MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT (Ballantrae, Reflection Lakes, Monterra at Bonita Springs, Ybor City, Via Lugano and Madison at Park West)
Exhibit 10.24
MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT
(Ballantrae, Reflection Lakes, Monterra at Xxxxxx Springs,
Ybor City, Via Lugano and Madison at Park West)
(Ballantrae, Reflection Lakes, Monterra at Xxxxxx Springs,
Ybor City, Via Lugano and Madison at Park West)
THIS MEMBERSHIP INTEREST PURCHASE AND SALE AGREEMENT (this “Agreement”) is made as of this
28th day of December, 2007 by and between BALLANTRAE MANAGER INC., a Nevada corporation
(“BMI”), REFLECTION LAKES MANAGER, INC. a Nevada corporation (“RLM”), MONTERRA TARRAGON, INC., a
Nevada corporation (“MTI”), MADISON TARRAGON MANAGER, INC., a Nevada corporation (“MTM”), TARRAGON
SOUTH DEVELOPMENT CORPORATION, a Nevada corporation (“TSD”), and TARRAGON CORPORATION, a Nevada
corporation (“Tarragon”; Tarragon, together with BMI, RLM, MTI, MTM and TSD shall collectively be
referred to herein as “Seller”) whose address is 000 Xxxx 00xx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and NORTHLAND FUND II, L.P., a Delaware limited partnership
(“Purchaser”) whose address is 0000 Xxxxxxxxxx Xxxxxx, Xxxxxx, XX 00000.
WITNESSETH:
WHEREAS, BMI and Tarragon are the owners of 100% of the membership interests in BALLANTRAE
TARRAGON, LLC, a Florida limited liability company (the “Ballantrae Company”), representing
economic, voting and other rights in the Company, as more particularly set forth in that certain
Operating Agreement dated as of February 16, 2006 (as the same may be amended or modified, the
“Ballantrae Operating Agreement”)
WHEREAS, RLM and Tarragon are the owners of 100% of the membership interests in REFLECTION
LAKES TARRAGON, LLC, a Florida limited liability company (the “Reflection Lakes Company”),
representing economic, voting and other rights in the Company, as more particularly set forth in
that certain Operating Agreement dated as of January 6, 2006 (as the same may be amended or
modified, the “Reflection Lakes Operating Agreement”);
WHEREAS, MTI and Tarragon are the owners of 100% of the membership interests in OMNI MONTERRA
LLC, a Florida limited liability company (the “Monterra Company”), representing economic, voting
and other rights in the Company, as more particularly set forth in that certain Operating Agreement
dated as of August 17, 2005 (as the same may be amended or modified, the “Monterra Operating
Agreement”);
WHEREAS, MTM and Tarragon are the owners of 100% of the membership interests in MADISON AT
PARKWEST TARRAGON, LLC, a South Carolina limited liability company (the “Madison Company”),
representing economic, voting and other rights in the Company, as more particularly set forth in
that certain Operating Agreement dated as of November ___, 2005, as amended by that certain First
Amendment to Limited Liability Company Agreement dated as of September 12, 2006 (as the same may
be amended or modified, the “Madison Operating Agreement”);
Exhibit 10.24 (Continued)
WHEREAS, TSD is the owner of 100% of the membership interests in YBOR CITY TARRAGON, LLC, a
Delaware limited liability company (the “Ybor City Company”), representing economic, voting and
other rights in the Company, as more particularly set forth in that certain Operating Agreement
dated as of April 13, 2005 (as the same may be amended or modified, the “Ybor City Operating
Agreement”);
WHEREAS, Tarragon is the owner of 100% of the membership interests in TARRAGON LUGANO LLC, a
Delaware limited liability company (the “Lugano Company”; the Lugano Company, together with the
Ballantrae Company, the Reflection Lakes Company, the Monterra Company, the Madison Company and the
Ybor City Company shall collectively be referred to herein as the “Company”), representing
economic, voting and other rights in the Company, as more particularly set forth in that certain
Amended and Restated Limited Liability Company Agreement dated as of June 12, 2006 (as the same may
be amended or modified, the “Via Lugano Operating Agreement”; the Via Lugano Operating Agreement,
together with the Ballantrae Operating Agreement, the Reflection Lakes Operating Agreement, the
Monterra Operating Agreement, the Madison Operating Agreement and the Ybor City Operating Agreement
shall collectively be referred to herein as the “Operating Agreement”);
WHEREAS, the (i) Ballantrae Company is the owner of the real property and the apartment
complex thereon in Sanford, Florida known as “Ballantrae”, as more particularly described on
Exhibit “A-1”, (ii) Reflection Lakes Company is the owner of the real property and the apartment
complex thereon in Fort Xxxxx, Florida known as “The Promenade at Reflection Lakes”, as more
particularly described on Exhibit “A-2”, and (iii) Monterra Company is the owner of the real
property and the apartment complex thereon in Bonita Springs, Florida known as “Monterra at Xxxxxx
Springs”, as more particularly described on Exhibit “A-3” (each, an “Apartment Complex” and
collectively, the “Apartment Complexes”);
WHEREAS, the (i) Madison Company is the owner of the unsold condominium units (the “Madison
Units”) in that certain condominium known as Madison at Park West, a Condominium, located in Mt.
Pleasant, South Carolina (the “Madison Condominium”), as more particularly described herein and on
Exhibit “A-4”; (ii) Ybor City Company is the owner of the unsold condominium units (the “Ybor City
Units”) in that certain condominium known as Quarter at Ybor City, a Condominium, located in Tampa,
Florida (the “Ybor City Condominium”), as more particularly described herein and on Exhibit “A-5”
and (vi) the Lugano Company is the owner of the unsold condominium units (the “Lugano Units”) in
that certain condominium known as Via Lugano, a Condominium, located in Boynton Beach, Florida (the
“Lugano Condominium”), as more particularly described herein and on Exhibit “A-6”;
WHEREAS,
Seller wishes to sell to Purchaser all of Seller’s entire right, title and interest
in and to the Company under the Operating Agreement, including its membership
interests therein (the “Interests”), and Purchaser wishes to purchase the Interests, all upon
the terms and subject to the conditions set forth in this Agreement.
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Exhibit 10.24 (Continued)
NOW, THEREFORE, in consideration of the mutual covenants and representations herein contained,
Seller and Purchaser agree as follows:
ARTICLE 1.
DEFINITIONS
DEFINITIONS
1.1 In this Agreement, and in the Exhibits and Schedules attached hereto, the following words
and phrases shall have the following meanings:
“Amendment” means an amendment, renewal, supplement, modification, expansion, restatement,
extension, or any other change or revision.
“Appurtenance” means all easements, rights-of-way, covenants, restrictions, tenements, rights
and appurtenances benefiting or appertaining to the Property and the land lying in the streets and
roads in front of and adjoining the Property.
“Ballantrae Existing Loan” means that certain loan in the original principal amount of
$40,393,000, as evidenced by that certain Promissory Note dated as of October 10, 2006, from
Ballantrae Tarragon, LLC to the order of Holder, which Note is secured by that certain Amended and
Restated Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as
of October 10, 2006, which is a lien encumbering the Apartment Complexes and the Condominium
Parcels.
“Books and Records” means copies of the 2006 and 2007 year-to-date operating statements for
the Property, and, to the extent in Seller’s possession, copies of all real estate and personal
property tax statements and assessments notices for 2006 and 2007.
“Broker” is defined in Section 13.1
“Business Day” means any day other than (a) a Saturday or Sunday, (b) a Federal, State of
Florida banking holiday or (c) a day on which the county recorder’s office in the county where the
Property is located is closed.
“Casualty” is defined in Section 10.1.
“Casualty Notice” is defined in Section 10.1
“Casualty Termination Notice” is defined in Section 10.1 (a)
“Closing” means the closing of the transactions contemplated under this Agreement.
“Closing Date” is defined in Section 6.1.
“Closing Documents” is defined in Section 6.2.
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Exhibit 10.24 (Continued)
“Closing Statement” is defined in Section 6.2 (o)
“Commitment” is defined in Section 4.2
“Condemnation” is defined in Section 10.2.
“Condemnation Notice” is defined in Section 10.2.
“Condominiums” means, collectively, the Madison Condominium, the Ybor City Condominium and the
Lugano Condominium.
“Condominium Declarations” means that certain (i) Declaration of Condominium of MADISON AT
PARK WEST, a Condominium, and any amendments thereto, as recorded in the Public Records of
Charleston County, South Carolina, as amended from time to time, and other documents furnished
pursuant to South Carolina condominium statutes, (ii) Declaration of Condominium of THE QUARTER AT
YBOR CITY, a Condominium, and any amendments thereto, as recorded in the public records of
Hillsborough County, Florida, as amended from time to time, and other documents furnished pursuant
to Florida condominium statutes and (iii) Declaration of Condominium of VIA LUGANO, a Condominium,
and any amendments thereto, as recorded in the Public Records of Palm Beach County, Florida, as
amended from time to time, and other documents furnished pursuant to the Florida condominium
statutes.
“Condominium Parcel Contracts” means all agreements between the Company and a third party for
the purchase and sale of one or more Units in a Condominium Parcel.
“Condominium Parcels” means (i) the Units, (ii) a percentage of undivided ownership interest
in the common elements attributable to the Units, (iii) any other appurtenances as described in and
subject to the percentage of undivided ownership interest in the common elements attributable to
the Units and (iv) any other appurtenances as described in and subject to the Condominium
Declarations.
“Contracts” means all agreements between the Company and any third party which are described
on Exhibit “B” hereto, but shall exclude the Condominium Parcel Contracts.
“Deposits” means all refundable security deposits, expense deposits and/or prepaid rentals
received from a Tenant under a Tenant Lease and in the possession or control of the Seller or the
Company.
“Development Rights” means all rights of the Company’s to the air space above the Land, if
any, and all zoning entitlements, development rights and appurtenances accruing to the Property
under, or by reason of, any applicable zoning ordinance or other laws.
“Due Diligence Review” is defined in Section 14.1
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Exhibit 10.24 (Continued)
“Xxxxxxx Money” is defined in Section 3.2(a).
“Encumbrances” means any and all liens, mortgages, deeds of trust, security agreements,
security interests, options, rights of purchase or first refusal, rights-of-way, restrictive
covenants, reservations, judgments, leases, subleases, licenses, assignments, restrictions, or
other encumbrances affecting title to the Property.
“Escrow Holder” means Xxxxxxx Title Guaranty Company, and/or its affiliated title insurance
companies.
“Existing Title” means the current commitments to issue title insurance, a schedule of which
is attached hereto as Exhibit “I”.
“Existing Loans” means, collectively, the Ballantrae Existing Loan, the Reflection Lakes
Existing Loan, the Monterra Existing Loan, the Madison Existing Loan, the Ybor City Existing Loan
and the Lugano Existing Loan.
“Existing Loan Documents” means all material loan documents executed by the Company and/or
Holder with respect to the Existing Loans, excluding any and all documents relating to the Seller’s
and/or the Company’s purchase of a rate cap with respect to the Existing Loans.
“Governmental Entity” means the United States, the State, the County, the Town or the City
where the Property is located and any other State in which a party to this Agreement is
incorporated or organized.
“Holder” means Barclays Capital Real Estate Inc.
“Holder Consent” is defined in Section 15.1.
“Improvements” means Apartment Complexes and the Condominium Parcels and all buildings,
structures, and improvements located on the Land.
“Land” means the real property more particularly described on Exhibits “A-1” - “A-3” attached
hereto.
“Legal Proceeding” means any litigation, arbitration, administrative proceeding, or other
legal proceeding of any kind.
“Licenses and Permits” means all certificates, licenses, permits and approvals issued by any
Governmental Entity with respect to the Property.
“Lugano Existing Loan” means that certain loan in the original principal amount of
$53,300,000, as evidenced by that certain Promissory Note dated as of October 10, 2006, from the
Lugano Company to the order of Holder, which Note is secured by that certain Amended and
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Exhibit 10.24 (Continued)
Restated Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as of October
10, 2006, which is a lien encumbering the Apartment Complexes and the Condominium Parcels.
“Madison Existing Loan” means that certain loan in the original principal amount of
$22,860,000, as evidenced by that certain Amended and Restated Promissory Note dated as of October
10, 2006, from the Madison Company to the order of Holder, which Note is secured by that certain
Amended and Restated Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing dated as of October 10, 2006, which is a lien encumbering the Apartment Complex, the
Apartment Complexes and the Condominium Parcels.
“Monterra Existing Loan” means that certain loan in the original principal amount of
$41,200,000, as evidenced by that certain Amended and Restated Promissory Note dated as of October
10, 2006, from the Monterra Company to the order of Holder, which Note is secured by that certain
Amended and Restated Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing dated as of October 10, 2006, which is a lien encumbering the Apartment Complexes and the
Condominium Parcels.
