CAMDEN CENTENNIAL IMPROVED COMMERCIAL PROPERTY EARNEST MONEY CONTRACT
Exhibit 10.34
CAMDEN CENTENNIAL
IMPROVED COMMERCIAL PROPERTY XXXXXXX MONEY CONTRACT
Article 1: General Provisions
1.1 Contract. Subject to the terms and conditions of this Improved Commercial Property Xxxxxxx Money Contract (the “Contract”), ORI-COLORADO, INC., a Nevada corporation (“Seller”) agrees to sell to Purchaser (as identified below), and Purchaser agrees to purchase from Seller, that certain residential apartment complex located at 0000 Xxxx Xxxxxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxx commonly known as the “Camden Centennial Apartments” consisting of (i) the real property described in Exhibit A, attached hereto and made a part hereof, together with all improvements and fixtures located thereon and all appurtenances and easements relating thereto and all right, title and interest of Seller in and to any unpaid award for the taking by eminent domain of any part of the aforesaid tract of land or for damage to such tract of land by reason of a change of grade of any street (the “Real Property”); (ii) the interest of Seller in all leases, tenancies, licenses and other agreements, including all amendments thereto, for the use or occupancy of any portion of the of the Real Property, including leases which may be entered into by Seller after the Effective Date and prior to Closing as permitted by this Contract, and all guaranties in connection therewith (the “Leases”); (iii) all of Seller’s right, title and interest, in and to all fixtures, furniture, equipment, and other tangible personal property, if any, owned by Seller (the “Personal Property”) presently located on the Real Property (but expressly excluding all computer equipment, computer networking equipment, check scanners, facsimile machines, photocopiers, any and all licenses and software in connection with any of the foregoing exclusions, project signage bearing any name, logo or trademark of Seller or any of its affiliates, golf carts and other motorized vehicles and any items of personal property owned by tenants, any managing agent or others); and (iv) all of Seller’s right, title and interest, if any, in and to all of the following items, to the extent assignable and without warranty, all entitlements and intangible personal property in connection with or arising out of the design, construction, ownership, occupancy, use, management, operation, maintenance, repair or ownership of the Real Property (the “Intangible Personal Property”), including without limitation: (a) licenses, permits governmental approvals and certificates of occupancy relating to the operation of the Real Property, (b) the right to use the name of the Real Property (if any) in connection with the Real Property (but expressly excluding any right to use the name “Camden”, or any derivation thereof, and any other names, logos and trademarks owned by Seller or any of its affiliates), (c) if still in effect, guaranties and warranties received by Seller from any unrelated third party, contractor, manufacturer or other person in connection with improvements to or operation of the Real Property, and (d) all local phone numbers and facsimile numbers for the Real Property (the Real Property, the Leases, the Personal Property and the Intangible Personal Property are referred to herein collectively as, the “Property”).
1.2 Defined Terms. The following defined terms shall have the meanings set forth below:
1.2.1 Seller: | As set forth in Section 1.1 | |
1.2.2 Purchaser: | Resource Real Estate Opportunity OP, LP or its permitted assignee |
1.2.3 Purchase Price: | $30,600,000.00 | |
1.2.4 Xxxxxxx Money: | $500,000.00 together with any interest earned thereon | |
1.2.5 Intentionally Omitted | ||
1.2.6 For Cause Reason | A termination by Purchaser of this Contract (a) pursuant to the termination rights of Purchaser under any of Sections 2.9, 4.3, 4.4, 4.6 or 8.6 or (b) due to Purchaser’s dissatisfaction with the environmental condition of the Property | |
1.2.7 Title Company | Chicago Title Company Commercial Division 0000 XXX Xxxxxxx, Xxxxx 000 Xxxxxx, Xxxxx 00000 Attn: Xxxx Xxxxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 email: xxxx.xxxxxxxx@xxxxxxxxx.xxx | |
1.2.8 Escrow Agent: | The Title Company shall act as Escrow Agent | |
1.2.9 Seller’s Broker: | Xxxxx & Company (Xxxxx Xxxxxx) | |
1.2.10 Effective Date: | September 4, 2013 | |
1.2.11 Inspection Period: | The period which commenced on the Effective Date and which ends on September 20, 2013 at 5:00pm (Mountain Daylight Time). | |
1.2.12 Closing Date: | September 30, 2013. | |
1.2.13 Business Day | Any day which is not a Saturday, Sunday or holiday on which national banks operating in the State of Colorado are authorized to be closed. | |
1.2.14 Service Contracts | Those service, maintenance and operational contracts in effect with respect to the Real Property which must be assumed by Purchaser at Closing, all of which are identified on Exhibit H attached hereto and made a part hereof. |
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1.3 Closing Costs. Closing costs shall be allocated and paid as follows:
Cost | Responsible Party | |
Premium for standard form Owner’s Title Insurance Policy | Seller | |
Premium for extended coverage and any endorsements | Purchaser | |
Costs of new Survey provided by Seller and revisions, modifications or re-certifications thereto | Purchaser | |
Any costs or fees required to transfer the guaranties or warranties, if any, being assigned to Purchaser | Purchaser | |
Recording Fees
(i) Deed
(ii) Instruments to remove encumbrances that Seller is obligated to remove |
Purchaser
Seller | |
Documentary fees, transfer taxes, stamp taxes, intangible taxes, recording taxes and other taxes and assessments applicable to real and personal property conveyances | Purchaser | |
Any escrow fee charged by Escrow Agent for holding the Xxxxxxx Money or conducting the Closing | Seller 1/2 Purchaser 1/2 | |
Real Estate Sales Commission to Seller’s Broker | Seller |
1.4 Xxxxxxx Money. The Xxxxxxx Money, in immediately available federal funds, evidencing Purchaser’s good faith to perform Purchaser’s obligations under this Contract, shall be deposited by Purchaser with the Escrow Agent not later than the third Business Day after the Effective Date. The Escrow Agent shall hold and disburse the Xxxxxxx Money in accordance with the escrow provisions in Exhibit B. In the event that Purchaser fails to timely deposit the Xxxxxxx Money with the Escrow Agent, this Contract shall be of no force and effect. The Xxxxxxx Money shall be applied to the Purchase Price at Closing. Except as expressly provided otherwise in this Contract, the Xxxxxxx Money shall be nonrefundable.
1.5 Independent Contract Consideration. Seller and Purchaser agree and acknowledge that as Independent Contract Consideration (herein so called) for Seller’s entering into this Contract (i) One Hundred and No/100 Dollars ($100.00) of the Xxxxxxx Money shall be paid to Seller if this Contract is terminated by Purchaser due to a For Cause Reason and (ii) Fifty Thousand and No/100 Dollars ($50,000.00) of the Xxxxxxx Money shall be paid to Seller if this Contract is terminated by Purchaser for any reason other than a For Cause Reason. Moreover, Seller and Purchaser agree and acknowledge that the Independent Contract Consideration has been bargained for and agreed as additional consideration for Seller’s execution and delivery of this Contract. At Closing, the Independent Contract Consideration shall be applied to the Purchase Price.
Article 2: Inspections, Title Review
2.1 Property Information. To the extent not previously provided, Seller shall make available to Purchaser, to the extent in Seller’s possession or control, copies of, or access to with the right to copy, within three (3) Business Days after the Effective Date, the materials as may be listed on Exhibit C attached hereto and made a part hereof (the “Property Information”).
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Except as otherwise expressly provided herein, Seller makes no representations or warranties as to the accuracy or completeness of the Property Information or any other documents and information Seller may provide to Purchaser.
