOF, AFFIRMING
THAT PURCHASER HAS NOT RELIED ON GRANTOR'S SKILL OR JUDGMENT TO
SELECT OR FURNISH THE PROPERTY FOR ANY PARTICULAR PURPOSE, AND THAT
GRANTOR MAKES NO WARRANTY THAT THE PROPERTY IS FIT FOR ANY
PARTICULAR PURPOSE); OR (XIX) TAX CONSEQUENCES (INCLUDING, BUT NOT
LIMITED TO, THE AMOUNT, USE OR PROVISIONS RELATING TO ANY TAX
CREDITS). THE CONVEYANCE OF THE PROPERTY AS PROVIDED FOR HEREIN IS
MADE ON AN "AS IS, WHERE IS" BASIS, WITH ALL FAULTS.
IN WITNESS WHEREOF, Grantor has executed this deed on the day
and year first above written.
GRANTOR:
TE-TWO REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: WH-JER TE-Two Investors, L.P.
a Delaware limited partnership,
its general partner
By: JER TE-Two Services, Inc.,
a Virginia corporation,
its general partner
By: _________________________
Name: _________________________
Title: _________________________
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was ACKNOWLEDGED before me, on the _____ day of
____________________, 1996, by the of JER TE-Two Services, Inc., a Virginia
corporation, the general partner of WH-JER TE-Two Investors, L.P.,
a Delaware limited partnership, the general partner of TE-TWO REAL
ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership on
behalf of said corporation and said limited partnerships.
[S E A L) _____________________________
Notary Public, State of Texas Notary Public, State of Texas
My Commission Expires:
_____________________________
Printed Name of Notary Public
Grantee's Address for Tax Notices:
▇▇▇▇▇▇ Residential Properties, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇ ▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
When recorded. return to:
▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.C.
5400 Renaissance Tower
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT "D"
▇▇▇▇ OF SALE ASSIGNMENT AND ASSUMPTION
THIS ▇▇▇▇ OF SALE, ASSIGNMENT AND ASSUMPTION is made the _____ day
of ____________________, 1996, by and between TE-TWO REAL ESTATE LIMITED
PARTNERSHIP, a Delaware limited partnership ("Assignor"), and ▇▇▇▇▇▇
RESIDENTIAL PROPERTIES, INC., a Maryland corporation ("Assignee").
WITNESSETH:
For good and valuable consideration, receipt and sufficiency of
which are hereby acknowledged, Assignor and Assignee hereby agree
as follows:
1. Assignor hereby sells, transfers, assigns and conveys to
Assignee the following:
A. All right, title and interest of Assignor in and to
all tangible personal property ("Personalty") set forth in the
inventory on Exhibit "B" attached hereto and made a part hereof,
and located on, and used in connection with the management,
maintenance or operation of that certain land and improvements
located in the County of ▇▇▇▇▇, State of Florida, as more
particularly described in Exhibit "A" attached hereto and made
a part hereof ("Real Property"), but excluding tangible personal
property owned or leased by Assignor's property manager or the
tenants of the Real Property under the "Tenant Leases" (as
defined below).
b. All right, title and interest of Assignor in and to
those certain leases described on Exhibit "C", attached hereto
and made a part hereof (the "Tenant Leases"), relating to the
leasing of space in the Real Property and all of the rights,
interests, benefits and privileges of the lessor thereunder, and
to the extent Assignee has not received a credit therefor under
the Purchase Agreement (as defined below), all prepaid rents and
security and other deposits held by Assignor under the Tenant
Leases and not credited or returned to tenants, but subject to
all terms, conditions, reservations and limitations set forth in
the Tenant Leases.
c. To the extent assignable, all right, title and
interest in and to those certain contracts set forth on Exhibit
"D" attached hereto and made a part hereof, and all warranties,
guaranties, indemnities and claims (including, without
limitation, for workmanship, materials and performance) which
exist or may hereafter exist against any contractor,
subcontractor, manufacturer or supplier or laborer for services
relating thereto (collectively, the "Contracts").
2. This ▇▇▇▇ of Sale, Assignment and Assumption is given
pursuant to that certain Agreement of Sale and Purchase (the
"Agreement") dated as of July ___, 1996, between Assignor and
Assignee, providing for, among other things, the conveyance of the
Personalty, the Tenant Leases and the Contracts.
3. As set forth in Section 3.5 of the Agreement, which is
hereby incorporated by reference as if herein set out in full, the
property conveyed hereunder is conveyed by Assignor and accepted by
Assignee AS IS, WHERE IS, AND WITHOUT ANY WARRANTIES OF WHATSOEVER
NATURE, EXPRESS OR IMPLIED, IT BEING THE INTENTION OF ASSIGNOR AND
ASSIGNEE EXPRESSLY TO NEGATE AND EXCLUDE ALL WARRANTIES, INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR ANY PARTICULAR PURPOSE, WARRANTIES CREATED BY ANY
AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE
PROPERTY CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF, AND
ALL OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE
UNIFORM COMMERCIAL CODE, AS ADOPTED IN THE STATE OF FLORIDA.