“Notice of Termination” is defined in Section 14.2.
“Objections” is defined in Section 4.3
“Objection Notice” is defined in Section 4.3.
“Permitted Encumbrances” is defined in Section 4.1.
“Permitted Termination” is defined in Section 11.1
“Person” means an individual person, a corporation, partnership, trust, joint venture,
proprietorship, estate, association, Governmental Entity or other incorporated or unincorporated
enterprise, entity or organization of any kind.
“Personal Property” means all equipment, machinery and other tangible and intangible personal
property of every nature and description (including, without limitation, the personal property
described on Exhibit “G” attached hereto) used in connection with the Property (excluding
computer hardware, software and peripherals), which are not owned by the Tenants, which are owned
by the Company and in the possession of Seller or the Company, and also including any rights the
Company may have, if any, with respect to the use of the name of the Apartment Complexes or the
Condominiums or any variation thereof, including, without limitation, any domain names (provided,
however, the content of the Company’s website for the Property shall be specifically excluded).
“Plans” means all architectural, electrical, mechanical or plumbing plans and specifications
and any environmental, engineering and geotechnical studies or reports, including without
limitation, any Phase I environmental report, performed in connection with the Property
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Exhibit 10.24 (Continued)
or any portion thereof, which are not owned by the Tenants and which are owned by the Company and in the
possession of Seller.
“Property” means the Land and the Condominium Parcels and all Appurtenances, Improvements,
Personal Property, Development Rights, Contracts, Licenses and Permits, Plans, and Warranties and
Guaranties on, to or in connection with the Land and the Condominium Parcels.
“Rent Roll” is defined in Section 4.1(a).
“Reflection Lakes Existing Loan” means that certain loan in the original principal amount of
$50,076,000, as evidenced by that certain Amended and Restated Promissory Note dated as of October
10, 2006, from the Reflection Lakes Company to the order of Holder, which Note is secured by that
certain Amended and Restated Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated as of October 10, 2006, which is a lien encumbering the Apartment Complexes
and the Condominium Parcels.
“Response Notice” is defined in Section 4.4.
“Seller Party” is defined in Section 8.1 (c).
“Survey” is defined in Section 4.1 (b).
“Tenant” means all tenants and other parties having the right to use or occupy all or any
portions of the Property.
“Tenant Lease” means all leases, rental agreements, subleases, or other agreements which
permit or authorize the use and occupancy of the Property, together with any and all, if any,
guaranties, security deposits, or other security for performance of a Tenant’s obligations
thereunder, all Amendments and/or other agreements forming a part thereof.
“Termination Deadline” means 4:00 P.M. (EST) on December 11, 2007.
“Title Company” means Xxxxxxx Title Guaranty Company, and/or its affiliated title insurance
companies.
“Title Policy” means one or more ALTA Owner’s policies of Title Insurance, insuring
Purchaser’s right, title and interest in the Property in the aggregate amount of the Purchase
Price, allocated among the Apartment Complexes and the Condominium Parcels, subject only to the
Permitted Encumbrances.
“Units” means, collectively, the Madison Units, the Ybor City Units and the Lugano Units.
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Exhibit 10.24 (Continued)
“Warranties and Guaranties” means all unexpired warranties and guaranties and payment and/or
performance bonds required to be provided under the Contracts which run to the benefit of the
Company in connection with the construction, renovation and/or operation of the Property.
“Ybor Existing Loan” means that certain loan in the original principal amount of $7,142,000,
as evidenced by that certain Amended and Restated Promissory Note A in the amount of $7,079,295
dated as of October 10, 2006 and that certain Amended and Restated Promissory Note B in the amount
of $62,705, each from the Ybor City Company to the order of Holder, which Notes are secured by that
certain Amended and Restated Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated as of October 10, 2006, which is a lien encumbering the Apartment Complexes
and the Condominium Parcels.
1.2 Unless specified to the contrary, references to Sections, Exhibits and Schedules mean the
particular Section, Exhibit or Schedule in or to this Agreement, all of which Exhibits and
Schedules are made a part hereof for all purposes the same as if set forth herein verbatim; it
being expressly understood that if any Exhibit attached hereto which is to be executed and
delivered at Closing contains blanks, such Exhibit attached hereto shall be deemed completed in the
form executed.
1.3 Wherever used in this Agreement:
1. the words “include” or “including” shall be construed as incorporating, also, “but not
limited to” or “without limitation”;
2. the word “day” means a calendar day unless otherwise specified;
3. the word “party” means each of Seller and Purchaser;
4. the word “law” (or “laws”) means any statute, ordinance, resolution, regulation, code,
rule, order, decree, judgment, injunction, mandate or other legally binding requirement of a
Governmental Entity;
5. each reference to the Property shall be deemed to include “and/or any portion thereof”; and
6. each reference to $ or dollars means United States dollars.
1.4 Certain other words and phrases are defined or described elsewhere in this Agreement.
ARTICLE 2.
PURCHASE AND SALE
PURCHASE AND SALE
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Exhibit 10.24 (Continued)
2.1 Purchase and Sale. Subject to the terms and conditions of this Agreement, Seller
hereby agrees to sell and convey to Purchaser, and Purchaser hereby agrees to purchase from Seller,
the Interests.
ARTICLE 3.
PURCHASE PRICE AND XXXXXXX MONEY
PURCHASE PRICE AND XXXXXXX MONEY
3.1 Purchase Price. The purchase price (the “Purchase Price”) for the Interests
shall be in the amount of ONE HUNDRED FIFTY-SIX MILLION SEVENTY-FIVE THOUSAND DOLLARS
($156,075,000), which represents the outstanding principal balance of the Existing Loans as of the
Closing Date. The Purchase Price shall be deemed paid at Closing by Purchaser’s acquisition of the
Property, subject to the Existing Loans in accordance with Article 15 below, by means of the
purchase of the Interests as contemplated herein.
3.2 Xxxxxxx Money.
(a) Within one (1) Business Day of the date hereof, Purchaser shall deliver to the Escrow
Holder the sum of $5,000,000 by federal funds wire transfer (the “Xxxxxxx Money”). This Agreement
shall terminate and be deemed void ab initio if the Xxxxxxx Money is not timely deposited
with Escrow Holder. After the Termination Deadline, if this Agreement is then in effect, the
Xxxxxxx Money shall be non-refundable to Purchaser except in the event of (i) the failure of a
condition precedent, as provided in Section 5.1, (ii) a default by Seller, as provided in Section
11.2 or (iii) the Holder Consent is not issued in accordance with Section 15.1 hereof. The Xxxxxxx
Money shall be held in escrow and invested by the Escrow Holder in an interest-bearing account,
with interest accruing for the benefit of the party entitled to the payment or return of the
Xxxxxxx Money. The Xxxxxxx Money shall be paid to Holder and applied toward the paydown of the
Existing Loans as provided in Article 15, and shall otherwise be paid or applied in accordance with
this Agreement.
(b) The Escrow Holder shall hold the Xxxxxxx Money pursuant to the following provisions:
(i) The Escrow Holder is not a party to, and is not bound by, or charged with notice of any
agreement out of which this escrow may arise, other than the terms and provisions of this Section
3.2 as well as Sections 4.3 and 14.2 of this Agreement.
(ii) The Escrow Holder shall deliver the Xxxxxxx Money to the party so designated on written
notice from both the Purchaser and Seller specifying the time and the place where the
Xxxxxxx Money is to be delivered, provided, however that the Escrow Holder shall have received such
written instructions at least one (1) Business Day prior to the date designated for delivery.
(iii) The Escrow Holder is acting solely as a stakeholder and depository as an accommodation
to Purchaser and Seller, and is not responsible or liable for any matter or
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Exhibit 10.24 (Continued)
loss arising out of the
Escrow Holder’s conduct hereunder, except for its gross negligence or willful misfeasance. The
Escrow Holder shall not be responsible or liable for the sufficiency, correctness, genuineness, or
validity of the subject matter of this Agreement, or for the identity or authority of any person
executing any documents or instruments in connection herewith.
(iv) Purchaser and Seller agree to jointly and severally, indemnify, defend and hold harmless
the Escrow Holder from and against any loss, cost, claims, damage or expense, including, without
limitation, any and all court costs and reasonable attorney’s fees and expenses, collectively
called “Expenses”, incurred by the Escrow Holder in connection with or in any way arising out of
this Agreement, other than Expenses resulting from the Escrow Holder’s gross negligence or willful
misconduct, provided that as between Purchaser and Seller any costs or expenses incurred as a
result of any dispute between Seller and Purchaser shall be the responsibility of the
non-prevailing party in such dispute. The Escrow Holder may, at its own expense, consult with
legal counsel in the event of any dispute or questions as to the construction of any provisions
hereof or its duties hereunder, and it shall be fully protected in acting in accordance with the
written opinion or instructions of such counsel.
(v) The Escrow Holder shall be entitled to act or rely upon, and the Escrow Holder shall be
protected in acting or relying upon, the genuineness and validity of any written notice, request,
waiver, consent, certificate, receipt, authorization, power of attorney or other document the
Escrow Holder shall receive from any party hereto that it reasonably believes to be authentic.
(vi) In the event that (a) the Escrow Holder receives contradictory instructions from the
parties hereto, or (b) there shall be any dispute between Seller and Purchaser as to any
matter arising under this Agreement, or (c) there shall be any uncertainty as to the
meaning or applicability of the provisions hereof or any written instructions received by the
Escrow Holder pursuant hereto, the Escrow Holder shall continue to hold the Xxxxxxx Money pending
resolution of the matter if so instructed by written notification from both Seller and Purchaser or
if not so instructed shall deposit the Xxxxxxx Money with any appropriate court in the State of
Florida at the cost and expense of Purchaser and Seller jointly and severally, and, upon making
such deposit, the Escrow Holder shall thereupon be discharged and released from any and all
liability with respect to the Xxxxxxx Money. The Escrow Holder may dispose of the escrowed funds
in accordance with a court order, and shall be fully protected if it acts in accordance with any
such court order.
(vii) Deposits made pursuant to these instructions may be invested on behalf of any party or
parties hereto, provided that any direction to the Escrow Holder for such investment shall be in
writing and contain the consent of all other parties to this Agreement together with a completed,
signed W-9 Form. The Escrow Holder is not to be held responsible for the loss of principal or
interest on any investment made pursuant to the aforesaid instruction or in the redemption thereof.
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Exhibit 10.24 (Continued)
(viii) Except as to deposits of funds for which the Escrow Holder has received written
instructions as set forth in paragraph (vii) above, the Xxxxxxx Money may be commingled with other
escrowed funds in a non-segregated escrow account; and
(ix) Upon delivery of the Xxxxxxx Money in accordance with the terms hereof, the Escrow Holder
shall be discharged and released from any and all liability with respect to the Xxxxxxx Money.
(x) Escrow Holder may resign as Escrow Holder hereunder at any time upon written notice to
Purchaser and Seller, provided that such resignation shall not be effective unless and until a
replacement escrow agent acceptable to Purchaser and Seller shall have been identified and such
replacement escrow agent shall have agreed in writing to serve as Escrow Holder hereunder pursuant
to the terms and conditions of this Agreement.
(xi) Purchaser and Seller may jointly terminate the services of Escrow Holder hereunder at any
time upon written notice to Escrow Holder, provided that such termination shall not be effective
unless and until a replacement escrow agent acceptable to Purchaser and Seller shall have been
identified and such replacement escrow agent shall have agreed in writing to serve as Escrow Holder
hereunder pursuant to the terms and conditions of this Agreement.
3.3 Tax Elections. The Company’s tax year is from December 1st through
November 30th. Since the Closing shall occur after November 30, 2007, the
responsibility for filing the Company return for federal and state income tax from December 1, 2007
through the Closing Date shall be Seller’s responsibility, and Purchaser shall reasonably cooperate
with Seller in connection therewith. Further, should any returns for 2007 or prior years be
audited, the responsibility for dealing with, settling and paying any such tax liability shall be
Seller’s responsibility. Should Purchaser or the Company be included in such audits, Seller shall
furnish Purchaser or the Company with all necessary information to permit Purchaser or the Company
to respond to the appropriate authorities in a timely and responsive manner. Notwithstanding
anything to the contrary contained herein, if it is not required under the Internal Revenue Code to
file separate income tax returns for the Company for the period prior to the Closing and the period
on and after the Closing, each party shall prepare the same for its respective period of ownership
and the parties shall cooperate with each other so as to cause the Company’s tax returns for
calendar year 2007 to be filed in a timely manner and shall make such elections and/or allocations
as may be required so as to allocate to Seller for income tax purposes all income, expenses and tax
credits relating to the period of time prior to the Closing and to allocate to Purchaser all
income, expenses and, if permissible, tax credits for the period on and after the Closing.
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Exhibit 10.24 (Continued)
ARTICLE 4.