2.2 Confidentiality. The Property Information and all other information furnished to, or obtained through inspection of the Property by, Purchaser or Purchaser Parties (hereinafter defined) is herein called “Confidential Information.” The term “Confidential Information” shall not include (i) matters of public record, (ii) information available to Purchaser from third parties who do not have a duty to Seller to keep such information confidential, (iii) matters generally known to the public, and (iv) matters already known to Purchaser or any of its affiliates, lenders, employees, attorneys, accountants and other professionals or agents relating to the Property (“Purchaser Parties”). Confidential Information will be treated by Purchaser and Purchaser Parties as confidential, and will not be disclosed to anyone other than Purchaser’s consultants and Purchaser Parties who agree to maintain the confidentiality of the Confidential Information, and will, if requested by Seller in writing, be destroyed or returned to Seller by Purchaser if the Closing does not occur for any reason. In such an event, and at Seller’s request, an officer of Purchaser shall certify that all of the Confidential Information has been destroyed or returned to Seller. Purchaser agrees to use the Confidential Information only for the purpose of evaluating the purchase of the Property and not in any other manner and agrees not to use the Confidential Information in any way which is directly detrimental to the Seller, or to directly interfere with, circumvent or attempt to circumvent the interests of the Seller or its affiliates in the Property. The confidentiality provisions of this Section 2.2 shall not apply to any disclosures made by Purchaser as required by law, by court order, or in connection with any subpoena served upon Purchaser; provided that Purchaser shall provide Seller with prior written notice before making any such disclosure. Purchaser’s obligations under this Section 2.2 shall survive termination of this Contract for a period of twelve (12) months.
2.3 Inspections in General. Commencing on the Effective Date, Purchaser, its agents, and employees shall have the right to enter upon the Real Property for the purpose of making non-invasive inspections at Purchaser’s sole risk, cost and expense. Prior to any entry onto the Real Property, Purchaser shall provide Seller with evidence that Purchaser maintains commercial general liability insurance with coverage in an amount not less than $2,000,000 per occurrence and $5,000,000 aggregate, issued by an insurer acceptable to Seller, in form and substance acceptable to Seller and which names Seller and its property manager as additional insureds under such insurance. All of such entries upon the Real Property shall be at reasonable times during normal business hours and after at least 24 hours prior notice to Seller, and Seller or Seller’s agent shall have the right to accompany Purchaser during any activities performed by Purchaser on the Real Property. Upon reasonable prior written notice and request from Purchaser, Seller shall notify tenants of the Real Property and permit Purchaser to view occupied units, subject to the rights of tenants under their Leases and except to the extent specifically prohibited in such tenants’ Leases. Provided Purchaser does not purchase the Property for any reason other than Seller’s breach of its obligations under this Contract, within ten (10) days after Seller’s request, Purchaser shall provide Seller with a copy of any written reports from third-parties actually received by Purchaser with regard to such tests and inspections (collectively, the “Purchaser’s Reports”); however, the furnishing of copies of Purchaser’s Reports shall be
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without any representation or warranty, express or implied, as to the accuracy, completeness or any other matter regarding such reports, tests and inspections nor shall Seller have any right to use or rely on same without the express written consent of the preparer of such reports. Purchaser does not warrant or represent that Seller will be able to obtain such consent. Purchaser shall not be obligated to provide any market or economic feasibility studies, reports, data or analyses prepared by or for Purchaser. If any inspection or test disturbs all or any portion of the Real Property, Purchaser will restore such Real Property to substantially the same condition as existed before the inspection or test. Except to the extent arising out of the negligence or willful misconduct of Seller, its property manager, or their respective trustees, directors, affiliates, parents, shareholders, officers, tenants, partners, agents, counsel, contractors and employees, Purchaser shall indemnify, defend, and hold harmless Seller, its property manager, and their respective trustees, directors, affiliates, parents, shareholders, officers, tenants, partners, agents, counsel, contractors and employees from and against any and all losses, costs, damages, claims, or liabilities, including but not limited to, mechanic’s and materialmen’s liens and Seller’s and property manager’s attorneys’ fees, arising out of or in connection with Purchaser’s or its agents’ entry on the Real Property and any inspections of the Real Property. The provisions of this paragraph shall survive the Closing or the earlier termination of this Contract and shall not be merged into the Deed or other closing documents.
2.4 Environmental Inspections. The inspections under Section 2.3 may include a non-invasive Phase I environmental inspection of the Real Property, but no Phase II environmental inspection or other invasive inspection or sampling of soil, water, air or other materials, including without limitation construction materials for analytical testing, either as part of the Phase I inspection or any other inspection, shall be performed without the prior written consent of Seller, which may be withheld in Seller’s sole and absolute discretion, and if consented to by Seller, the proposed scope of work and the party who will perform the work shall be subject to Seller’s reasonable review and approval. At Seller’s written request, Purchaser shall deliver to Seller copies of any Phase II or other environmental report to which Seller consents as provided above.
2.5 Termination During Inspection Period. If Purchaser determines, in Purchaser’s sole discretion, that the Property is not suitable for Purchaser’s intended use or purpose, or for any reason or no reason whatsoever, Purchaser may, on or before the expiration of the Inspection Period, deliver a written notice to Seller electing to terminate this Contract (the “Termination Notice”). If Purchaser fails to deliver the Termination Notice to Seller prior to the expiration of the Inspection Period, Purchaser shall be conclusively deemed to have accepted the Property for all purposes and Purchaser shall continue to perform all its obligations in accordance with the terms of this Contract. In the event Purchaser terminates this Contract by timely delivery of the Termination Notice such Termination Notice shall, if the termination is due to a For Cause Reason state such For Cause Reason with reasonable specificity. In the event Purchaser terminates this Contract the Xxxxxxx Money, less the applicable Independent Contract Consideration, shall be immediately returned to the Purchaser by the Escrow Agent, the applicable Independent Contract Consideration shall be immediately paid to Seller by the Escrow Agent. Following any termination under this Section 2.5 neither Seller nor Purchaser shall have any further liability to the other under this Contract except for such obligations of Purchaser which expressly survive the termination of this Contract.
