REAL ESTATE CONTRIBUTION AGREEMENT
This Contribution Agreement ("Agreement") is entered into, for reference
purposes, as of August 1, 1997, between ASR Investments Corporation ("ASR"),
Heritage Communities L.P. ("Heritage" and collectively with ASR the "ASR
Parties") and On The Boulevard Joint Venture, a Washington Joint Venture
("Seller").
1. PARTIES
1.1 ASR Parties. ASR Parties hereby agree to the terms and conditions
set forth in this Agreement. ASR Parties shall have the right to assign ASR
Parties' rights hereunder to an entity in which ASR is a principal.
1.2 Seller. Seller agrees to contribute the real property hereinafter
described to Heritage upon the terms and conditions set forth in this Agreement.
1.3 Escrow Holder. The transaction contemplated by this Agreement shall
be closed through an escrow to be held by Transnation Title Insurance Company
("Escrow Holder") at its office located at 0000 0xx Xxxxxx, Xxxxx 0000, Xxxxxxx,
Xxxxxxxxxx 00000.
2. PROPERTY
2.1 The real property ("Property") that is the subject of this
Agreement is On The Boulevard Apartments, located at 0000 Xxxx Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxxxx, and is legally described in Exhibit A which is attached
hereto and incorporated herein by this reference.
2.2 If the legal description of the Property is not complete or is
inaccurate, this Agreement shall not be invalid, but the legal description shall
be completed or corrected to meet the requirements of Transnation Title Company
(the "Title Company"), which shall issue the title insurance policy hereinafter
described.
2.3 The Property includes, at no additional cost to Heritage, the
permanent improvements thereon, including those items which the law of the State
of Washington provides is part of the Property, as well as the following items,
if any, owned by Seller and presently located in or on the Property: electrical
distribution systems, air conditioning equipment, carpets, window coverings,
wall coverings, and all appliances and fixtures owned by Seller and located in
individual dwelling units and common areas, if any.
2.4 Possession of the Property shall be given to Heritage at the
Closing, subject to the rights of existing tenants.
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3. CONTRIBUTION OF PROPERTY TO HERITAGE
Seller shall contribute the Property, subject to the Mortgage Loans, to
Heritage in exchange for cash and Limited Partnership Units (herein "LP Units")
of Heritage as follows:
3.1 The Deemed Value of the Properties will be Ten Million six Hundred
Fifty Thousand and No/100 Dollars ($10,650,000.00) including the Xxxxxxx Money
Deposit and all extension payments made by Buyer pursuant hereto and including
interest earned thereon.
3.2 Heritage shall assume the existing first lien note and deed of
trust on Phase I. The balance of said loan to be assumed shall be Seven Million
Nine Hundred Thousand and No/100 Dollars ($7,900,000.00). Seller agrees to pay,
at the Closing, the amount required to reduce the actual balance to the above
stated amount. The contingencies contained in Paragraph 6.1.3 below regarding
the assumption of said loan are hereby incorporated into the terms of this
Paragraph. Seller shall pay all costs incurred in obtaining the lender's consent
to the assumption.
3.3 In return for the contribution, Seller shall receive the following:
3.3.1 Cash of Six Hundred Fifty Thousand and No/100 Dollars
($650,000.00), subject to adjustment for prorations and Closing costs as
defined elsewhere in this Agreement.
3.3.2 Unrestricted Common Stock of ASR with a "Value" of Two
Million One Hundred Thousand and No/100 Dollars ($2,100,000.00) (determined by
deducting the debt assumed in Paragraphs 3.2 and the cash distribution in
Paragraph 3.3.1 from the Deemed Value in Paragraph 3. 1). The number of shares
of ASR Common Stock to be issued will be determined by dividing the $2,100,000
by the average closing price of ASR's Common Stock on the American Stock
Exchange for the ten (10) day period preceding Closing (the "ASR Stock Price").
No fractional shares of ASR Common Stock shall be issued.