DELIVERY OF DOCUMENTS/TITLE
DELIVERY OF DOCUMENTS/TITLE
4.1 Within two (2) Business Days after a fully executed counterpart of this Agreement is
delivered to Purchaser (except as otherwise provided), Seller shall deliver the following
information and documents to Purchaser:
(a) Tenant Leases relating to the Property (which shall be made available for inspection at
the applicable Apartment Complex or Condominium, and not delivered to Purchaser), a current rent
roll concerning the Property (the “Rent Roll”) setting forth, with respect to each apartment unit
and condominium unit: (i) the name of the Tenant, (ii) the rent payable, (iii) the expiration date
of each lease and the status of the rental payments payable thereunder, (iv) the security or other
deposit(s) held by Seller, (v) delinquencies and (vi) free rent and/or other concessions.
(b) The most recent surveys of the Property in Seller’s possession (the “Survey”). Any
updated Survey required by Purchaser shall be ordered and paid for by Purchaser.
(c) Copies of all Books and Records, Contracts, Licenses and Permits, Plans (which may be made
available for inspection at the applicable Apartment Complex or Condominium, and not delivered to
Purchaser), and Warranties and Guaranties.
(d) Copies of the most recent title commitments and owner’s title policies for the Property in
Seller’s possession, if any.
(e) Copies of 2006 tax returns for the Ballantrae Company, the Reflection Lakes Company, the
Monterra Company and the Madison at Park West Company. Purchaser acknowledges and agrees that
Seller shall not provide copies of the 2006 tax returns for the Lugano Company or the Ybor City
Company.
(f) Copies of the Condominium Declarations, and all other condominium-related documents
relating to the Condominium Parcels, including without limitation, condominium by-laws, condominium
association minutes, notices of special assessments, if any, budgets and the like in the possession
or control of Seller.
(g) Copies of the Existing Loans Documents.
Seller’s failure to deliver to Purchaser items (a) through (g) above within two (2) Business
Days after a fully executed copy of this Agreement is delivered to Purchaser shall not result in
the extension of the Termination Deadline, and Purchaser’s sole remedy therefor shall be
Purchaser’s right to terminate this Agreement by delivering written notice thereof to Seller prior
to the Termination Deadline, in which event neither party shall have any further rights or
obligations hereunder (except as otherwise provided herein).
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Exhibit 10.24 (Continued)
4.2 Purchaser shall request the Title Company to deliver to Purchaser and Seller: (a) a
current commitment for a Title Policy to be issued by the Title Company, whereby said Title Company
commits to insure title to the Property for the benefit of Purchaser in accordance with this
Agreement (the “Commitment”); and (b) copies of all instruments shown on Schedule B of the
Commitment. The Commitment shall describe the Property; shall list the Company as the prospective
named insured; shall show as the policy amount the Purchase Price; and shall contain the commitment
of the Title Company to insure the Company’s fee simple interest in the Property upon the Closing.
The Commitment shall show the status of the title of the Property and all exceptions which would
appear in the Title Policy. Any items or exceptions to title which are accepted or waived in
writing or deemed to have been accepted or waived by Purchaser pursuant to the terms of this
Agreement are hereinafter referred to as “Permitted Encumbrances”. Seller makes no representations
or warranties with respect to the accuracy of the Commitment.
4.3 As of the date of this Agreement, Purchaser (i) acknowledges receipt of the Existing
Title, (ii) acknowledges its approval of the Existing Title and (iii) confirms that all exceptions
to title set forth in the Existing Title (including all existing liens and encumbrances) shall be
deemed Permitted Encumbrances, except for those matters to be addressed by the title clearing items
set forth on Exhibit “K”, which will be delivered by Seller on or before the Closing Date.
Purchaser shall be entitled to raise Objections (as hereinafter defined) within two (2) Business
Days after Purchaser receives an update or bringdown to the Existing Title which contains
exceptions to title that did not previously appear in the Existing Title to the extent that any
such exception is monetary in nature or, in Purchaser’s reasonable opinion, will adversely
interfere with the Company’s title to or use, operation or financing of the Property, and which
Purchaser is unwilling to take title to the Property subject to any such matter (the “Objections”),
separately specifying and setting forth each of such Objections and the reasons therefor. Within
two (2) Business Days after Purchaser provides written notice (the “Objection Notice”) of the
Objections, Seller shall give Purchaser notice (the “Response Notice”) if Seller is unable or
unwilling to cure any of Purchaser’s Objections (and if Seller fails to timely deliver a Response
Notice, Seller shall be deemed to have elected not to cure Purchaser’s Objections). If Seller’s
Response Notice indicates that Seller is unwilling or unable to cure Purchaser’s Objections, then
Purchaser may, as its exclusive remedy, elect by written notice given to Seller within two (2)
Business Days after the Response Notice is given (or if deemed given, within three (3) Business
Days of the giving of Purchaser’s Objection Notice), either (a) to accept such title as Seller is
able to convey without any reduction or abatement of the Purchase Price, or (b) to terminate this
Agreement, in which event the Xxxxxxx Money and all interest thereon shall be paid to Purchaser,
Escrow Holder being unconditionally authorized to immediately release same to Purchaser. If
Purchaser fails to deliver any such notice, Purchaser will be deemed to have elected to proceed
under clause (a). If Seller elects to cure the Objections, the cure shall be effected on or before
the Closing Date. If Purchaser gives Seller an Objection Notice as set forth above, then all
matters disclosed on the updated title which are not objected to in such Objection Notice shall be
deemed to be Permitted Encumbrances. If Purchaser fails to give Seller an Objection Notice within
the period set forth above, then all matters disclosed on the updated title shall be deemed to be
Permitted Encumbrances.
13
Exhibit 10.24 (Continued)
4.4 Seller shall not be required to expend any money or bring any action or proceeding to cure
such Objections. Notwithstanding anything to the contrary contained herein: (a) the standard
preprinted exceptions set forth in the Commitment shall not constitute Permitted Encumbrances for
purposes hereof to the extent they can be omitted in the State of Florida or South Carolina (as
applicable) by Seller’s affidavit without payment of additional premium by Purchaser; (b) all
mortgages and other encumbrances evidencing or securing indebtedness arising by, through or under
Seller (excluding the Existing Loan Documents) shall not constitute Permitted Encumbrances and
shall be discharged and satisfied by Seller prior to Closing; (c) Seller shall be required to
expend up to $10,000 in the aggregate to satisfy, discharge or bond over liens or other monetary or
non-monetary items which can be satisfied by the expenditure of less than $10,000 in the aggregate;
and (d) Seller shall use its reasonable good faith efforts (without cost to Seller) to cure any
objections to Seller’s title raised by Purchaser or the Title Company with respect to affidavits or
consents of stockholders, directors and officers approving any acts of affiliated corporations in
the chain of title, and proof of payment of franchise or dissolution taxes thereof.
ARTICLE 5.
CONDITIONS TO CLOSING
CONDITIONS TO CLOSING
5.1 Conditions to Obligations of Purchaser. The obligations of Purchaser to execute
and deliver the applicable Closing Documents, to pay the Purchase Price and to perform Purchaser’s
other obligations at the Closing under this Agreement are and shall be subject to the satisfaction
of each of the following conditions at or prior to the Closing, unless otherwise specified:
(a) Title to the Property shall be free of Encumbrances other than Permitted Encumbrances.
(b) Seller shall have executed (where applicable) and delivered to Escrow Holder the Closing
Documents to be executed and delivered by Seller.
(c) All of the representations and warranties of Seller contained in this Agreement shall have
been true and correct in all material respects when made, and shall be true and correct in all
material respects on the Closing Date with the same effect as if made on and as of such date.
(d) Seller shall have performed, observed, and complied in all material respects with all
covenants, agreements, and conditions required by this Agreement to be performed, observed, and
complied with on Seller’s part prior to or as of the Closing Date.
(e) Other than in the event of a Casualty or a Condemnation, the physical condition of the
Property shall be substantially the same on the Closing Date as on the date hereof, reasonable wear
and tear excepted.
14
Exhibit 10.24 (Continued)
(f) The Holder Consent shall have been issued.
In the event that any one of the above conditions precedent to the obligations of Purchaser shall
not occur by the Closing Date and the occurrence of such condition is not due to a default by
Seller and is not waived by Purchaser (in Purchaser’s sole discretion), and provided Purchaser is
not then in default under the terms of the Agreement, then upon written notice from Purchaser to
Seller and Escrow Agent delivered on or prior to the Closing Date, this Agreement shall terminate,
the Xxxxxxx Money shall be returned to Purchaser and neither party shall have any further
obligation to the other.
5.2 Conditions to Obligations of Seller. The obligations of Seller to execute and
deliver the applicable Closing Documents and to perform Seller’s other obligations at the Closing
under this Agreement are and shall be subject to the satisfaction of each of the following
conditions at or prior to the Closing:
(a) Intentionally deleted.
(b) Purchaser shall have executed (where applicable) and delivered to Escrow Holder the
Closing Documents to be executed and delivered by Purchaser.
(c) All of the representations and warranties of Purchaser contained in this Agreement shall
have been true and correct in all material respects when made, and shall be true and correct in all
material respects on the Closing Date with the same effect as if made on and as of such date.
(d) Purchaser shall have performed, observed, and complied in all material respects with all
covenants, agreements, and conditions required by this Agreement to be performed, observed, and
complied with on Purchaser’s part prior to or as of the Closing Date.
(e) The Holder Consent shall have been issued, and Seller and all of its affiliates shall have
been released by Holder from any obligation under the Existing Loans from and after the Closing
Date, except as otherwise provided in Article 15 below.
In the event that any one of the above conditions precedent to the obligations of Seller shall not
occur by the Closing Date and the occurrence is not waived by Seller (in its sole discretion), and
provided Seller is not then in default under the terms of the Agreement, then upon written notice
from Seller to Purchaser and Escrow Agent delivered on or prior to the Closing Date, this Agreement
shall terminate, the Xxxxxxx Money shall be paid to the Seller, and neither party shall have any
further obligation to the other. Notwithstanding the foregoing, Purchaser shall be entitled to the
return of the Xxxxxxx Money if the condition set forth in (e) above does not occur for reasons
other than a default by Purchaser.
15
Exhibit 10.24 (Continued)
ARTICLE 6.
CLOSING
CLOSING
6.1 Closing. The Closing shall occur through an escrow at the Title Company on (or,
if Seller and Purchaser mutually agree, before) December 31, 2007 (the “Closing Date”), time being
of the essence to such date. The parties will deliver required closing documents and funds to the
Escrow Holder by overnight delivery service, fax and wire transfers.
6.2 Seller’s Obligations at Closing. At the Closing, Seller shall deliver to Escrow
Holder the following documents (the “Closing Documents”):
(a) An Assignment and Assumption of Membership Interests, in form and substance as set forth
on Exhibit “C” attached hereto, duly executed and acknowledged by Seller, with respect to
each of the Interests;
(b) Intentionally deleted;
(c) an affidavit originally executed by Seller to the effect that Seller is not a foreign
person for purposes of 26 U.S.C. 1445 (b) (2);
(d) such affidavits executed by Seller as the Title Company shall reasonably require in order
to omit from the Title Policy all exceptions for (i) rights of parties in possession (other than
Tenants under the Tenant Leases, as tenants only), (ii) notices of commencement for work conducted
by or on the Company’s behalf or (iii) matters arising between the date of the Commitment and the
Closing Date, along with a “no change” affidavit stating that to Seller’s knowledge there have been
no changes to the existing surveys and, with respect to the Madison Condominium Parcels, a
non-imputation affidavit in the form attached hereto as Exhibit “M”;
(e) such corporate, partnership and/or limited liability company certificates and resolutions
as the Purchaser and the Title Company may reasonably request in order to confirm the authorization
of (i) the actions to be taken by Seller under this Agreement and (ii) the execution and delivery
of this Agreement, the Closing Documents and all other documents required to be executed and
delivered by Seller pursuant to this Agreement;
(f) all Tenant Leases, Books and Records (originals when available or photocopies if not
available) in the possession or control of Seller;
(g) all keys and master keys to all locks at the Property which are in the possession or
control of Seller;
(h) all Licenses and Permits in Seller’s possession or control;
(i) all Plans in Seller’s possession or control;
16
Exhibit 10.24 (Continued)
(j) all Contracts and Condominium Parcel Contracts, if any, in Seller’s possession or control;
(k) an update of the Rent Roll, dated as of the Closing Date and represented and certified by
Seller to be true and correct;
(l) original counterparts of a management agreement for each Apartment Complex and the rental
portion of each Condominium Parcel (collectively, the “Rental Management Agreements”), pursuant to
which Tarragon Management, Inc. will manage such Apartment Complexes and rental portion of each
Condominium Parcel on a month-to-month basis, for a management fee equal to 3% of gross revenues,
which Rental Management Agreements shall be negotiated in good faith and in a commercially
reasonable manner by the parties prior to Closing;
(m) original counterparts of an agreement for the Condominium Parcels (the “Condominium
Project Management Agreement”), pursuant to which Tarragon Development Corporation will coordinate
all sales and marketing efforts for the Condominium Parcels on a month to month basis, for a fee
equal to the reasonable costs for personnel and services, which Condominium Project Management
Agreement shall be negotiated in good faith and in a commercially reasonable manner by the parties
prior to Closing;
(n) a closing statement prepared by Seller and approved by Purchaser (the “Closing
Statement”); and
(o) resignations from all employees, officers, directors or agents of Seller that are either
members of the Board of Directors of the condominium associations or officers of such associations
with respect to the Condominiums (collectively, the “Seller Board Members”).