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2.6 AS-IS SALE/PURCHASER’S RELIANCE ON ITS INVESTIGATIONS/RELEASE. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED BY SELLER IN SECTION 7.1 BELOW, PURCHASER AGREES (I) THAT IT IS PURCHASING THE PROPERTY ON AN “AS-IS, WHERE-IS” AND “WITH ALL FAULTS” BASIS AND BASED EXCLUSIVELY ON ITS OWN INVESTIGATION AND EXAMINATION OF THE PROPERTY, (II) THAT NEITHER SELLER NOR ITS EMPLOYEES, OFFICERS, DIRECTORS, TRUSTEES, PRINCIPALS, AGENTS, CONSULTANTS, AFFILIATES, PARENTS, BROKERS, PROPERTY MANAGERS, ATTORNEYS, CONTRACTORS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS (COLLECTIVELY, “REPRESENTATIVES”) HAVE MADE, AND SELLER AND ITS REPRESENTATIVES DO NOT MAKE AND SPECIFICALLY NEGATE AND DISCLAIM ANY WARRANTY OR REPRESENTATION OF ANY KIND OR CHARACTER WHETHER EXPRESS, IMPLIED OR STATUTORY, WRITTEN OR ORAL, PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO ANY MATTER PERTAINING TO THE PROPERTY INCLUDING WITHOUT LIMITATION: (A) THE VALUE OF PROPERTY; (B) ANY INCOME TO BE DERIVED FROM THE PROPERTY; (C) THE SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER MAY CONDUCT THEREON, INCLUDING THE POSSIBILITIES FOR FUTURE DEVELOPMENT OF THE PROPERTY; (D) THE HABITABILITY, MERCHANTABILITY, MARKETABILITY, PROFITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPERTY; (E) THE MANNER, QUALITY, STATE OF REPAIR OR LACK OF REPAIR ON THE PROPERTY; (F) THE NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, WATER, WATER RIGHTS, SOIL, OR GEOLOGICAL CONDITIONS; (G) THE COMPLIANCE OF OR BY THE SELLER, THE PROPERTY, OR ITS OPERATION WITH ANY CODES, LAWS, RULES, ORDINANCES, REGULATIONS OF ANY APPLICABLE GOVERNMENTAL AUTHORITY OR BODY, INCLUDING, WITHOUT LIMITATION, ANY APPLICABLE ZONING OR BUILDING REQUIREMENTS; (H) THE NATURE, MANNER OR QUALITY OF THE CONSTRUCTION OR MATERIALS INCORPORATED INTO THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY LATENT OR PATENT DEFECTS; (I) THE DESIGN OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE SPECIFICATION OF ANY MATERIALS OR PRODUCTS INCORPORATED INTO OR USED IN CONNECTION WITH THE CONSTRUCTION OF THE PROPERTY; (J) COMPLIANCE WITH ANY ENVIRONMENTAL, HEALTH, SAFETY OR LAND USE LAWS, RULES, REGULATIONS, ORDERS, CODES OR REQUIREMENTS, INCLUDING, BUT NOT LIMITED TO, THE AMERICANS WITH DISABILITIES ACT OF 1990, THE FEDERAL WATER POLLUTION CONTROL ACT, THE FEDERAL RESOURCE CONSERVATION AND RECOVERY ACT, THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40 CFR, PART 261, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE, COMPENSATION AND LIABILITY ACT OF 1980, AS AMENDED (“CERCLA”), THE RESOURCE CONSERVATION AND RECOVERY ACT OF 1976, THE CLEAN WATER ACT, THE SAFE DRINKING WATER ACT, THE HAZARDOUS MATERIALS TRANSPORTATION ACT, THE TOXIC SUBSTANCE CONTROL ACT, AND REGULATIONS PROMULGATED UNDER ANY OF THE FOREGOING AS WELL AS
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ANY AND ALL OTHER LAWS, ORDINANCES, RULES AND/OR REGULATIONS CREATED OR IMPOSED BY ANY GOVERNMENTAL AUTHORITY HAVING JURISDICTION OVER THE PROPERTY, WHETHER LOCAL, STATE OR FEDERAL, PERTAINING TO ENVIRONMENTAL REGULATION, CONTAMINATION, CLEAN-UP OR DISCLOSURE, AS NOW EXISTING AND/OR AS HEREAFTER AMENDED. (COLLECTIVELY, “ENVIRONMENTAL LAWS”); (K) THE PRESENCE OR ABSENCE OF “HAZARDOUS MATERIALS” (AS DEFINED BELOW) AT, ON, OR UNDER THE PROPERTY OR ANY PROPERTY NEAR OR ADJACENT TO THE PROPERTY; (L) THE PRESENCE OR ABSENCE OF ANY UNDERGROUND STORAGE TANKS ON THE PROPERTY OR ON PROPERTY ADJACENT TO OR NEAR THE PROPERTY; (M) THE CONTENT, COMPLETENESS OR ACCURACY OF ANY OF THE PROPERTY INFORMATION (AND ANY OTHER DOCUMENTS AND INFORMATION GIVEN TO OR REVIEWED BY PURCHASER), THE OFFERING, IF ANY, PREPARED BY SELLER’S BROKER, OR ANY OTHER MATERIALS RELATED TO PURCHASER’S INSPECTION OF THE PROPERTY, OR ANY PRELIMINARY REPORTS, TITLE COMMITMENTS, OR OTHER REPORTS OR DOCUMENTS REGARDING TITLE TO THE PROPERTY; (N) THE TENANT OCCUPANCY LEVEL AT THE PROPERTY; (O) DEFICIENCY OF ANY UNDERSHORING; (P) DEFICIENCY OF ANY DRAINAGE; (Q) THE FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE LOCATED IN OR NEAR ANY FLOOD AREA OR ZONE OR WETLANDS; (R) THE EXISTENCE OF VESTED LAND USE, ZONING OR BUILDING ENTITLEMENTS AFFECTING THE PROPERTY (PURCHASER IS SOLELY RESPONSIBLE FOR OBTAINING ANY CERTIFICATION OF OCCUPANCY OR ANY OTHER APPROVAL OR PERMIT NECESSARY FOR TRANSFER OR OCCUPANCY OF THE PROPERTY); (S) THE SQUARE FOOTAGE OF THE PROPERTY OR THE CONFORMITY OF THE IMPROVEMENTS TO ANY PLANS OR SPECIFICATIONS FOR THE PROPERTY, INCLUDING ANY PLANS AND SPECIFICATIONS THAT MAY HAVE BEEN PROVIDED TO PURCHASER; AND (T) ANY OTHER MATTER RELATING TO THE PROPERTY OR TO THE DEVELOPMENT OR OPERATION OF THE PROPERTY. AS USED HEREIN, THE TERM “HAZARDOUS MATERIALS” SHALL MEAN ANY HAZARDOUS OR TOXIC MATERIALS, SUBSTANCES OR WASTES THAT ARE OR BECOME REGULATED BY ANY FEDERAL, STATE OR LOCAL GOVERNMENTAL AUTHORITY, INCLUDING, WITHOUT LIMITATION, (I) SUBSTANCES DEFINED AS “HAZARDOUS SUBSTANCES,” “HAZARDOUS MATERIALS” OR “TOXIC SUBSTANCES” IN ANY ENVIRONMENTAL LAWS; (II) ANY MATERIALS, SUBSTANCES OR WASTES WHICH ARE TOXIC, IGNITABLE, RADIOACTIVE, CORROSIVE OR REACTIVE AND WHICH ARE REGULATED BY ANY STATE OR LOCAL GOVERNMENTAL AUTHORITY OR ANY AGENCY OF THE UNITED STATES OF AMERICA; (III) ASBESTOS, MOLD, FUNGI, PETROLEUM AND PETROLEUM BASED PRODUCTS, UREA FORMALDEHYDE FOAM INSULATION, POLYCHLORINATED BIPHENYLS (PCBS), AND FREON AND OTHER CHLOROFLUOROCARBONS; AND (IV) THOSE SUBSTANCES DEFINED AS ANY OF THE FOREGOING IN THE REGULATIONS ADOPTED AND PUBLICATIONS PROMULGATED PURSUANT TO EACH OF THE AFORESAID LAWS. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS THE “AS-IS,” “WHERE-IS” NATURE OF THIS SALE AND ANY FAULTS, LIABILITIES, DEFECTS
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OR OTHER ADVERSE MATTERS THAT MAY BE ASSOCIATED WITH THE PROPERTY AND PURCHASER’S AGREEMENT TO PURCHASE THE PROPERTY “AS-IS” IS A MATERIAL INDUCEMENT TO SELLER TO AGREE TO SELL THE PROPERTY AT THE PURCHASE PRICE PROVIDED HEREIN.