4. XXXXXXX MONEY DEPOSIT
ASR Parties shall deposit the sum of One Hundred Thousand and No/100
Dollars ($100,000.00) in the form of a company check due within 48 hours of
mutual execution of this Agreement as Xxxxxxx Money for the full and faithful
performance of ASR Parties' obligations hereunder. Xxxxxxx Money shall be held
by Transnation Title Insurance Company. The Xxxxxxx Money Deposit shall be
returned to ASR Parties if ASR Parties have not satisfied or waived in writing
each and every of the contingencies listed in Subsection 6. 1.1 through 6.1.6 on
or before 30 days from mutual execution of this Agreement, otherwise, if ASR
Parties has so waived all of such contingencies, the Xxxxxxx Money Deposit and
any interest earned thereon shall be applied to the Cash Due Seller at Closing.
In the event ASR Parties fail to complete the purchase of Property after the
removal of said contingencies, the Xxxxxxx Money Deposit made by ASR Parties
shall forfeited to Seller as the sole and exclusive remedy available to Seller
for such failure. All Xxxxxxx Money shall be deposited at interest in a
federally insured account, and interest earned shall be credited to the party
entitled to the Xxxxxxx Money. Irrespective of the above, the contingencies
listed to subsections 6.1.4 through 6.1.7 shall continue to the date of Closing.
Should Closing fail to occur due to the failure of any of said contingencies,
ASR Parties shall be entitled to a refund of the Xxxxxxx Money Deposit or any
other remedies allowed by Washington law.
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5. ESCROW AND CLOSING
5.1 When executed by both parties, this Agreement shall constitute not
only the agreement of contribution between ASR Parties and Seller, but also
instructions to Escrow Holder for the consummation of the Agreement through
escrow.
5.2 Unless extended as provided herein, the Escrow Holder shall close
the escrow on or before that date which is 15 days following the date on which
ASR Parties have removed its last contingency as stated in Paragraphs 6.1.1
through 6.1.3 herein but not later than the 45th day after escrow is opened
("Closing Date") in the offices of Escrow Holder.
5.3 Escrow Holder is hereby authorized and instructed to conduct the
escrow in accordance with this Agreement, applicable law, and the custom and
practice of real estate closings in King County, Washington.
5.4 Subject to satisfaction of the contingencies herein described,
Escrow Holder shall close this escrow (the "Closing") by recording the Statutory
Warranty Deed and other documents required and by disbursing the funds and
documents in accordance with this Agreement.
5.5 If this transaction is terminated for nonsatisfaction or nonwaiver
of an ASR Parties' Contingency as subsequently defined herein then neither of
the parties shall thereafter have any liability to other under this Agreement,
except to the extent of the breach of any affirmative covenant or warranty in
this Agreement that may have been involved.
5.6 The Closing shall occur on or before the Closing Date unless the
Closing Date be extended herein provided. ASR Parties shall have the right to
extend the Closing Date for one thirty (30) day period by giving written notice
to Seller and Escrow Holder prior to the original Closing Date, and by paying
into Escrow such election to extend an extension fee in the amount of Fifty
Thousand and No/100 Dollars. ($50,000.0 Any extension payments paid shall be
applied to the cash due Seller at Closing. All extension payments shall held and
considered as additional Xxxxxxx Money under Section 4. The extension of the
Closing Date shall extend the time requirements for satisfying the contingencies
set forth in Paragraphs 6. 1.1 through 6.1.3.
6. CONTINGENCIES TO CLOSING
6.1 The closing of this transaction is contingent upon the satisfaction
or waiver of the follow contingencies:
6.1.1 Condition of Title. Within ten (10) days after execution
of this Agreement, Seller shall cause Transnation Title Insurance Company (the
"Title Issuer") to issue and deliver to Heritage a preliminary commitment for an
owner's policy of title insurance (the "Commitment"). Heritage shall give Seller
written notice on or before the expiration of twenty (20) days after delivery of
the Commitment to Heritage of an defects or encumbrances to which Heritage
objects. Any exceptions not objected to within that time shall be deemed to have
been approved by Heritage ("Permitted Exceptions"). Seller shall have ten (10)
days a receipt of Heritage's objections to give Heritage notice of which
objections will be removed from title. If Seller gives written notice within
said time that Seller is unable or unwilling to remove the exceptions timely
objected to by Heritage, then this transaction shall terminate and neither party
will be obligated to contribute or accept the Property to the other unless
Heritage elects by notice to Seller within ten (10) days after Seller's notice
to complete the contribution subject to the exceptions Seller is unwilling to
remove.