6.3 Purchaser’s Obligations at Closing. At Closing, Purchaser shall deliver to
Escrow Holder the following:
(a) the balance of the Purchase Price, by wire transfer of immediately available funds to the
account of the Title Company;
(b) executed counterparts of all of the Assignment and Assumption of Membership Interests and
Notice Letters, originally executed and acknowledged (where applicable) by Purchaser;
(c) such corporate, partnership and/or limited liability company certificates and resolutions
as the Seller and the Title Company may reasonably request in order to confirm the authorization of
(i) the actions to be taken by Purchaser under this Agreement and (ii) the execution and delivery
of this Agreement, the Closing Documents and all other documents to be executed and delivered by
Purchaser pursuant to this Agreement and/or as customarily required by the Title Company;
17
Exhibit 10.24 (Continued)
(d) the Closing Statement; and
(e) a document in form and substance reasonably acceptable to Seller and Purchaser evidencing
the appointment of substitute members of the Board of Directors of the condominium associations
replacing the Seller Board Members.
6.4 Closing Costs. Except as otherwise expressly provided herein, Purchaser shall
pay (i) all sales taxes on personal property, if any, (ii) the title premiums and the cost of any
endorsements to the Title Policy required by Purchaser or Existing Lender and the search and
examination fees, (iii) Purchaser’s share of prorations, (iv) the cost of updating the Survey, (v)
all recording charges (other than for discharges of mortgages and related documents), (vi) all
documentary stamps and intangible taxes in connection with Purchaser’s financing, (vii) legal fees
and disbursements of attorneys of Holder in connection with he assumption of the Existing Loans,
and (viii) one-half of any escrow fees and other customary charges of the Escrow Holder (if any).
Seller shall pay Seller’s share of prorations and one-half of any escrow fees and other customary
charges of the Escrow Holder (if any). Except as otherwise provided herein, each party shall pay
its own attorneys’ fees.
ARTICLE 7.
PRORATIONS
PRORATIONS
7.1 The following shall be apportioned and adjusted between Seller and Purchaser as of 11:59
p.m. (Florida time) the day preceding the Closing Date, except as otherwise specified:
(a) rents and additional rents under or in respect of the Tenant Leases, as, when and to the
extent actually collected, on the basis of the period for which payable under the applicable Tenant
Lease and apportioned on the basis of the actual number of days in such period, along with
security, pet, key and any other deposits held by Seller under Tenant Leases;
(b) any real property taxes, water and sewer rents and charges; any tax credit or refund
collected as a result of any real property tax appeal; vault taxes or charges, elevator inspection
charges and other like and similar municipal taxes and charges, each on the basis of the fiscal
year or other period for which assessed, and apportioned upon the basis of the actual number of
days in such year or period. If actual tax bills are not available, taxes shall be apportioned
based on the most recent tax bills available, with a post-Closing adjustment to be made as soon as
tax bills for the fiscal year during which the Closing occurs become available;
(c) subject to Section 7.5, electric, gas, steam and other public utility charges for services
furnished to the Property, on the basis of the actual number of days in any period covered by the
charge being apportioned (except that no apportionment shall be made for any of such items as are
furnished and charged by the applicable utility company directly to Tenants under the Tenant
Leases);
18
Exhibit 10.24 (Continued)
(d) all charges under the Contracts, on the basis of the actual number of days in any period
covered by the charge being apportioned. Seller shall pay, at or prior to the Closing, all
installments or amounts of items which are being apportioned under this Section which became due
and payable prior to the Closing Date;
(f) such other items as are customarily apportioned between sellers and purchasers of real
properties of a type similar to the Apartment Complexes and Condominium Parcels (including, without
limitation, fees and special assessments due and owing to the Condominium Associations); and
(g) any excess deficit funding obligations due and owing from the Condominium Associations to
the “developer” of such Condominium at the time of “turnover” of each Condominiums if and to the
extent paid by the Associations.
7.2 Seller shall pay all unpaid commissions, fees and other charges due on or prior to the
Closing to real estate brokers or other Persons with respect to (i) any Tenant Lease beginning
prior to the Closing Date or (ii) any Condominium Parcel Contract entered into prior to the Closing
Date. If the Closing occurs, then Purchaser shall be responsible for commissions, fees, or other
charges due to real estate brokers or other Persons with respect to Tenant Leases, and any
renewals, extensions and expansions thereof beginning after the Closing Date. Purchaser will
receive either a cash payment for all Deposits or, if applicable, a credit against any amounts due
and owing to Seller hereunder.
7.3 If the Closing occurs before a new real property or other applicable tax rate or charge of
a Governmental Entity is fixed, then the apportionment of such tax or charge at the Closing shall
be based upon the tax rate for the immediately preceding fiscal period applied to the latest
assessed valuation. Promptly after the new tax rate has been fixed, the apportionment of such tax
or charge made at the Closing shall be recalculated and any reimbursement owed by Purchaser to
Seller or Seller to Purchaser, as the case may be, shall be paid promptly after such recalculation.
7.4 If any Tenant under a Tenant Lease is in arrears in the payment of rent, or other charges,
payments received from such Tenant after the Closing shall be applied in the following order of
priority: first, to current rents and other sums due Purchaser as the current owner of the Property
and landlord under the Tenant Leases, and the balance to any delinquent sums owing to Seller under
the Tenant Leases. If any payments from a Tenant received by Purchaser or Seller after the Closing
are payable to the other party by reason of this Section, then the appropriate sum shall be
promptly paid to the other party.
7.5 The apportionment of utility charges shall be made upon the basis of charges shown on the
latest available bills of such utilities. The charges shown on such available bills for periods
prior to the Closing Date shall be paid by Seller, and for the period from the date of each such
last available utility xxxx to the Closing Date an apportionment shall be made based on the amount
charged for the period covered by such last available xxxx. Notwithstanding the foregoing, Seller
will use reasonable efforts to cause the respective utility companies to read
19
Exhibit 10.24 (Continued)
their meters or fix their charges to the Closing Date, in which event Seller shall pay such
charges, when billed, to the Closing Date, and Purchaser shall pay such charges from and after the
Closing Date and/or promptly reimburse Seller for any such charges paid by Seller for any period
subsequent to the Closing Date.
7.6 At the Closing if requested by Purchaser, Seller shall assign to Purchaser, as part of the
Assignment, all deposits or escrows held for Seller’s account at or by any public utility company
in connection with the utility services furnished to the Property; and in such case Purchaser shall
pay Seller, at the Closing, for the amount of deposits, or escrows so assigned. Prior to the
Closing Date, Seller shall notify all such public utilities in writing of the applicable transfer
of service.
7.7 If any item covered by this Article cannot be apportioned because the same has not been
(or cannot be) fully ascertained on the Closing Date, or if any error has been made with respect to
any apportionment, then such item shall be apportioned (or corrected, as applicable) as soon as the
same is fully ascertained and shall be paid within twenty (20) days thereafter by the appropriate
party. Any Property-related bills received after Closing related to the period prior to Closing
shall be promptly paid by Seller.
7.8 Real estate tax refunds and credits received after the Closing which are attributable to
the fiscal tax year during which the Closing Date occurs shall be apportioned between Seller and
Purchaser, pursuant to this Article.
7.9 If, as of the Closing Date, the Property shall be (or shall have become) subject to a
special or local assessment or charge of any kind (whether or not yet a lien), then (to the extent
not payable by the tenants) Seller shall pay all installments thereof due and payable prior to the
Closing Date; provided, however, any installment thereof attributable to a period from and after
the Closing Date shall be apportioned at the Closing in the same manner as for taxes under Section
7.1(b). Purchaser shall be responsible for all installments of such assessment attributable to the
period from and after the Closing Date.
7.10 Except as otherwise provided herein, it is the intention of the parties that Seller be
responsible for all costs and expenses of the Company relating to the period up to the Closing
Date, and that Purchaser be responsible for such costs and expenses from and after the Closing
Date. In the event either Purchaser or Seller shall owe the other any money as a result of the
terms of this Article 7 (whether at Closing or thereafter), then the party owing such money shall
pay the other party such money promptly, as soon as the amount is finally determined.
7.11 If and to the extent that any adjustment hereunder shall result in an amount due and
owing to Purchaser that is not offset by amounts due and owing to Seller, Seller shall make a
payment by wire transfer to Purchaser’s account or as otherwise directed by Purchaser on the
Closing Date.
7.12 This Article 7, and all rights and duties of the parties hereunder, shall survive the
Closing.
20
Exhibit 10.24 (Continued)
ARTICLE 8.
REPRESENTATIONS AND WARRANTIES OF SELLER
REPRESENTATIONS AND WARRANTIES OF SELLER
8.1 Disclaimer of Seller.
(a) Except as expressly set forth in this Agreement, including Section 8.2, Purchaser
acknowledges and agrees that Seller, or any member, shareholder, partner, director, officer,
manager, person, firm, agent, employee or representative of, or acting or purporting to act on
behalf of, Seller has not made, does not make and specifically negates and disclaims any
representations, warranties, promises, covenants, agreements or guaranties of any kind or character
whatsoever, whether express or implied, oral or written, past, present or future, of, as to,
concerning or with respect to the Interests or the Property. Seller is not liable or bound in any
manner by any verbal or written statements, representations or information pertaining to the
Interests or the Property, or the operation thereof, furnished by any real estate broker or any
agent or employee of Seller (other than as expressly set forth in the Agreement). Purchaser
further acknowledges and agrees that except as expressly set forth in this Agreement, to the
maximum extent permitted by law, that should the Closing occur, then the sale of the Interests and
the Property as provided for herein will be made on an “AS IS” condition and basis “WITH ALL
FAULTS”. It is understood and agreed that the Purchase Price has been adjusted by prior
negotiation to reflect that the Interests and the Property are sold by Seller and purchased by
Purchaser subject to the foregoing.
(b) Except as expressly set forth in Section 8.2 below, Seller makes no representations or
warranties as to the truth, accuracy or completeness of any materials, data or other information
supplied to Purchaser in connection with Purchaser’s inspection of the Interests or the Property
(e.g., that such materials are complete, accurate or the final version thereof, or that all such
materials are in Seller’s possession). It is the parties express understanding and agreement that
such materials are provided only for Purchaser’s convenience in making its own examination and
determination as to whether it wishes to purchase the Interests, and, in doing so, Purchaser shall
rely exclusively on its own independent investigation and evaluation of every aspect of the
Interests or the Property and not on any materials supplied by Seller, except as may be expressly
set forth below in Section 8.2.
(c) Each party comprising Seller and its shareholders, officers, directors, agents, employees,
property manager and affiliates (individually a “Seller Party” and collectively the “Seller
Parties”) 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 any and
all 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, salability or utility of the Property, or its suitability for any
purpose whatsoever, except to the extent liability is based on an alleged breach of a
representation or warranty in Section 8.2(i) below. Without limitation, Purchaser specifically
21
Exhibit 10.24 (Continued)
releases Seller from any claims it may have against Seller now or in the future under the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq., as
amended; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq., as amended; any
other analogous state or federal statute; and common law arising from the environmental conditions
of the Property or the presence of hazardous materials, solid wastes, or any other pollutants or
contamination the Property.
(d) Except as otherwise expressly provided in Section 8.2 below, Purchaser acknowledges that
any information of any type which Purchaser has received or may receive from any Seller Party,
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 representations or warranty of Seller
whatsoever, whether as to the completeness of such information, its accuracy or otherwise.
(e) THE PROVISIONS OF THIS SECTION ARE A MATERIAL PART OF THE CONSIDERATION FOR SELLER’S
ENTERING INTO THIS AGREEMENT, AND SHALL SURVIVE CLOSING.
8.2 Representations and Warranties of Seller. Seller represents and warrants to
Purchaser as follows, which representations and warranties shall be true and correct as of the date
hereof and as of the Closing Date, subject to changes in facts permitted hereunder and occurring in
the ordinary course of Seller’s business:
(a) Rent Roll. Attached hereto as Exhibit “E” is a true, correct and complete
copy of the Rent Roll for the Apartment Complexes and the Condominium Parcels, and the information
set forth therein is true and correct in all material respects as of the date thereof. An updated
Rent Roll for the Apartment Complexes and the Condominium Parcels will be provided at Closing.