WITHOUT LIMITING THE FOREGOING AND SUBJECT SOLELY TO THE SELLER’S REPRESENTATIONS AND WARRANTIES IN SECTION 7.1 BELOW, PURCHASER, FOR ITSELF AND ITS AGENTS, PARENTS, AFFILIATES, SUCCESSORS AND ASSIGNS, WAIVES ITS RIGHT TO RECOVER FROM AND RELEASES AND FOREVER DISCHARGES SELLER, AND ITS REPRESENTATIVES FROM ANY AND ALL CLAIMS, DEMANDS, LIABILITIES, LOSSES, DAMAGES, PENALTIES, FINES, LIENS, JUDGMENTS, COSTS OR EXPENSES (INCLUDING WITHOUT LIMITATION ATTORNEY FEES AND DISBURSEMENTS) WHATSOEVER (COLLECTIVELY “CLAIMS”) WHETHER AT LAW OR IN EQUITY, WHETHER KNOWN OR UNKNOWN AT THE TIME OF THIS CONTRACT, WHICH PURCHASER HAS OR MAY HAVE IN THE FUTURE, ARISING OUT OF THE PHYSICAL (INCLUDING WITHOUT LIMITATION, DESIGN AND CONSTRUCTION DEFECTS), ENVIRONMENTAL, HEALTH, SAFETY, ECONOMIC OR LEGAL CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, ALL CLAIMS IN TORT OR CONTRACT AND ANY CLAIM FOR INDEMNIFICATION OR CONTRIBUTION ARISING UNDER ANY ENVIRONMENTAL LAWS OR ANY SIMILAR FEDERAL, STATE OR LOCAL STATUTE, RULE OR REGULATION (INCLUDING ANY SUBSEQUENT AMENDMENT OR ADDITION THERETO AND JUDICIAL INTERPRETATIONS THEREOF). PURCHASER, FOR ITSELF AND ITS AGENTS, AFFILIATES, PARENTS, SUCCESSORS AND ASSIGNS UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER, AND ITS REPRESENTATIVES FROM AND AGAINST ANY AND ALL MATTERS AFFECTING THE PROPERTY, EXCEPT THOSE THAT EXPRESSLY SURVIVE CLOSING HEREUNDER. PURCHASER ACKNOWLEDGES THAT PURCHASER HAS BEEN REPRESENTED BY INDEPENDENT LEGAL COUNSEL OF PURCHASER’S SELECTION AND PURCHASER IS GRANTING THIS WAIVER AND RELEASE OF ITS OWN VOLITION AND AFTER CONSULTATION WITH PURCHASER’S COUNSEL.
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Purchaser’s Initials |
THE AGREEMENT OF PURCHASER SET FORTH IN THIS SECTION 2.6 SHALL BE DEEMED TO BE AFFIRMED AS OF THE CLOSING AND THE PROVISIONS OF THIS SECTION 2.6 SHALL SURVIVE INDEFINITELY THE CLOSING OR EARLIER TERMINATION OF THIS CONTRACT AND SHALL NOT BE MERGED INTO THE DEED OR OTHER CLOSING DOCUMENTS.
2.7 Delivery of Title Commitment. To the extent not previously delivered to Purchaser, within three (3) days after the Effective Date of this Contract, Seller shall cause to be delivered to Purchaser a title commitment issued by the Title Company to insure fee title to the Real Property (“Title Commitment”), together with copies of the vesting deed and all documents referenced in the Title Commitment (the “Exception Documents”).
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2.8 Survey. On or about September 12, 2013, Seller shall deliver to Purchaser an ALTA/ACSM survey for the Real Property prepared under the direction of Landco Services and dated after the Effective Date (a “Survey”). Purchaser shall, at Closing, reimburse Seller for the cost of the Survey. All costs and expenses of modifications to the Survey which are required or requested by Purchaser shall be borne by Purchaser whether or not Closing occurs.
2.9 Title Review and Cure. During the Inspection Period, Purchaser shall review title to the Real Property as disclosed by the Title Commitment, the Exception Documents related thereto and the existing survey or Survey for such Real Property and, no later the expiration of the Inspection Period, Purchaser may deliver to Seller in writing (“Purchaser’s Objection Notice”) such objections as Purchaser may have to anything contained or set forth in the Title Commitment, Exception Documents, or Survey. Except as hereinafter expressly set forth, any items to which Purchaser does not object within the Inspection Period shall be deemed acceptable to Purchaser. Seller shall, within three (3) days of its receipt of Purchaser’s Objection Notice, advise Purchaser in writing (“Seller’s Response”) which objections, if any, it shall cure or cause to be cured prior to the Closing. Seller shall have no obligation to cure any title exceptions except that Seller shall in all events be obligated to cause to be released on or before Closing, (i) all liens filed against the Property created or assumed by Seller, (ii) all items, if any, Seller agrees to cure in the Seller’s Response, and (iii) any exceptions to title created by, through or under Seller after the Effective Date of this Contract without Purchaser’s consent and not reflected on the Title Commitment prior to the expiration of the Inspection Period. If Seller fails to send Seller’s Response Seller shall be deemed to have declined to cure all objections set forth in Purchaser’s Objection Notice. If Seller declines, or is deemed to have declined, to cure any item to which Purchaser objected in Purchaser’s Objection Notice, Purchaser shall have three (3) business days to elect to (x) terminate this Contract (whereupon all sums paid as Xxxxxxx Money, less the applicable Independent Contract Consideration, shall be returned to Purchaser by the Escrow Agent, the applicable Independent Contract Consideration shall be immediately paid to Seller by the Escrow Agent and thereafter neither Seller nor Purchaser shall have any further liability to the other under this Contract except for such obligations of Purchaser which expressly survive the termination of this Contract), or (y) waive those objections in Purchaser’s Objection Notice which Seller is deemed to have declined to cure or which did not expressly agree in Seller’s Response to cure. In the event Purchaser fails to timely elect (x) or (y) above, then Purchaser shall be conclusively deemed to have elected (y) above. Subject to Seller’s obligation to cure certain title matters as described above, all matters shown on the Title Commitment and Survey, except to the extent Seller expressly agreed in Seller’s Response to cure such matters; all matters objected to in Purchaser’s Objection Notice which are subsequently waived, or deemed waived, by Purchaser, any defects in or objections to title to the Real Property or title exceptions or encumbrances, arising, by, through or under Purchaser, real estate taxes or other assessments not yet due and payable, and the rights of tenants in possession, as tenants only, under the Leases, are herein collectively called, the “Permitted Exceptions”.
2.10 Delivery of Title Policy as of Closing. As a condition to Purchaser’s obligation to close, the Title Company shall be prepared, at Closing, to issue to Purchaser, an Owner’s Policy of Title Insurance for the Real Property (the “Title Policy”), effective as of the date and
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time of the recording of the Deed, in the amount of the Purchase Price, insuring Purchaser or its permitted assignee, as owner of good and indefeasible fee simple title to such Real Property, and subject only to the Permitted Exceptions. Seller shall execute at Closing an affidavit as to authority, the rights of tenants in occupancy and the status of mechanics’ liens (and sufficient to remove from the Title Policy any exception for mechanics’ liens filed against the Real Property which relate to any matters occurring prior to the Closing Date) in form acceptable to Seller and as the Title Company shall reasonably require for the issuance of the Title Policy. The Title Policy may be delivered after Closing if that is customary in the locality where issued.
Article 3: Operations And Risk Of Loss
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Article 4: Conditions Precedent and Remedies
4.1 Purchaser’s Conditions to Closing. Purchaser’s obligation to close under this Contract shall be subject to and conditioned upon the fulfillment of each and all of the following conditions precedent:
4.1.1 All of the documents required to be delivered by Seller to Purchaser at the Closing pursuant to the terms and conditions hereof shall have been delivered;
4.1.2 Each of representations and warranties of Seller set forth in Section 7.1 shall be true in all material respects as of the Closing Date;
4.1.3 Title Company is prepared to issue, upon the condition of the payment of its scheduled premiums, the Title Policy, subject to the Permitted Exceptions applicable to the Real Property;
4.1.4 Purchaser has not elected to terminate this Contract pursuant to Section 2.5, 2.9, 4.3, 4.4, 4.6 or 8.6.
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4.2 Seller’s Conditions to Closing. Without limiting any of the rights of Seller elsewhere provided for in this Contract, Seller’s obligation to close with respect to conveyance of the Property under this Contract shall be subject to and conditioned upon the fulfillment of each and all of the following conditions precedent:
4.2.1 All of the documents and funds required to be delivered by Purchaser to Seller at the Closing pursuant to the terms and conditions hereof shall have been delivered; and
4.2.2 Each of the representations of Purchaser set forth in Section 7.2 shall be true in all material respects as of the Closing Date.