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6.1.2 Survey. Within fifteen (15) days after execution of this
Agreement, Seller shall cause a survey to be issued and delivered to Heritage.
Heritage's shall have fifteen (15) days from receipt of said survey to issue its
written approval of said survey and of an ALTA title supplement based upon said
survey. Said survey shall be prepared by a licensed surveyor to American Land
Title Association standards for an owner's extended coverage policy, showing the
legal description and boundary lines of the Property, any easements of record,
and any improvements, poles, structures and things located within ten feet of
either side of the property boundary lines. The survey shall be prepared at
Seller's direction and expense.
6.1.3 Financing. Heritage's written approval within 30 days of
mutual acceptance of the terms and conditions of Heritage's assumption of the
existing note and of trust on the Property. Heritage shall require, as a
contingency to this Agreement, that said existing loan assumption contain at
least the following terms and conditions:
1. Loan balance shall not exceed $7,900,000.
2. There shall be no assumption fees.
3. Any deferred fees of any kind relating to the
loan shall be paid in full at the Closing by
the Seller.
4. The interest rate on the loan shall be adjusted
at the Closing and every six months thereafter
to 250 basis points over the 6 month Treasury
Constant Maturity Average.
5. Payments shall be interest only for 12 months
after Closing. Thereafter, until loan maturity
(approximately 18 months), payments shall be
based on a 296 month amortization period.
6. U.S. Bank shall agree to release Seller from
any personal liability in conjunction with said
loan.
7. U.S. Bank shall agree that the assumption by
Heritage shall be on a nonrecourse basis except
for the standard "carve outs."
6.1.4 Destruction, Damage or Loss. If there shall have
occurred, prior to the Closing, destruction, damage, or loss to the Property or
any portion thereof, from any cause whatsoever, which would cost more than
$50,000.00 to repair or cure, Seller shall give Heritage prompt notice thereof
and Heritage shall have the option, within ten days after receipt of written
notice of such loss, either to terminate this transaction or to purchase the
Property notwithstanding such loss, but without deduction or offset against the
cash due Seller. If Heritage does not elect to terminate this transaction, and
if the damage is not repaired prior to Closing, Heritage shall be entitled to
any insurance proceeds applicable to such loss, whether paid before or after
Closing. Unless otherwise notified in writing by either party, Escrow Holder
shall assume no destruction, damage or loss costing more than $50,000.00 to
repair or cure has occurred prior to Closing.
6.1.5 Material Change. No material change, as hereinafter
defined, shall have occurred with respect to the Property that has not been
approved in writing by Heritage. For purposes of this Agreement, a "material
change" shall be a material change in the use, occupancy, or condition of the
Property that occurs after the date of this Agreement and prior to the Closing.
Heritage shall have ten days following receipt of written notice from any source
of any such material change within which to approve or disapprove the same.
Unless otherwise notified in writing by either party, Escrow Holder shall assume
that no material change has occurred prior to the Closing.
6.1.6 Seller Performance. The delivery of all documents and
due performance by Seller of each and every undertaking and agreement to be
performed by Seller under this Agreement.
6.1.7 Breach of Warranty. Each representation and warranty of
Seller herein shall be true and correct as of the Closing. Escrow Holder shall
assume that this condition has been satisfied unless notified to the contrary in
writing by Buyer prior to the Closing.
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6.2 All of the contingencies specified in subparagraphs 6.1.1 through
6.1.7 are for the benefit of, and may be waived in writing by Heritage, and may
elsewhere herein be referred to as "Heritage's Contingencies."
6.3 Seller shall give Heritage free access to the Property at any
reasonable time, subject to the rights of existing tenants, for the purpose of
inspecting the Property, doing the work and conducting the tests contemplated by
the Heritage's Contingencies. Heritage shall repair any damage done to the
Property by Heritage or Heritage's agents in testing or inspecting the Property
and shall defend, indemnify and hold harmless Seller and the Property from any
and all claims, liabilities, demands, losses, costs, expenses (including
reasonable attorneys fees), damages or recoveries, including those for injury to
person or property, arising out of or relating to any such work or inspections.