There are no Tenant Leases (written or oral) between Seller and any other party for any space in
the Property, other than those relating to tenants set forth in the Rent Roll. Except as set forth
on the Rent Roll, no Tenant is in arrears in the payment of rent due under a Tenant Lease beyond
any applicable notice and cure periods.
(b) Authority, Actions of Seller, Authorization and Consents.
(i) The execution and delivery by Seller of this Agreement and the Closing Documents, and the
consummation by Seller of the transactions contemplated thereby, have been duly authorized by all
necessary action of Seller. Except for the approval of Holder as provided herein, there are no
other approvals, authorizations, consents or other actions by or filings with any Person which are
required to be obtained or completed by Seller in connection with the execution and delivery of
this Agreement or any of the Closing Documents (or any other agreement or instrument required
hereunder) or the sale or assignment of the Interests or the Property or in connection with any
other action required to be taken by Seller hereunder at or before the Closing.
22
Exhibit 10.24 (Continued)
(ii) Except with respect to the Existing Loan, neither the execution and delivery of this
Agreement or the Closing Documents by Seller nor the consummation of the transaction contemplated
hereby will: (A) violate any provision of Seller’s or the Company’s articles of organization or
operating agreements; (B) violate, conflict with or result in a breach or termination of, or give
any other party the right to terminate, or constitute a default under the terms of, any agreement
to which Seller or the Company is a party or by which it is bound; (C) violate any judgment, order,
injunction, award or decree of any Governmental Entity against or binding upon Seller, the Company
or the Property or business of Seller or the Company; or (D) constitute a violation by Seller of
any applicable law or regulation to which Seller, the Company or the Property is subject.
(c) Legal Proceedings. Except as may be set forth on Exhibit “F”, neither
Seller nor the Company has received any written notice of any pending or, to Seller’s knowledge,
threatened Legal Proceedings against the Interests, the Company or the Property.
(d) FIRPTA. Seller is not a foreign person within the meaning of Section 1445(b) (2)
of the Internal Revenue Code of 1986, as amended.
(h) Documents Delivered. The Tenants Leases, Plans, Books and Records, Condominium
Parcel Contracts, Contracts and Condominium Declarations delivered or made available by Seller to
Purchaser for inspection pursuant to Section 4.1 are true and correct copies of the originals
thereof in Seller’s files in all material respects. Attached hereto as Exhibit “G” is a
true, correct and complete copy of the current inventory of the Personal Property at the Property,
and the information set forth therein is true and correct in all material respects as of the date
thereof.
(i) Other Agreements. Seller is not a party to any outstanding contracts or options
to purchase the Property or any portion thereof in favor of any third party other than the
Condominium Parcel Contracts. Attached hereto as Exhibit “L” is a true, correct and complete list
of all Condominium Parcel Contracts as of the date hereof.
(j) Licenses and Permits. To Seller’s knowledge, there are no conditions to the
Licenses and Permits, or other agreements or obligations associated therewith, which are not
expressly set forth in such Licenses and Permits, in the publicly adopted resolutions pursuant to
which the Licenses and Permits were issued, or elsewhere in this Agreement.
(k) Hazardous Materials. Except as may otherwise be specified in any environmental
reports delivered to Purchaser pursuant to Section 4.1, Seller has no actual knowledge, without
independent inquiry, of the presence on or under the Property of any hazardous materials or
hazardous substances, as such terms are defined in applicable federal and state environmental laws,
in a manner which violates any such laws.
(l) Violations. Seller has not received written notice of any violations of any
state, federal or local law or ordinance against the Property or any written complaints or notices
issued with respect thereto.
23
Exhibit 10.24 (Continued)
(m) Deposits. Seller has not received written notice of any violations of the
requirements of chapter 83 of the Florida Statutes, including without limitation, all requirements
with respect to the holding of security deposits.
(n) Employees. The Company has no employees.
(o) Patriot Act. Neither Seller, nor any member, partner or shareholder of Seller,
nor, to Seller’s knowledge, any person or entity with actual authority to direct the actions of any
member, partner or shareholder of Seller, (i) are named on any list of persons, entities and
governments issued by the Office of Foreign Assets Control of the United States Department of the
Treasury (“OFAC”) pursuant to Executive Order 13224 — Blocking Property and Prohibiting
Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism (“Executive
Order 13224”), as in effect on the date hereof, or any similar list known to Seller or publicly
issued by OFAC or any other department or agency of the United States of America (collectively, the
“OFAC Lists”), (ii) are included in, owned by, controlled by, knowingly acting for or on behalf of,
knowingly providing assistance, support, sponsorship, or services of any kind to, or otherwise
knowingly associated with any of the persons, entities or governments referred to or described in
the OFAC Lists, or (iii) has knowingly conducted business with or knowingly engaged in any
transaction with any person, entity or government named on any of the OFAC Lists or any person,
entity or government included in, owned by, controlled by, acting for or on behalf of, providing
assistance, support, sponsorship, or services of any kind to, or, to Sellers’ knowledge, otherwise
associated with any of the persons, entities or governments referred to or described in the OFAC
Lists.
(p) Condominium. Except as set forth on Exhibit F, there are no outstanding
obligations of any kind arising out of or in connection with Seller’s proposed conversion of an
Apartment Complex to a regime of condominium (or the abandonment of such proposed conversion) that
will be binding on Purchaser after the Closing, including without limitation, any obligations under
any condominium prospectuses, any filings or payment obligations with or to the Division of Florida
Land Sales, Condominiums and Mobile Homes or any other Governmental Entity, and/or any obligations
of any kind in connection with any proposed condominium unit purchasers. None of the Condominium
Parcels have been “turned-over”. Neither Seller nor its affiliates currently manage the
condominium associations at the Condominium. The Company has no further obligations with respect
to the Condominiums in its capacity as developer other than those set forth in the Condominium
Declaration or those that exist as a matter of law.
(q) Intentionally deleted.
(r) At Closing, Seller shall be the sole legal and beneficial owner of the Interests free and
clear of all liens, pledges, mortgages, claims, charges or other encumbrances of any kind or nature
whatsoever.
24
Exhibit 10.24 (Continued)
(s) The Company is a limited liability company, duly organized and validly existing under the
laws of the State of its organization and its status is active. The only activities conducted by
the Company since its inception have been the construction, ownership and operation of the
Property. The Company has no liabilities or obligations other than as set forth on Exhibit “N”
attached hereto (the “Disclosed Liabilities”).
(t) All tax returns required by law to be filed by the Company prior to Closing will be filed
(or extensions to file will be obtained and such returns will be filed before the expiration of
such extensions), and all taxes, if any, shown on such returns or otherwise determined to be due,
together with any interest or penalties thereon, will be paid.
(u) Intentionally deleted.
(v) There is not currently pending, and Seller knows of no threatened (i) audit or
investigation of the Company with respect to any liability for income taxes relating to the Company
for which the Company may be liable or (ii) claims or assessments for income taxes against or
relating to the Company.
8.3 Knowledge. As used herein, the term “to Seller’s knowledge” shall mean only the
“current actual knowledge” (as defined below) of the following designees of Seller: with respect
to (i) the Apartment Complexes, Xxxxx Xxxxxxxx and Xxxxx Xxxxxxxxxxx, and (ii) with respect to the
Condominium Parcels, Xxxxx Xxxxxx and Xxxxx Xxxxx, who are the persons with the most knowledge and
experience in connection with the ownership and operation of the Property by Seller. As used
herein, the term “current actual knowledge” shall mean only the actual, current, conscious and not
constructive, imputed or implied knowledge of such designee without having made a review of the
files or other inquiry. Anything herein to the contrary notwithstanding, such designee shall not
have any personal liability or obligation whatsoever with respect to any of the matters set forth
in this Agreement or any of the Seller’s representations herein being or becoming untrue,
inaccurate or incomplete in any respect.
8.4 Survival. The representations and warranties of Seller set forth in this Article
8 and anywhere else in this Agreement (unless expressly stated otherwise) shall survive the Closing
of the transaction contemplated in this Agreement and the delivery of the Assignment and Assumption
of Membership Interests from Seller to Purchaser for a period of twelve (12) months from and after
the Closing Date. Consequently, Purchaser stipulates and agrees that from and after such twelve
(12) month period, it is entitled to and agrees to claim no damages of any kind with respect to any
alleged breach and/or violation of any of such representations and/or warranties of Seller. In the
event Purchaser obtains actual knowledge of any breach and/or violation of any Seller’s
representations and warranties prior to Closing and following notice thereof to Seller, Seller
fails or is unable to cure any such breach or violation to the reasonable satisfaction of
Purchaser, Purchaser’s sole remedy for any such breach or violation shall be to terminate this
Agreement by delivering written notice of such termination to Seller on or before the Closing Date
in which event the Xxxxxxx Money will be returned to Purchaser, and neither
party shall have any obligation hereunder. Purchaser hereby waives any right Purchaser may have to
commence any action(s) to enforce any alleged breach and/or violation of any of the
25
Exhibit 10.24 (Continued)
representations of Seller as set forth in this Agreement or to seek damages in connection therewith
in the event that Purchaser obtains actual knowledge of any such alleged breach and/or violation
prior to Closing and fails to give Seller notice thereof on or before the Closing Date.
8.5 Indemnification. A. Seller agrees that, if the Closing occurs, Seller (meaning
each constituent entity of Seller, jointly and severally) shall indemnify, defend and hold harmless
Purchaser from and against any claim by a third-party and related loss, damage, liability,
obligation, suit, cause of action, judgment, settlement, penalty, fine, cost or expense (including
reasonable fees and disbursements of attorneys and other professionals and court costs) to the
extent arising out of or related to (1) any act, omission, activity or event in any way involving
the Company or the Property and occurring before the Closing Date (including, without limitation,
the threatened litigation listed on Exhibit F), (2) any failure of the Company to perform any
obligation prior to the Closing Date, 3) any violation of law by the Company alleged to have
occurred prior to the Closing Date other than any matters pertaining to the physical condition of
the Property or (4) any liability of the Company for which Seller is liable as provided in Section
7.10 above. The foregoing indemnification obligation shall survive for a period of four (4) years
after the Closing Date.
B. Purchaser agrees that, if the Closing occurs, it will indemnify, defend and hold harmless
Seller from and against any claim by a third-party and related loss, damage, liability, obligation,
suit, cause of action, judgment, settlement, penalty, fine, cost or expense (including reasonable
fees and disbursements of attorneys and other professionals and court costs) to the extent arising
out of or related to (1) any act, omission, activity or event involving the Company or the Property
and occurring on or after the Closing Date, (2) any failure of the Company or Purchaser to perform
any obligation after the Closing Date, (3) any violation of law by the Company alleged to have
occurred on or after the Closing Date and (4) any liability of the Company for which Purchaser is
liable as provided in Section 7.10 above. The foregoing indemnification obligation shall survive
for a period of four (4) years after the Closing Date.
C. Notwithstanding anything herein to the contrary, (i) Seller’s aggregate liability under
Sections 8.4 and 8.5A above shall not exceed $6,000,000 in the aggregate (except that Seller’s
liability for the threatened litigation set forth on Exhibit F shall not be subject to or apply to
the foregoing limitation) and (ii) Purchaser’s liability under Section 8.5B above shall not exceed
$6,000,000.
ARTICLE 9.
REPRESENTATIONS AND WARRANTIES OF PURCHASER
REPRESENTATIONS AND WARRANTIES OF PURCHASER
9.1 Representations and Warranties of Purchaser. Purchaser hereby represents and
warrants to Seller as follows, which representations and warranties shall be true and correct as of
the date hereof and as of the Closing Date:
(a) Authority, Actions of Purchaser and Authorization.
Purchaser has all necessary power and lawful authority to own and operate its
assets and properties, including, but
26
Exhibit 10.24 (Continued)
not limited to the Property, and to carry on its business (including all business contemplated
under this Agreement and the Closing Documents). The execution and delivery by Purchaser of this
Agreement and the Closing Documents, and the consummation by Purchaser of the transactions
contemplated thereby, have been duly authorized by all necessary action of Purchaser. There are no
other approvals, authorizations, consents or other actions by or filings with any Person which are
required to be obtained or completed by Purchaser in connection with the execution and delivery of
this Agreement or any of the Closing Documents (or any other agreement or instrument required
hereunder) or the sale or purchase of the Interests or in connection with any other action required
to be taken by Purchaser hereunder at or before the Closing.
(b) Consents. Neither the execution and delivery of this Agreement or the Closing
Documents by Purchaser nor the consummation of the transaction contemplated hereby will: (i)
violate, conflict with or result in a breach or termination of, or give any other party the right
to terminate, or constitute a default under the terms of, any agreement to which Purchaser is a
party or by which it is bound; (ii) violate any judgment, order, injunction, award or decree of
any Governmental Entity against or binding upon Purchaser or upon the Property or business of
Purchaser; or (iii) constitute a violation by Purchaser of any applicable law or regulation to
which Purchaser is subject.
