EXHIBIT 10.2
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(AMLI at River Run)
PARTNERSHIP INTEREST
PURCHASE AND SALE AGREEMENT
TABLE OF CONTENTS
1. Recitals. . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Agreement.. . . . . . . . . . . . . . . . . . . . . . . . . 1
3. Defined Terms.. . . . . . . . . . . . . . . . . . . . . . . 3
4. Closing Costs.. . . . . . . . . . . . . . . . . . . . . . . 7
5. Deposit of Xxxxxxx Money; Escrow Provisions.. . . . . . . . 8
6. Inspection. . . . . . . . . . . . . . . . . . . . . . . . . 8
7. Title Review. . . . . . . . . . . . . . . . . . . . . . . . 12
8. Operations. . . . . . . . . . . . . . . . . . . . . . . . . 13
9. Conditions Precedent To Closing.. . . . . . . . . . . . . . 14
10. Remedies. . . . . . . . . . . . . . . . . . . . . . . . . . 16
11. Closing.. . . . . . . . . . . . . . . . . . . . . . . . . . 17
12. Closing Documents.. . . . . . . . . . . . . . . . . . . . . 18
13. Closing Adjustments.. . . . . . . . . . . . . . . . . . . . 21
14. Tax Returns and Elections.. . . . . . . . . . . . . . . . . 23
15. Sellers' Representations, Warranties and Covenants. . . . . 24
16. "AS IS" Purchase. . . . . . . . . . . . . . . . . . . . . . 34
17. Miscellaneous.. . . . . . . . . . . . . . . . . . . . . . . 35
18. Information and Audit Cooperation.. . . . . . . . . . . . . 37
19. Tax Structure.. . . . . . . . . . . . . . . . . . . . . . . 38
20. Notice to Illinois Department of Revenue ("IDR"). . . . . . 38
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LIST OF EXHIBITS
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EXHIBIT A Legal Description Recitals
EXHIBIT B Personal Property List Definitions
EXHIBIT C Rent Roll Sections 12.1.9; 15.1.23
EXHIBIT D Escrow Instructions Sections 5.2; 17.14
EXHIBIT E Development Agreements Section 27
EXHIBIT F Form of Closing Statement Section 12.4
EXHIBIT G Service Contracts Section 2.11
EXHIBIT H Addresses for Notices Section 17.9
EXHIBIT I Appendix 9.14 Section 18
EXHIBIT J Paid Xxxx Certificate Sections 12.1.15; 13.10
EXHIBIT K Sellers' Bringdown Certificate Sections 12.1.6;15.1
EXHIBIT L Lease Form Sections 8.3;15.2.1.4
EXHIBIT M Partnership Agreement Section 15.1.41
EXHIBIT N Assignment of Partnership Interests Section 12.1.1
EXHIBIT O Termination of Management Agreement Section 12.1.7
EXHIBIT P FIRPTA Certificates Section 12.1.12
EXHIBIT Q Description of the Improvements Recitals
EXHIBIT R Environmental Reports Definitions
EXHIBIT S Termination of Development Agreement Section 12.1.7
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PARTNERSHIP INTEREST PURCHASE AND SALE AGREEMENT
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This Partnership Interest Purchase and Sale Agreement (this "Agreement") is
among XXXXXX DEVELOPMENT CORPORATION, a Michigan corporation ("Xxxxxx" or
"GP"), XXXXXX RIVER RUN, LTD., a Florida limited partnership ("Limited
Partner 1"), RIVER RUN ASSOCIATES, LLC, a Florida limited liability company
("Limited Partner 2"), XXXXXXX X. XXXXX, XX. REVOCABLE TRUST DATED APRIL 8,
1992 ("Limited Partner 3"), XXXX X. XXXXXX ("Limited Partner 4"), XXXXXX
PARTNERS RIVER RUN, LTD., a Florida limited partnership ("Limited
Partner 5"), ADC EQUITY PARTNERS RIVER RUN, LTD., a Florida limited
partnership ("Limited Partner 6"); GP, Limited Partner 1, Limited
Partner 2, Limited Partner 3, Limited Partner 4, Limited Partner 5, and
Limited Partner 6 are hereinafter individually referred to as "Seller" and
collectively referred to as the "Sellers"), and AMLI RESIDENTIAL
PROPERTIES, L.P., a Delaware limited partnership ("New GP") and AMLI
RESIDENTIAL PROPERTIES, LLC, a Delaware limited liability company ("New
LP"; New LP and New GP are hereinafter collectively referred to as
"Purchaser") and, for the limited purposes set forth herein, The Preserve
at River Run Limited Partnership, a Florida limited partnership (the
"Owner").
RECITALS:
A. Sellers are the sole owners of one hundred percent (100%) of
the partnership interests (collectively, the "Partnership Interests") in
the Owner, in which Xxxxxx is the sole owner of the one percent (1%)
general partner interest (the "General Partnership Interest"), and the
Limited Partners are the sole owners of the ninety-nine percent (99%)
limited partner interest (the "Limited Partnership Interest").
B. The Owner is the owner of the fee simple interest in certain
real estate located in Will County, Illinois, commonly known as The
Preserve at River Run (the "Apartment Complex"), which is more particularly
described on EXHIBIT A attached hereto (the "Land"), and all buildings,
structures and improvements erected on the Land, as well as all the
fixtures located or to be located therein as generally described on
EXHIBIT Q attached hereto (collectively the "Improvements").
C. Purchaser and Sellers desire to set forth their agreements
concerning the terms and conditions pursuant to which Sellers will sell to
Purchaser and Purchaser will buy from Sellers one hundred percent of the
Partnership Interests in Owner.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, Sellers and
Purchaser agree as follows:
1. RECITALS. The foregoing Recitals are true and correct and are
incorporated into and form a part of this Agreement.
2. AGREEMENT. Subject to the terms and conditions of this Agreement,
Sellers agree to sell to Purchaser and Purchaser agrees to purchase from
Sellers, the Partnership Interests so that Purchaser shall indirectly
(through its ownership of Owner and subject to the terms of this Agreement)
own the Land, the Improvements, and the Personal Property (as hereinafter
defined), together with the items hereinafter set forth in this Section 2
(collectively, the "Property"). The term "Property" includes all of the
Owner's interest, if any, in and to the following:
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2.1 All easements, permits, licenses and rights (whether or not of
record), tenements, hereditaments, privileges, and appurtenances in any way
belonging or appertaining to the Land including, without limitation, all
mineral, oil, gas and other hydrocarbon substances on and under the Land
and all development, air and water rights relating to the Land.
2.2 The Personal Property.
2.3 Any land, lying in the bed of any street, road, alley, walks or
avenue, open or proposed, at the foot of, adjoining or below the Land to
the center line of such street, road, alley, walks or avenue, and in and to
any strips and gores adjoining the Land.
2.4 All reciprocal easement agreements and operating agreements,
and all permits, licenses and rights, whether or not of record, appurtenant
to the Land and the use of all strips and rights-of-way (including public
and private vehicular and pedestrian rights-of-way), if any, abutting,
adjacent, contiguous to or adjoining the Land.
2.5 All interests as landlord in all leases, licenses, and other
agreements to occupy all or any part of the Land or Improvements now or
hereinafter in effect, excepting any such leases, licenses and agreements
which expire or are terminated in accordance with their terms prior to the
Closing Date (individually, a "Lease" and collectively, "Leases"), together
with, and subject to the provisions of Section 13, all rents and other sums
due the Owner as landlord (including, without limitation, garage income,
storage income and all other fees and deposits, if any), accrued or
accruing for a period or periods from and after the Closing Date under each
such Lease and all guarantees by third parties of the tenants' obligations
thereunder ("Lease Guaranties") and all Lease security deposits not
theretofore applied to the respective tenant's obligations thereunder.
2.6 All plans, site plans and specifications for construction of
the Improvements (collectively hereinafter referred to as "Plans and
Specifications") to be determined by Purchaser and Sellers as set forth in
this Section 2.6.
2.7 All agreements, if any, with governmental authorities or
utility companies relating to the Land or Improvements, set forth on
EXHIBIT E attached hereto (collectively, the "Development Agreements").
2.8 All unexpired warranties and guaranties, if any, received in
connection with the construction, improvement or development of the Land or
Improvements (collectively, the "Development Guaranties").
2.9 All building models, leasing brochures and marketing
information relating to the Land and Improvements, if any.
2.10 All licenses, permits, certificates of occupancy, and
franchises issued or to be issued by any federal, state, county or
municipal authority relating to the use, maintenance or operation of the
Property, running to, or in favor of, the Owner or the Property.
2.11 All service contracts, including but not limited to tax contest
contracts, if any, and equipment leases in connection with or used by the
Owner in the operation of the Property listed on EXHIBIT G attached hereto
and incorporated herein by reference ("Service Contracts"). Purchaser has
agreed to assume those Service Contracts marked "to be assumed by
Purchaser" on EXHIBIT G (the "Assumed Service Contracts"). All other
Service Contracts, whether or not listed on EXHIBIT G, must be terminated
by Sellers prior to the Closing Date.
2.12 All tenant files and operations and maintenance files, other
than the property operations manual; provided, however, that Sellers and
the Owner reserve all rights with respect to any such information which is
privileged or confidential and disclosure thereof to Purchaser shall not
cause or result in a waiver or release of such rights.
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2.13 All other intangible personal property now or hereinafter owned
by the Owner or in which the Owner otherwise has an interest and used in
connection with or arising from the operation of the Property including,
without limitation, claims, choses in action, tax appeals and on-site
telephone numbers and any trademarks, logos, trade colors, service marks
and trade names of Owner used in connection with the Property including the
name "The Preserve at River Run."
Without limitation, the following are not included in the Property: the
name "Xxxxxx," any logo, trade name, trademark, service xxxx, or other name
or xxxx utilizing "Xxxxxx" or any software owned by or licensed by any
other company or entity other than Owner.
3. DEFINED TERMS. The following defined terms shall have the meanings
set forth below:
"Act" shall have the meaning set forth in Section 15.3.1 hereof.
"Agreement" shall have the meaning set forth in the initial sentence
hereof.
"Xxxxxx" shall have the meaning set forth in the initial sentence
hereof.
"Xxxxxx Management" shall have the meaning set forth in Section 6.2.2
hereof.
"Apartment Complex" shall have the meaning set forth in Section B of
the Recitals hereof.
"Approval Notice" shall have the meaning set forth in Section 6.4
hereof.
"Assignment of Partnership Interests" shall have the meaning set
forth in Section 12.1.1 hereof.
"Assumed Service Contracts" shall have the meaning set forth in
Section 2.11 hereof.
"Bringdown Certificate" shall have the meaning set forth in Section
15.1 hereof.
"CERCLA" shall mean the Comprehensive Environmental Response,
Compensation and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as
amended.
"City" shall mean the City of Naperville, Illinois.
"Closing" shall have the meaning set forth in Section 11 hereof.
"Closing Date" shall have the meaning set forth in Section 11 hereof.
"Closing Statement" shall have the meaning set forth in Section 12.4
hereof.
"Conditions Precedent" shall have the meaning set forth in Section 9
hereof.
"Development Agreements" shall have the meaning set forth in
Section 2.7 hereof.
"Development Guaranties" shall have the meaning set forth in
Section 2.8 hereof.
"Development Indemnity" shall have the meaning set forth in
Section 12.5 hereof.
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"Xxxxxxx Money" shall mean collectively, the Initial Xxxxxxx Money
(as defined in Section 5.1 hereof) and the Second Xxxxxxx Money (as defined
in Section 5.1 hereof).
"Effective Date" shall mean the latest date of execution by Sellers,
Partnership and Purchaser as indicated on the signature pages of this
Agreement.
"Environmental Laws" shall have the meaning set forth in Section
15.1.26 hereof.
"Environmental Reports" shall mean those environmental reports listed
on EXHIBIT R.
"Escrow Agent" shall have the meaning set forth in Section 5.1
hereof.
"Exchange" shall have the meaning set forth in Section 17 hereof.
"FIRPTA Certificates" shall have the meaning set forth in Section
12.1.12 hereof.
"FSOS" shall have the meaning set forth in Section 12.1.2.1 hereof.
"GAAP" shall have the meaning set forth in Section 15.1.32 hereof.
"General Partnership Interest" shall have the meaning set forth in
Section A of the Recitals hereof.
"Hazardous Materials" shall have the meaning set forth in Section
15.1.26 hereof.
"Hazardous Substances" shall mean any hazardous, toxic or dangerous
waste, substance or material, pollutant or contaminant, as defined for
purposes of the Environmental Laws or any other federal, state or local
law, ordinance, rule or regulation applicable to the Property, or any
substance which is toxic, explosive, corrosive, flammable, infectious,
radioactive, carcinogenic, mutagenic or otherwise hazardous, or any
substance which contains gasoline, diesel fuel or other petroleum
hydrocarbons, polychlorinated biphenyls (PCBs), radon gas, urea
formaldehyde, asbestos, lead or electromagnetic waves.
"Improvements" shall have the meaning set forth in Section B of the
Recitals hereof.
"Inspection Period" shall mean the period of time beginning on
August 1, 2004 and ending on August 30, 2004 during which Purchaser will
conduct its inspection described in Section 6 hereof.
"Inventory" shall have the meaning set forth in Section 12.1.3
hereof.
"Xxxxxxxx Crossing Agreement" shall mean the Partnership Interest
Purchase and Sale Agreement of even date herewith executed by the
Purchaser, Xxxxxx, and other persons and entities that are not parties to
this Agreement.
"Land" shall have the meaning set forth in the Recitals hereof. The
Land consists of approximately 17.88 acres.
"Lease Guaranties" shall have the meaning set forth in Section 2.5
hereof.
"Lease" and "Leases" shall have the meanings set forth in Section 2.5
hereof.
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"Lender" shall mean Xxxxx Fargo Bank, National Association.
"Limited Partner" shall mean any one of the Limited Partners.
"Limited Partner 1" shall have the meaning set forth in the initial
sentence hereof.
"Limited Partner 2" shall have the meaning set forth in the initial
sentence hereof.
"Limited Partner 3" shall have the meaning set forth in the initial
sentence hereof.
"Limited Partner 4" shall have the meaning set forth in the initial
sentence hereof.
"Limited Partner 5" shall have the meaning set forth in the initial
sentence hereof.
"Limited Partner 6" shall have the meaning set forth in the initial
sentence hereof.
"Limited Partners" shall mean, collectively, Limited Partner 1,
Limited Partner 2, Limited Partner 3, Limited Partner 4, Limited Partner 5,
and Limited Partner 6.
"Limited Partnership Interest" shall have the meaning set forth in
Section A of the Recitals hereof.
"Loan" shall mean the construction loan evidenced by, among other
things, the documents filed in the Public Records of Will County, Illinois
together with all related security documents filed in the Public Records of
Will County and with the Illinois Secretary of State including, without
limitation, that certain Mortgage, Assignment of Leases and Rents and
Security Agreement in favor of Lender recorded under Instrument Number
2001067957 of the Public Records of Will County, Illinois, as modified by
Mortgage Modification Agreement recorded under Instrument Number 2004121874
of the Public Records of Will County, Illinois, and State of Illinois
Financing Statement recorded in Instrument Number 4394284 of the records of
the Secretary of State of Illinois.
"Material" shall have the meaning set forth in Section 9.4 hereof.
"Material Condemnation" shall have the meaning set forth in Section
9.5 hereof.
"New GP" shall have the meaning set forth in the initial sentence
hereof.
"New LP" shall have the meaning set forth in the initial sentence
hereof.
"Owner" shall have the meaning set forth in the initial sentence
hereof.
"Owner Policy" shall have the meaning set forth in Section 7.1
hereof.
"Partnership Agreement" shall have the meaning set forth in Section
15.1.41 hereof.
"Partnership Interests" shall have the meaning set forth in Section A
of the Recitals hereof.
"Permit Indemnity" shall have the meaning set forth in Section 12.6
hereof.
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"Permitted Exceptions" shall have the meaning set forth in Section
7.1 hereof.