6.4 Promptly after mutual execution hereof, Seller shall prepare,
certify as true and correct, and deliver to Heritage a list of current tenants
of the Property, showing for each the unit number and/or mailing address, phone
number, length of occupancy, term of current lease, monthly or other periodic
rent, the date through which rent is paid, amount of any damage, security or
rental deposits held, and a statement of what utilities, if any, are included in
the rent. Said list may hereinafter be referred to herein as a "Rent Roll."
Seller shall similarly prepare, certify as true and correct, and deliver to
Heritage an updated, current Rent Roll within two (2) days of the Closing Date.
7. DOCUMENTS REQUIRED AT CLOSING
7.1 Escrow Holder shall cause to be issued to Heritage an ALTA extended
coverage owner's form policy of title insurance (1970 form) effective as of the
Closing, issued by the Title Company in the full amount of the Deemed Value,
insuring fee simple absolute title to the Property vested in Heritage, subject
only to the Permitted Exceptions.
7.2 Seller shall deliver or cause to be delivered to Escrow Holder in
time for delivery to Heritage at Closing, executed originals of the following
documents:
7.2.1 A Statutory Warranty Deed, duly executed and in
recordable form, conveying good and indefeasible title to the Property to
Heritage, free and clear of any and all liens, encumbrances, easements,
assessments, reservations and restrictions, except as permitted herein and/or
approved by Buyer in writing.
7.2.2 A Xxxx of Sale, duly executed, containing warranties of
title, conveying title free and clear of all liens, to any personal property,
licenses, permits, maintenance or other contracts and warranties or guaranties
owned by the Property or the Seller and being transferred to Heritage. It is
agreed by the parties that the portion of the purchase price to be allocated to
personal property shall be $202,000.00.
7.2.3 An Assignment of Leases affecting the Property, duly
executed, assigning all leases, prepaid rents and security deposits to Heritage.
7.2.4 A certification by the Seller that Seller is not a
"foreign person" within the meaning of Internal Revenue Code, Section 1445 or
successor statutes. If Seller does not provide such affidavit in form reasonably
satisfactory to Buyer prior to the Closing, Escrow Holder shall, at the Closing,
deduct from Seller's proceeds and remit to the Internal Revenue Service such sum
as is required by applicable federal law with respect to purchase from foreign
Sellers.
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7.2.5 A letter executed by the City of Kennewick indicating
that a certain deposit held by the city in the approximate amount of $9,100 to
secure the Property's share of a certain traffic signal, if ever refunded, shall
be refunded to the Seller.
7.3 Heritage shall deliver or cause to be delivered to Seller through
escrow the Deemed Value and such additional sums as are required of Heritage
under this Agreement for prorations, expenses and adjustments. ASR Parties'
funds shall be deposited to escrow by cashier's check drawn upon a major banking
institution, federal funds wire transfer, or any other method acceptable to
Escrow Holder as immediately collectable funds.
8. PRORATIONS, EXPENSES AND ADJUSTMENT
8.1 Seller shall pay the premium for the title insurance policy
required by Section 7.1 above and the cost, if any, of making title insurable as
required hereby, the payment of any real estate excise tax, and one-half of the
fees of the Escrow Holder.
8.2 Heritage shall pay the recording fee for the Statutory Warranty
Deed, and any additional title insurance policy premiums for the ALTA coverage,
and for any other documents which Buyer may choose to record, and one-half of
the fees of the Escrow Holder. Additionally, Heritage shall pay the sales tax on
the personal property.
8.3 Ad valorem personal property and real property taxes, tenant rents
due for the month of Closing or thereafter, and all other income and operating
expenses for or pertaining to the Property, including but not limited to utility
charges, shall be prorated between the parties at Closing. Rents applicable to
periods prior to Closing which are collected by Heritage after Closing shall be
remitted by Heritage to Seller within thirty (30) days after collection,
provided that Heritage shall have no affirmative duty to collect delinquent
rents for Seller, and provided further, that Heritage shall be entitled to apply
tenant rents to current charges before remitting to Seller for past due charges.
8.4 At the Closing, the amount of any and all deposits made by then
current tenants of the Property, including, but not limited to rental deposits
and damage deposits, as well as the amount of any unpaid bills relating to
periods prior to Closing for which Heritage will be responsible after Closing,
shall be transferred by Seller to Heritage by an equivalent credit against the
purchase price. Nonrefundable cleaning deposits shall not be transferred.