4.3 Failure or Waiver of Conditions Precedent. In the event any of the conditions set forth in Sections 4.1 or 4.2 are not fulfilled or waived, the party benefited by such conditions may, by written notice to the other party, terminate this Contract, whereupon all rights and obligations hereunder of each party shall terminate except those that expressly survive any termination. Either party may, at its election, at any time or times on or before the date specified for the satisfaction of the condition, waive in writing the benefit of any of the conditions set forth in Sections 4.1 and 4.2 above. In the event this Contract is terminated as a result of any condition set forth in Section 4.1, Purchaser, as its sole and exclusive remedy, shall be entitled to a refund of the Xxxxxxx Money, less the applicable Independent Contract Consideration (which shall be paid to Seller). In any event, Purchaser’s consent to the close of escrow pursuant to this Contract shall waive any remaining unfulfilled conditions, and any liability on the part of Seller for breaches of covenants, representations and warranties of which Purchaser had knowledge as of the Closing.
4.4 Damage or Condemnation.
4.4.1 Risk of loss resulting from any condemnation or eminent domain proceeding which is commenced or has been threatened before the Closing Date, and risk of loss to the Property due to fire, flood or any other cause before the Closing Date, shall remain with Seller.
4.4.2 If, prior to the Closing Date, all or part of the Real Property is damaged by fire or by any other cause whatsoever, Seller shall promptly give Purchaser written notice of such damage. If the cost of repairing such damage is not in excess of Four Hundred Thousand and No/100 Dollars ($400,000.00), as estimated by an independent general contractor designated by Seller or Seller’s lender or insurance company, then the Closing shall occur on the Closing Date and at Closing Purchaser shall receive a credit against the Purchase Price in an amount equal to (i) the estimated cost of repair or replacement minus (ii) any sums reasonably expended by Seller in making emergency repairs or restoration for life safety purposes or to avoid further property damage to the extent that such costs were included in the estimated costs of repair or replacement and any sums reasonably expended by Seller in repairing or replacing such damage. If the cost of repairing damage from such casualty is greater than Four
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Hundred Thousand and No/100 Dollars ($400,000.00), then either Seller or Purchaser shall have the right, for a period of ten (10) Business Days from the date of notice of the amount of damage, to terminate this Contract by giving written notice of termination to the other party within such period. Upon such termination, the parties hereto shall be released of any further liability hereunder except for provisions which survive a termination and Purchaser shall be entitled to a return of the Xxxxxxx Money, less the Independent Contract Consideration which shall be paid to Seller. If either party fails to notify the other party within such period of its intention to terminate this Contract, then the parties shall proceed to Closing, and at Closing Purchaser shall receive a closing credit in the amount provided for in subsections (i) above minus the amount which Seller is entitled to withhold under subsection (ii) above.
4.4.3 If, prior to the Closing Date, any condemnation or eminent domain proceedings shall be commenced by any public authority against the Real Property, Seller shall promptly give Purchaser written notice thereof. Upon notice of the commencement of any such proceedings (from Seller or otherwise), Purchaser shall have the right to either (i) accept the affected Real Property subject to the proceedings, whereupon any award paid prior to Closing (less Seller’s reasonable and necessary costs and expenses of pursuing and participating in such proceedings) shall be paid to Purchaser and Seller shall deliver to Purchaser at Closing, without recourse or representation (other than Seller’s representation that it has the right to make such assignment without any other person or entity having the right to claim entitlement to all or any portion of such proceeds), all of Seller’s right, title and interest in and to any such award, or (ii) terminate this Contract by giving written notice to Seller to that effect within ten (10) Business Days from the date Purchaser receives notice of the proceedings. If this Contract is terminated by Purchaser as aforesaid, the parties hereto shall have no further liability hereunder except as otherwise expressly provided herein and Purchaser shall be entitled to a return of the Xxxxxxx Money, less the Independent Contract Consideration which shall be paid to Seller. In the event Purchaser fails to notify Seller within such period of Purchaser’s intention to terminate this Contract, then Purchaser shall proceed to Closing and Seller’s rights to any awards (less Seller’s reasonable and necessary costs and expenses of pursuing and participating in such proceedings) shall be assigned to Purchaser at Closing. Seller shall have no obligation to repair or restore the Property or any portion thereof.
4.5 DEFAULT BY PURCHASER. IF PURCHASER SHALL DEFAULT IN ITS OBLIGATIONS UNDER THIS CONTRACT AND SUCH DEFAULT SHALL CONTINUE UNCURED FOLLOWING THE FIFTH (5TH) DAY AFTER WRITTEN NOTICE OF SUCH DEFAULT IS GIVEN TO PURCHASER (HOWEVER SUCH NOTICE PERIOD SHALL NOT EXTEND THE CLOSING DATE), PURCHASER AGREES THAT SELLER SHALL HAVE THE RIGHT TO TERMINATE THIS CONTRACT AND HAVE THE ESCROW AGENT DELIVER THE XXXXXXX MONEY TO SELLER AS LIQUIDATED DAMAGES TO COMPENSATE SELLER FOR TIME SPENT, LABOR AND SERVICES PERFORMED, AND THE LOSS OF ITS BARGAIN. PURCHASER AND SELLER AGREE THAT IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO CALCULATE DAMAGES WITH CERTAINTY IF PURCHASER SO DEFAULTS AND THAT THE XXXXXXX MONEY REPRESENTS A REASONABLE ESTIMATE OF SELLER’S DAMAGES. SELLER
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AGREES TO ACCEPT THE XXXXXXX MONEY AS SELLER’S SOLE REMEDY IF PURCHASER DEFAULTS IN ITS OBLIGATIONS UNDER THIS CONTRACT, SELLER WAIVING ALL OTHER RIGHTS AND REMEDIES. THE FOREGOING IS NOT INTENDED TO LIMIT PURCHASER’S INDEMNITY OBLIGATIONS HEREUNDER.
4.6 DEFAULT BY SELLER. IF SELLER DEFAULTS IN ITS OBLIGATION TO SELL AND CONVEY THE PROPERTY TO PURCHASER PURSUANT TO THIS CONTRACT AND SUCH DEFAULT SHALL CONTINUE UNCURED FOLLOWING THE FIFTH (5TH) DAY AFTER WRITTEN NOTICE OF SUCH DEFAULT IS GIVEN TO SELLER (HOWEVER SUCH NOTICE PERIOD SHALL NOT EXTEND THE CLOSING DATE), PURCHASER’S SOLE AND EXCLUSIVE REMEDY SHALL BE TO ELECT ONE OF THE FOLLOWING: (A) TO TERMINATE THIS CONTRACT, IN WHICH EVENT PURCHASER SHALL BE ENTITLED TO (I) THE RETURN BY THE ESCROW AGENT TO PURCHASER OF THE XXXXXXX MONEY (INCLUDING THE INDEPENDENT CONTRACT CONSIDERATION), AND (II) IF SUCH DEFAULT IS THE RESULT OF SELLER’S INTENTIONAL BREACH OF THIS CONTRACT FOR THE PURPOSES OF DEPRIVING PURCHASER OF THE BENEFIT OF ITS BARGAIN, PURCHASER SHALL ALSO BE ENTITLED TO THE RECOVERY FROM SELLER OF PURCHASER’S ACTUAL AND REASONABLE OUT-OF-POCKET COSTS AND EXPENSES INCURRED IN CONNECTION WITH ENTERING INTO THIS CONTRACT AND ATTEMPTING TO PURCHASE THE PROPERTY, INCLUDING WITHOUT LIMITATION, DUE DILIGENCE INSPECTIONS PERFORMED BY PURCHASER AND ITS CONSULTANTS, AND LOAN DEPOSITS, APPLICATION AND COMMITMENT FEES, UP TO A MAXIMUM AMOUNT OF FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00) IN THE AGGREGATE, AND AFTER PURCHASER HAS RECOVERED ALL THE FOREGOING NEITHER PARTY SHALL HAVE ANY FURTHER RIGHTS OR OBLIGATIONS EXCEPT FOR PURCHASER’S INDEMNITY OBLIGATIONS HEREUNDER, OR (B) TO BRING A SUIT FOR SPECIFIC PERFORMANCE PROVIDED THAT ANY SUIT FOR SPECIFIC PERFORMANCE MUST BE BROUGHT WITHIN NINETY (90) DAYS OF SELLER’S DEFAULT, TO THE EXTENT PERMITTED BY LAW, PURCHASER WAIVING THE RIGHT TO BRING SUIT AT ANY LATER DATE. PURCHASER WAIVES ANY OTHER RIGHTS OR REMEDIES. PURCHASER AGREES NOT TO FILE A LIS PENDENS OR OTHER SIMILAR NOTICE AGAINST THE PROPERTY EXCEPT IN CONNECTION WITH THE FILING OF A SUIT FOR SPECIFIC PERFORMANCE.