(c) Patriot Act. Neither Purchaser, nor any member, partner or shareholder of
Purchaser, nor, to Purchaser’s knowledge, any person or entity with actual authority to direct the
actions of any member, partner or shareholder of Purchaser, (i) are named on any list of persons,
entities and governments issued by OFAC pursuant to Executive Order 13224, as in effect on the date
hereof, or the OFAC Lists, (ii) are included in, owned by, controlled by, knowingly acting for or
on behalf of, knowingly providing assistance, support, sponsorship, or services of any kind to, or
otherwise knowingly associated with any of the persons, entities or governments referred to or
described in the OFAC Lists, or (iii) has knowingly conducted business with or knowingly engaged in
any transaction with any person, entity or government named on any of the OFAC Lists or any person,
entity or government included in, owned by, controlled by, acting for or on behalf of, providing
assistance, support, sponsorship, or services of any kind to, or, to Purchaser’s knowledge,
otherwise associated with any of the persons, entities or governments referred to or described in
the OFAC Lists.
9.2 Survival. The representations and warranties of Purchaser set forth in this
Article 9 and anywhere else in this Agreement (unless expressly stated otherwise) shall survive the
Closing of the transaction contemplated in this Agreement and delivery of the Special Warranty Deed
from Seller to Purchaser for a period of twelve (12) months from and after the Closing Date.
Consequently, Seller stipulates and agrees if from and after such twelve (12) month period it is
entitled to and agrees to claim no damages of any kind with respect to any alleged breach and/or
violation of such representations or warranties of Purchaser.
27
Exhibit 10.24 (Continued)
ARTICLE 10.
RISK OF LOSS
RISK OF LOSS
10.1 Casualty. Seller assumes all risks for damage to or injury occurring to the
Property by fire, storm, accident, or any other casualty or cause (a “Casualty”) until the Closing.
Immediately after Seller has received notice of the occurrence of any Casualty between the date
hereof and the Closing, Seller shall give Purchaser written notice thereof (a “Casualty Notice”),
which Casualty Notice shall state the type, location and amount of damage to any of the Apartment
Complex and Seller’s good faith estimate of the cost to complete repairs of such Casualty.
(a) If prior to the Closing such a Casualty shall occur and the cost to complete repairs of
such Casualty shall be greater than or equal to $500,000 with respect to any one Apartment Complex
or Condominium, or greater than $2,500,000 in the aggregate with respect to all Apartment Complexes
and all Condominium Parcels, then in any such event, Purchaser may, at its sole option, terminate
this Agreement by written notice to Seller (the “Casualty Termination Notice”) within ten (10)
Business Days after Purchaser has received the Casualty Notice (provided, however, if the Closing
is scheduled for a date which is less than ten days after Purchaser’s receipt of the Casualty
Notice the Closing shall be postponed until ten days after Purchaser’s receipt of the Casualty
Notice), in which event if Purchaser so elects to terminate, this Agreement shall be null and void,
the Xxxxxxx Money shall be returned to Purchaser and neither party shall have any further liability
or obligations to the other (except as specifically provided in this Agreement).
(b) If (i) Purchaser has the right but does not elect to terminate this Agreement as set forth
in Section 10.1(a) above, or (ii) the cost to complete repairs of such Casualty shall be less than
the threshold amounts provided in Section 10.1(a) above, then the Closing shall take place as
provided herein, and at the Closing there shall be assigned to Purchaser all of Seller’s rights,
titles and interest in and to any insurance policies covering such Casualty (including rental
interruption insurance) and all proceeds to be paid thereunder as may be then uncollected. Seller
shall credit against the Purchase Price, at Closing, an amount equal to the deductible under such
policy applicable to such casualty. Subject to the rights of Holder, so long as this Agreement has
not been terminated, Seller shall not consent to any insurance award concerning the Property
without first having obtained Purchaser’s consent, which consent shall not be unreasonably
withheld, conditioned or delayed
10.2 Condemnation. If, prior to the Closing, an action is initiated to take all or
any portion of any Apartment Complex by eminent domain proceedings or by deed in lieu thereof (a
“Condemnation”), Seller, upon receipt of written notice of such action from any Governmental
Entity, shall immediately give Purchaser written notice of such Condemnation stating the amount,
type and location of such Condemnation (a “Condemnation Notice”) and, if the proceeds to be paid
under such Condemnation equal or exceed $500,000 with respect to any one Apartment Complex or
Condominium, or $2,500,000 in the aggregate with respect to all Apartment Complexes and Condominium
Parcels, or if any material part of the Property, including parking spaces or access to the
Property is to be condemned, then Purchaser may, at its
28
Exhibit 10.24 (Continued)
sole option, either (a) terminate this Agreement by written notification, within ten (10) Business
Days after Purchaser has received the Condemnation Notice (provided, however, if the Closing is
scheduled for a date which is less than ten (10) days after Purchaser’s receipt of the Condemnation
Notice the Closing shall be adjourned until ten (10) days after Purchaser’s receipt of the
Condemnation Notice), or (b) consummate the Closing, in which latter event the award of the
condemning authority shall be assigned to Purchaser at the Closing, in form and substance
reasonably satisfactory to Seller and Purchaser. If the proceeds to be paid under such
Condemnation are less than the threshold amounts provided above, and the condemnation action only
applies to an immaterial portion of the Property, then the Closing shall take place as provided
herein and the award of the condemning authority shall be assigned to Purchaser at the Closing, in
form and substance reasonably satisfactory to Seller and Purchaser. So long as this Agreement has
not been terminated, Seller shall not consent to any condemnation award concerning the Property
without first having obtained Purchaser’s consent, which consent shall not be unreasonably withheld
or delayed.
ARTICLE 11.
DEFAULT
DEFAULT
11.1 Permitted Termination. If this Agreement is terminated by either party pursuant
to a right expressly given to it hereunder (a “Permitted Termination”), neither party shall have
any further obligation to the other party except as expressly provided in the Agreement.
11.2 Default Remedies of Purchaser.
(a) Seller shall be in default hereunder upon the occurrence of any one or more of the
following events:
(i) any of Seller’s warranties or representations set forth herein are untrue or inaccurate in
any material respect and Seller fails to cure the condition rendering such representation or
warranty untrue or inaccurate within two (2) Business Days after notice from Purchaser of such
untruth or inaccuracy; or
(ii) Seller shall fail to meet, comply with or perform in any material respect any covenant,
agreement, or obligation on its part required, within the time limits and in the manner required in
this Agreement, for any reason other than a Permitted Termination.
(b) In the event of a default by Seller under this Section 11.2, Purchaser may, at Purchaser’s
sole option, do any of the following:
(i) terminate this Agreement by written notice delivered to Seller and Escrow Agent at or
prior to the Closing, in which event the Xxxxxxx Money and all interest earned thereon shall be
returned to Purchaser and thereafter neither Seller nor Purchaser shall have any obligations to the
other under this Agreement, except as specifically set forth herein; provided that in the event of
a willful default by Seller, Purchaser shall be entitled to pursue an
29
Exhibit 10.24 (Continued)
action for damages solely for the recovery of Purchaser’s reasonable out-of-pocket fees, costs and
expenses incurred in connection with the transactions described herein; or
(ii) enforce specific performance of this Agreement against Seller; provided, that if specific
performance is not available due to the fact that Seller has conveyed the Property to a third
party, Purchaser shall be entitled to pursue an action for damages (excluding punitive damages).
11.3 Default Remedies of Seller.
(a) Purchaser shall be in default hereunder upon the occurrence of any one or more of the
following events:
(i) any of Purchaser’s warranties or representations set forth herein are untrue or inaccurate
in any material respect and Purchaser fails to cure the condition rendering such representation or
warranty untrue in any material respect within two (2) Business Days after the earlier to occur of
notice from Seller of such untruth or inaccuracy; or
(ii) Purchaser shall fail to meet, comply with or perform in any material respect any
covenant, agreement, or obligation on its part required, within the time limits and in the manner
required in this Agreement, for any reason other than a Permitted Termination.
(b) In the event of a default by Purchaser under this Section 11.3, Seller may terminate this
Agreement by written notice delivered to Purchaser at or prior to the Closing, in which event
Seller shall, as Seller’s sole and exclusive remedy, retain all of the Xxxxxxx Money actually
deposited (plus all interest accrued thereon), it being agreed between Purchaser and Seller that
such sum shall be liquidated damages for a default by Purchaser hereunder because of the
difficulty, inconvenience and uncertainty of ascertaining actual damages for such default and
thereafter neither Seller nor Purchaser shall have any obligations to the other under this
Agreement, except as specifically set forth herein.
ARTICLE 12.
FUTURE OPERATIONS
FUTURE OPERATIONS
12.1 Operations. Seller hereby agrees and covenants that from the date hereof through
the Closing or earlier termination of this Agreement:
(a) Seller shall not sell, encumber, further pledge, or otherwise transfer or dispose of all
or any part of the Interests or the Property without the prior consent of Purchaser.
(b) Seller shall not permit the Company to enter into any contract, agreement or other
arrangement with regards to the Property which will be binding on the Company or the Property after
the Closing and which cannot be terminated by Purchaser after Closing on 30 or fewer days
30
Exhibit 10.24 (Continued)
notice without any cancellation fee or penalty and without approval of Purchaser. Seller
agrees to terminate all Contracts designated by Purchaser prior to the Closing Date, at Seller’s
sole cost, on or before the Closing Date unless Purchaser otherwise elects, by written notice prior
to the Termination Deadline, to assume same; provided, however, Seller has no obligation to
terminate any Contracts which cannot be terminated by Seller, without cause and without any payment
or other penalty, on thirty (30) or less days notice.
(c) Seller shall not initiate or consent to (or permit the Company to initiate or consent to)
any zoning changes, liens or encumbrances of or against the Property without the prior written
consent of Purchaser, and shall give Purchaser copies of all notices received by Seller with
respect to any such matters.
(d) Seller shall cause the Company to continue to manage, lease, market and operate the
Property in the ordinary course of business in accordance with the management, leasing and
operation standards and practices currently in effect at the Property, and shall continue to
perform all of its obligations with respect to the Tenant Leases, the Contracts and the Condominium
Parcel Contracts.
(e) Seller shall cause the Company to repair and maintain the Property in its present
condition, normal wear and tear excluded.
(f) Seller shall not permit the Company to enter into any new lease or amend any existing
Lease, without Purchaser’s consent, not to be unreasonably withheld, conditioned or delayed, unless
(i) same is on the current standard lease form for the Property; (ii) provides for payment of
monthly rent at the rates currently in effect for the Property; (iii) is for a term of no less than
one year nor more than 15 months; and (iv) does not provide any “free rent” or other concessions
beyond those currently in effect with respect to the Property.
(g) Seller shall not enter into any new Condominium Parcel Contract without Purchaser’s
consent, not to be unreasonably withheld, conditioned or delayed. Purchaser acknowledges and
agrees that if Purchaser fails to respond to Seller’s request for consent to the terms of a
proposed Condominium Parcel Contract within one (1) Business Day after such request is sent via
e-mail to the attention of Xxxxxxx Xxxxx at “xxxxxx@xxxxxxxxx.xxx”, such request shall be deemed
granted and Seller shall be permitted to enter into such Condominium Parcel Contract on behalf of
the Company. Seller shall include the following material deal terms in any such e-mail
notification to Purchaser: (i) purchase price; (ii) seller incentives; (iii) the amount of the
contract deposit; and (iv) the closing date.
ARTICLE 13.
BROKERS
BROKERS
13.1 Except for CB Xxxxxxx Xxxxx (“Broker”), Seller represents and warrants to Purchaser, and
Purchaser represents and warrants to Seller, that they know of no broker or finder who has claimed
or who has the right to claim any fee, commission or other similar
31
Exhibit 10.24 (Continued)
compensation in connection with the transaction contemplated by this Agreement, and that they have
taken no actions which would form the basis for such a claim. In the event that the transactions
herein contemplated close, and only in such event, Seller shall pay a commission to the Broker
pursuant to a separate agreement.
13.2 Seller shall indemnify, hold harmless and defend Purchaser against all liability, loss,
cost, claim or expense arising out of any breach of Seller’s obligation or representation in
Sections 13.1. Purchaser shall indemnify, hold harmless, and defend Seller against all liability,
loss, cost, claim or expense arising out of any breach of Purchaser’s obligations or
representations in Sections 13.1.
13.3 This Article shall survive the Closing (or, if the Closing does not occur, the earlier
termination of this Agreement).
ARTICLE 14.