"Personal Property" shall mean all personal property owned by the
Owner and used in connection with the operation and maintenance of the Land
and Improvements including, clubhouse and management and leasing office and
all other tools, equipment and supplies used in connection with the
operation or maintenance of the Property, all heating, ventilating,
incinerating, lighting, plumbing, electrical, and air-conditioning fixtures
and equipment, heating controls, motors, located or to be located in or on
the Land or Improvements including, but not limited to, the items of
Personal Property set forth on EXHIBIT B attached hereto.
"Plans and Specifications" shall have the meaning set forth in
Section 2.6 hereof.
"Property" shall have the meaning set forth in Section 2 hereof.
"Property Manager" shall mean Xxxxxx Management Company, a Delaware
corporation.
"Property Management Agreement" shall mean the management agreement
between Owner and the Property Manager.
"Purchase Price" shall mean $31,500,000.
"Purchaser" shall have the meaning set forth in the initial sentence
hereof.
"Purchaser's Agents" shall have the meaning set forth in Section
6.2.1 hereof.
"RCRA" shall mean the Resource Conservation and Recovery Act (42
U.S.C. Section 6901 et seq.), as amended.
"Rent Roll" shall have the meaning set forth in Section 15.1.23
hereof.
"Seller" and "Sellers" shall have the meanings set forth in the
initial sentence hereof.
"Sellers' Environmental Reports" shall mean Phase I Environmental
Site Assessment Updates prepared by Terracon, Inc.
"Sellers' Knowledge Party" shall have the meaning set forth in
Section 15.1.44.
"Sellers' Parties" shall mean Sellers' affiliates, employees of
Sellers and Sellers' affiliates, and the officers, directors,
representatives and agents of Sellers and Sellers' affiliates.
"Service Contracts" shall have the meaning set forth in Section 2.11
hereof.
"Survey" shall have the meaning set forth in Section 7.1 hereof.
"Surveyor" shall mean R.E. Xxxxx and Associates, Ltd., 00 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxxxxxx, XX 00000.
"Termination Notice" shall have the meaning set forth in Section 6.4
hereof.
"The Tradition at Canterfield Agreement" shall mean the Partnership
Interest Purchase and Sale Agreement of even date herewith executed by the
Purchaser, Xxxxxx and other persons and entities that are not parties to
this Agreement.
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"Title Commitment" shall have the meaning set forth in Section 7.1
hereof.
"Title Company" shall have the meaning set forth in Section 7.1
hereof.
"Unit" shall mean each rental unit comprising part of the
Improvements.
"Willful Default" shall have the meaning set forth in Section 10.2
hereof.
4. CLOSING COSTS. Costs associated with the Closing shall be allocated
and paid as follows:
COST RESPONSIBLE PARTY
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.. Premium for the Title Policy Seller will transfer all rights in
existing owner's policy with Chicago
Title Insurance Company. Purchaser
shall pay all costs associated with
such transfer and for any
endorsements to the extent that the
Purchase Price exceeds
$25,009,924.57
.. Cost of the Survey and
Title Commitment Sellers
.. Recording Fees Sellers
.. Illinois Transfer Tax Purchaser shall pay the first
$10,003.97; Sellers shall pay the
remainder of the tax.
.. Will County Transfer Tax,
if applicable Seller
.. Naperville Transfer Tax,
if applicable Purchaser
.. Escrow Closing Fees Sellers and Purchaser will each
pay half
.. Real Estate Sales Commission
to Broker N/A
.. Costs incurred by Purchaser
in connection with due
diligence Purchaser
.. Sellers and Purchaser shall
pay their own respective
legal fees Sellers and Purchaser
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5. DEPOSIT OF XXXXXXX MONEY; ESCROW PROVISIONS.
5.1 DEPOSIT OF XXXXXXX MONEY. Purchaser shall deposit with Chicago
Title Insurance Company ("Escrow Agent") the sum of Three Hundred Ten
Thousand, and no/100 Dollars ($310,000.00) in immediately available funds
(the "Initial Xxxxxxx Money"). In the event that Purchaser shall provide
Sellers with an Approval Notice, the Xxxxxxx Money shall be non-refundable
unless Sellers shall be in default hereunder or Purchaser shall otherwise
be entitled to expressly terminate this Agreement and receive a refund of
the Xxxxxxx Money pursuant to, and strictly in accordance with, the express
terms and provisions of this Agreement, and Purchaser shall within three
(3) business days after the date of the Approval Notice deposit in cash
with Escrow Agent the sum of Three Hundred Ten Thousand, and no/100 Dollars
($310,000.00) (the "Second Xxxxxxx Money").
5.2 ESCROW PROVISIONS. Escrow Agent shall hold and disburse the
Xxxxxxx Money in accordance with the terms and provisions of EXHIBIT D
attached hereto and made a part hereof.
6. INSPECTION.
6.1 PROPERTY INFORMATION. Sellers shall cause Owner to deliver to
Purchaser, or otherwise make available to Purchaser at Owner's offices or
at the Land, any and all documentation requested by Purchaser which affects
the Property, including, but not limited to, the documentation listed on
the exhibits attached hereto and made a part hereof to the extent it is in
Owner's possession or to the extent that it is known by Sellers to be in
the possession of Owner's agents. If this Agreement terminates for any
reason, Purchaser shall promptly (a) return to Owner any and all
documentation provided by Owner or its agents and (b) provide to Owner any
and all documentation and materials obtained by Purchaser with respect to
the subject matter hereof other than documentation and materials that
relate to Purchaser's internal analysis of the financial and marketing
aspects of the Property and attorney-client privileged materials.
6.2 INSPECTION. During the Inspection Period, and under the
circumstances set forth in Section 6.2.10 below up to the Closing, at its
sole cost and expense, Purchaser shall have reasonable access during normal
business hours to the Property and any office where records of the Property
or other Property information is maintained, for the purpose of reviewing
and copying books and records and other materials relating to the Property
and conducting necessary tests, including surveys and architectural,
engineering, geotechnical and environmental inspections and tests.
In addition to, and not in limitation of, the foregoing, Purchaser
shall have the right to review and inspect all aspects of the Property,
including, but not limited to:
(a) physical inspections of the entire Property, unit by unit,
including structural, mechanical, life-safety, engineering, civil,
landscaping, paving, plumbing, electrical and all other detail inspections;
(b) to the extent in Owner's possession, examination of all
construction items, including as-built architectural, civil, electrical,
life-safety, mechanical and plumbing plans and specifications, copies of
any available construction reports, whether internal or external,
certificates of completion from the project architect and inspecting
architect, certificates of occupancy, building permits, evidence of
compliance with fire code, building code and other governmental or
regulatory code requirements and all other related use permits;
(c) to the extent in Owner's possession, examination of all
operating statements and supporting documentation from the initial opening
of the Property, reflecting all detailed rental income, operating expense
account and the maintenance log maintained for the Property;
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(d) all documentation maintained in current tenant files, including
leases, security deposit information, credit reviews and the like;
(e) the right to obtain an environmental report prepared by a
qualified engineering firm acceptable to Purchaser;
(f) the Title Commitment and the Survey, together with copies of
all exception documents noted therein; and
(g) such other review and inspection as Purchaser shall deem
necessary.
Owner shall provide copies of all records noted above for which the
copying thereof shall not be an unreasonable burden to Owner as reasonably
determined by Sellers and as reasonably requested by Purchaser and
Purchaser's agents during normal business hours with reasonable notice.
Sellers shall cause Owner to cooperate in good faith with Purchaser
and Purchaser's Agents (as defined herein) during the Inspection Period and
Sellers have no reason to believe that the documentation provided to
Purchaser as set forth herein does not disclose to Purchaser all material
physical and financial aspects of the Property of which Owner has
knowledge.
In conducting any inspections or tests of the Property or otherwise
performing its inspections as contemplated hereby, Purchaser agrees as
follows:
6.2.1 NO INTERFERENCE. Purchaser and Purchaser's contractors,
agents, employees, subcontractors and representatives (such contractors,
agents, employees, subcontractors and representatives are hereinafter
referred to, collectively, as "Purchaser's Agents") shall not materially
interfere with the construction, operation or maintenance of the Property
and shall, furthermore, use all commercially reasonable efforts to conduct
its due diligence investigations so as to minimize interference in all
respects with the day-to-day lives of the tenants residing at the Apartment
Complex.
6.2.2 LIABILITY INSURANCE. Purchaser shall maintain, and cause
Purchaser's Agents who may enter upon the Property to maintain, during the
term of this Agreement comprehensive general liability insurance and
workers' compensation insurance, each in amounts and from companies
reasonably satisfactory to Sellers, and Purchaser shall provide
certificates of insurance evidencing same to Sellers, naming Sellers and
Xxxxxx Management Company, a Michigan corporation ("Xxxxxx Management"), as
additional insureds thereunder.
6.2.3 NO LIENS. Purchaser shall keep the Property free and
clear of any liens arising from Purchaser's or Purchaser's Agents'
activities.
6.2.4 PROMPT REPAIR. Purchaser shall promptly repair, or cause
to be repaired, to its condition immediately prior to such entry, any
damage to the Property caused by any entry upon the Property by Purchaser
and/or Purchaser's Agents promptly after such damage shall occur.
6.2.5 INVASIVE TESTING. Purchaser shall perform no testing of
an invasive or destructive nature without first obtaining Sellers' written
consent which may be withheld in Sellers' absolute discretion. In the
event that Sellers' consent is withheld as to invasive testing, at
Purchaser's option, Purchaser may terminate this Agreement and receive a
return of the Initial Xxxxxxx Money deposited with Escrow Agent.
Notwithstanding anything contained herein to the contrary, Purchaser
understands, acknowledges and agrees that under no circumstances shall any
invasive testing be performed subsequent to the delivery of the Approval
Notice.
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6.2.6 INDEMNITY. Purchaser shall indemnify, defend and hold
Owner's and Sellers' respective officers, directors, shareholders,
partners, members, employees, representatives, agents and attorneys
harmless from and against any damage to the Property or injury to any
person caused by Purchaser, Purchaser's agents, employees or contractors in
connection with Purchaser's investigation of the Property. Notwithstanding
the foregoing, in the event of damage to the Property or injury to any
person related to hazardous substances or constituents in existence on the
Property, including hazardous waste (as defined by federal, state or local
statute, regulation or ordinance) Purchaser's liability under this
indemnity shall be only with respect to damages to the extent caused by the
negligence of any one or more of Purchaser, Purchaser's agents, or
Purchaser's contractors and not with respect to pre-existing conditions at
the Property. This Section 6.2.6 shall survive the Closing or any earlier
termination of this Agreement.
6.2.7 NOTICE. Purchaser shall notify Owner of its intention,
or the intention of Purchaser's Agents, to enter the Property as soon as
reasonably practicable prior to such intended entry but in all events,
Purchaser shall provide forty-eight (48) hours' prior notice by telephone.
Sellers agree to cause Owner to use reasonable efforts to permit entry by
the Purchaser on less than forty-eight (48) hours' prior notice, but
Purchaser acknowledges that it is Sellers' intent to have appropriate Owner
representatives on site to accompany Purchaser or its agents during any
inspections. Purchaser shall bear the cost of all such inspections and
tests. At Sellers' option, Sellers may have a representative present for
any inspection or test. This Section 6.2.7 shall not apply to any entrance
upon the Property by Purchaser or Purchaser's Agents to the extent such
entrance is permissible for any third party individual.
6.2.8 NO DAMAGE; CONFIDENTIALITY. Purchaser and Purchaser's
Agents shall not (i) damage any part of the Property or any Personal
Property; (ii) injure or otherwise cause bodily harm to Owner, Sellers or
their respective agents, guests, invitees, contractors and employees; and
(iii) in accordance with Section 18.8 of this Agreement, release or
disclose any information obtained during the Inspection Period. This
Section 6.2.8 shall survive the Closing or any earlier termination of this
Agreement.
6.2.9 PURCHASER'S TURNOVER OF MATERIALS. In the event that for
any reason Purchaser shall provide Sellers with a Termination Notice (as
defined herein) or otherwise not close the transaction contemplated hereby,
Purchaser shall promptly provide to Owner all of the documentation and
materials given to Purchaser by Owner in connection with the Property
during the Inspection Period and will advise Sellers of the existence of
any third party reports prepared for Purchaser. Notwithstanding the
aforesaid, after the giving by Purchaser of the Termination Notice to
Sellers, Purchaser shall provide Sellers with the documentation and
materials described in clauses (a) and (b) of Section 6.1 hereof. Upon
Sellers' request, Purchaser shall provide Sellers with copies of any such
third party reports. The obligation of Purchaser under this Section 6.2.9
shall survive any termination of this Agreement.
6.2.10 CONTINUED ACCESS. Subject to the notice requirements in
Section 6.2.7 above, Purchaser shall be permitted access to the Property
and the location(s) of the books and records and other Property information
on and after the Effective Date until the expiration of the Inspection
Period or earlier termination of this Agreement, and thereafter until the
Closing, if Purchaser delivers the Approval Notice as provided for herein,
for purposes of (i) complying with Purchaser's obligations hereunder, (ii)
determining whether Sellers are complying with their obligations and
representations and warranties hereunder, and (iii) reviewing the Leases
and the Service Contracts (as defined herein), and any other Property
information obtained or generated both before and after the expiration of
the Inspection Period. Under no circumstances shall Purchaser be entitled
10
to perform any invasive testing at the Property of any nature whatsoever
after the expiration of the Inspection Period. In all events during any
such access by Purchaser or Purchaser's Agents after the Inspection Period,
the provisions of Section 6.2.1 through 6.2.9 above shall apply and Sellers
shall be entitled to have their representative present to accompany
Purchaser and/or Purchaser's Agents.
6.3 SERVICE CONTRACTS AND PROPERTY MANAGEMENT AGREEMENT. On or
prior to the last day of the Inspection Period, Purchaser will advise
Sellers in writing which service contracts (collectively the "Service
Contracts") it will assume (such Service Contracts are hereinafter referred
to as the "Assumed Service Contracts"), at Purchaser's expense, and which
Service Contracts Sellers shall cause Owner to terminate at the Closing, at
Sellers' expense. In the event that Purchaser does not so advise Sellers,
Purchaser will be deemed to have elected to assume all of the Service
Contracts. Purchaser shall assume the obligations arising from and after
the Closing Date under the Assumed Service Contracts. Sellers shall
terminate at the Closing, and Purchaser shall not assume, the property
management agreement with Xxxxxx Management (the "Property Management
Agreement").
6.4 ABSOLUTE ACCEPTANCE RIGHT. Purchaser shall have through the
last day of the Inspection Period, as may be extended as set forth in
Section 6.6 below, in which to examine, inspect and investigate the
Property, and the Owner, and, in Purchaser's sole and absolute judgment and
discretion, determine whether the Property, and the Owner, are acceptable
to Purchaser. Purchaser may, at any time on or before the expiration of
the Inspection Period, do one of the following: (a) send written notice of
approval to Sellers and Escrow Agent (the "Approval Notice") or (b)
terminate this Agreement in Purchaser's sole discretion, by sending to
Sellers and Escrow Agent written notice (the "Termination Notice")
indicating Purchaser's election to terminate the Agreement, in which event
this Agreement shall terminate and the Initial Xxxxxxx Money shall be
returned to Purchaser. If Purchaser fails to timely send an Approval
Notice or a Termination Notice, then Purchaser will be deemed to have sent
a Termination Notice. In the event that Purchaser decides to terminate
this Agreement prior to the expiration of the Inspection Period, Purchaser
hereby agrees to promptly notify Sellers of such decision.
6.5 TERMINATION RIGHT RELATED TO OTHER AGREEMENTS. Purchaser,
Xxxxxx and certain other persons presently intend to enter into The
Tradition at Canterfield Agreement and the Xxxxxxxx Crossing Agreement. If
Purchaser exercises its right to terminate either or both of The Tradition
at Canterfield Agreement or the Xxxxxxxx Crossing Agreement in accordance
with the terms of such agreements, then notwithstanding anything to the
contrary set forth in this Agreement, Xxxxxx (acting on behalf of all of
the Sellers) shall have the right to terminate this Agreement by providing
written notice to Purchaser of its decision to terminate this Agreement
within seven (7) days of the termination by Purchaser of either or both of
The Tradition at Canterfield Agreement or the Xxxxxxxx Crossing Agreement.