5.1 Closing. The consummation of the transaction contemplated herein (“Closing”) shall occur on the Closing Date through the usual form of deed and money escrow, which the parties shall establish with Escrow Agent.
5.2 Seller’s Deliveries in Escrow. On or before noon (Mountain Daylight Time) on the Closing Date, Seller shall deliver in escrow to the Escrow Agent the following:
5.2.1 Deed. A special warranty deed for the Real Property (the “Deed”) in the form attached hereto as Exhibit D and made a part hereof, executed and acknowledged by Seller, conveying Seller’s title to the Real Property, subject only to the Permitted
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5.2.2 Xxxx of Sale and Assignment of Leases and Contracts. A Xxxx of Sale and Assignment of Leases and Contracts for the Real Property (the “Assignment”) in the form of Exhibit E attached hereto, executed by Seller.
5.2.3 Notice of Assignment. A notice of assignment to each of the vendors under the assumed Service Contracts executed by Seller (the “Notice of Assignment”);
5.2.4 Notice to Residents. A notice to the tenants regarding the sale of the Property in the form of Exhibit F attached hereto, or such other form as may be required by applicable state law, executed by Seller (the “Notice to Residents”);
5.2.5 Withholding Exemption Certificate. A Colorado Form DR-1083, in form required by law and duly executed by Seller, concerning required information with respect to a conveyance of a Colorado real property interest;
5.2.6 State Law Disclosures. Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property;
5.2.7 FIRPTA. A Foreign Investment in Real Property Tax Act affidavit executed by Seller; and
5.2.8 Additional Documents. Any additional documents that Purchaser, Escrow Agent or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Contract.
5.3 Purchaser’s Deliveries in Escrow. On or before noon (Mountain Daylight Time) on the Closing Date, Purchaser shall deliver in escrow to the Escrow Agent the following:
5.3.1 Purchase Price. The Purchase Price, less the Xxxxxxx Money that is applied to the Purchase Price, plus or minus applicable prorations, deposited by Purchaser with the Escrow Agent in immediate, same-day federal funds wired for credit into the Escrow Agent’s escrow account;
5.3.2 Xxxx of Sale and Assignment of Leases and Contracts. The Assignment, executed by Purchaser;
5.3.3 Notices of Assignment. The Notice of Assignment, executed by Purchaser;
5.3.4 Notice to Residents. The Notice to Residents, executed by Purchaser;
5.3.5 Real Property Transfer Declaration. A Real Property Transfer Declaration, in form required by law and duly executed by Purchaser, concerning information with respect to a conveyance of a Colorado real property interest.
15
5.3.6 State Law Disclosures. Such disclosures and reports as are required by applicable state and local law in connection with the conveyance of real property; and
5.3.7 Additional Documents. Any additional documents that Seller, Escrow Agent or the Title Company may reasonably require for the proper consummation of the transaction contemplated by this Contract.
5.4 Closing Statements. At the Closing, Seller and Purchaser shall deposit with the Escrow Agent executed closing statements consistent with this Contract in the form required by the Escrow Agent.
5.5 Title Policy. The Title Policy shall be delivered as of Closing as provided in Section 2.10.
5.6 Possession. Seller shall deliver possession of the Property to Purchaser at the Closing, subject only to the rights of tenants under the Leases and the Permitted Exceptions.
5.7 Post-Closing Deliveries. To the extent reasonably available to Seller, copies or original Leases (which may be electronic); lease files; originals of all contracts (or copies if no originals are available) and receipts for deposits; and all keys, if any, used in the operation of the Property; shall be made available to Purchaser at the Property after the Closing. Within thirty (30) days following Closing Seller shall deliver to Purchaser a final income statement for the Property covering the month of Closing to the Closing Date. The obligation to make such delivery shall survive Closing.
5.8 Close of Escrow. The Escrow Agent shall agree in writing with Seller and Purchaser that (a) recordation of the Deed constitutes its representation that it is holding the closing documents, closing funds and closing statements and is prepared and irrevocably committed to disburse the closing funds in accordance with the closing statements and (b) release of funds to Seller shall irrevocably commit Title Company to issue the Title Policy in accordance with this Contract. Upon satisfaction or completion of the foregoing conditions and deliveries, the parties shall direct the Escrow Agent to immediately record and deliver the documents described above to the appropriate parties and make disbursements according to the closing statements executed by Seller and Purchaser and in accordance with escrow instructions by each party consistent with this Contract.
Article 6: Prorations and Adjustments
16
6.1.3 Common Meter Utilities. Expenses related to common metered utilities, including water, sewer, electric, and gas, based upon the last reading of meters prior to the Closing shall be prorated. Seller shall endeavor to obtain meter readings on the day before the Closing Date, and if such readings are obtained, there shall be no proration of such items. Seller shall pay, or cause to be paid, at Closing the bills therefor for the period to the day preceding the Closing, and Purchaser shall pay the bills therefor for the period subsequent thereto. If the utility company will not issue separate bills, Purchaser will receive a credit against the Purchase Price for Seller’s portion and will pay the entire xxxx prior to delinquency after Closing. If Seller has paid any utilities no more than 30 days in advance in the ordinary course of business, then Purchaser shall be charged its portion of such payment at Closing.
17
6.1.5 Fees and Charges under Service Contracts. Seller and Purchaser shall prorate all fees and charges under the assumed Service Contracts on the basis of the periods to which such Service Contracts relate.
18
connection with the negotiation, execution or consummation of this Contract or the transactions contemplated hereby, each party shall defend, indemnify and hold harmless the other party from and against any such claim based upon any statement, representation or agreement of such party.
19
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7.1.11 Definition of Seller’s Knowledge. Any representations made “to Seller’s knowledge” shall not be deemed to imply any duty of inquiry. For purposes of this Contract, the term “to Seller’s knowledge” shall mean and refer only to actual knowledge of the Designated Representative of the Seller and shall not be construed to refer to the knowledge of any other partner, officer, director, agent, employee or representative of the Seller, or any affiliate or parent of the Seller, or to impose upon such Designated Representative any duty to investigate the matter to which such actual knowledge or the absence thereof pertains, or to impose upon such Designated Representative any individual personal liability. As used herein, the term Designated Representative shall refer to Xxxxxxx Xxxxxxx who is the District Manager of Seller’s property manager with supervisory responsibility for the Property.
21
7.3 ADA/FHA Disclosure. Purchaser acknowledges that the Property may be subject to the federal Americans With Disabilities Act (the “ADA”) and the federal Fair Housing Act (the “FHA”). The ADA requires, among other matters, that tenants and/or owners of “public accommodations” remove barriers in order to make the Property accessible to disabled persons and provide auxiliary aids and services for hearing, vision or speech impaired persons. Seller makes no warranty, representation or guarantee of any type or kind with respect to the Property’s compliance with the ADA or the FHA (or any similar state or local law), and Seller expressly disclaims any such representation. Purchaser acknowledges that it is solely responsible for determining whether the Property complies with the ADA and the FHA. The provisions of this Section 7.3 shall survive indefinitely the Closing or earlier termination of this Contract and shall not be merged into the Deed or other closing documents.