DUE DILIGENCE REVIEW
DUE DILIGENCE REVIEW
14.1 Purchaser’s Right to Inspect the Property. Purchaser, at Purchaser’s sole cost
and expense, shall be entitled, on and after the date hereof, to inspect and review the Property
and all matters relating to the Property, the Company and the Interests (the “Due Diligence
Review”), including without limitation the physical condition of the Property, Contracts, Leases,
Books and Records, Plans, surveys and title examinations. During the Due Diligence Review,
Purchaser, at Purchaser’s sole cost, shall also have the right to make such inspections,
investigations and tests as Purchaser may elect to make or obtain, subject to the rights of the
Tenants and the terms and provisions of this Agreement. Seller will provide access to Purchaser
and Purchaser’s agents to the Property during normal business hours provided that Purchaser shall
provide reasonable advance notice. Purchaser and Purchaser’s representatives, agents, designees
and contractors have the right during the term of this Agreement upon twenty four hours prior
notice (by telephone and electronic mail) to Seller, at Purchaser’s sole cost, to enter the
Property to conduct any environmental, soils, seismic, hydro geologic, geologic and engineering
tests and studies with respect to the Property, provided that any environmental testing other than
a standard Phase I (ASTM) assessment shall require the prior written consent of Seller, not be
unreasonably withheld. Purchaser shall have the right, at Purchaser’s sole cost and expense, to
conduct a final walk-through and inspection of the Property the day of or immediately prior to
Closing.
14.2 Termination of This Agreement. If Purchaser, at its sole discretion, chooses to
terminate this Agreement pursuant to this Article, then Purchaser shall, on or prior to the
Termination Deadline, give written notice (“ Notice of Termination”) to Seller and the Escrow
Holder of such fact and this Agreement shall terminate. If the Notice of Termination is not timely
given, this Agreement shall remain in full force and effect, and all obligations of each party
hereunder shall continue. If Purchaser timely elects not to proceed with the purchase for any
reason or no reason in its sole discretion, then Seller and Purchaser hereby specifically agree and
acknowledge that the Escrow Holder is and shall be immediately and unconditionally
32
Exhibit 10.24 (Continued)
authorized to return the Xxxxxxx Money and all interest which has accrued thereon to Purchaser,
less and with the exception of Ten Dollars ($10) (the “Independent Contract Consideration”) of the
Xxxxxxx Money, which shall be delivered to Seller as independent consideration for Seller’s
entering into this Agreement, and all rights and obligations of Purchaser and Seller shall
terminate and this Agreement shall be null and void and of no further force and effect.
Purchaser’s failure to give a Notice of Termination on or before the Termination Deadline shall
cause the Agreement to continue in full force and effect.
14.3 Purchaser’s Responsibility and Indemnity. Purchaser’s right to inspect the
Property and conduct the tests referred to in Section 14.1 is subject to the condition that such
inspection and tests shall not materially interfere with the use and occupancy of any Tenant at the
Property. Purchaser shall be responsible for and shall indemnify and hold Seller harmless from and
against all damages, liabilities, losses, costs or expenses, together with reasonable attorney’s
fees and disbursements, which may arise as a result of the acts or omissions of Purchaser or its
representatives or agents in connection with any tests conducted by any such parties in connection
with Purchaser’s inspection rights under Section 14.1, and in the event the sale of the Property
fails to close, Purchaser shall repair any such damage to the condition that the Property was prior
to such tests; provided however, Purchaser shall not have any liability arising from mere discovery
of any condition on the Property. Purchaser shall carry not less than One Million and 00/100
Dollars ($1,000,000) comprehensive general liability insurance which insures against Purchaser’s
indemnity obligations under this Section, naming Seller as additional insured, and, prior to any
entry onto the Property, Purchaser shall deliver to Seller a certificate of insurance evidencing
the required coverages and insureds.
14.4 Confidentiality of Results. Purchaser agrees that, prior to the Closing, it
shall not disclose the results of any environmental investigation or other due diligence results to
any Person or Governmental Entity without the prior written consent of Seller, except (1) to
Purchaser’s representatives (including, without limitation, attorneys, accountants, investment
advisors, contractors, employees and agents) who need to know the information for the purpose of
evaluating the Property and who are informed by the Purchaser of the confidential nature of the
information; (2) as may be necessary for Purchaser or Purchaser’s representatives to comply with
applicable laws, including, without limitation, governmental, regulatory, disclosure, tax and
reporting requirements; to comply with other requirements and requests of regulatory and
supervisory authorities and self-regulatory organizations having jurisdiction over Purchaser or
Purchaser’s representatives; to comply with regulatory or judicial processes; or to satisfy
reporting procedures and inquiries of credit rating agencies in accordance with customary practices
of Purchaser or its affiliates; and (3) to Holder and its representatives. Purchaser shall have no
obligation to preserve the confidential or proprietary nature of any Property information which:
(a) was already known to Purchaser; (b) is a matter of public record; or (c) is approved for
release in writing by Seller.
14.5 Survival. The provisions of this Article 14 shall survive the Closing.
ARTICLE 15.
33
Exhibit 10.24 (Continued)
LOAN ASSUMPTION CONTINGENCY
15.1 Holder Consent. A. This Agreement is subject to and conditioned upon the
approval by the Holder of the transfer of the Interests to Purchaser, the amendment and restatement
of the Existing Loan Documents in a manner reasonably acceptable to Seller, Purchaser and Holder,
the dismissal of all actions and discharge of all liens relating to the foreclosure of the Existing
Loan, the release of Seller and its affiliates (except as otherwise provided below) from all
liability and obligations thereunder that arise from and after the Closing Date (the “Holder
Consent”) and the execution and delivery by Holder and Purchaser of the documents reasonably
required by Holder to evidence the foregoing. In addition, the Holder Consent shall provide that
Holder shall release Tarragon Corporation from its obligations under that certain Amended and
Restated Payment and Performance Guaranty dated as of October 10, 2006 (as the same may be amended,
the “Tarragon Guaranty”) on a pro-rata basis as Purchaser prepays the Existing Loans. Purchaser
shall apply for the Holder Consent, in good faith, on or before the date hereof, and shall
thereafter diligently take such actions and deliver such information and documents as the Holder
may require. Purchaser agrees to (i) make a partial prepayment of the Existing Loans in the amount
of $18,000,000 at the Closing ($5,000,000 of which shall be paid by application of the Xxxxxxx
Money, which partial prepayment shall result in the outstanding principal amount as of Closing
being $138,075,000, (ii) provide a “Key Principal” or limited guarantor satisfactory to Purchaser
and Holder to guarantee the “non-recourse carve-outs” and provide environmental indemnifications
under the Existing Loan, if so required by Holder, and (iii) to continue to provide escrows as
reasonably required by Holder. Purchaser shall keep Seller reasonably apprised as to the status of
Purchaser’s negotiations with Holder regarding the Holder Consent and Seller shall reasonably
cooperate with Purchaser and Holder, to the extent reasonably necessary.
B. Notwithstanding any provision herein to the contrary, Purchaser hereby reserves the right
to make arrangements with Holder to release the Ballantrae Apartment Complex from the lien of the
Existing Loan Documents at Closing, in which event (i) the Purchase Price hereunder shall be deemed
modified to reflect a reduction of $30,250,000 in the amount debt being assumed and a corresponding
increase in the cash payable to the Holder at Closing under Section 15.1A; (ii) at Closing, title
to the Ballantrae Apartment Complex shall be free of any liens securing the Existing Loan; (iii)
Tarragon’s liability under the Tarragon Guaranty shall be reduced on a pro-rata basis to reflect
the reduced outstanding principal balance of the Existing Loans; and (iv) the provisions of this
Agreement shall otherwise remain in full force and effect with respect to the Ballantrae Company,
the Ballantrae Apartment Complex and the transfer of the Ballantrae Interests.
15.2 Purchaser shall endeavor to provide Tarragon with copies of all notices, if
any, received by Purchaser (or its affiliates) from Holder after the Closing Date which
purport to assert that an Event of Default, or a default which with the passage of
time, the giving of notice, or both, would constitute as an Event of Default, has
occurred under the Existing Loan Documents, as
amended and restated as of the Closing Date. The provisions of this
Section 15.2 shall survive the Closing.
34
Exhibit 10.24 (Continued)
ARTICLE 16.
MISCELLANEOUS
MISCELLANEOUS
16.1 Notices. All notices, demands and requests which may be given or which are
required to be given by either party to the other, and any exercise of a right of termination
provided by this Agreement, shall be in writing and shall be deemed effective when (a) personally
delivered to the address of the party to receive such notice set forth below, (b) transmitted if
sent via facsimile (with confirmation of successful transmission), (c) the next succeeding Business
Day after deposit with a nationally recognized overnight courier service (e.g., Federal Express)
and addressed to the party as set forth below, or (d) three days after when deposited in any post
office or mail receptacle regularly maintained by the United States
Government, certified or registered mail, return receipt requested, postage prepaid, addressed as
follows:
If to Seller: | TARRAGON CORPORATION 000 Xxxx 00xx Xxxxxx — 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxxxxxx X. Xxxxxxxx & Xxxxxxx X. Xxxxxxxxxx, Esq. Phone: (000) 000-0000 Fax: (000) 000-0000 |
|||
E-mail: xxxxxxxxxxx@xxxxxxxxxxxx.xxx | ||||
With a copy to: | TARRAGON CORPORATION 000 Xxxx 00xx Xxxxxx — 12th Floor New York, New York 10019 Attn: Xxxxx Xxxxxxx Phone: (000) 000-0000 Fax: (000) 000-0000 E-mail: xxxxxxxx@xxxxxxxxxxxx.xxx |
|||
If to Purchaser: | Northland Fund II, L.P. c/o Northland Investment Corporation |
|||
0000 Xxxxxxxxxx Xxxxxx | ||||
Xxxxxx, XX 00000 | ||||
Attn: Xxxxxx X. Xxxxxxxxx | ||||
Phone: (000) 000-0000 | ||||
Fax: (000) 000-0000 | ||||
E-mail: xxxxxxxxxx@xxxxxxxxx.xxx |
35
Exhibit 10.24 (Continued)
With a copy to: | Northland Investment Corporation | |||
0000 Xxxxxxxxxx Xxxxxx | ||||
Xxxxxx, XX 00000 | ||||
Attn: Xxxxxxx Xxxxx, Esquire | ||||
Phone: (000) 000-0000 | ||||
Fax: (000) 000-0000 | ||||
E-mail: xxxxxx@xxxxxxxxx.xxx | ||||
and | Xxxx Xxx Xxxxx, Esquire | |||
Mintz Xxxxx Xxxx Xxxxxx Xxxxxxx & Xxxxx, P.C. | ||||
Xxx Xxxxxxxxx Xxxxxx | ||||
Xxxxxx, XX 00000 | ||||
Phone: 000-000-0000 | ||||
Fax: 000-000-0000 | ||||
E-mail: xxxxxxx@xxxxx.xxx | ||||
If to Title Company | Xxxxxxx Title Guaranty Company | |||
Or Escrow Holder: | 0000 Xxxx Xxxxxx, Xxxxx 000 | |||
Xxxxx, Xxxxxxx 00000 | ||||
Attn: Xxxxxxx Xxxxxx, CLA | ||||
Phone: 000-000-0000 x0000 | ||||
Fax: 000-000-0000 | ||||
E-mail: xxxxxxx@xxxxxxx.xxx |
or such other place as Seller or Purchaser or Title Company, respectively, may from time to time
designate by written notice to the other. A notice may be given by a party or by a party’s attorney
at law. Any notice given by facsimile shall be followed within one (1) day by a second notice
given by one of the other methods specified above.
16.2 Entire Agreement. This Agreement embodies the entire agreement between the
parties relative to the subject matter hereof, and there are no oral or written agreements between
the parties, nor any representations made by either party relative to the subject matter hereof,
which are not expressly set forth herein. The parties hereto do not intend to confer any benefit
hereunder on any Person other than the parties hereto.
16.3 Amendment. This Agreement may be amended only by a written instrument executed
by the party or parties to be bound thereby.
16.4 Headings. The captions and headings used in this Agreement are for convenience
only and do not in any way limit, amplify, or otherwise modify the provisions of this Agreement.
16.5 Governing Law. This Agreement shall be governed by the laws of the
State of New York.
36
Exhibit 10.24 (Continued)
16.6 Successors and Assigns. This Agreement shall bind and inure to the benefit of Seller
and Purchaser and their respective successors and permitted assigns.
16.7 Invalid Provision. If any provision of this Agreement is held to be illegal,
invalid or unenforceable under present or future laws, such provision shall be fully severable;
this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable
provision had never comprised a part of this Agreement; and, the remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by such illegal, invalid,
or unenforceable provision or by its severance from this Agreement.