Upon such termination, the Initial Xxxxxxx Money shall be returned to
Purchaser and neither party shall have any further liability to the other,
except for any matters expressly stated to survive the early termination of
this Agreement. If Xxxxxx fails to terminate this Agreement by the end of
such seven (7) day period, then Xxxxxx shall no longer have the right to
terminate this Agreement pursuant to this Section 6.5.
6.6 AMENDMENTS AND SUPPLEMENTS OF EXHIBITS AND DUE DILIGENCE
DELIVERIES. Notwithstanding anything set forth in this Section 6 to the
contrary, on or before the expiration of the Inspection Period, Sellers may
amend, supplement, or provide the Exhibits described herein, and the
agreements and instruments described therein, (collectively, the
"Amendments") to Purchaser and Purchaser shall have up to five business
days after Purchaser receives said Amendments to review said Amendments if
the Amendments are delivered with less than five business days remaining in
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the Inspection Period. In the event any such Amendment is not acceptable
to Purchaser, Purchaser may terminate this Agreement by providing written
notice of said termination to Sellers as provided in Section 6.4 hereof
within the Inspection Period as may be extended by said five day review
period.
7. TITLE REVIEW.
7.1 Promptly after the Effective Date, Sellers shall deliver to
Purchaser the most recent survey in Sellers' possession and Owner's current
owner's title insurance policy (the "Owner Policy") together with legible
copies (to the extent available) of all documents of record referred to in
the Owner Policy as exceptions to title to the Property. Promptly after
its receipt of the Owner Policy, Purchaser shall obtain and deliver to
Sellers a current title commitment (such title commitment, as it may be
amended, supplemented and updated, the "Title Commitment") issued by
Chicago Title Insurance Company or such other title insurance company
acceptable to Purchaser (the "Title Company"), in the amount of the
Purchase Price, with Purchaser as the proposed insured, together with
legible copies (to the extent available) of all documents of record
referred to in the Title Commitment as exceptions to title to the Property
(excepting any which were included as exceptions to the Owner Policy).
Sellers shall, as soon as possible after the Effective Date, deliver to
Purchaser an update to a current date, pursuant to the accuracy
requirements of an ALTA/ACSM land title survey, dated subsequent to the
Effective Date, of the aforementioned survey (the "Survey"). During the
Inspection Period, Purchaser shall review title to the Land as disclosed by
the Title Commitment and the Survey. The Property shall be free and clear
of monetary liens, security interests and claims of monetary liens or
security interests (other than the lien for non-delinquent taxes), and
Sellers shall remove at the Closing all such liens and security interests.
With respect to any other title exceptions or other matters reflected in
the Title Commitment or the Survey, to which Purchaser objects, other than
Permitted Exceptions (as defined herein), Sellers shall cooperate with
Purchaser to remove such exceptions or matters to which Purchaser objects
within five (5) days after its receipt of the Title Commitment and the
Survey but, unless Sellers otherwise agree in writing, Sellers shall have
no obligation to remove such exceptions. The term "Permitted Exceptions"
shall mean only: (i) those items relating to the title to the Property or
the Title Commitment to which Purchaser does not object as herein provided;
(ii) those items relating to the title to the Land or the Title Commitment
to which Purchaser objects as herein provided, but with respect to which
Purchaser's objection is waived as herein provided; (iii) any matters
relating to the Survey to which Purchaser does not object as herein
provided; (iv) those matters relating to the Survey to which Purchaser
objects as herein provided, but with respect to which Purchaser's objection
is waived as herein provided; (v) rights of tenants in possession under the
Leases as described on the rent roll delivered to Purchaser and otherwise
permitted pursuant to the terms of this Agreement; (vi) taxes and other
similar public charges and assessments for the year of the Closing not yet
due and payable, and for subsequent years; and (vii) all building or zoning
ordinances affecting the Land (but not violations thereof). If Sellers are
unwilling or unable to cure or remove any objectionable item (other than
monetary liens or security interests, including the Loan, that Sellers
acknowledge and agree that they are obligated to remove), Sellers shall
give written notice of such fact to Purchaser, specifying which of such
objectionable items Sellers are unable or unwilling to cure on or before
five (5) days after receipt by Sellers of Purchaser's objections as
contemplated hereby, and Purchaser shall, on or before the end of the
Inspection Period, notify Sellers of Purchaser's election either:
7.1.1 To accept title to the Property subject to the matters
specified in Sellers' notice in which event the obligations of the parties
hereunder shall not be affected by reason of such matters; such matters,
shall be deemed to be included among the Permitted Exceptions, the sale
contemplated hereunder shall be consummated without reduction of the
Purchase Price by virtue of any such matter which Sellers are not obligated
to cure or remove and Purchaser shall have no further right to terminate
this Agreement by reason of such matters; or
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7.1.2 To terminate this Agreement and receive a return of the
Xxxxxxx Money.
7.2 In the event that Sellers have not received notice from
Purchaser setting forth Purchaser's election within the time period
specified above, Purchaser shall be deemed to have elected to terminate the
Agreement in accordance with Section 7.1.2 above.
7.3 Sellers and Purchaser shall promptly notify the other party if
it becomes aware of any matters affecting title not a Permitted Exception
or otherwise specified in the Title Commitment. Sellers shall not create,
and shall not permit Owner to create, any new exceptions to title, and
shall use all reasonable efforts to prevent any other person or entity from
creating new exceptions to title to the Property prior to the Closing. If
Purchaser becomes aware of any matters affecting title not a Permitted
Exception or otherwise specified in the Title Commitment, all such
subsequent matters shall be subject to Purchaser's approval as if they had
been so disclosed, except that Purchaser shall in any event have a
reasonable period of time to review and either approve or disapprove of
such subsequent exceptions. If approved, such matters shall be deemed to
be Permitted Exceptions. If disapproved by Purchaser and Sellers either
fail to cure or refuse to cure as herein provided, then Purchaser may elect
either option set forth in Sections 7.1.1 and 7.1.2 above and such election
shall be made within three (3) business days after Sellers notify Purchaser
whether they will cure or refuse to cure.
8. OPERATIONS.
8.1 ONGOING BUSINESS, LEASES AND SERVICE CONTRACTS. From the
Effective Date through the Closing, Sellers shall cause Owner to (a) cause
the Land to be operated in accordance with applicable law, in the ordinary
and usual course of business and consistent with current practice, (b)
perform, in all material respects, its obligations under the Leases, the
Property Management Agreement and the Service Contracts, (c) not take any
act or omit to take any act which would cause any of the representations or
warranties of Sellers contained herein to become inaccurate in any material
respect or any of the covenants of Sellers to be breached in any material
respect, and (d) not assign any rents, profits or leases that affect the
Property which assignment would not be extinguished at or prior to the
Closing. To the extent actually received by any of Sellers' Knowledge
Party, Sellers shall provide to Purchaser copies of any notices they
receive from the Effective Date through the Closing with respect to the
Property, the Owner, or the Partnership Interests from any governmental
authorities having jurisdiction over the Property, the Owner, or the
Partnership Interests. Sellers shall cause Owner to have at closing all
vacant Units in clean and ready-for-lease condition, or shall provide a
"rent-ready" credit of Five Hundred Dollars ($500.00) for each Unit which
is not in a ready-for-lease condition. In addition, to the "rent ready"
credit, in the case of any vacant Units which require the replacement of
carpet to attain ready-for-lease condition, Sellers shall provide Purchaser
with an additional credit equal to the reasonable estimated cost to replace
the carpet with equivalent carpet.
8.2 NEW CONTRACTS. From and after the Inspection Period, except as
provided below with respect to leasing activities, Sellers will not permit
the Owner to enter into or amend any contract including, specifically, the
Assumed Service Contracts as identified by Purchaser that will be an
obligation affecting the Property subsequent to the Closing, without the
prior written consent of Purchaser, such consent to be at the sole
discretion of Purchaser.
8.3 LEASING. From the Effective Date through the Closing, without
Purchaser's prior written consent in each instance not to be unreasonably
withheld, delayed or conditioned, Sellers will not permit Owner to amend or
terminate any Lease unless in the ordinary course of business. All new
Leases and Lease renewals shall (a) be on Owner's standard lease form
attached hereto as EXHIBIT L, (b) reflect rental rates similar to those
currently being charged for units similar to the Units at the Apartment
Complex, and (c) in no event have a term of more than eighteen (18) months.
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8.4 MAINTENANCE OF INSURANCE. From the Effective Date through the
Closing, Sellers shall cause Owner to continue to carry its existing
insurance and shall not allow any breach, default, termination or
cancellation of such insurance policies to occur or exist.
8.5 ENCUMBRANCES AND OTHER ACTIONS. From the Effective Date
through the Closing, Sellers shall not, and shall not permit the Owner, (a)
other than as may be required pursuant to applicable law and as expressly
contemplated by this Agreement, to sell, assign or create any right, title
or interest in and to the Property, or create or permit to exist any lien,
security interest, encumbrance or other charge thereon against the
Property, or create or modify any exceptions to the title to the Property
or the Partnership Interests, that would not be extinguished at or prior to
the Closing; (b) other than as may be required pursuant to applicable law,
initiate or consent to any action with respect to zoning or other Property
or the Partnership Interests, entitlements or permits; (c) other than in
the ordinary course of business, transfer, modify or otherwise dispose of
any personal property that is to be assigned hereunder; and (d) Sellers
shall cause Owner to maintain adequate staff for the management of the
Property as currently operated.
8.6 TRANSITION OF MANAGEMENT. Sellers shall use all reasonable
efforts to provide Purchaser or its authorized agent reasonable access to
the Property in order to prepare for an orderly transition of management
thereof and shall cause Owner to maintain adequate staff for the management
of the Property in connection with current practice.
8.7 NOTICE OF BREACH. Sellers shall advise Purchaser of any
material changes or material breaches of the representations and warranties
set forth in Section 15 of this Agreement during the term of this Agreement
and any fact(s) that Sellers become aware of that Sellers reasonably
believe could or would cause the representations and warranties or any of
them to become false in any material respect.
9. CONDITIONS PRECEDENT TO CLOSING. Purchaser's obligation to
consummate the Closing is subject to satisfaction of all of the conditions
set forth in this Section 9 of this Agreement. Purchaser may waive any or
all of such conditions in whole or in part but any such waiver shall be
effective only if made in writing. If Purchaser consummates the Closing
notwithstanding that Sellers have not complied with one or more of the
conditions precedent, Purchaser shall be deemed to have elected to waive
its rights and remedies against Sellers in respect to such matters. Each
of the following are conditions precedent (the "Conditions Precedent") to
the obligation of Purchaser to complete the Closing and purchase the
Partnership Interests. If any Condition Precedent is not satisfied on the
Closing Date, Purchaser shall have the right to terminate this Agreement
and receive a return of the Xxxxxxx Money, and shall have all remedies
pursuant to Section 10 hereof.
9.1 Sellers shall not have received any notice that the
Improvements are in violation of any applicable local, state or federal
laws in any respect that has not been cured prior to the Closing Date.
9.2 Each and every representation and warranty of Sellers is
materially true and correct as of the Effective Date and the Closing Date.
9.3 As of the Closing Date, Sellers shall not be in material
default under this Agreement.
9.4 The risk of loss until the Closing shall be borne by Sellers.
Sellers shall promptly give Purchaser written notice of any damage to the
Property, describing such damage, whether such damage is covered by
insurance and the estimated cost of repairing such damage. If such damage
is not Material (as defined herein), at the Closing Sellers shall deliver
to Purchaser an amount, as reasonably determined by Sellers, equal to (x)
the proceeds paid to Owner by Owner's insurer, plus (y) the amount of any
deductibles, plus (z) the difference between the actual cost to restore the
14
Property and the aggregate amount described in the immediately preceding
clauses (x) and (y). If such proceeds have not then been paid to Owner, at
the Closing, Sellers shall give Purchaser a credit against the Purchase
Price in an amount, as reasonably determined by Sellers, equal to (a) the
proceeds to be paid to Owner by Owner's insurer, plus (b) the amount of any
deductibles, plus (c) the difference between the actual cost to restore the
Property and the aggregate amount described in the immediately preceding
clauses (a) and (b). If such damage is Material (as defined herein),
Purchaser may elect by notice to Sellers given within ten (10) days after
Purchaser is notified of such damage (and the Closing shall be extended, if
necessary, to give Purchaser such ten (10) day period to respond to such
notice) to either (a) proceed in the same manner as in the case of damage
that is not Material or (b) terminate this Agreement, in which event the
Xxxxxxx Money shall be immediately returned to Purchaser. In the event
that Purchaser does not timely notify Seller of its election as set forth
in the immediately preceding sentence, Purchaser shall be deemed to have
elected the preceding clause (b). Damage as to any one or multiple
occurrences shall be defined as "Material" if the cost to repair the damage
exceeds $750,000.00.
9.5 The risk of loss until the Closing shall be borne by Sellers.
Sellers shall promptly give Purchaser any notice that it receives of any
eminent domain proceedings that are threatened or instituted with respect
to the Property from governmental authorities having jurisdiction over the
Property and having the power of eminent domain with respect to the
Property. By notice to Seller given within ten (10) days after Purchaser
receives any such notice described in the immediately preceding sentence,
and if necessary, the Closing Date shall be extended to give Purchaser the
full ten (10) day period to make such election, Purchaser shall (a) in the
event and only in the event that the eminent domain proceedings described
in the applicable notice would result in a Material Condemnation (as
defined herein), have the option to terminate this Agreement, in which
event the Xxxxxxx Money shall be immediately returned to Purchaser or (b)
proceed under this Agreement, in which event at the Closing, Sellers shall
turn over to Purchaser any award it has received with respect to such
taking and shall assign to Purchaser its right to any award. The term
"Material Condemnation" shall mean the occurrence of any one of the
following: (a) a condemnation or taking of all or substantially all of the
Property by any governmental authority having jurisdiction over the
Property, (b) any or all of the material improvements at the Property are,
or any portion of any material improvement at the Property is (and such
portion is material to the current use and occupancy of the Property as an
apartment project), condemned or taken by any governmental authority having
jurisdiction over the Property, (c) any easement, or any portion of any
easement (and such easement or portion of such easement is material to the
current use and occupancy of the Property as an apartment project), located
on or otherwise benefiting the Property is condemned or taken by any
governmental authority having jurisdiction over the Property as a result of
which the current use and occupancy of the Property as an apartment project
is adversely affected, (d) access to or from the Property is impaired in
any manner whatsoever as a result of any condemnation or taking by any
governmental authority having jurisdiction over the Property, (e) as a
consequence of any condemnation or taking by any governmental authority
having jurisdiction over the Property, the property so condemned or taken
results in the Property not complying in all respects with all requirements
of all governmental authorities having jurisdiction over the Property,
including, without limitation, all zoning laws, rules and regulations
governing the Property, or (f) any other condemnation or taking by any
governmental authority having jurisdiction over the Property as a result of
which the current use and occupancy of the Property as an apartment project
is materially adversely affected.
15
9.6 At least one (1) business day prior to Closing, Sellers shall
deliver to Purchaser (i) an updated Rent Roll dated not more than ten (10)
days prior to Closing; (ii) a tenant ledger (indicating prepaid and
delinquent rent) for each tenant; and (iii) financial statements for the
Owner and Property for the three (3) months prior to Closing June, July and
August, 2004 subject to the right to deliver the last month financial
statement (August, 2004) as provided in Section 15.2.10. The tenant ledger
should indicate pre-paid, delinquent and past payments of each tenant.
10. REMEDIES.
10.1 In the event that Purchaser defaults in its obligations under
this Agreement, Sellers may retain the Xxxxxxx Money as liquidated damages.
The parties acknowledge that Sellers' actual damages in the event of a
default by Purchaser under this Agreement will be difficult to ascertain,
and that such liquidated damages represent the parties' best estimate of
such damages. Notwithstanding anything to the contrary contained in this
Section, Sellers and Purchaser agree that this liquidated damages provision
is not intended to apply to any default or breach by Purchaser under any of
its obligations that survive the Closing (including any indemnity
obligations) under this Agreement or under any instrument or document
delivered by Purchaser at the Closing pursuant hereto or in connection
herewith, it being understood and agreed that from and after the Closing
Date, Sellers shall have all rights and remedies at law and in equity with
respect to any such default or breach.
