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AGREEMENT FOR SALE AND PURCHASE
OF
IMPROVED PROPERTY
THIS AGREEMENT FOR SALE AND PURCHASE OF IMPROVED PROPERTY (the
"Agreement"), dated this 14th day of April, 1997, by and between Xxxxxxx
Properties Residential, L.P., 0000 Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx
00000, a Georgia limited partnership (the "Seller") and ACG Partnership
Holdings, L.P., 0000 Xxxxx Xxxx, Xxxxxxx, Xxx Xxxx 00000-0000, a Delaware
limited partnership, or its nominee (the "Buyer");
RECITALS:
WHEREAS, Seller is the owner of the Property (as hereinafter defined); and
WHEREAS, Buyer desires to purchase the Property in accordance with the
terms and conditions of this Agreement for the purpose of using the Property
for a two hundred seven (207) unit apartment complex (the "Intended Use");
NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and sufficiency
of which are hereby mutually acknowledged and in consideration of the terms and
conditions of this Agreement as hereinafter set forth, Seller and Buyer hereby
covenant and agree as follows:
ARTICLE I
SALE AND PURCHASE OF PROPERTY
1.01 The Agreement to Sell and Purchase.
Seller agrees to sell the Property to Buyer, and Buyer agrees to purchase the
Property from Seller, at the price and upon the terms and conditions set forth
in this Agreement.
1.02 The Property.
(a) The Property is defined as and shall include all of the
following:
(i) That certain parcel of land located in Xxxx County,
Georgia, more particularly described in Exhibit A attached hereto (the "Land");
(ii) All rights, title and interest of Seller in and to
all buildings and improvements situated on, above or under the Land (hereinafter
collectively referred to as the "Improvements");
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(iii) All rights, title and interest of Seller, if any, in
and to any and all streets, roads, rights-of-way and easements adjacent,
contiguous or beneficial to the Land; provided, however, except as may be
expressly provided herein no representation or warranty is made by Seller with
respect to title to such streets, roads, rights-of-way or easements, however,
Seller represents that there is access to the Property via adjacent streets and
roads;
(iv) All furniture, furnishings, fixtures, machinery,
trade names, excluding the trademark "Creating Communities For Superior
Lifestyles", telephone numbers (to the extent transferable) and equipment
appurtenant to or used in connection with the operation of the Land or
Improvements, including, but not limited to that inventory described on Exhibit
B attached hereto (hereinafter collectively referred to as the "Personal
Property"); and
(v) All other appurtenances, and any other right, title,
interest or estate of Seller in or to the Land, Improvements or the Personal
Property, including without limitation both tangible and intangible rights
related thereto such as plans and specifications, surveys, studies, reports,
tenant lists, contracts, permits, licenses, approvals or other rights relating
to the ownership, use or operation of the Property.
(b) The Property is located at 0000 Xxxxxxx Xxxx, Xxxxxxxx,
Xxxxxxx, and is commonly known or referred to as "Autumn Ridge Apartments".
ARTICLE II
PURCHASE PRICE AND TERMS OF PAYMENT
2.01 Purchase Price.
The purchase price to be paid by Buyer to Seller for the Property shall be Ten
Million Four Hundred Fifty-Seven Thousand Dollars ($10,457,000.00) (the
"Purchase Price").
2.02 Terms of Payment.
(a) The Purchase Price shall be paid by Buyer as follows:
(i) Upon the execution of this Agreement, Buyer shall
deposit the sum of One Thousand Dollars ($1,000.00) (the "Initial Deposit") with
Commonwealth Land Title Insurance Company, Atlanta, Georgia (the "Escrow
Agent"). The Deposit shall be held by the Escrow Agent in a separate
interest-bearing money market account maintained by a federally-insured bank. In
no event, however, shall Escrow Agent bear any responsibility for the solvency
of the institution into whose accounts the Deposit is placed. For purposes of
this Agreement and in order to account for any interest earned on any sums paid
or deposited pursuant to this Agreement, the tax identification number of Seller
is 00-0000000 and of Buyer is 00-0000000. All interest accrued on the Deposit
shall be added to and become a part of the Deposit.
(ii) Unless this Agreement is terminated prior to the
expiration of the
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Inspection Period (as hereinafter defined), Buyer shall deposit with Escrow
Agent an additional xxxxxxx money deposit of Ninety-Nine Thousand Dollars
($99,000.00) no later than the end of the Inspection Period. The Initial
Deposit and this additional Deposit shall be referred to as the "Deposit." If
the sale hereunder is consummated in accordance with the terms hereof, the
Deposit shall be applied to the Purchase Price to be paid by Buyer at the
closing. The Deposit shall also constitute Seller's liquidated damages in
accordance with Section 13.02 hereof.
(iii) The Purchase Price, less the Deposit and less such
amounts as may be required as the result of credits, prorations and adjustments
described in this Agreement, by wire transferred funds through a Federal Reserve
Bank to Seller's bank account as designated by Seller.
2.03 Deposit with Escrow Agent.
(a) The Escrow Agent shall hold the Deposit, together with any
other sums paid on account of the Purchase Price prior to the Closing, in escrow
in the type of account described in Section 2.02(a)(i) of this Agreement until
the Closing or sooner termination of this Agreement and shall pay over or apply
such proceeds in accordance with the terms of this Section 2.03. At the Closing
if Buyer closes this transaction, the Deposit shall be paid to Seller and
credited against the Purchase Price.