16.8 Multiple Counterparts. This Agreement may be executed in a number of identical
counterparts, each of which for all purposes is deemed an original, and all of which constitute
collectively one agreement; but in making proof of this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
16.9 Construction. The words “herein” “hereof “hereunder” and other similar compounds
of the words “here” when used in this Agreement shall refer to the entire Agreement and not to any
particular provision or section. Whenever used in this Agreement, the singular shall include the
plural, the plural the singular, and the use of any gender shall be applicable to all genders.
Marginal notes are inserted for convenience only and shall not form part of the text of this
Agreement. This Agreement shall not be construed as if it had been prepared by one of the parties,
but rather as if both parties had prepared the same. Each party acknowledges that such party’s
obligations with respect to any covenant, indemnity, representation or warranty under this
Agreement which expressly survives the Closing shall be considered a “liability” for purposes of
any distribution limitation imposed under the organizational laws applicable to such party, its
members and/or their respective partners, members and shareholders.
16.10 Waivers. No waiver of any breach of any covenant or provision herein
contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other
covenant or provision herein contained. No extension of time for performance of any obligation or
act shall be deemed an extension of the time for performance of any other obligation or act.
16.11 Time of Essence. Seller and Purchaser hereby acknowledge and agree that time
is strictly of the essence with respect to each and every term, condition, obligation and provision
hereof and that failure to timely perform any of the terms, conditions, obligations or provisions
hereof by either party shall constitute a material breach of and a non-curable default under this
Agreement by the party so failing to perform.
16.12 No Joint Venture. This Agreement shall not create a partnership or joint
venture relationship between Purchaser and Seller.
16.13 Assignment. Except as provided in this Section, this Agreement may not be
assigned by Purchaser without the prior written consent of Seller. The foregoing sentence to the
37
Exhibit 10.24 (Continued)
contrary notwithstanding, Purchaser may assign this Agreement to an entity or entities which
control, are owned and controlled by or are under common control with Purchaser, provided that
Purchaser delivers to Seller not less than three (3) Business Days prior to the Closing Date a
draft instrument or instruments evidencing such assignment. No assignment of this Agreement shall
release the original Purchaser named herein from its obligations hereunder without the express
written consent of Seller.
16.14 Timing. If the final date of any period which is set out in any provision of
this Agreement falls on a day which is not a Business Day, in such event, the time of such period
shall be extended to the next Business Day.
16.15 Attorney’s Fees. In the event of any dispute between the parties concerning
this Agreement, the non-prevailing party in such dispute shall reimburse the prevailing party for
its reasonable attorneys fees incurred in connection with such dispute.
16.16 Section 1031 Exchange. Each party agrees to cooperate reasonably with the other
in effecting an exchange transaction which includes the Property pursuant to Section 1031 of the
United States Internal Revenue Code, provided that any exchange initiated by either shall be at
that party’s sole cost and expense, not cause the other party to actually take title to any
property other than the Property and not delay the Closing. In addition, the requesting party
shall indemnify and hold the other harmless from any and all cost, expense or liability incurred
solely as a result of the other accommodating such tax deferred exchange. The provisions of this
paragraph shall survive the Closing indefinitely
[Remainder of Page Left Intentionally Blank]
38
Exhibit 10.24 (Continued)
IN WITNESS WHEREOF, the undersigned parties have executed this Agreement on the date first
written above.
SELLER: | BALLANTRAE MANAGER, INC., a Nevada corporation |
|||
By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxxx | |||
Title: | Executive Vice President | |||
REFLECTION LAKES MANAGER,
INC., A Nevada corporation |
||||
By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxxx | |||
Title: | Executive Vice President | |||
MONTERRA TARRAGON, INC., a Nevada corporation |
||||
By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxxx | |||
Title: | Executive Vice President | |||
MADISON TARRAGON MANAGER, INC.,
a Nevada corporation |
||||
By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxxx | |||
Title: | Executive Vice President | |||
[ADDITIONAL SIGNATURES PAGES FOLLOW]
39
Exhibit 10.24 (Continued)
TARRAGON SOUTH DEVELOPMENT
CORPORATION, a Nevada corporation |
||||
By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxxx | |||
Title: | Executive Vice President | |||
TARRAGON CORPORATION, a Nevada corporation |
||||
By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |||
Name: | Xxxxxxx X. Xxxxxxxxxx | |||
Title: | Executive Vice President | |||
[ADDITIONAL SIGNATURES PAGES FOLLOW]
40
Exhibit 10.24 (Continued)
PURCHASER: | NORTHLAND FUND II, L.P., a Delaware limited partnership |
|||
By: | Northland Fund II Partners LLC, its general partner | |||
By: | /s/ Xxxx X. Xxxxxxx | |||
Name: | Xxxx X. Xxxxxxx | |||
Title: | Treasurer | |||
[ADDITIONAL SIGNATURE PAGE FOLLOWS]
41
Exhibit 10.24 (Continued)
ESCROW HOLDER: | XXXXXXX TITLE GUARANTY COMPANY |
|||
By: | ||||
Name: | ||||
Title: | ||||
42
Exhibit 10.24 (Continued)
EXHIBIT “A-1”
LEGAL DESCRIPTION — BALLANTRAE
43
Exhibit 10.24 (Continued)
EXHIBIT “A-2”
LEGAL DESCRIPTION — REFLECTION LAKES
44
Exhibit 10.24 (Continued)
EXHIBIT “A-3”
LEGAL DESCRIPTION — MONTERRA
45
Exhibit 10.24 (Continued)
EXHIBIT “A-4”
46
Exhibit 10.24 (Continued)
EXHIBIT “A-5”
47
Exhibit 10.24 (Continued)
EXHIBIT “A-6”
48
Exhibit 10.24 (Continued)
EXHIBIT “B”
CONTRACTS
49
Exhibit 10.24 (Continued)
EXHIBIT “C”
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTERESTS
ASSIGNMENT AND ASSUMPTION OF MEMBERSHIP INTEREST
THIS ASSIGNMENT, ASSUMPTION AND SALE OF MEMBERSHIP INTEREST (this “Assignment”) is made this
day of December, 2007 by and between , a limited liability company
(“Assignor”), and , a (“Assignee”).
RECITALS:
WHEREAS, Assignor entered into that certain dated as of , as
amended by , dated as of (as so amended, the “Operating
Agreement”), pursuant to which a limited liability company known as (the
“Company”), was formed;
WHEREAS, Assignor owns percent ( %) of the membership interests in the Company
(the “Interest”);
WHEREAS, Assignor and Assignee have entered into that certain Membership Interest Purchase and
Sale Agreement dated as of as amended to date; and
WHEREAS, Assignor desires to assign and transfer its Interest to Assignee, and Assignee
desires to acquire Assignor’s Interest.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Assignment of Membership Interest. Assignor hereby forever irrevocably sells,
assigns, transfers, conveys and sets over to Assignee, its successors and assigns, forever, all of
its right, title and interest in and to the Interest, whether pursuant to the Operating Agreement
or otherwise. This assignment includes all rights in and claims to any Company profits and losses,
undistributed allocations of any Company profits and losses, undistributed distributions of any
kind and any other benefits of any nature allocable under the Operating Agreement or otherwise to
the Interest hereby assigned, arising on or after the date hereof. In order to induce the Assignee
to enter into this Agreement, the Assignor represents and warrants to the Assignee that it (i) is
the record and beneficial owner of the Interest, (ii) has good and marketable title to the
Interest, free and clear of all liens, claims, charges, pledges, security interests and
encumbrances
50
Exhibit 10.24 (Continued)
of every kind and nature and (ii) has the absolute right to sell, assign and transfer the same
to the Assignee.
2. Assumption of Membership Interest. Assignee hereby accepts the foregoing
assignment and agrees to assume and perform each and every one of the obligations and be bound by
all of the terms and provisions set forth in the Membership Agreement arising from and after the
date hereof, and agrees that it hereby is a member of the Company.
3. Governing Law. This Assignment shall be governed by, and construed in accordance
with, the laws of the State of .
4. Miscellaneous. This Assignment shall bind and inure to the benefit of the parties
hereto and their respective heirs, successors and assigns. This Assignment may be executed in two
or more counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. The parties hereto agree that they will execute such other
and further instruments and documents that may be necessary to effectuate this Assignment.
IN WITNESS WHEREOF, the parties hereto have executed this Assignment as of the day and year
first above written.
ASSIGNOR:
ASSIGNEE:
51
Exhibit 10.24 (Continued)
EXHIBIT “D”
Intentionally deleted
52
Exhibit 10.24 (Continued)
EXHIBIT “E”
RENT ROLL
53
Exhibit 10.24 (Continued)
EXHIBIT “F”
LEGAL PROCEEDINGS
Barclays Capital Real Estate Inc. v Tarragon Lugano LLC, Ballantrae Tarragon LLC, Reflection
Lakes Tarragon, LLC, Omni Monterra LLC, Tarragon Corporation, Ybor City Tarragon, LLC, Via Lugano
Condominium Association, Inc. and The Quarter at Ybor Condominium Association, Inc., in the Circuit
Court of the15th Judicial Circuit, in and for Palm Beach County, Florida, Foreclosure Division,
Case No. 2007 CA 01 4548).
THREATENED LEGAL PROCEEDINGS
Threatened litigation as set forth in that certain correspondence dated May 29, 2007 from
Holland & Knight to Ballantrae Tarragon LLC, with respect to Strategery Group, LLC vMCZ/Centrum
Florida XII, LLC, a copy of which was provided to Purchaser
54
Exhibit 10.24
EXHIBIT “G”
PERSONAL PROPERTY
Exhibit 10.24 (Continued)
EXHIBIT “H”
Intentionally deleted
56
Exhibit 10.24 (Continued)
EXHIBIT “I”
TITLE UPDATES
57
Exhibit 10.24 (Continued)
EXHIBIT J
Intentionally deleted
58
Exhibit 10.24 (Continued)
EXHIBIT K
TITLE CLEARING ITEMS
59
Exhibit 10.24 (Continued)
EXHIBIT L
CONDOMINIUM PARCEL CONTRACTS
60
Exhibit 10.24 (Continued)
EXHIBIT M
NON-IMPUTATION AFFIDAVIT
State of South Carolina
|
) | |||||
) | ss. | |||||
County of
|
) |
Affidavit and Indemnity
The undersigned, being first duly sworn, on oath, deposes and says the following:
1. | The undersigned is (i) Executive Vice President of Tarragon Corporation, a Nevada corporation and (ii) Executive Vice President of Madison Tarragon Manager, Inc., a Nevada corporation. |
2. To the best knowledge of the undersigned,
a. | there are presently no defects in or liens, encumbrances or other claims against the title to the property described in the Commitment for Title Insurance No. , having an effective date of , issued by Fidelity National Title Insurance Company (hereinafter referred to as “the Company”) other than as disclosed in exceptions nos. on Schedule B — Section 2 of said commitment, other than the following: (if none, state “None”); and; | ||
b. | There are presently no inchoate rights which may ripen into any defect, lien, encumbrance or claim against the title to said property except as may be created by an instrument or action required in Schedule B — Section 1 of said commitment, other than the following: (If none, state “None”) |
3. | The undersigned hereby indemnifies the Company and agrees to hold it harmless against any loss which the Company may suffer by virtue of any valid claim made under the said endorsement based on the existence of any defect in or lien, encumbrance, right or claim against or with respect to the title to the aforesaid property which was not disclosed above but which should have been so disclosed in order to make all statements above true and correct. | |
The undersigned understands such losses may include court costs and attorney’s fees expended by the Company in defending the title or interest of the insured against such lien, encumbrance, right or claim. |
4. | The undersigned makes these statements and gives the aforesaid indemnity for the purpose of inducing the Company to issue the endorsement attached hereto as Exhibit A to one or more of the owner’s or loan policies issued pursuant to the said Commitment for Title Insurance. |
61
Exhibit 10.24 (Continued)
The undersigned further agrees to pay all court costs and reasonable attorney’s fees which the
Company may expend in enforcing the terms of this indemnity agreement.
Dated:
Name of Affiant & Indemnitor
62
Exhibit 10.24 (Continued)
EXHIBIT N
DISCLOSED LIAIBILITIES
1. The obligations of the Company with respect to the Existing Loan Documents.
2. The obligations of the Company under the Tenant Leases and Condominium Parcel Contracts
(including, without limitation, any incentives provided to third party purchasers as provided in
the Condominium Parcel Contracts).
3. The obligations of the Company under or with respect to the Permitted Exceptions, Licenses,
Permits, Warranties and Guaranties and Contracts.
4. The obligations of the Company with respect to taxes relating to the Company and the
Property.
5. The obligations relating to the maintenance of the status of the Company as a limited
liability company in accordance with Holder’s requirements.
6. Customary unsecured trade debt.
7. The obligations of the Company under the Condominium Declarations (including, without
limitation, the Company’s obligation to provide deficit funding to the condominium associations for
the Condominiums).
63