10.2 In the event that Sellers default in their obligations under
this Agreement, Purchaser may, as its sole and exclusive remedy therefor,
either (a) terminate this Agreement by written notice thereof to Sellers,
whereupon Escrow Agent shall refund to Purchaser all Xxxxxxx Money
theretofore deposited by Purchaser hereunder, whereupon neither Sellers nor
Purchaser shall have any further duties or obligations hereunder, except as
otherwise set forth herein or (b) seek to enforce by specific performance
Sellers' obligations hereunder, with Purchaser hereby waiving any right to
pursue an action against Sellers for monetary damages, except in the case
where Owner conveys the Property to a third party, Sellers transfer the
Partnership Interests to a third party or if the remedy of specific
performance is not actionable in the State of Illinois as determined by the
applicable court of final jurisdiction, notwithstanding the fact that the
Owner's primary asset is real estate and that since real estate is unique
in its nature the remedy of specific performance is the only adequate
remedy and that monetary damages would be difficult to ascertain, and in
any such event, Purchaser shall have the right to pursue an action against
Sellers for monetary damages. Notwithstanding the above sentence, the
primary asset of the Owner is real estate and due to the unique nature of
real estate, the parties hereby agree that monetary damages would be
difficult to ascertain. Notwithstanding the foregoing and in addition to
the remedies set forth above, if Sellers' above default is a Willful
Default (as defined herein), Sellers shall pay to Purchaser all costs
incurred by Purchaser (prior to its learning of the Willful Default) with
respect to its engineering, environmental audits and examinations and
similar inspection expenses, and for all legal, accounting and other
consultant or professional fees paid or payable by Purchaser on account of
this Agreement. The term "Willful Default" as used in this Agreement shall
mean the intentional failure of Sellers to observe or perform in any
material respect a covenant or condition of this Agreement, the observance
or performance of which is within Sellers' reasonable control, or a breach
of any material representation or warranty of Sellers set forth in this
Agreement if Sellers knew such representation or warranty to be untrue when
made or made such representation or warranty with reckless disregard as to
its truth. Notwithstanding anything to the contrary contained in this
Section, Sellers and Purchaser agree that this remedies provision is not
intended to apply to any default or breach by Sellers under any of its
obligations that survive the Closing (including any indemnity obligations)
under this Agreement or under any instrument or document delivered by
Sellers at the Closing pursuant hereto or in connection herewith, or to any
16
breach of a representation or warranty made under this Agreement that
survives the Closing under this Agreement, it being understood and agreed
that from and after the Closing Date, Purchaser shall have all rights and
remedies at law and in equity with respect to any such default or breach of
obligations or any such breach of a representation or warranty.
10.3 Prior to declaring a default and exercising any remedy
described in this Agreement, a non-defaulting party shall issue a notice of
default to the defaulting party describing the event or condition of
default in sufficient detail to enable a reasonable person to determine the
action necessary to cure the default. The defaulting party shall have ten
(10) business days from delivery of the notice during which to cure the
default. If the default has not been cured within the aforesaid period,
then the non-defaulting party may exercise the remedies described herein.
10.4 Neither Sellers, Purchaser nor the Owner may recover any
special, speculative, contingent or punitive damages against the others in
connection with any default by the others under this Agreement. The
provisions of this Section 10.4 prevail over any conflicting provisions of
this Agreement.
10.5 In the event any party brings an action against any other party
in connection with claims by one party against the other arising from the
operation of this Agreement, the non-prevailing party in such action or
appeal thereto shall pay the prevailing party all reasonable costs, fees
and expenses, including reasonable attorneys' and paraprofessional fees and
costs, incurred in connection with such action at trial and upon appeal.
10.6 If at any time after the execution of this Agreement, either
Purchaser or Sellers become aware of information which makes a
representation and warranty contained in this Agreement to become untrue in
any material respect, such party shall promptly disclose such information
in writing to the other party hereto. Provided the party making the
representation or warranty did not take any deliberate actions to cause the
representations to become untrue in any material respect, such party shall
not be in default under this Agreement, and the sole remedy of the other
party shall be to either (i) terminate this Agreement, in which event the
Xxxxxxx Money shall forthwith be returned to Purchaser and this Agreement,
without further action of the parties, shall become null and void such that
neither party shall have any further rights or obligations under this
Agreement other than obligations that expressly survive termination, or
(ii) elect to proceed to Closing, in which case such party shall be deemed
to have waived its rights with respect to any such breach of representation
or warranty. Notwithstanding anything to the contrary set forth in this
Agreement, Purchaser and Sellers are prohibited from making any claims
against the other party hereto after the Closing with respect to any
breaches of the other party's representations, warranties and covenants
contained in this Agreement that the claiming party has actual knowledge of
prior to the Closing.
10.7 This Section 10 shall survive Closing.
11. CLOSING.
11.1 CLOSING DATE. Provided that Purchaser properly submitted the
Approval Notice to Seller pursuant to Section 6.4, and the Conditions
Precedent have been satisfied or waived, the date of the Closing of this
Agreement shall be September 14, 2004 or such other date as mutually agreed
by Purchaser and Xxxxxx (on behalf of all of the Sellers) (the "Closing
Date").
11.2 PLACE OF CLOSING. The closing of this Agreement ("Closing")
shall take place through a closing escrow established through Chicago Title
Insurance Company in Dallas, Texas commencing at 10:00 a.m., Dallas, Texas
time, on the Closing Date. To the extent required by any of the parties,
escrow instructions shall be presented to Escrow Agent with respect to
Closing funds.
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11.3 CONTINGENT CLOSING. In the event of the occurrence of an
uncured default under either or both of The Tradition at Canterfield
Agreement or the Xxxxxxxx Crossing Agreement, or if either or both of such
agreements fail to close for any reason, then Xxxxxx (acting on behalf of
all of the Sellers) shall have the right to either proceed to Closing under
this Agreement pursuant to the provisions hereof, or to terminate this
Agreement. If Xxxxxx decides to exercise its right to terminate this
Agreement pursuant to this Section 11.3, then it shall provide written
notice of such termination to Purchaser no later than the later of (a)
seven (7) days after Xxxxxx'x receipt of notification of the failure to
close of The Tradition at Canterfield Agreement or the Xxxxxxxx Crossing
Agreement, or (b) the Closing Date of this Agreement. In the event of the
occurrence of an uncured default by any Seller (or any "Seller" as defined
in The Tradition at Canterfield Agreement or the Xxxxxxxx Crossing
Agreement) under either or both of The Tradition at Canterfield Agreement
or the Xxxxxxxx Crossing Agreement, then Purchaser shall have the right to
either proceed to Closing under this Agreement pursuant to the provisions
hereof, or to terminate this Agreement. If Purchaser decides to exercise
its right to terminate this Agreement pursuant to this Section 11.3, then
it shall provide written notice of such termination to Sellers no later
than the later of (a) seven (7) days after Xxxxxx'x receipt of notification
of the failure to close The Tradition at Canterfield Agreement or the
Xxxxxxxx Crossing Agreement, or (b) the Closing Date of this Agreement.
12. CLOSING DOCUMENTS.
12.1 At the Closing, Sellers shall execute and acknowledge, where
applicable, and deliver to Purchaser and/or its counsel at Closing and/or
on-site, as applicable, the following:
12.1.1 An assignment of Partnership Interests conveying
title to its respective Partnership Interests to the respective Purchaser
in the form set forth on EXHIBIT N ("Assignment of Partnership Interests").
12.1.2 The following certificates:
12.1.2.1 Certificate of Limited Partnership or
Articles of Organization for the Owner, Limited Partner 1, Limited Partner
2, Limited Partner 5 and Limited Partner 6 from the Florida Secretary of
State ("FSOS").
12.1.2.2 Certificate of Good Standing and Existence
for the Owner from FSOS and the Secretary of State of Illinois.
12.1.2.3 Certified copy of Articles of Incorporation
for Xxxxxx from the Michigan Secretary of State and a Qualification
Certificate for Xxxxxx from FSOS.
12.1.2.4 Certificate of Good Standing and Existence
for Xxxxxx from the Michigan Secretary of State.
12.1.2.5 Incumbency Certificate and Resolution
authorizing this transaction from Xxxxxx.
12.1.3 An electronic version of Owner's general ledger,
and all warranties and guarantees at no cost to Sellers, all lease files,
"dead" files, guest cards, credit reports, and Assumed Service Contracts
(excepting Sellers' property operations manual) related to the ownership,
operation and leasing of the Property (or copies if originals not
available) of which Sellers have knowledge and which are on site or in
Sellers' possession; provided, however, that Sellers and the Owner reserve
all rights with respect to privileged information. In addition, Sellers
shall provide Purchaser with access to all of Owner's financial books and
records, bills and invoices. Within sixty (60) days after closing, (a)
Sellers shall prepare an inventory (the "Inventory") of all Owner's
financial books and records, bills and invoices of which Seller's have
knowledge and which are on-site or in Sellers' possession and (2) Sellers
shall deliver to Purchaser the Inventory and all financial books and
records, bills, and invoices listed in the Inventory. Prior to delivery of
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the financial books and records, bills, and invoices to Purchaser, Seller
shall not make any changes or alter such documents other than to make
adjustments in the normal course of business and as necessary to close
Sellers' books and records.
12.1.4 Originals or copies of all building permits,
licenses, and franchises relating to the Property on site or in Sellers'
possession.
12.1.5 All original certificates of occupancy for the
Property.
12.1.6 Bringdown Certificate in the form of EXHIBIT K,
subject to waiver of any breaches of representations and warranties in
accordance with Section 10.6.
12.1.7 Termination of any and all existing Sellers or
Partnership property management or property development agreement(s)
related to the Property using forms substantially in the form of EXHIBIT O
and EXHIBIT S attached hereto.
12.1.8 Possession of the Property, subject to the
Permitted Exceptions, rights of existing tenants under the Leases and the
Assumed Service Contracts.
12.1.9 An updated Rent Roll in the same form as attached
hereto as EXHIBIT C (including a listing of all delinquent and prepaid
rents) and an updated tenant ledger for each tenant, all certified by
Sellers as being true, accurate and complete in all material respects as of
the date thereof, and all dated no earlier than ten (10) days prior to the
Closing Date.
12.1.10 The affidavits, certificates or other documents
required by the Title Company in order to cause it to issue the
endorsements to the Owner Policy required by Purchaser pursuant to the
Title Commitment, including a standard (according to the Title Company)
non-imputation affidavit.
12.1.11 Copies or originals of all of the Leases, and
Assumed Service Contracts, the Development Agreements, the Plans and
Specifications, all keys for the Property, with identification of the lock
to which each such key relates, and all alarm codes for the Improvements in
the Owner's or Sellers' possession.
12.1.12 Affidavit from each Seller, stating, under penalty
of perjury, the Sellers' U.S. taxpayer identification number and that the
Seller is not a foreign person within the meaning of Section 1445 of the
Internal Revenue Code, in the form attached hereto as EXHIBIT P ("FIRPTA
Certificates").
12.1.13 A payoff letter addressed to the Owner and Title
Company, reasonably satisfactory to Title Company from Lender of the Loan,
including a commitment by the Lender upon receipt of the payment therein
set forth, to deliver to the Owner in care of Escrow Agent the promissory
note evidencing the Loan marked paid; Satisfaction of Mortgage, Assignment
of Leases and Rents and Security Agreement; Release of Assignment of Leases
and Rents; and Termination of UCC-1 Financing Statement. Escrow Agent
shall deliver a copy of the cancelled promissory note, Satisfaction of
Mortgage, Assignment of Leases and Rents and Security Agreement, Release of
Assignment of Leases and Rents, and Termination of UCC-1 Financing
Statement to Purchaser and Purchaser's counsel upon receipt of the same.
12.1.14 Certificate of Insurance or other reasonable
evidence showing that the Owner's insurance policies (liability and
property) have been in full force and effect through the date of the
Closing.
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12.1.15 Paid Xxxx Certificate in the form attached hereto
as EXHIBIT J.
12.1.16 State of Illinois, County of Will, and City of
Naperville Transfer Declaration documents, if any.
12.2 At the Closing, Purchaser shall execute and acknowledge, as
applicable, and deliver to Sellers the following:
12.2.1 by wire transfer or other immediately available
federal funds, the Purchase Price, subject to applicable prorations and
credits.
12.2.2 Assignment of Partnership Interests.
12.2.3 State of Illinois, County of Will, and City of
Naperville Transfer Declaration documents, if any.
12.3 Upon Closing, the Owner shall automatically and without further
act or agreement, be released and relieved of any further liability or
obligation under this Agreement other than as may be necessary to complete
acts that survive after Closing. Such release shall not affect the
continuing obligations of Sellers and Purchaser under this Agreement or the
obligations of the Owner under the Assignment of Partnership Interests, all
of which shall survive as and to the extent provided herein or therein.
12.4 At the Closing, Sellers and Purchaser shall jointly execute and
deliver a closing statement substantially in the form of EXHIBIT F (the
"Closing Statement"). Sellers and Purchaser shall use commercially
reasonable efforts to provide all information needed by Escrow Agent to
prepare the Closing Statement at least three (3) business days prior to the
Closing Date.
12.5 Xxxxxx, and not the Limited Partners, shall protect, indemnify,
defend and hold harmless Purchaser and Owner from and against any and all
claims, demands, liabilities, costs, expenses, penalties, damages, losses,
fines, charges, obligations, debts, contracts, administrative or judicial
proceedings and orders, judgments, remedial action requirements,
enforcement actions of any kind, and all costs and expenses incurred in
connection therewith, including, without limitation, reasonable attorneys'
fees, paraprofessional fees, court costs and expenses, and other
commitments of any kind or nature whatsoever, asserted against, incurred or
suffered by Purchaser or Owner resulting or arising out of any obligation
or activity under the Development Agreements which obligation or activity
was required in the Development Agreements to be performed on or prior to
the date of Closing (the "Development Indemnity"). From and after Closing,
Xxxxxx shall diligently seek to obtain at Xxxxxx'x sole expense releases of
the Development Agreements, to the extent performance was required to be
completed on or prior to the date of Closing, which releases shall be
recorded, if required, in the Public Records of Will County, Illinois or
provide Purchaser with estoppel letters addressed to Owner from the City of
Naperville confirming that all terms and conditions of the Development
Agreements required to be performed on or before the Closing Date have been
fulfilled, complied with, and completely satisfied. Once the foregoing
condition is satisfied, the Development Indemnity shall be of no further
force or effect. This provision shall survive Closing.
12.6 Xxxxxx, and not the Limited Partners, shall protect, indemnify,
defend and hold harmless Purchaser and Owner from and against any and all
claims, demands, liabilities, costs, expenses, penalties, damages, losses,
fines, charges, obligations, debts, contracts, administrative or judicial
proceedings and orders, judgments, remedial action requirements,
enforcement actions of any kind, and all costs and expenses incurred in
connection therewith, including, without limitation, reasonable attorneys'
fees, paraprofessional fees, court costs and expenses, and other
commitments of any kind or nature whatsoever, asserted against, incurred or
20
suffered by Purchaser or Owner resulting or arising out of any City of
Naperville permits (the "Permit Indemnity"). From and after Closing,
Xxxxxx shall diligently seek to close these open permits and do all things
necessary to close the open permits at Xxxxxx'x sole expense. Xxxxxx shall
provide written evidence to Purchaser that the foregoing open permits have
been closed and any conditions relating thereto have been satisfied in
their entirety. Once the foregoing condition is satisfied, the Permit
Indemnity shall be of no further force or effect. This provision shall
survive Closing.
13. CLOSING ADJUSTMENTS. Prior to Closing, Sellers shall provide to
Purchaser such information and verification reasonably necessary to support
the prorations and adjustments under this Section 13. Except as set forth
hereinafter, the following items shall be prorated between Sellers and
Purchaser based on the actual number of days in the applicable period, as
of the close of business immediately preceding the Closing Date in the
manner hereinafter set forth, the Closing Date being a day of income and
expense to Purchaser. If the cash to close from Purchaser is not received
prior to 12:00 p.m. Eastern Standard Time on the Closing Date, then the
prorations and adjustments under this Section 13 shall be reprorated to the
following day:
13.1 Purchaser shall receive a credit for any accrued but unpaid
real estate taxes applicable to any period before the Closing Date. If the
amount of any such taxes has not been determined as of the Closing, such
credit shall be based on the tax xxxx for 2003. Such taxes shall be
reprorated upon issuance of the final tax xxxx. Expenses and charges under
the Service Contracts and any other agreement(s) relating to the Property
shall be prorated between Sellers and Purchaser at the Closing with Sellers
paying any such expenses and or charges applicable to its period of
ownership.