4. Assignee hereby accepts the assignment of the Personalty,
the Tenant Leases and the Contracts and agrees to assume and
discharge, in accordance with the terms thereof, all of the
obligations thereunder from and after the date hereof.
5. Assignee agrees to indemnify and hold harmless Assignor
from any cost, liability, damage or expense (including attorneys'
fees) arising out of or relating to Assignee's failure to perform
any of the foregoing obligations arising from and accruing on or
after the date hereof.
6. This ▇▇▇▇ of Sale, Assignment and Assumption 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.
7. This ▇▇▇▇ of Sale, Assignment and Assumption shall be
governed by the laws of the State of Florida.
IN WITNESS WHEREOF, the parties hereto have executed this
▇▇▇▇ of Sale, Assignment and Assumption as of the date first above
written.
ASSIGNOR:
TE-TWO REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: WH-JER TE-Two Investors, L.P.,
a Delaware limited partnership,
its general partner
By: JER TE-Two Services, Inc.,
a Virginia corporation,
its general partner
By: _________________________
Name: _________________________
Title: _________________________
ASSIGNEE:
▇▇▇▇▇▇ RESIDENTIAL PROPERTIES, INC.,
a Maryland corporation
By: _________________________
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was ACKNOWLEDGED before me, on the _____ day of
____________________, 1996, by __________________________________
the of JER TE-Two Services, Inc., a Virginia corporation, the
general partner of WH-JER TE-Two Investors, L.P., a Delaware
limited partnership, the general partner of TE-TWO REAL ESTATE
LIMITED PARTNERSHIP, a Delaware limited partnership on behalf of
said corporation and said limited partnerships.
[S E A L) _____________________________
Notary Public, State of Texas Notary Public, State of Texas
My Commission Expires:
_____________________________
Printed Name of Notary Public
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was ACKNOWLEDGED before me, on the day of 1996,
by ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the President of ▇▇▇▇▇▇ RESIDENTIAL
PROPERTIES, INC., a Maryland corporation, on behalf of said
corporation.
[S E A L) _____________________________
Notary Public, State of Texas Notary Public, State of Texas
My Commission Expires:
_____________________________
Printed Name of Notary Public
EXHIBIT "E"
CERTIFICATION OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a
transferee of a United States real property interest must withhold
tax if the transferor is a foreign person. To inform the
transferee, ▇▇▇▇▇▇ RESIDENTIAL PROPERTIES, INC., a Maryland
corporation, that withholding tax is not required upon the
disposition of a United States real property interest by TE-TWO
REAL ESTATE LIMITED PARTNERSHIP, a Delaware limited partnership
("Seller"), the undersigned hereby certifies the following on
behalf of Seller:
1. Seller is not a foreign corporation, foreign partnership,
foreign trust or foreign estate (as those terms are defined in the
Internal Revenue Code and Income Tax Regulations promulgated
pursuant thereto);
2. Seller's United States Employer Identification Number is:
; and
3. Seller's office address is c/o ▇.▇. ▇▇▇▇▇▇ Companies, ▇▇▇
▇. ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇.
Seller understands that this Certification may be disclosed to
the Internal Revenue Service by transferee and that any false
statement contained herein could be punished by fine, imprisonment
or both.
Under penalties of perjury, I declare that I have examined this
Certification and, to the best of my knowledge and belief, it is
true, correct and complete, and I further declare that I have
authority to sign this document on behalf of Seller.
EXECUTED this _____ day of ____________________1996, at
Irving, Texas.
SELLER:
TE-TWO REAL ESTATE LIMITED PARTNERSHIP,
a Delaware limited partnership
By: WH-JER TE-Two Investors, L.P.,
a Delaware limited partnership,
its general partner
By: JER TE-Two Services, Inc.,
a Virginia corporation,
its general partner
By: _________________________
Name: _________________________
Title: _________________________
STATE OF TEXAS
COUNTY OF DALLAS
This instrument was SUBSCRIBED AND SWORN TO before me, on the _____ day
of ____________________, 1996, by _________________________________, the
of JER TE-Two Services, Inc., a Virginia corporation, the general
partner of WH-JER TE-Two Investors, L.P., a Delaware limited partnership,
the general partner of TE-TWO REAL ESTATE LIMITED PARTNERSHIP, a Delaware
limited partnership on behalf of said corporation and said limited
partnership, to certify which witness my hand and seal of office.
[S E A L) _____________________________
Notary Public, State of Texas Notary Public, State of Texas
My Commission Expires:
_____________________________
Printed Name of Notary Public