22
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period commencing on the Closing Date and ending on the first anniversary of the Closing Date (the “Limitation Period”). Seller’s liability for breach of any such covenant, indemnity, representation or warranty shall be limited to claims in excess of an aggregate amount of $25,000, and Seller shall be liable only to the extent that such aggregate amount exceeds such figure. Seller’s aggregate liability for claims arising out of such covenants, indemnities, representations and warranties shall not exceed $300,000. Notwithstanding anything to the contrary contained in this Contract, Seller shall not be liable for consequential, punitive and/or exemplary damages of any nature whatsoever. Purchaser shall provide written notice to Seller of any alleged breach of such covenants, indemnities, warranties or representations and shall allow Seller 30 days within which to cure such breach, or, if such breach cannot reasonably be cured within 30 days, an additional reasonable time period not to exceed 90 days, so long as such cure has been commenced within such 30 days and is being diligently pursued. If Seller fails to cure such breach after written notice and within such cure period, Purchaser’s sole remedy shall be an action at law for actual damages as a consequence thereof, provided that any claim or action at law for actual damages brought after Closing based upon a misrepresentation or a breach of a covenant, indemnity, warranty or representation under this Contract shall be actionable or enforceable if and only if notice of such claim is given to Seller within ninety-one (91) days following the expiration of the Limitation Period. The Limitation Period referred to herein shall apply to known as well as unknown breaches of such covenants, indemnities, warranties or representations. Purchaser’s waiver and release set forth in Section 2.6 shall apply fully to liabilities under such covenants, indemnities, representations and warranties and is hereby incorporated by this reference. Purchaser specifically acknowledges that such termination of liability represents a material element of the consideration to Seller. The limitation as to Seller’s liability in this Section 8.6.1 does not apply to Seller’s liability with respect to prorations and adjustments under Article 6. The provision of this Section 8.6.1 shall survive indefinitely the Closing or earlier termination of this Contract and shall not be merged into the Deed or other closing documents.
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8.8 Time. Time is of the essence in the performance of this Contract.
25
26
of such indemnitee by the counsel retained by the indemnitor would be inappropriate due to actual or potential differing interests between such indemnitee and any other party represented by such counsel in such proceeding. The failure of indemnitee to deliver written notice to the indemnitor within a reasonable time after indemnitee receives notice of any such claim shall relieve such indemnitor of any liability to the indemnitee under this indemnity only if and to the extent that such failure is prejudicial to its ability to defend such action, and the omission to so deliver such written notice to the indemnitor will not relieve it of any other liability that it may have to any indemnitee. If an indemnitee settles a claim without the prior written consent of the indemnitor, then the indemnitor shall be released from liability with respect to such claim unless the indemnitor has unreasonably withheld such consent.
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The obligation of Purchaser to purchase the Property from Seller under this Contract is hereby also made expressly contingent and conditional upon the simultaneous closing of the purchase by Purchaser of the Other Property from the Other Seller pursuant to the Other Purchase Agreement. If, for any reason, (a) the Other Purchase Agreement is validly terminated by the Other Seller (except as a result of a default thereunder by Purchaser) or Purchaser, (b) the Other Seller defaults under its obligation to sell the Other Property under the Other Purchase Agreement, or (c) the Other Seller fails to close the sale of the Other Property to Purchaser simultaneously with Seller’s sale of the Property to Purchaser pursuant to this Contract (other than as a result of a default by Purchaser under this Contract or the Other Purchase Agreement), Purchaser may elect, by written notice to Seller, to terminate this Contract, in which event the Xxxxxxx Money shall be refunded to Purchaser, and this Contract shall be deemed to be null, void, terminated and of no further force or effect, except as herein to the contrary expressly provided.
Notwithstanding anything set forth herein to the contrary, the Inspection Period and the Closing Dates, respectively, under this Contract and under the Other Purchase Agreement, shall always be identical, and, if any of said dates is changed pursuant to the terms of this Contract or the Other Purchase Agreement, said change shall also apply to said date under this Contract.
28
costs associated with this audit. Seller shall reasonably cooperate (at no cost to Seller) with Purchaser’s auditor in the conduct of such audit. In addition, Seller agrees to provide to Purchaser or any affiliate of Purchaser, if requested by such auditor, historical financial statements for the Property, including (without limitation) income and balance sheet data for the Property, whether requested before or after Closing. Seller’s obligation to maintain its records for use under this Section 8.24 shall be an on-going condition to Closing for Purchaser’s benefit until Closing. Seller shall maintain its records for use under this Section 8.24 for a period of not less than one year after the Closing Date. The provisions of this Section shall survive Closing.
[Signature Pages Follow]
29
SIGNATURE PAGES TO
REAL ESTATE CONTRACT
BY AND BETWEEN
ORI-COLORADO, INC.
AND
RESOURCE REAL ESTATE OPPORTUNITY OP, LP
“SELLER” | ||
ORI-COLORADO, INC., | ||
a Nevada corporation | ||
By: | /s/ Xxxxxxx X. Xxxxxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxxxxx | |
Title: | Senior Vice President |
Date: September 4, 2013
S-1
SIGNATURE PAGES TO
REAL ESTATE CONTRACT
BY AND BETWEEN
ORI-COLORADO, INC.
AND
RESOURCE REAL ESTATE OPPORTUNITY OP, LP
“PURCHASER” | ||||
RESOURCE REAL ESTATE OPPORTUNITY OP, LP, a Delaware limited partnership | ||||
By: | Resource Real Estate Opportunity REIT, Inc., a Maryland corporation, its general partner | |||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | President |
Date: September 4, 2013
S-2
SIGNATURE PAGES TO
REAL ESTATE CONTRACT
BY AND BETWEEN
ORI-COLORADO, INC.
AND
RESOURCE REAL ESTATE OPPORTUNITY OP, LP
Escrow Agent has executed this Contract in order to agree that Escrow Agent shall act as escrowee with respect to and shall hold the Xxxxxxx Money and the interest earned thereon, in escrow, and shall disburse the Xxxxxxx Money, and the interest earned thereon, pursuant to the provisions of Exhibit B hereof.
CHICAGO TITLE COMPANY | ||
By: | /s/ Xxxx Xxxxxxxx | |
Name: | Xxxx Xxxxxxxx | |
Title: | Escrow Officer |
Date: September 4, 2013
S-3
LIST OF EXHIBITS
A | Legal Description |
B | Escrow Instructions |
C | Property Information |
D | Form of Deed |
E | Form of Xxxx of Sale and Assignment of Leases and Contracts |
F | Form of Notice to Tenants |
G | Rent Roll |
H | Service Contracts |
I | Addresses for Notices |
J | Legal Description of Camden Pinnacle |
EXHIBIT A
LEGAL DESCRIPTION
Xxx 0,
Xxxxx 0,
Xxxxxxxxxx,
Xxxxxx xx Xxxxxxxx,
Xxxxx of Colorado
A-1
EXHIBIT B
ESCROW INSTRUCTIONS
B-1
EXHIBIT C
PROPERTY INFORMATION
Construction Plan Drawings and Specification Books, to be made available at the Real Property
Copies of permits and licenses related to or affecting the Property, including, Pool and Spa Permits, Elevator Permits (if applicable), Flood Elevation Certifications (if applicable) and Boiler Permits (if applicable)
Current inspections reports to be made available at the Real Property
Certificates of Occupancy
Soil Reports, if available
All existing environmental reports prepared for the Seller or in Seller’s possession
Standard form of apartment lease used by Seller for the Real Property and the right to inspect the existing Leases (electronic) in the possession of the property manager for the Real Property to be made available at the Real Property.