13.2 All collected rent and all other income (and any applicable
state or local tax on rent) under the Leases in effect on the Closing Date
shall be prorated. Uncollected rent and other uncollected income shall not
be prorated. Delinquent rents, if and when collected by Purchaser, shall
be paid to Seller to the extent of Seller's interest therein, and if not
collected within ninety (90) days after the Closing, the right to collect
such unpaid rents will be assigned to Seller without recourse; provided,
however, that, in seeking to collect any such delinquent rent, Seller shall
not be entitled to terminate any Lease or otherwise seek any remedy other
than a money judgment against the delinquent tenant. For purposes of this
subsection, rents received after the Closing Date shall be applied as
follows: (a) first, on account of past due amounts owed to Purchaser; (b)
next, on account of current amounts owed to Purchaser; and (c) next, to
delinquent rent owed to Seller for months prior to the month in which such
rent is received, in inverse order of delinquency.
13.3 Sellers or Purchaser, as the case may be, shall receive a
credit for regular charges under the Service Contracts paid by Sellers or
Purchaser, as the case may be, and applicable to Sellers' or Purchaser's
period of ownership, respectively, other than deposits and payments not
attributable to periodic service.
13.4 Sellers shall cause the utility meters for utility services
payable by the Owner and not directly metered to tenants of the Property,
if any, to be read on the day on the Closing Date and to pay the bills
rendered on the basis of such readings or such amounts shall be credited to
Purchaser. If any such meter reading for any utility is not available,
then adjustment therefore shall be made on the basis of the most recently
issued bills therefore which are based on meter readings no earlier than
thirty (30) days before the Closing Date, and such adjustment shall be
reporated when the next utility bills are received. For all utilities that
are submetered to tenants, all payments received from tenants for such
utilities relating to time periods prior to Closing shall be promptly paid
to Sellers and the Owner shall retain all payments from tenants relating to
time periods from and after the Closing Date.
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13.5 On or before the Closing Date, Sellers shall pay in full all
leasing commissions, locator's fees and finder's fees due to leasing or
other agents for each Lease for which the tenant thereunder has moved into
the premises subject thereto on or before the Closing Date.
13.6 All refundable deposits, including but not limited to tenant
security deposits and pet security deposits (and interest thereon if
required by law or contract to be earned thereon) not previously applied to
the respective tenant's obligations under the Leases shall be credited to
Purchaser at the Closing. All non-cash tenant security deposits, if any,
shall be delivered to Purchaser at Closing.
13.7 Sellers shall receive a credit for the amount of deposits, if
any, with utility companies that are transferable at the Closing. Sellers
shall use good faith efforts (and Purchaser shall cooperate in all respects
in connection therewith) to effectuate any of the assignments described in
the immediately preceding sentence. In the event that any such utility
deposit exists in the form of a bond, Purchaser shall cause Owner to
replace such bond with a substitute bond or cash so as to enable Sellers to
receive the return of their bond at Closing.
13.8 Sellers and Purchaser represent and warrant each to the other
that they have not dealt with any real estate broker, sales person or
finder in connection with this transaction. Each of Sellers makes this
representation on its own behalf and not on behalf of any other Seller. In
the event of any claim for a broker's or a finder's fee or commission in
connection with the negotiation, execution or consummation of this
Agreement 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. The
representation and warranty of each of Sellers and Purchaser in this
Section 13.8 shall survive the Closing.
13.9 In the event that final bills are not available or cannot be
issued prior to the Closing for any item being prorated under Section 13 of
this Agreement, then Purchaser and Sellers agree to allocate such items on
a fair and equitable basis as soon as such bills are available, final
adjustment to be made as soon as reasonably possible after the Closing.
This Section 13.9 shall survive the Closing for three (3) months other than
with respect to Section 13.1 hereof which shall survive as necessary to
reprorate taxes upon the issuance of the final tax xxxx.
13.10 Other then those obligations of Sellers expressly assumed by
Purchaser hereunder, Sellers shall pay and discharge any and all monetary
liabilities of each and every kind arising out of or by virtue of the
conduct of Owner's business before the Closing Date on or related to the
Property and Xxxxxx will execute and deliver to Purchaser at Closing and
dated as of the date thereof a "Paid Xxxx Certificate" in the form attached
hereto as EXHIBIT J, certifying that no bills or obligations, specifically
including personal property taxes, are unpaid or outstanding, or so stating
otherwise, relating to the Property.
13.11 Intentionally Deleted.
13.12 Xxxxxx shall cause the Owner to terminate coverage for future
events under its existing insurance policies and obtain new insurance
policies from and after the Closing Date.
13.13 Pending (which for the purposes of this Agreement shall mean
substantially completed as of the Closing), certified, confirmed and
ratified municipal government improvement and special assessment liens due,
payable or outstanding on the Closing Date are to be paid by Sellers. Any
installments of pending or special assessment or other liens that are
payable in more than one installment that are due and payable before
Closing shall be paid by Sellers, and any installments of such liens that
become due and payable after Closing shall be paid by Purchaser.
Assessments imposed by private covenant shall be prorated between Sellers
and Purchaser at the Closing with Sellers paying any such expenses and/or
charges applicable to Sellers' period of ownership.
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13.14 All other items which are customarily prorated in transactions
similar to the transaction contemplated hereby, other than insurance
premiums, and which were not heretofore prorated in accordance with this
Section will be prorated as of the Closing Date.
13.15 The Owner shall pay all expenses necessary to repair (in the
normal course of business and other than capital repairs), operate and
maintain the Property incurred up to the Closing Date. Any such expenses
which are prepaid as of the Closing Date shall be credited to Sellers, and
Purchaser shall be responsible to pay such expenses incurred subsequent to
the Closing Date. Sellers may withdraw all cash deposits of the Owner on
or before the Closing Date.
13.16 The provisions of this Section 13 shall survive Closing.
14. TAX RETURNS AND ELECTIONS. The responsibility for the filing of the
Owner return for federal and state income tax or franchise tax (if any) for
calendar year 2003 and for the partial year ending on the Closing Date
shall be Sellers' responsibility. The Owner's Form 1065 U.S. Partnership
Return of Income for the return in connection with the partial year ending
on the Closing Date shall include an IRC section 754 election. In
addition, all items of income gain, expenses, loss and credit for such
period up to Closing shall be allocated to Sellers. Further, should such
partial year's return or returns for prior years be audited, the
responsibility for dealing with, settling and paying any such tax liability
shall be Sellers' responsibility, and in such regard Xxxxxx shall hold
Purchaser and the Owner harmless from and against any and all loss, cost or
expense (including reasonable attorneys' fees, other professional fees and
court costs) as a result of any liability arising as a result of such
audits or in respect to federal or state tax liability for the period of
time prior to the Closing Date. Should Purchaser or the Owner be included
in such audits, Sellers shall furnish Purchaser or the Owner with all
necessary information to permit Purchaser or the Owner to respond to the
appropriate authorities in a timely and responsive manner. The
responsibility for filing the Owner return for federal and state income or
franchise tax (if any) for the partial year commencing on the day after the
Closing Date shall be Purchaser's responsibility. All items of income,
gain, expenses, loss and credit for such period shall be allocated to the
Purchaser. Further, should such partial year's return be audited, the
responsibility for dealing with, settling and paying any such tax liability
shall be Purchaser's responsibility, and in such regard Purchaser and the
Owner shall hold Sellers harmless from and against any and all loss, cost
or expense (including reasonable attorneys' fees, other professional fees
and court costs) as a result of any liability arising as a result of such
audits or in respect to federal or state income tax liability for such
period of time from and after the day after the Closing Date. Should
Sellers be included in such audits, Purchaser shall furnish Sellers with
all necessary information to permit Sellers to respond to the appropriate
authorities in a timely and responsive manner. Notwithstanding anything to
the contrary herein, each of the parties and the Owner will cooperate with
each other and provide the other access to the books and records of the
Owner, to the extent under its control, at reasonable times and places for
purposes of preparing any governmental report of filing in a timely and
correct manner including, without limitation, information to establish a
so-called "stepped up basis" in the Owner's property. In addition, each of
the parties agrees to maintain the books and records of the Owner under its
control at the time of Closing and listed in the Inventory for a period of
seven (7) years. This provision shall survive Closing.
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15. SELLERS' REPRESENTATIONS, WARRANTIES AND COVENANTS.
15.1 Each of the Sellers is making certain representations,
warranties and covenants to Purchaser. As indicated below, each of the
Sellers represents and warrants only to the extent provided that some or
all of the following statements are materially true and correct as of the
Effective Date except to the extent any such representation, warranty and
covenant expressly provides that it will be materially true and correct as
of another date, in which case such representation, warranty and covenant
will be materially true and correct as of the date expressly provided.
Upon Closing, Sellers shall deliver to Purchaser a certificate in the form
of EXHIBIT K hereto (the "Bringdown Certificate") confirming that the
representations, warranties and covenants made by each Seller under this
Section remain true and correct in all material respects except for changes
in the Leases and Service Contracts occurring prior to the Closing Date
which are specifically permitted by this Agreement and are disclosed in
updated schedules or exhibits attached to the Bringdown Certificate or
changes that are otherwise accepted or waived by Purchaser in writing.
15.1.1 Xxxxxx represents and warrants that the Owner's
principal place of business is in Boca Raton, Florida.
15.1.2 Each Seller for himself or itself and not as to any
other Seller represents and warrants that such Seller is not a foreign
person or foreign corporation under Section 1445 of the Internal Revenue
Code.
15.1.3 Xxxxxx represents and warrants and will defend
Owner's title to the Land from and against the lawful claims of all persons
claiming by through or under Owner subject to the Permitted Exceptions.
15.1.4 Xxxxxx represents and warrants that the Owner owns
no assets other than the Property.
15.1.5 Xxxxxx represents and warrants that the Owner has
not entered into any agreement to lease (other than the Leases), sell,
encumber (other than the Loan and the Permitted Exceptions) or dispose of
its interest in the Property or any part thereof other than in the ordinary
course of business.
15.1.6 Each Seller, for himself or itself and not as to
any other Seller or any other Sellers' interest, represents that at Closing
its Partnership Interests shall be transferred free and clear of any and
all liens, security, interest, pledges, claims, collateral assignments and
hypothecations whatsoever including those arising under applicable federal
and state securities laws due solely to participation in the ownership of
Owner by its constituent members.
15.1.7 Xxxxxx represents and warrants that to its
knowledge no written commitments have been made to any governmental
authority, utility company, school board, church or other religious body or
any homeowners association, or to any other organization, group or
individual, relating to the Property which would impose an obligation upon
Purchaser or its successors or assigns to make any contribution or
dedications of money or land or to construct, install or maintain any
improvements of a public or private nature on or off the Property other
than as set forth in the Permitted Exceptions.
15.1.8 Xxxxxx represents and warrants to its knowledge
that no material default exists under any one or more of the Permitted
Exceptions, Service Contracts or the Development Agreements.
15.1.9 Xxxxxx represents and warrants that to its
knowledge no written notice has been received by Xxxxxx or the Owner from
any insurer with respect to any existing defects or inadequacies of all or
any part of the Property or the use or operation thereof, subject to
matters that may arise under Section 9.4 after the Effective Date.
24
15.1.10 Each Seller represents and warrants for himself or
itself and not as to any other Seller or any other Sellers' interest that
there is no lawsuit, action, proceeding or investigation pending or, to
each Sellers' knowledge, threatened against or in any way relating to its
Partnership Interests before any court or governmental department,
commission, board, agency or instrumentality.
15.1.11 Xxxxxx represents and warrants that there is no
lawsuit, action or proceeding pending or, to Xxxxxx'x knowledge, (i)
investigation pending against the Owner or the Property, or any part
thereof, before any court or governmental department, commission, board,
agency or instrumentality or (ii) lawsuit threatened against the Property
or the Owner, other than personal injury claims that are covered by Owner's
liability insurance policies.
15.1.12 Xxxxxx represents and warrants that neither Xxxxxx
nor the Owner has received written notice from any governmental authority
and has no knowledge of any violation of any zoning, building, fire health
code or any other code, statute, ordinance, rule or regulation applicable
(or alleged to be applicable) to the Property, or any part thereof that
will not have been corrected prior to Closing at no expense to Purchaser
including, without limitation, the Americans with Disabilities Act, but
Owner and Purchaser are aware of possible violations of accessibility
requirements of the Fair Housing Act.
15.1.13 Xxxxxx represents and warrants that Xxxxxx has
delivered to Purchaser true, correct, and complete copies of the Service
Contracts, the Development Agreements, and the Limited Partnership
Agreement of the Owner.
15.1.14 Xxxxxx represents and warrants that the Service
Contracts and the Development Agreements comprise every written contract,
agreement, and commitment written to which the Owner is a party, or by
which the Owner is bound, or affecting the Property or, as of Closing, the
Partnership Interests, excepting (i) Leases and (ii) Permitted Exceptions.
15.1.15 Xxxxxx represents and warrants that Xxxxxx is a
duly organized Michigan corporation, validly existing and qualified and
empowered to conduct its business and has full power and authority to enter
into and fully perform and comply with the terms of this Agreement.
Neither the execution and delivery of this Agreement, nor its performance
by such Seller will conflict with or result in the breach of any contract,
agreement, law, rule or regulation to which such Seller is a party or by
which such Seller is bound. This Agreement is valid and enforceable
against such Seller in accordance with its terms. Each instrument to be
executed by such Seller and the Owner pursuant to this Agreement or in
connection herewith prior to the Closing will, when executed and delivered,
be valid and enforceable against such Seller or the Owner, as applicable,
in accordance with its terms.
15.1.16 Limited Partner 1 represents and warrants that
Limited Partner 1 is a duly organized Florida limited partnership, validly
existing and qualified and empowered to conduct its business has full power
and authority to enter into and fully perform and comply with the terms of
this Agreement. Neither the execution and delivery of this Agreement, nor
its performance by such Seller will conflict with or result in the breach
of any contract, agreement, law, rule or regulation to which such Seller is
a party or by which such Seller is bound. This Agreement is valid and
enforceable against such Seller in accordance with its terms. Each
instrument to be executed by such Seller pursuant to this Agreement or in
connection herewith prior to the Closing will, when executed and delivered,
be valid and enforceable against such Seller in accordance with its terms.
25
15.1.17 Limited Partner 2 represents and warrants that
Limited Partner 2 is a duly organized Florida limited liability company,
validly existing and qualified and empowered to conduct its business and
has full power and authority to enter into and fully perform and comply
with the terms of this Agreement. Neither the execution and delivery of
this Agreement, nor its performance by such Seller will conflict with or
result in the breach of any contract, agreement, law, rule or regulation to
which such Seller is a party or by which such Seller is bound. This
Agreement is valid and enforceable against such Seller in accordance with
its terms. Each instrument to be executed by such Seller pursuant to this
Agreement or in connection herewith prior to the Closing will, when
executed and delivered, be valid and enforceable against such Seller in
accordance with its terms.
15.1.18 Limited Partner 3 represents and warrants that
Limited Partner 3 is a duly created Florida trust and has full power and
authority to enter into and fully perform and comply with the terms of this
Agreement. Neither the execution and delivery of this Agreement, nor its
performance by such Seller will conflict with or result in the breach of
any contract, agreement, law, rule or regulation to which such Seller is a
party or by which such Seller is bound. This Agreement is valid and
enforceable against such Seller in accordance with its terms. Each
instrument to be executed by such Seller pursuant to this Agreement or in
connection herewith prior to the Closing will, when executed and delivered,
be valid and enforceable against such Seller in accordance with its terms.
15.1.19 Limited Partner 4 represents and warrants that
Limited Partner 4 is an individual and has full power and authority to
enter into and fully perform and comply with the terms of this Agreement.