8.5 Any items to be prorated which are not determined or determinable
at Closing shall be promptly adjusted by the parties by appropriate cash
payments outside of the escrow when the amount thereof has been determined.
8.6 Seller shall pay, at the Closing, the required amount to reduce the
loan balance on Phase I down to the amount that Heritage will be assuming.
8.7 Seller will deposit, at the Closing, the sum of One Hundred Fifty
Thousand and No/100 Dollars ($150,000.00) into a "concession/
promotion/advertising/leasing expense" escrow account. For a period of two years
after the date of Closing, Heritage shall have the full authority to draw from
said account, on a monthly basis, any and all costs incurred by Heritage for any
leasing concessions, leasing promotions, advertising costs, leasing commissions,
etc. relating to the Property. Any such costs shall be in relationship to any
leasing and/or resident retention costs. All such costs shall be at Heritage's
sole discretion. At the end of two years from the Closing, any funds remaining
in said account shall be returned to the Seller. Further, any interest earned on
said account shall be disbursed to the Seller as and when it is added to the
account. If at any time prior to the end of two years from the date of Closing
the account has
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been reduced to a zero balance, the account will be closed and all terms and
conditions of said account shall be terminated. Seller shall have no liability
to Heritage for any funds other than the original deposit amount into the
account.
9. COVENANTS, REPRESENTATIONS AND WARRANTIES OF Seller
9.1 Seller hereby makes the following covenants, warranties and
representations to ASR Parties:
9.1.1 Seller is the owner of the Property and has the full
right, power and authority to sell, convey and transfer the Property to Buyer as
provided herein, and to perform Seller's obligations hereunder.
9.1.2 To the best of Seller's knowledge, Seller possesses all
licenses, permits and certificates of occupancy. necessary or appropriate to own
and operate the Property as an apartment complex.
9.1.3 Seller has no knowledge of any aspect or condition of
the Property or the current use of the Property which violates applicable laws,
rules, regulations, codes, or covenant, conditions, or restrictions, or of
improvements or alterations made to the property without a permit where one was
required, or of any unfulfilled order or directive of any applicable
governmental agency or casualty insurance company that any work of
investigation, remediation, repair, maintenance or improvement is to be
performed on the Property.
9.1.4 Prior to Closing, Seller will not violate or modify,
orally or in writing, any existing lease or other agreement relating to the
Property, or create any new leases or other agreements affecting the Property
except in the ordinary and normal course of business on a basis consistent with
Seller's past practice in operation of the Property, or create any new leases
which would violate the representations contained in subsection 9.1.6 below,
provided that Seller may enter into month-to-month rental agreements which are
terminable on not more than 30 days notice or after Closing. The provisions of
this Section shall not be taken to prevent Seller from continuing, prior to
Closing, to lease the apartments for such terms not exceeding nine months, and
at such rental rates as are consistent with Seller's current practices in the
ordinary and normal course of its business in operating the Property.
9.1.5 Seller has no knowledge of any actions, suits, or
proceedings pending or threatened before any commission, board, bureau, agency,
instrumentality, arbitrator, court or tribunal that would affect the Property or
the right to occupy or utilize the Property.
9.1.6 Each Rent Roll is true and accurate in all material
respects. To the best of Seller's knowledge, and except as shown in any Rent
Roll, all tenant leases are in full force and effect; there are no material
breaches thereof by either Seller or, to the best of Seller's knowledge, any
tenant; no rent is prepaid for more than one month; other than as shown on the
rent roll, there are no rental rebates, rental concessions or free rent granted
or promised to any tenant; and all tenancies can be terminated after expiration
of fixed term after thirty (30) days notice.
9.1.7 Seller and each person executing the Agreement on behalf
of Seller have full and unrestricted power and authority to execute the
Agreement, and Seller has full and unrestricted power and authority to execute
the Agreement, and Seller has full and unrestricted power and authority to
perform Seller's obligations hereunder and to sell and convey the Property to
Buyer on the terms and conditions hereof.
9.1.8 To the best of Seller's knowledge, there are no parties
in possession of any portion of the Property as lessees, tenants at sufferance,
or trespassers except tenants disclosed in the Rent Roll and under the written
leases delivered to Buyer pursuant to this Agreement.