Copies of all Service Contracts for the Real Property (as defined in the contract)
A list of Personal Property,
Insurance Claims History for the current year and the past two years for the Property
Floor plans and amenities
Site Plan for the Real Property
Any existing land title survey for the Real Property (“Existing Survey”)
Warranties on major items (i.e., roof) for the Real Property
Current Rent Rolls for the Real Property and historical monthly rent rolls for the period commencing December 1, 2011 to current date.
Utility Account List for the Real Property (including names/addresses of utility companies; account numbers)
Copies of Utility Bills (telephone, electric, water/sewer, gas and cable) for the past three months for the Real Property
Real Estate Tax Bills for the past two years for the Real Property
C-1
Capital Expenditures current year and prior 2 years for the Property which is included on the Operating Statements
Operating Statements for the Property for the current year and prior two years.
Accounts payable and accounts receivable detail listing/aging reports as calendar years ending December 31, 2011 and December 31, 2012 and as of the calendar month end.
General ledgers for 2012 and 2013.
List of current on site staff by name and position.
C-2
EXHIBIT D
When recorded, return to:
| ||
| ||
| ||
Attention: |
|
For Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, ORI-COLORADO, INC., a Nevada corporation (“Grantor”), hereby grants, sells and conveys to (“Grantee”), that real property located in County, Colorado and legally described on Exhibit A attached hereto and incorporated herein by this reference, together with all interests, privileges and easements appurtenant thereto and any and all improvements located thereon (the “Property”).
SUBJECT TO: current taxes not yet due and payable, assessments and any other liens arising therefrom, all reservations in patents, deed restrictions, if any, all easements, rights of way, covenants, conditions, restrictions, encroachments, liens, encumbrances, obligations and liabilities as may appear of record, and all other matters that can be determined by a visual inspection or a complete and accurate survey of the Property (collectively, the “Permitted Exceptions”).
TO HAVE AND TO HOLD the Property, subject to the Permitted Exceptions as aforesaid, unto Grantee, and Grantee’s successors and assigns, forever; and Grantor does hereby bind Grantor, and Grantor’s successors and assigns, to WARRANT and FOREVER DEFEND, all and singular, the Property, subject to the Permitted Exceptions, unto Grantee, and Grantee’s successors and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof, by, through or under Grantor, but not otherwise.
DATED effective as of the day of , 20 .
ORI-COLORADO, INC., | ||
a Nevada corporation | ||
By: |
| |
Name: |
| |
Title: |
|
D-1
STATE OF | ) | |||
) ss | ||||
COUNTY OF | ) |
On , , before me, the undersigned, a Notary Public in and for said County and State, personally appeared , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies) and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
WITNESS my hand and official seal.
| ||
Notary Public in and for said County and State | ||
My Commission Expires: |
|
D-2
EXHIBIT A
PROPERTY
D-3
EXHIBIT E
XXXX OF SALE AND ASSIGNMENT OF LEASES AND CONTRACTS
This instrument is executed and delivered as of the day of , 201 pursuant to that certain Improved Commercial Property Xxxxxxx Money Contract (“Contract”), dated , 201 , by and between ORI-COLORADO, INC., a Nevada corporation (“Seller”), and , a (“Purchaser”), covering the real property described in Exhibit A attached hereto (“Real Property”).
E-1
E-2
SELLER: | ||
ORI-COLORADO, INC., a Nevada corporation | ||
By: |
| |
Name: |
| |
Title: |
| |
PURCHASER: | ||
| ||
By: |
| |
Name: |
| |
Title: |
|
E-3
Exhibit A
Legal Description
E-4
Exhibit B-1
List of Personal Property
E-5
Exhibit B-2
Leases and Security Deposits
E-6
Exhibit B-3
Service Contracts
E-7
EXHIBIT F
NOTICE TO RESIDENTS
[Date]
[VIA FIRST CLASS MAIL] [PERSONAL DELIVERY]
Property Name
Address
City/State/Zip
Dear Resident:
Notice is hereby given to the tenants of Camden Centennial Apartments (the “Property”) that ORI-Colorado, Inc. (“Landlord”) has sold the Property to (“Purchaser”) effective as of this date. Purchaser has assumed all of the obligations of Landlord under your lease, including any obligations with respect to your security deposit. Purchaser acknowledges that it has received and is responsible for your security deposit, which security deposit has been transferred to Purchaser, less any amounts applied by Landlord. Purchaser is now your landlord and all future rent payments under your lease shall be made to Purchaser.
In the event that your rent payments are made to Seller via an ACH or other automatic debit system, such payments shall be rejected as of the date hereof and you should make alternative arrangements with Purchaser for the payment of your rent.
Purchaser’s address and telephone number for purposes of your lease are as follows:
| ||||
| ||||
| ||||
|
Sincerely, | ||
ORI-COLORADO, INC., a Nevada corporation | ||
By: |
| |
Name: |
| |
Title: | Authorized Signatory |
F-1
PURCHASER | ||
By: |
| |
Name: |
| |
Title: |
|
F-2
EXHIBIT G
RENT ROLL
G-1
EXHIBIT H
SERVICE CONTRACTS
VENDOR | SERVICE | |
Comcast of California/Colorado/Florida/Oregon, Inc. | Cable – Bulk Services | |
Xxx-Xxxx Corporation | Laundry Lease Agreement | |
Loss Prevention Technologies | Alarm Monitoring Services | |
Waste Management of Colorado | Trash Service |
H-1
EXHIBIT I
ADDRESSES FOR NOTICES
Purchaser: | Seller: | |
Resource Real Estate Opportunity OP, LP 0000 X. 0xx Xxxxxx, Xxxxx 000 Xxxxxx, Xxxxxxxx 00000 Attn: Xxxxxxxx X. Xxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 email: xxxxxx@xxxxxxxxxxx.xxx | ORI-Colorado, Inc. c/o Camden USA, Inc. 00 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attn: Xxxxxxx X. Xxxxxxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 email: xxxxxxxxxxx@xxxxxxxxxxxx.xxx | |
Copy to: | ||
Resource Real Estate Opportunity OP, LP 0000 Xxxxxx Xxxxxx, 00xx Xxxxx Xxxxxxxxxxxx, XX 00000 Attn: Xxxxxx Xxxxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 email: xxxxxxxxx@xxxxxxxxxxx.xxx | and:
Camden Development, Inc. 00 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attn: Xxxxxxx Xxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 email: xxxxxxx@xxxxxxxxxxxx.xxx | |
And to: | ||
Copy to: | ||
Ledgewood, PC 0000 Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxxxxxx, XX 00000 Attn: Xxxxx X. Xxxxxxx, Esq Telephone: (000) 000-0000 Facsimile: (000) 000-0000 email: xxxxxxxx@xxxxxxxxx.xxx |
Camden Property Trust 00 Xxxxxxxx Xxxxx, Xxxxx 0000 Xxxxxxx, Xxxxx 00000 Attn: J. Xxxxxx Xxxxxx Telephone: (000) 000-0000 Facsimile: (000) 000-0000 email: xxxxxxx@xxxxxxxxxxxx.xxx |
I-1
EXHIBIT J
LEGAL DESCRIPTION OF CAMDEN PINNACLE
Parcel One:
Xxx 0, Xxxxx 0,
Xxxxx Xxxxx X Subdivision, according to the plat recorded November 10, 1972 in Plat Book F13 at Page 000, Xxxxxx xx Xxxxx, Xxxxx of Colorado.
Parcel Two:
together with those certain easements set forth on Exhibits C and D on Use and Easement Declarations, recorded November 2, 1974 in Book 1963 at Pages 388 and 397, in Clerk and Recorders office of the County of Xxxxx, State of Colorado.
J-1