Neither the execution and delivery of this Agreement, nor its performance
by such Seller will conflict with or result in the breach of any contract,
agreement, law, rule or regulation to which such Seller is a party or by
which such Seller is bound. This Agreement is valid and enforceable
against such Seller in accordance with its terms. Each instrument to be
executed by such Seller pursuant to this Agreement or in connection
herewith prior to the Closing will, when executed and delivered, be valid
and enforceable against such Seller in accordance with its terms.
15.1.20 Limited Partner 5 represents and warrants that
Limited Partner 5 is a duly organized Florida limited partnership, validly
existing and qualified and empowered to conduct its business and has full
power and authority to enter into and fully perform and comply with the
terms of this Agreement. Neither the execution and delivery of this
Agreement, nor its performance by such Seller will conflict with or result
in the breach of any contract, agreement, law, rule or regulation to which
such Seller is a party or by which such Seller is bound. This Agreement is
valid and enforceable against such Seller in accordance with its terms.
Each instrument to be executed by such Seller pursuant to this Agreement or
in connection herewith prior to the Closing will, when executed and
delivered, be valid and enforceable against such Seller in accordance with
its terms.
15.1.21 Limited Partner 6 represents and warrants that
Limited Partner 6 is a duly organized Florida limited partnership, validly
existing and qualified and empowered to conduct its business and has full
power and authority to enter into and fully perform and comply with the
terms of this Agreement. Neither the execution and delivery of this
Agreement, nor its performance by such Seller will conflict with or result
in the breach of any contract, agreement, law, rule or regulation to which
such Seller is a party or by which such Seller is bound. This Agreement is
valid and enforceable against such Seller in accordance with its terms.
Each instrument to be executed by such Seller pursuant to this Agreement or
in connection herewith prior to the Closing will, when executed and
delivered, be valid and enforceable against such Seller in accordance with
its terms.
26
15.1.22 Xxxxxx represents and warrants that it and the
Owner have not received any notice of any existing, proposed or
contemplated plan to widen, modify or realign any street or highway or any
existing, proposed or contemplated eminent domain proceeding that would
materially affect the Land and Improvements.
15.1.23 Xxxxxx represents and warrants that EXHIBIT C (the
"Rent Roll") describes all existing Leases as of the date thereof, true,
correct and complete copies of which have been made available to Purchaser
for review and copying at the Land. Xxxxxx further represents that there
are no oral Leases. Xxxxxx represents that no amounts shown as security
deposits on the Rent Roll have been applied to past due rent obligations of
any of the tenants.
15.1.24 Xxxxxx represents that Purchaser has been given
access to all tenant files and that all such files are located on-site at
the Property.
15.1.25 Xxxxxx represents and warrants that the Owner and
Xxxxxx have not received any advance payment of rent (other than for the
current month) on account of any of the Leases except as set forth in the
Rent Roll or in such tenant's lease file on-site on the Property. Xxxxxx
represents and warrants that there are no written or oral leases or
tenancies affecting the Property other than those listed in the Rent Roll.
Xxxxxx represents and warrants that all of the Leases are assignable by the
Owner at Closing without the consent of any other party.
15.1.26 To the best of Xxxxxx'x knowledge, based solely on
Sellers' Environmental Reports (a) Owner has not released, generated,
produced, stored, treated, processed, transferred or disposed of any
Hazardous Materials on the Land, (b) the Land does not contain Hazardous
Materials in quantities that would trigger any notice, cleanup, or other
obligation or liability under Environmental Laws, and (c) Owner has not
received any notices from any governmental authorities having jurisdiction
over the Land that the Land is in violation of any Environmental Laws. The
term "Hazardous Materials" means any substance, material, waste, pollutant
or contaminant listed or defined as hazardous or toxic under any
Environmental Law, and petroleum, including crude oil or any fraction
thereof, natural gas, natural gas liquids, liquefied natural gas or
synthetic gas usable for fuel (or mixtures of natural gas or such synthetic
gas) and asbestos. The term "Environmental Laws" includes, without
limitation, the Resource Conservation and Recovery Act and the
Comprehensive Environmental Response Compensation and Liability Act and
other federal laws governing the environment as in effect on the Effective
Date, together with their implementing regulations, guidelines, rules or
orders, and all state, regional, county, municipal and other local laws,
regulations, ordinances, rules or orders that are equivalent or similar to
the federal laws recited above or that purport to regulate Hazardous
Materials.
15.1.27 Xxxxxx represents and warrants that the Owner is a
duly organized and validly existing Florida limited partnership and is in
good standing under the laws of the State of Florida, authorized to do
business in Illinois and in good standing under the laws of the State of
Illinois.
15.1.28 Xxxxxx represents and warrants that the only
business that the Owner is carrying on is the ownership, development,
operation, and management of the Property. Xxxxxx represents and warrants
that the Owner has full power and authority to own the Property.
15.1.29 Xxxxxx represents and warrants that Xxxxxx owns a
1% general partnership interest in the Owner and that its general
partnership interest plus the limited partnership interest of the Limited
Partners represents 100% of the Partnership Interests in the Owner and no
person or entity other than Purchaser has any option or right to acquire
any interest in the Partnership. Xxxxxx represents and warrants that
Xxxxxx has full power and authority to own its general partnership interest
in the Owner.
27
15.1.30 Xxxxxx represents and warrants that the Limited
Partners, collectively, own a 99% limited partnership interest in the
Owner. Each Limited Partner represents and warrants for himself or itself
and not as to any other Seller or any other Sellers' interest that it or he
has full power and authority to own its respective limited partnership
interest in the Owner.
15.1.31 Xxxxxx represents and warrants that the Owner has
filed or caused to be filed or will file or cause to be filed all federal,
state, county and local income, excise, property and other tax returns
which are due and/or required to be filed by Partnership or shall have
obtained extensions for such filings prior to Closing and have paid or will
pay all taxes, if any, determined by such returns. To the extent
Partnership obtains or has obtained an extension for any such filing,
Xxxxxx represents that such filing will be made and taxes paid within all
applicable time deadlines.
15.1.32 Xxxxxx represents and warrants that the Owner has
furnished Purchaser with copies of the Owner's previously filed tax
return(s) for calendar year 2003, unaudited financial statements of the
Owner, from January 1, 2004 through June 30, 2004 and an audited financial
statement for the period ending December 31, 2003. Such financial
statements (including any related schedules, exhibits, and notes) were
compiled from Partnership records using Generally Accepted Accounting
Principles ("GAAP"), except that the financial statements do not include
any footnotes required under GAAP. Xxxxxx represents and warrants that the
financial statements (subject to normal year-end audit adjustments) fairly
present the financial condition and the results of operations of the Owner
as of, and for the fiscal year (or portion thereof) ended on, the date or
dates thereof (subject to normal year-end audit adjustments). Xxxxxx
represents and warrants that there are no material liabilities, direct or
indirect, fixed or contingent, of the Owner as of the Effective Date or the
Closing Date of a type required by GAAP to be reflected in the financial
statements or in the notes thereto that are not reflected therein.
15.1.33 Xxxxxx represents and warrants that Xxxxxx and/or
the Owner have not received any notice that any part of the real estate has
been designated as wetlands or inhabited by any endangered species by any
governmental agency having jurisdiction.
15.1.34 Xxxxxx represents and warrants that Xxxxxx and/or
the Owner have not received any notice that any annexation of the Property
into any city or town is currently in process and to Xxxxxx'x knowledge, no
such effort is contemplated.
15.1.35 Xxxxxx represents and warrants that neither the
Owner nor Xxxxxx is in default in respect of any of their respective known
obligations or known liabilities pertaining to the Property or any part
thereof in any material respect.
15.1.36 To its knowledge, Xxxxxx represents and warrants
that there are no pending or threatened condemnation or similar proceedings
affecting the Land.
15.1.37 Xxxxxx represents and warrants that there are no
real estate tax appeals in effect respecting the Property. Xxxxxx
represents and warrants that the Owner has paid or will pay all personal
property taxes due and payable on all tangible personal property located on
the Property which has been assessed for tangible personal property taxes
through the date of Closing.
15.1.38 Xxxxxx represents and warrants that all stove
hoods, refrigerators, ovens, garbage disposals, dishwashers, carpeting,
microwaves, washers and dryers and HVAC units, if any, in each Unit are or
shall be owned by the Owner at Closing free and clear of all liens and
encumbrances.
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15.1.39 Xxxxxx represents and warrants that the Owner has
no employees.
15.1.40 To its knowledge, Xxxxxx represents and warrants
that a complete copy of the Plans and Specifications have been delivered to
Purchaser.
15.1.41 Xxxxxx represents that a true, correct and complete
copy of the Owner's limited partnership agreement is attached as EXHIBIT M
(the "Partnership Agreement").
15.1.42 To the best of Xxxxxx'x knowledge, Owner has all
licenses, permits and certificates of a material nature which are necessary
for the current use and operation of the Property as a residential
apartment community. Xxxxxx has not received any notice that the Land or
its use violates any governmental law, regulation, ordinance or order or
any covenants or restrictions encumbering the Land that will not have been
cured prior to the Closing.
15.1.43 Xxxxxx represents and warrants that the following
financing statements apply to furniture, equipment, personal property and
other interests which are not part of the Property and do not apply to the
Property, other than as may exist in connection with the Service Contracts
as disclosed on EXHIBIT G: None.
15.1.44 Each of the Sellers represents as to itself, and
only as to itself, that to the best of its knowledge, Seller is in
compliance in all material respects with all applicable provisions of (i)
the Patriot Act, as defined herein, (ii) Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001, and relating to Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism and (iii) any other legal requirements
relating to money laundering or terrorism. "Patriot Act" means the Uniting
and Strengthening American by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the
regulations promulgated, as amended.
15.1.45 Each of the Sellers represents as to itself, and
only as to itself, that it is not an "employee benefit plan" as defined in
ERISA, whether or not subject to the Employee Retirement Income Security
Act of 1974, as amended ("ERISA"), or a "plan" as defined in Section 4975
of the Internal Revenue Code of 1986, as amended (the "Code"); and none of
Seller's assets constitute or will constitute (or are or will be deemed,
for purposes of ERISA or Section 4975 of the Code or, if applicable, any
substantially similar federal, state, local or foreign law, to constitute)
assets of any such "employee benefit plan" or "plan". Sellers'
representations made pursuant to this Section 15.1.44 shall survive the
Closing.
15.1.46 For purposes of this Section 15.1 and this
Agreement, the phrases "to the best of Xxxxxx'x knowledge", "to the best of
Sellers' knowledge", or reference to the knowledge of Xxxxxx or Sellers
shall mean the current, actual, conscious knowledge only, and not any
implied, imputed or constructive knowledge, of Xxxx X. Xxxxxx, Chairman of
Xxxxxx Development Corporation, a Michigan corporation, the general partner
of Owner ("Xxxxxx"), Xxxxxxx X. Xxxxxxx, President of Xxxxxx and Xxxxx
Xxxxxx, Regional Vice President of Xxxxxx Management (the "Sellers'
Knowledge Party") and each Seller hereby warrants and represents that
Sellers' Knowledge Party are the people most likely to receive such
notices, complaints or other proof of such violation(s). The
representations and warranties contained in this Agreement shall survive
the Closing for nine (9) months, except for any of the representations and
warranties set forth in this Agreement which are also made by any Seller
pursuant to the Assignment of Partnership Interests. No claim shall be
made upon a breach of the representations and warranties contained in this
Agreement unless notice thereof has been given to Sellers within such nine
(9) month period. The representations and warranties contained herein
shall run in favor of, and benefit, Purchaser and the Owner and its
successors and assigns permitted hereby.
29
15.2 As and when indicated below, Xxxxxx (or, if so indicated, one
or more of the Limited Partners) covenants and agrees with Purchaser and
the Owner that:
15.2.1 After the Effective Date and through the Closing
Date, Xxxxxx shall cause the Owner to conduct its business involving the
Property as follows, and during such period will (except as specifically
provided to the contrary herein or except as approved by Purchaser, which
approval will not be unreasonably withheld, delayed or conditioned):
15.2.1.1 Refrain from transferring any of the Personal
Property other than in the ordinary course of business or creating on the
Personal Property any liens, chattel mortgages, encumbrances or other
interests, which covenant shall survive for ninety (90) days after Closing.
15.2.1.2 Except as specified in this Agreement, Xxxxxx
and the Owner shall not terminate, modify, extend, amend or renew any
contract relating to the Property; however, this restriction shall not
apply to the Owner's ability and the Owner shall have the right to enter
into Leases in the ordinary course of business or Service Contracts which
may be cancelled with thirty (30) days' notice, at no cost, liability or
expense to Owner.
15.2.1.3 Refrain from modifying, amending or
terminating the Owner's Partnership Agreement.
15.2.1.4 Refrain from entering into any Lease or other
agreement with tenants of the Property, other than the form lease attached
hereto as EXHIBIT L, which requires the tenant thereunder to pay any rent
or other compensation after Closing to the Owner which is not provided in
the form lease attached hereto as EXHIBIT L or other tenant Lease so that
the only compensation or cash flow payable to Owner is payable under the
form of lease attached hereto as EXHIBIT L or other tenant Lease entered
into by Owner.
15.2.2 Sellers shall refrain from offering the Partnership
Interests for sale or marketing the same other than as contemplated by this
Agreement.
15.2.3 Xxxxxx shall cause the Owner to have cancelled or
assumed by another entity as of the Closing Date all Service Contracts at
the cost of the Owner, other than the Assumed Service Contracts. After the
Effective Date, the Owner will not enter into any new contract other than
Leases that is not cancelable, without penalty or premium, upon thirty (30)
days' notice, without the prior written consent of Purchaser, which shall
not be unreasonably withheld, conditioned or delayed. Purchaser shall
issue its approval or denial, with explicit reasons if denied, within ten
(10) days of request from the Owner. If Purchaser has not timely issued
its response, the proposed service contract shall be deemed approved.
15.2.4 Xxxxxx agrees and covenants to, as agreed to by
Sellers, distribute or cause to be distributed all of the net proceeds of
sale of its Partnership Interest to the respective Sellers' constituent
entities in accordance with their rights to the proceeds thereof and
Sellers jointly and severally agree to indemnify and hold Purchaser
harmless from and against any and all losses, damages, costs, and expenses,
including attorneys' fees and disbursements, incurred by them, or any of
them, for claims made based upon the failure to so distribute the net
proceeds of sale of the Partnership Interests to those entities and persons
entitled thereto. The provisions of this Section 15.2.4 shall survive
Closing for nine (9) months.
15.2.5 As of the Closing, Xxxxxx and the Limited Partners
will automatically and without further act or agreement each waive any
claims it or he has or may have against the Owner arising on or before the
Closing Date.
30
15.2.6 Purchaser is acquiring all of the Partnership Interests
in lieu of acquiring the assets of the Owner. The parties to this
Agreement hereby agree that neither the Owner nor Purchaser shall be
responsible for any liabilities, obligations or undertakings of the Owner
which arise prior to the Closing Date, other than: (a) the continuing
contractual obligations of the Owner which accrue subsequent to the Closing
Date pursuant to the Assumed Service Contracts, tenant Leases, and
Permitted Exceptions and (b) any liabilities arising out of the physical
condition of the Property (other than liabilities to third parties as a
result of the physical condition of the Property and Improvements required
in connection therewith arising prior to the Closing Date). Therefore, as
of the Closing Date, Xxxxxx, and not the Limited Partners, agrees to and
does hereby indemnify and hold harmless Purchaser and Owner from and
against any losses, costs, claims, liabilities, damages and expenses
(including, without limitation, interest, penalties and reasonable
attorneys' fees, court costs, paraprofessional fees and disbursements at
trial and upon appeal) which the Owner or Purchaser (or its permitted
assignees) may suffer, incur or be obligated to perform as a result of an
event, liability, obligation, debt, contract or other commitment of any
kind or nature whatsoever which occurred or arose, or resulted from an
event which occurred, prior to the Closing Date other than continuing
obligations of the Owner which accrue subsequent to the Closing Date
pursuant to Assumed Service Contracts, tenant Leases and Permitted
Exceptions, including, without limitation, any claim, demand, lawsuit,
arbitration or other legal proceeding initiated by one or more of the
Sellers specifically relating to (a) with respect to this Agreement and the
Assignment of Partnership Interests, solely the act of the execution and
delivery of this Agreement and/or the Assignment of Partnership Interests
by Sellers or any one of them and (b) the actual transfer of the
Partnership Interests to Purchaser by Sellers or any one of them pursuant
to the Assignment of Partnership Interests. The foregoing indemnity shall
not apply with respect to any loss, liability, cost, damage or expense
incurred by Purchaser and arising from or related to the construction of
Improvements or the physical condition of the Property (other than
liabilities to third parties arising as a result of the physical condition
of the Property and Improvements required in connection therewith arising
prior to the Closing Date). In addition, in the event the Improvements are
converted to condominium form of ownership, the foregoing indemnity shall
not apply to any claim relating to the construction of Improvements brought
by a condominium association against Purchaser or Owner. However, the
indemnity shall apply with respect to any claim of a violation of the Fair
Housing Act by any claimant whose claim arise prior to the Closing Date.