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9.1.9 Seller has paid, through the current date, all taxes,
charges, debts, and other assessments due by the Seller with respect to the
Property.
9.1.10 To the best of Seller's knowledge, the Property is not
in a flood plain.
9.1.11 There will be no unrecorded liens or Uniform Commercial
Code liens against the Property which will not be satisfied out of the Purchase
Price.
9.1.12 Seller has no knowledge that the Property is subject to
any surface or sub-surface ground faults. Seller is aware, however, that all of
the Puget Sound area is subject to earthquakes.
9.1.13 The Property is not being used and Seller has no
knowledge that it has ever been used for the storage or disposal of any
hazardous or toxic materials.
9.1.14 To the best of Seller's knowledge, no fact or condition
exists which would result in the termination of the current access from the
Property to the presently existing highways and/or roads adjoining or situated
on the Property, or to any existing sewer or other utility facilities servicing,
adjoining, or situated on the Property.
9.1.15 Seller shall not further encumber, or allow the
encumbrance of, the title to the Property, or modify the terms or conditions of
any existing encumbrances without the written consent of Buyer.
9.2 Seller's representations and warranties shall survive the Closing
and delivery of the deed, and unless otherwise noted herein, are true material
and may be relied upon by Buyer in all respects, both as of the date of the
Agreement and as of the date of Closing.
9.3 Seller's Limited Warranty.
9.3.1 At Closing, Seller will deliver to Heritage all
manufacturers' warranty material applicable to the heating system, appliances,
and other equipment supplied with the Property. It is understood and agreed that
such manufacturers' warranties, as delivered to Heritage, shall be the exclusive
remedy as to all items installed in or around the Property which are covered by
such delivered separate manufacturers' warranties; and Seller does not give any
warranty express or implied as to the merchantability of such items or as to
their fitness for any purpose. Except as expressly stated herein or as implied
herein, the Property is being transferred to Heritage on an "AS IS, WHERE IS"
basis.
10. GENERAL AND MISCELLANEOUS PROVISIONS
10.1 Broker Commission. Seller agrees to pay a commission, per separate
listing agreement, at Closing, payable to CB Commercial Real Estate Group, Inc.
Said commission shall be paid by a transfer of a portion of the ASR Investments
Corporation Common Stock that Seller is to receive from this transaction. ASR
Parties and Seller shall indemnify and hold harmless the other from any claims
asserted for commissions or fees alleged to be payable to any third party not
named above because of any act, omission or statement of the indemnified party.
10.2 Further Assurances. ASR Parties and Seller shall each, diligently
and in good faith, undertake all actions and procedures reasonably required to
place the escrow in condition for Closing as and when required by this Agreement
and to sign and deliver all documents and things reasonably necessary or
convenient to that end.
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10.3 Attorney's Fees. In the event of any litigation or arbitration
between the ASR Parties and Seller concerning this transaction, the prevailing
party shall be entitled to recover from the other party reasonable attorney's
fees and costs in an amount to be determined by the court or arbitrator(s),
which amount shall be included in any judgment or award rendered in the matter.
10.4 Notices. Any notices required or permitted to be given pursuant to
the terms hereof shall be in writing and shall be personally delivered or sent
by certified or registered mail, postage prepaid, return receipt requested
("Mail") and addressed to the parties as follows:
If to Seller: If to ASR Parties:
Xxxxxx X. Xxxxx Xx. Xxx Xxxxx, Chairman
9 Canyon Point ASR Investments Corporation
Xxxxxxx Xxxxx, XX 00000 000 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
With Copy to: Xxx XxxXxxxx With Copy to:
Alston, Courtnage, MacAulay c/o Heritage Residential Group, Inc.
0000 Xxxxxx Xxx., Xxxxx 0000 0000 XX 0000 X, Xxxxx 000
Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Facsimile: (000) 000-0000 Facsimile: (000) 000-0000
Notices shall be effective upon actual receipt or two business days after being
sent by Mail, whichever is sooner.
10.5 Applicable Law. This Agreement shall be governed by the laws of
the State of Washington.
10.6 Counterparts. This Agreement may be executed in counterparts, each
which shall be deemed an original, and all of which together shall constitute
one and the same instrument.
10.7 Time of the Essence. Time is of the essence of every provision of
the Agreement.