The provisions of this Section (i) shall survive the Closing for three (3)
years from the Closing provided, however, the indemnities provided by this
Section shall remain in effect thereafter with respect to any litigation or
written threat of litigation within the three (3) year period and (ii)
shall be for the benefit of the Owner, and the Purchaser. Any successor in
interest whether by way of the sale of the Property or the sale of
partnership interests of Purchaser or interests of the Owner in a
transaction which results in the loss of a majority in interest and day to
day control of the Owner by Purchaser or any of its affiliated entities
shall not have the benefit of such indemnity. If a claim for indemnity is
made by Purchaser before the expiration of the time periods described
herein, then Purchaser may continue to pursue such claim notwithstanding
the fact that the indemnity would otherwise have expired pursuant to the
terms of this Section. The foregoing indemnity includes claims referenced
in Sections 15.1.11 and 15.2.4.
15.2.7 Xxxxxx shall promptly deliver to Purchaser a copy
of any tax xxxx, notice of amendment or notice of change in a tax rate
affecting the Property, any notice of violation from any governmental
authority, any notice of any taking affecting or relating to the Property
received by Xxxxxx or the Owner after the Effective Date. This provision
shall survive the Closing for a period of two (2) years.
15.2.8 Xxxxxx shall not materially alter the condition of
the Property or make any material ($25,000 or more) changes or alteration
to the improvements thereon without Purchaser's prior written consent (not
to be unreasonably withheld, delayed or conditioned).
31
15.2.9 Xxxxxx shall operate the Property only in the
ordinary course of business.
15.2.10 If Sellers are unable to deliver the last month's
financial statement required by Section 9.6 hereof as required thereby, the
last month's financial statement shall be provided no later than thirty
(30) days after Closing. This obligation shall survive Closing.
15.3 For a period from the Effective Date until nine (9) months from
the Closing Date, Purchaser represents and warrants to each of Sellers from
which it is purchasing a Partnership Interest that:
15.3.1 Purchaser is acquiring the Partnership Interests
for Purchaser's own account for Investment, and not with a view to, or for
resale in connection with, any distribution thereof within the meaning of
the Securities Act of 1933 (which Act, together with any amendments thereto
and rules and regulations thereunder and any similar federal statute in
force in the future is hereinafter called the "Act").
15.3.2 Purchaser understands that the Partnership
Interests have not been registered under the Act or any blue sky or other
state securities law or regulation in reliance, in part, upon the
representations, warranties, and covenants of Sellers contained herein.
Purchaser also understands that Purchaser cannot offer for sale, sell or
transfer the Partnership Interests except in compliance with the Act.
15.3.3 Each entity constituting Purchaser is a duly
organized and validly existing Delaware limited partnership or limited
liability company, as applicable, is in good standing under the laws of the
State of Delaware. Purchaser has full power and authority to own the
Partnership Interests. This Agreement has been duly authorized, executed,
and delivered by Purchaser and constitutes the valid and binding agreement
of Purchaser, enforceable in accordance with its terms.
15.3.4 There is no contract to which Purchaser is a party
or, to Purchaser's knowledge, binding on Purchaser which is in conflict
with this Agreement. To Purchaser's knowledge, there is no action or
proceeding pending against Purchaser which challenges or impairs
Purchaser's ability to execute or perform its obligations under this
Agreement.
15.3.5 Purchaser hereby agrees, from and after the Closing
Date, to use its commercially reasonable efforts to obtain from a third
party buyer of the Property from Owner or a third party buyer of the
Partnership Interests from Purchaser, an indemnity in favor of Owner and
Sellers from and against any and all losses, costs, claims, causes of
action, liabilities, damages and expenses (including, without limitation,
interest, penalties and reasonable attorneys' fees and disbursements and
costs associated with defending any action in the manner of Owner's
choosing) which Owner and Sellers may suffer, incur or be obligated to
perform as a result of such third party buyer converting the form of
ownership of the Land to a condominium form of ownership and subsequently
selling residential condominium units in connection therewith, whether or
not any of such losses, costs, claims, causes of action, liabilities,
damages and expenses are as a result of claims instituted by condominium
unit owners, contract vendees of condominium units, any condominium
association or any other party and whether or not such losses, costs,
claims, causes of action, liabilities, damages and expenses relate to the
construction of the Property or any other matter, nature or thing
whatsoever. Purchaser shall not be liable to Sellers if, after using
commercially reasonable efforts, Purchaser does not obtain an
indemnification under this Section.
32
15.3.6 Purchaser is not and will not be an "employee
benefit plan" as defined in ERISA, whether or not subject to the Employee
Retirement Income Security Act of 1974, as amended ("ERISA"), or a "plan"
as defined in Section 4975 of the Internal Revenue Code of 1986, as amended
(the "Code"); and none of its assets constitutes or will constitute (or are
or will be deemed, for purposes of ERISA or Section 4975 of the Code or, if
applicable, any substantially similar federal, state, local or foreign law,
to constitute) assets of any such "employee benefit plan" or "plan".
15.3.7 To the best of Purchaser's knowledge, Purchaser is
in compliance in all material respects with all applicable provisions of
(i) the Patriot Act, as defined herein, (ii) Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001, and relating to Blocking
Property and Prohibiting Transactions With Persons Who Commit, Threaten to
Commit, or Support Terrorism and (iii) any other legal requirements
relating to money laundering or terrorism. "Patriot Act" means the Uniting
and Strengthening American by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56 and the
regulations promulgated, as amended.
15.3.8 Purchaser represents and warrants that (a) it is a
sophisticated real estate investor with substantial experience in the
acquisition of real estate and the conduct of due diligence related to such
acquisition and (b) the due diligence and inspections permitted to take
place under the terms of this Agreement within the time limits provided for
herein are sufficient to provide Purchaser with all of the information
needed by Purchaser to make an informed decision regarding the acquisition
of the Partnership Interests. This representation and warranty shall
survive the Closing of this Agreement. Purchaser acknowledges that (i)
Sellers have made no representations, warranties, promises or commitments
with respect to the Partnership Interests or the Property, except as
specifically set forth in this Agreement and the closing documents
delivered pursuant hereto, (ii) Purchaser is not relying upon any
warranties, representations, promises, commitments or undertakings made or
alleged to have been made by or on behalf of Seller, or any real estate
broker or agent or employee of Seller, not specifically set forth herein or
in the closing documents delivered pursuant hereto, and (iii) Purchaser is
purchasing the Partnership Interests and the Property "AS-IS," except as
specifically set forth herein or in the closing documents delivered
pursuant hereto.
15.4 Purchaser agrees that promptly upon learning of a liability,
obligation, debt, contract, claim, proceeding or other event ("Event")
which may result in the Purchaser seeking indemnification from Xxxxxx
pursuant to Section 15.2.6 above, Purchaser shall give Xxxxxx written
notice of the Event as promptly as practicable (and in any event within ten
(10) days after the service on Purchaser of a summons and complaint or the
receipt by Purchaser of any form of written notice from a third party).
Such notice shall include copies of all written materials received by the
Purchaser relative to the Event. After such notice, if Xxxxxx is obligated
under the terms of its indemnity in connection with the Event, then, within
five (5) days of receipt of Purchaser's notice of the Event, Xxxxxx shall
take control of the defense and investigation of the Event and employ and
engage attorneys of its own choice reasonably satisfactory to Purchaser to
handle and defend the same at Xxxxxx'x cost, risk and expense and to
compromise or settle or otherwise deal with such claim. The Purchaser
shall cooperate in all reasonable respects with Xxxxxx and such attorneys
in the investigation, trial and defense of any claim and any appeal arising
therefrom, including without limitation, making available all records,
materials and other information in the Purchaser's possession or control.
Purchaser may at its own cost, participate in the investigation, trial and
defense of the claim and any appeal arising therefrom. If Xxxxxx
determines that it is not obligated under its indemnity it shall so notify
the Purchaser within five (5) days of receipt of Purchaser's notice of the
Event.
33
16. "AS IS" PURCHASE. Notwithstanding anything to the contrary contained
in Section 15.3.7, Purchaser hereby understands, acknowledges and agrees
that:
16.1 EXCEPT AS MAY BE SPECIFICALLY STATED IN THE DOCUMENTS EXECUTED
BY SELLER AT THE CLOSING, OR THIS AGREEMENT, SELLERS, FOR THEMSELVES AND ON
BEHALF OF THEIR PARTNERS OR ANY PARTNERSHIPS, COMPANIES, CORPORATIONS OR
OTHER ENTITIES OR PERSONS AFFILIATED WITH OR RELATED TO SELLER
(COLLECTIVELY, "SELLERS' RELATED COMPANIES"), HEREBY SPECIFICALLY DISCLAIM
ANY WARRANTY, GUARANTY OR REPRESENTATION, ORAL OR WRITTEN, PAST, PRESENT OR
FUTURE, OF, AS TO OR CONCERNING (A) THE NATURE AND CONDITION OF THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE WATER, SOIL AND GEOLOGY, AND
THE SUITABILITY THEREOF, FOR ANY AND ALL ACTIVITIES AND USES WHICH
PURCHASER MAY ELECT TO CONDUCT THEREON, (B) THE NATURE, ENFORCEABILITY AND
EXTENT OF ANY RIGHT-OF-WAY, LEASE, POSSESSION, LIEN, ENCUMBRANCE, LICENSE,
RESERVATION, CONDITION OR OTHERWISE, (C) THE COMPLIANCE OF THE PROPERTY OR
THE OPERATION THEREOF WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF
ANY GOVERNMENT OR OTHER BODY, (D) WHETHER THE IMPROVEMENTS ON THE PROPERTY
ARE BUILT IN A GOOD AND WORKMANLIKE MANNER, (E) WARRANTIES (EXPRESS OR
IMPLIED) OF CONDITION REGARDING THE PROPERTY'S FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY, TENANTABILITY, HABITABILITY OR SUITABILITY FOR
ANY INTENDED USE, (F) ANY ENVIRONMENTAL CONDITIONS WHICH MAY EXIST ON THE
PROPERTY, INCLUDING, WITHOUT LIMITATION, THE EXISTENCE OR NON-EXISTENCE OF
PETROLEUM PRODUCTS, PETROLEUM RELATED PRODUCTS, "HAZARDOUS SUBSTANCES,"
"HAZARDOUS MATERIALS," "TOXIC SUBSTANCES," OR "SOLID WASTE" AS SUCH TERMS
ARE DEFINED IN APPLICABLE ENVIRONMENTAL LAWS, AND (G) THE FINANCIAL EARNING
CAPACITY OR HISTORY OR EXPENSE HISTORY OF THE OPERATION OF THE PROPERTY.
BY ACCEPTANCE OF THIS AGREEMENT AND OTHER CLOSING DOCUMENTS TO BE DELIVERED
BY SELLERS AT THE CLOSING, PURCHASER ACKNOWLEDGES THAT SUBJECT TO SELLERS'
REPRESENTATIONS AND WARRANTIES HEREIN AND IN THE OTHER DOCUMENTS EXECUTED
BY SELLERS AT THE CLOSING, PURCHASER'S OPPORTUNITY FOR INSPECTION AND
INVESTIGATION OF THE PROPERTY WILL BE ADEQUATE TO ENABLE PURCHASER TO MAKE
PURCHASER'S OWN DETERMINATION WITH RESPECT TO THE ACQUISITION OR NON-
ACQUISITION OF THE PROPERTY AND PRESENCE OR THE DISPOSAL ON OR BENEATH THE
PROPERTY (AND OTHER PARCELS IN PROXIMITY THERETO) OF SUCH HAZARDOUS
MATERIALS, AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR IN OTHER
CLOSING DOCUMENTS EXECUTED BY SELLERS, PURCHASER ACCEPTS THE RISK OF THE
PRESENCE OR DISPOSAL OF SUCH HAZARDOUS MATERIALS. PURCHASER ACKNOWLEDGES
THAT NO REPRESENTATIONS HAVE BEEN MADE BY SELLERS, SELLERS' RELATED
COMPANIES, SELLERS' AGENTS, BROKERS OR EMPLOYEES, IF ANY, AND THAT
PURCHASER HAS NOT RELIED ON THE INFORMATION SUPPLIED BY SELLERS IN ENTERING
INTO OR CONTINUING THE EFFECTIVENESS OF THIS TRANSACTION, OTHER THAN AS
EXPRESSLY STATED HEREIN OR IN OTHER CLOSING DOCUMENTS EXECUTED BY SELLERS.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, PURCHASER ACKNOWLEDGES
THAT, EXCEPT AS OTHERWISE SET FORTH HEREIN OR IN OTHER CLOSING DOCUMENTS
EXECUTED BY SELLERS, NEITHER SELLERS NOR SELLERS' RELATED COMPANIES,
SELLERS' AGENTS, BROKERS OR EMPLOYEES, IF ANY, HAVE MADE ANY REPRESENTATION
OR STATEMENT TO PURCHASER CONCERNING THE PROPERTY'S INVESTMENT POTENTIAL OR
RESALE AT ANY FUTURE DATE, AT A PROFIT OR OTHERWISE, NOR HAVE SELLERS OR
SELLERS' RELATED COMPANIES, SELLERS' AGENTS, BROKERS OR EMPLOYEES, IF ANY,
RENDERED ANY ADVICE OR EXPRESSED ANY OPINION TO PURCHASER REGARDING ANY
INCOME TAX CONSEQUENCES OF OWNERSHIP OF THE PROPERTY.
16.2 EXCEPT ONLY TO THE EXTENT OTHERWISE SET FORTH HEREIN OR IN
OTHER CLOSING DOCUMENTS EXECUTED BY SELLERS, THE CONVEYANCE OF THE
PARTNERSHIP INTERESTS IS MADE ON AN "AS-IS" BASIS.
16.3 PURCHASER ACKNOWLEDGES AND REPRESENTS TO SELLERS THAT PURCHASER
HAS MADE ITS DECISION TO ENTER INTO, CONTINUE THE EFFECTIVENESS OF AND, IF
IT DOES SO, CLOSE THIS TRANSACTION BASED SOLELY ON PURCHASER'S INDEPENDENT
ANALYSIS AND INVESTIGATION AND ON ONLY THE REPRESENTATIONS AND WARRANTIES
OF SELLERS SPECIFICALLY SET FORTH IN THIS AGREEMENT AND IN THE OTHER
CLOSING DOCUMENTS EXECUTED BY SELLERS. OTHER THAN THE EXPRESSLY STATED
REPRESENTATIONS AND COVENANTS OF SELLERS HEREIN AND IN THE OTHER CLOSING
DOCUMENTS EXECUTED BY SELLERS, SELLERS HAVE NO DUTY TO INFORM, ADVISE OR
OTHERWISE PROVIDE INFORMATION TO PURCHASER THAT SELLERS MAY HAVE REGARDING
THE PROPERTY.
34
16.4 PURCHASER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY SET
FORTH HEREIN, ANY INFORMATION, DOCUMENTS OR REPORTS SUPPLIED OR MADE
AVAILABLE BY SELLERS, WHETHER WRITTEN OR ORAL, OR IN THE FORM OF MAPS,
SURVEYS, PLATS, SOIL REPORTS, ENGINEERING STUDIES, ENVIRONMENTAL STUDIES,
OPERATING STATEMENTS OR OTHER INSPECTION REPORTS PERTAINING TO THE PROPERTY
(COLLECTIVELY, THE "REPORTS") ARE BEING DELIVERED OR HAVE BEEN DELIVERED TO
PURCHASER ON AN "AS-IS/WHERE-IS" BASIS AND THAT EXCEPT AS OTHERWISE
EXPRESSLY SET FORTH HEREIN SELLERS HAVE NEITHER VERIFIED THE ACCURACY OF
ANY STATEMENTS OR OTHER INFORMATION THEREIN CONTAINED, NOR ANY METHOD USED
TO COMPILE THE REPORTS OR THE QUALIFICATIONS OF THE PERSON(S) PREPARING THE
REPORTS. EXCEPT AS OTHERWISE SET FORTH HEREIN AND/OR IN ANY CLOSING
DOCUMENTS EXECUTED BY SELLERS, SELLERS MAKE NO REPRESENTATION, EXPRESS OR
IMPLIED, OR ARISING BY OPERATION OF LAW AS TO THE ACCURACY, COMPLETENESS OR
ANY OTHER ASPECT OF THE REPORTS.
16.5 EXCEPT AS OTHERWISE SPECIFICALLY STATED IN THIS AGREEMENT
AND/OR OTHER CLOSING DOCUMENTS EXECUTED BY SELLERS AND EXCEPT WITH RESPECT
TO CLAIMS BROUGHT BY THIRD PARTIES OR GOVERNMENTAL AGENCIES, PURCHASER
AGREES THAT NEITHER SELLERS NOR SELLERS' RELATED COMPANIES SHALL BE
RESPONSIBLE OR LIABLE TO PURCHASER OR ANY SUCCESSOR OR ASSIGNEE OF
PURCHASER, AND PURCHASER, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUCCESSORS
AND ASSIGNS, HEREBY RELEASES AND COVENANTS NOT TO XXX XXXXXXX OR ANY OF
SELLERS' RELATED COMPANIES FOR ANY CONSTRUCTION DEFECTS, ERRORS OR
OMISSIONS OR ON ACCOUNT OF ANY OTHER CONDITIONS AFFECTING THE PROPERTY,
KNOWN OR UNKNOWN.
16.6 THE TERMS OF THIS SECTION 16 SHALL SURVIVE THE CLOSING,
TERMINATION OR EXPIRATION OF THIS AGREEMENT.
17. MISCELLANEOUS.
17.1 PARTIES BOUND; ASSIGNMENT. Sellers may not assign this
Agreement without the prior written consent of Purchaser. This Agreement,
and the rights and obligations hereunder, may not be assigned by Purchaser
except to an entity controlled by Purchaser or a subsidiary or an affiliate
of Purchaser. In the event of any such assignment, such assignee shall
assume the obligations of the original party designated as "purchaser"
hereunder and shall provide written evidence of such assumption to Sellers.
The original party designated as "purchaser" hereunder shall not be
released from its duties or obligations hereunder in the event of such
assignment. Simultaneous with any such assignment, Purchaser shall confirm
to Purchaser's actual knowledge the absence of any Sellers default and
Sellers and Purchaser shall affirm their respective continuing liability
under this Agreement, provided, however, that under all circumstances the
assignee of Purchaser hereunder is a permitted assignee pursuant to the
terms of this Agreement. Such assignment documentation shall be delivered
to Sellers no fewer than five (5) days before the Closing and shall be done
at no cost or expense to Sellers. Sellers agree to close the transaction
contemplated hereunder with the permitted assignee of Purchaser. This
Section 17.1 is subject in all respects to Section 17.
17.2 HEADINGS. The article, section, subsection and other headings
of this Agreement are for convenience only and in no way limit or enlarge
the scope or meaning of the language hereof.
17.3 INVALIDITY AND WAIVER. If any portion of this Agreement is
held invalid or inoperative, then so far as is reasonable and possible the
remainder of this Agreement shall be deemed valid and operative, and, to
the greatest extent legally possible, effect shall be given to the intent
manifested by the portion held invalid or inoperative. The failure by
either party to enforce against the other any term or provision of this
Agreement shall not be deemed to be a waiver of such party's right to
enforce against the other party the same or any other such term or
provision in the future.
17.4 GOVERNING LAW. This Agreement shall in all respects be
governed, construed, applied and enforced in accordance with the laws of
the State of Illinois. Venue for any action arising hereunder shall lie
exclusively in the federal and state courts in Will County, Illinois.
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17.5 SURVIVAL. Unless expressly stated hereunder to survive
Closing, none of the agreements, terms, provisions, covenants,
representations, warranties, conditions and indemnifications set forth in
this Agreement shall survive the Closing or any earlier termination of this
Agreement. Notwithstanding anything to the contrary contained in the
preceding sentence, each covenant, representation or indemnification herein
set forth in this Agreement which expressly provides that it survives
Closing shall survive the Closing and the delivery of documents
contemplated herein for the time period specified, if any, including all
indemnifications, covenants and representations which are to be performed
or applied to circumstances subsequent to the Closing Date and shall run in
favor of, and benefit, the Owner or Purchaser, as applicable, or Sellers,
and their respective successors and assigns, unless otherwise expressly
stated herein.
17.6 NO THIRD PARTY BENEFICIARY. The provisions of this Agreement
and of the documents to be executed and delivered at the Closing are and
will be for the benefit of Sellers and Purchaser only and are not for the
benefit of any third party and, accordingly, no third party shall have the
right to enforce the provisions of this Agreement or the documents to be
executed and delivered at the Closing.
17.7 TIME. Time is of the essence in the performance of this
Agreement.
17.8 CONFIDENTIALITY. From and after the Effective Date, whether
before or after the Closing, neither Seller nor Purchaser will release, or
cause or permit to be released, any press notices, publicity (oral or
written) or advertising promotion relating to, or otherwise announce or
disclose, or cause or permit to be announced or disclosed, in any manner
whatsoever, the terms, conditions or substance of this Agreement without
first obtaining the written consent of the other party. The foregoing
shall not preclude either party from discussing the substance or any
relevant details of such transactions with any of its attorneys,
accountants, professional consultants, lenders, partners, investors or any
prospective lender, partner or investor, as the case may be, or prevent
either party hereto from complying with laws, rules, regulations and court
orders, including, without limitation, governmental, regulatory,
disclosure, tax and reporting requirements. In addition to any other
remedies available to a party, each party shall have the right to seek
equitable relief, including, without limitation, injunctive relief or
specific performance, against the other party in order to enforce the
provisions of this Section 17.8. The provisions of this Section 17.8 shall
survive the Closing or earlier termination of this Agreement to the extent
that applicable law requires otherwise and to the extent that Purchaser's
status as a public company obligates Purchaser otherwise.
17.9 NOTICES. All notices required or permitted hereunder shall be
in writing and shall be served on the parties at the addresses set forth on
EXHIBIT H attached hereto and made a part hereof. Any such notices shall
be either (a) sent by overnight delivery using a nationally recognized
overnight courier, in which case notice shall be deemed delivered on the
date such notice is deposited with such courier, (b) sent by facsimile, in
which case notice shall be deemed delivered upon confirmed transmission of
such notice by facsimile, or (c) sent by personal delivery, in which case
notice shall be deemed delivered upon receipt or refusal of delivery of
such notice. A party's address may be changed by written notice to the
other party; provided, however, that no notice of a change of address shall
be effective until actually received by the recipient thereof. Copies of
notices are for informational purposes only, and a failure to give or
receive copies of any notice shall not be deemed a failure to give notice.
The attorney for a party has the authority to send and receive notices on
behalf of such party.
17.10 CONSTRUCTION. The parties acknowledge that the parties and
their counsel have reviewed and revised this Agreement and agree that the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Agreement or any exhibits or amendments hereto.
36
17.11 CALCULATION OF TIME PERIODS. Unless otherwise specified, in
computing any period of time described herein, the day of the act or event
after which the designated period of time begins to run is not to be
included and the last day of the period so computed is to be included,
unless such last day is a Saturday, Sunday or legal holiday for national
banks in the location where the Property is located, in which event the
period shall run until the end of the next day which is not a Saturday,
Sunday or legal holiday. Unless otherwise specified herein, the last day
of any period of time described herein shall be deemed to end at 4:30 p.m.
Central time. The term "business day" means any weekday that is not a
legal holiday under the laws of the State of Illinois.
17.12 EXECUTION IN COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an
original, and all of which counterparts shall constitute one agreement. To
facilitate execution of this Agreement, the parties may execute and
exchange execution pages by telephone facsimile counterparts, provided,
that executed originals thereof are forwarded to the other party on the
same day by any of the delivery methods set forth in Section 8.9 hereof
other than facsimile.
17.13 FURTHER ASSURANCES. In addition to the acts and deeds recited
herein and contemplated to be performed, executed or delivered by either
party at the Closing, each party agrees to perform, execute and deliver,
but without any obligation to incur any additional liability or expense, on
or after the Closing any further deliveries and assurances as may be
reasonably necessary to consummate the transactions contemplated hereby or
to further perfect the conveyance, transfer and assignment of the Property
to Purchaser.
17.14 ENTIRETY AND AMENDMENTS. This Agreement embodies the entire
contract between the parties and supersedes all prior agreements and
understandings relating to the Property. This Agreement may be amended or
supplemented only by an instrument in writing executed by both Sellers and
Purchaser. Escrow Agent is a party to this Agreement only with respect to
EXHIBIT D, and any amendment of EXHIBIT D shall require the written
agreement of Escrow Agent.
17.15 COVENANT NOT TO RECORD. Neither Seller nor Purchaser will
record this Agreement or any memorandum or other evidence thereof. Any
such recording shall constitute a material default hereunder.
17.16 WAIVER OF JURY TRIAL. The respective parties hereto shall and
hereby do waive trial by jury in any action, proceeding or counterclaim
brought by either of the parties hereto against the other on any matters
whatsoever arising out of or in any way connected with this Agreement, or
for the enforcement of any remedy under any statute, emergency or
otherwise.
17.17 OBLIGATION. Xxxxxx shall be responsible for all obligations of
Sellers hereunder other than those obligations arising from representations
and/or obligations of the individual Limited Partners for which the Limited
Partners shall be individually responsible.
18. INFORMATION AND AUDIT COOPERATION. At Purchaser's request, at
reasonable times and upon reasonable notice, before or after the Closing,
Xxxxxx shall provide to Purchaser's designated independent auditor access
to the books and records of the Property, at Purchaser's expense, and all
related information regarding the period for which Purchaser is required to
have the Property audited under the regulations of the Securities and
Exchange Commission, and Xxxxxx shall provide to such auditor a
representation letter from time to time made as of that day such
representation letter is delivered and applicable solely to knowledge as of
that day (and not as to any time in the future) regarding the books and
records of the Property, in substantially the form of Appendix 9.14
attached hereto as EXHIBIT I (provided, however, such form shall be
permitted to be altered so that the information contained therein shall be
37
accurate in all material respects as of the date given), in connection with
the normal course of auditing the Property in accordance with generally
accepted auditing standards. Purchaser agrees to indemnify and hold
harmless Sellers and Sellers' agents from and against any and all claims,
damages, losses and liabilities (including, without limitation, attorneys'
fees) to which Xxxxxx and/or Xxxxxx'x agents are at any time subjected by
any person, including, without limitation, those persons that are not a
party to this Agreement, as a result of Sellers' compliance with this
subsection. Xxxxxx'x obligations under this Section 17 shall survive the
Closing for a period of three years. Notwithstanding anything contained
herein to the contrary, in the event that pursuant to Purchaser's
applicable auditing requirements, Purchaser can opt to audit a third party
other than Xxxxxx, Purchaser shall use its best faith efforts, and act
diligently with respect to, auditing such third party in lieu of Sellers.
Purchaser agrees to pay any and all costs incurred by Xxxxxx (including,
without limitation, attorneys' fees) with respect to its obligations set
forth in this Section 17.
19. TAX STRUCTURE. Notwithstanding anything to the contrary contained in
this Agreement, the Seller and Purchaser may disclose to any and all
Persons, without limitation of any kind, the tax treatment and any facts
that may be relevant to the tax structure of this transaction and the
transactions contemplated by this Agreement, including the acquisition of
the Partnership Interests, and all materials of any kind (including
opinions or other tax analyses) that are provided to the Sellers or the
Purchaser relating to such tax treatment and tax structure except to the
extent maintaining such confidentiality is necessary to comply with any
applicable federal or state securities laws; provided, however, that no
party (and no employee, representative or other agent thereof) shall
disclose any other information that is not necessary to understand the tax
treatment in respect of the transactions contemplated by this Agreement.
20. NOTICE TO ILLINOIS DEPARTMENT OF REVENUE ("IDR"). The Sellers,
severally, hereby agree to indemnify, protect, defend and hold Purchaser
harmless from and against any loss, cost, damage, claim, liability or
expense, including reasonable attorneys' fees and court costs, arising out
of such Seller's failure to comply with the requirements set forth in 35
ILCS 5/902(d) or 35 ILCS 120/5(j) (the "Acts"). The provisions of this
Section 20 shall survive the Closing for a period of three (3) years after
the Closing Date.
38
IN WITNESS WHEREOF, Sellers and Purchaser have executed this
Agreement as of the Effective Date.
SELLERS:
XXXXXX DEVELOPMENT CORPORATION,
a Michigan corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: CFO
Date: August 20, 2004
XXXXXX RIVER RUN, LTD.,
a Florida limited partnership
By: Xxxxxx Management, Inc.,
a Florida Corporation,
its general partner
By: /s/ Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Treasurer
Date: 8/20/04
RIVER RUN ASSOCIATES, LLC,
a Florida limited liability company
By: Xxxxxx X. Xxxxxxx Trust
dated March 11, 1988,
its managing member
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Trustee
Date: 8/20/04
By: Xxxx Xxxxxxx Xxxxxxx Trust
dated March 11, 1988,
its managing member
By: /s/ Xxxx Xxxxxxx Xxxxxxx
Name: Xxxx Xxxxxxx Xxxxxxx
Title: Trustee
Date: 8/20/04
39
XXXXXXX X. XXXXX, XX., REVOCABLE TRUST
DATED APRIL 8, 1992
By: [ executed signature ]
Name: [ illegible name ]
Title: Attorney for the Trust
Date: August 19, 2004
/s/ Xxxx X. Xxxxxx
XXXX X. XXXXXX, Individually
Date: August 20, 2004
XXXXXX PARTNERS RIVER RUN, LTD.,
a Florida limited partnership
By: Xxxxxx Development Corporation,
a Michigan corporation,
its general partner
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: CEO
Date: August 20, 2004
ADC EQUITY PARTNERS RIVER RUN, LTD,
a Florida limited partnership
By: Xxxxxx Development Corporation,
a Michigan corporation,
its general partner
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: CEO
Date: August 20, 2004
40
XXXXXXX X. XXXXX, XX., REVOCABLE TRUST
DATED APRIL 8, 1992
By:
Name:
Title:
Date:
XXXX X. XXXXXX, Individually
XXXXXX PARTNERS RIVER RUN, LTD.,
a Florida limited partnership
By: Xxxxxx Development Corporation,
a Michigan corporation,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: CFO
Date: August 20, 2004
ADC EQUITY PARTNERS RIVER RUN, LTD,
a Florida limited partnership
By: Xxxxxx Development Corporation,
a Michigan corporation,
its general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: CFO
Date: August 20, 2004
41
PURCHASER:
AMLI RESIDENTIAL PROPERTIES, L.P.,
a Delaware limited partnership
By: AMLI Residential Properties
Trust, its general partner
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
Date: August 20, 2004
AMLI RESIDENTIAL PROPERTIES, LLC,
a Delaware limited liability company
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Senior Vice President
Date: August 20, 2004
THE OWNER:
THE RESERVE AT RIVER RUN LIMITED PARTNERSHIP,
a Florida limited partnership
By: Xxxxxx Development Corporation,
a Michigan corporation,
its sole general partner
By: /s/ Xxxxxxx X. Xxxxxxxx
Name: Xxxxxxx X. Xxxxxxxx
Title: CFO
Date: August 20, 2004
42
ESCROW AGENT:
CHICAGO TITLE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxxx
Name: Xxxxx Xxxxxx
Title: Escrow Officer
Date: August 20, 2004
43