10.8 Binding Effect. This Agreement embodies the entire understanding
of the parties regarding the subject matter hereof and supersedes all prior
agreements and understandings between the parties, whether written or oral,
relating to the subject matter hereof. No amendment or modification hereof shall
be binding unless in writing and signed by the party to be bound thereby. This
Agreement shall bind the parties hereto and their respective successors, legal
representatives and assigns as allowed hereunder.
10.9 Saturday, Sunday, and Legal Holidays. If the time from performance
of any of the terms, conditions, and provisions hereof shall fall on a Saturday,
Sunday or legal holiday, then the time of performance shall be extended to the
next business day thereafter.
10.10 Section 1031 Like-Kind Exchange. If either ASR Parties or Seller
intends for this transaction to be part of a Section 1031 Like-Kind Exchange,
then the other party agrees to cooperate in the completion of the Like-Kind
Exchange so long as such cooperating party incurs no additional expenses or
liabilities in doing so and so long as such exchange does not extend the Closing
date beyond the otherwise scheduled Closing date. Without limiting the
foregoing, ASR Parties shall not be obligated to acquire title to any other
property in order to implement the exchange.
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10.11 Lead-Based Paint Disclosure. In order to comply with the
Residential Lead-Based Paint Hazardous Reduction Act of 1992, Seller represents
to Buyer that none of the units in the Property being purchased were built
before 1978.
10.12 Acceptance. This offer shall automatically expire if not accepted
by Buyer on or before August 6, 1997.
Seller: On The Boulevard ASR PARTIES
ASR Investments Corporation, By
Name: /s/ Xxxxxx X. Xxxxx Name: /s/ Xxx X. Xxxxx
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Title: Joint Venturer Title: President
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Date: 8-1-97 Date: 8/7/97
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Seller: On The Boulevard ASR PARTIES
Heritage Communities L.P., By
Name: /s/ Xxxxx Xxxxx Name: /s/ Xxx X. Xxxxx
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Title: Joint Venturer Title: President
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Date: 8-1-97 Date: 8/7/97
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BROKER BROKER:
Name: Name:
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Title: Title:
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Date: Date:
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A TRUE COPY OF THE FOREGOING AGREEMENT, SIGNED BY THE Seller, IS HEREBY RECEIVED
ON _______________________, 19__ BY ASR PARTIES.
ASR Parties:
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SUPPLEMENT TO REAL ESTATE CONTRIBUTION AGREEMENT
This is a Seller's Supplement to that Real Estate Contribution Agreement
covering the apartment property known as On The Boulevard located in Kennewick,
Washington between ASR Investments Corporation ("ASR"), Heritage Communities
L.P. ("Heritage" and collectively with ASR the "ASR Parties"), and On The
Boulevard Joint Venture, a Washington Joint Venture ("Seller"), dated August 1,
1997 and executed as of August 7, 1997. This Supplement amends the Real Estate
Contribution Agreement as specified herein and both Agreements should be
considered as one.
1. The number of shares of ASR Common Stock identified in item 3.3.2,
shall be valued at $22,90625, and the number of shares shall be Two Million One
Hundred Thousand and No/100 Dollars ($2,100,000.00) divided by said $22.90625
(being the 10 day average of the closing price of ASR's Common Stock on the
American Stock Exchange for each day the common Stock was traded, from August
19, 1997 through September 2, 1997), rounded to the nearest whole share, or
91,678 Shares of ASR Common Stock.
2. In all other particulars, the Real Estate Contribution Agreement
dated August 1, 1997 is affirmed and ratified.
Dated this 5th day of September, 1997.
Seller: ON-THE-BOULEVARD ASR PARTIES
ASR Investments Corporation, By
Name: Name: /s/ Xxxx Xxxxxx
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Title: Title: Vice President
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Date: Date: 9/5/97
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Seller: ON-THE-BOULEVARD ASR PARTIES
Heritage Communities L.P., By
Name: Name: /s/ Xxxx Xxxxxx
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Title: Title: Vice President of 171
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Date: Date: 9/5/97
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A TRUE COPY OF THE FOREGOING AGREEMENT, SIGNED BY THE Seller, IS HEREBY RECEIVED
ON _________________, 19__ BY ASR PARTIES.
ASR Parties:
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