After the expiration of the Inspection Period referenced in Section 3.04
hereof, if for any reason the Closing does not occur and either party makes a
written demand upon Escrow Agent for payment of the Deposit, Escrow Agent shall
give written notice to the other party of such demand. If Escrow Agent does not
receive a written objection from the other party to the proposed payment within
five (5) business days after giving such notice, Escrow Agent is hereby
authorized to make such payment. If Escrow Agent does receive written objection
to the proposed payment within such 5 business day period or if for any other
reason Escrow Agent in good faith shall elect not to make such payment, Escrow
Agent shall continue to hold such amount until otherwise directed by written
instructions from both parties to this Agreement or by a final judgment of a
court of competent jurisdiction. However, Escrow Agent shall have the right at
any time to interplead the Deposit with the clerk of the Superior Court of Xxxx
County, Georgia. Escrow Agent shall serve Seller and Buyer in the interpleader
action. Upon such deposit Escrow Agent shall be relieved and discharged of all
further obligations and responsibilities hereunder. Escrow Agent may recover
its reasonable out-of-pocket costs and expenses of instituting any interpleader
action from the non-prevailing party in the interpleader action.
(b) The parties acknowledge that Escrow Agent is acting
solely as a stakeholder at their request and for their convenience; that Escrow
Agent when acting in such capacity shall not be deemed to be the agent of either
of the parties; and that Escrow Agent shall not be liable to either of the
parties for any act or omission on its part unless taken or suffered in bad
faith, in wilful disregard of this Agreement or involving gross negligence.
Seller and Buyer shall jointly and severally indemnify, defend and hold Escrow
Agent harmless from and against all costs, claims and expenses, including
reasonable attorneys' fees, incurred in connection with the
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performance of Escrow Agents' duties hereunder, except with respect to actions
or omissions taken or suffered by Escrow Agent in bad faith, in wilful
disregard of this Agreement or involving gross negligence on the part of Escrow
Agent.
(c) In order to acknowledge its agreement to the provisions of this
Section 2.03, Escrow Agent shall sign this Agreement but shall not be a party to
or otherwise subject to the terms and conditions of this Agreement.
ARTICLE III
TITLE TO PROPERTY
3.01 Title Insurance Commitment.
(a) Within fifteen (15) days following the Contract Date (as
hereinafter defined), Buyer shall obtain, at Buyer's expense, a Commitment for
Title Insurance, (hereinafter called the "Title Commitment") issued by
Commonwealth Land Title Insurance Company (the "Title Insurer") with copies of
all referenced documents attached, evidencing that there is access to the Land,
suitable for the Intended Use, from a public roadway and that Seller is vested
with fee simple title to the Land, free and clear of all liens, encumbrances,
exceptions or qualifications whatsoever except for those exceptions to title:
(i) which are described on the attached Exhibit D (the "Permitted Exceptions"),
and (ii) which are monetary in nature. The Title Commitment shall also evidence
that upon the execution, delivery, and recordation of the Deed to be delivered
pursuant to this Agreement and the satisfaction of all requirements specified in
Schedule B, Section 1 of the Title Commitment, Buyer shall acquire fee simple
title to the Land subject only to the Permitted Exceptions, and those other
matters identified on the Title Commitment which are not timely objected to by
Buyer as being Title Defects. Buyer shall notify Seller prior to the expiration
of the Inspection Period of those liens, encumbrances, exceptions,
qualifications or other matters listed in the Title Commitment, other than the
Permitted Exceptions, which must be discharged by Seller at or before Closing
hereunder (any such liens, encumbrances, exceptions or qualifications referred
to above being herein referred to as "Title Defects"). If Seller shall, prior to
the time of Closing, cure or eliminate the Title Defects to the satisfaction of
the title insurance company issuing the Title Commitment in such manner as to
permit the Title Insurer to either (i) endorse the Title Commitment so as to
delete the Title Defects from the Title Commitment or (ii) issue a new title
insurance commitment that deletes the Title Defects, the Closing shall take
place on the date and in the manner elsewhere specified in this Agreement. If
Seller shall not so cure or eliminate the Title Defects, then Buyer, as its only
rights and remedies, may cancel this Agreement on written notice to Seller and
Escrow Agent and the Deposit and interest thereon shall be returned to Buyer or
Buyer may close on this Agreement as if no such Title Defect existed.
(b) A delay in delivery of the Title Commitment shall not be
deemed a Buyer default unless the delay exceeds fifteen (15) days after the date
upon which delivery is required by this Agreement.
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(c) Notwithstanding anything herein contained to the contrary, Seller
shall have no obligation to cure any Title Defects, except the payment and
discharge at Closing of the Nationwide Life Insurance Company first mortgage
loan (the "First Mortgage")
(d) Seller will deliver a title affidavit in the form customarily
utilized in Atlanta, Georgia so as to eliminate from the Title Commitment at
Closing (and from the title insurance policy when issued) the printed exceptions
for unrecorded mechanics' liens and parties in possession (other than apartment
tenants and service contract providers).
3.02 Survey.
(a) Seller will provide Buyer within ten (10) days of the
Contract Date with a copy of the most recent survey for the Land that Seller may
have, which survey shall have been prepared by a registered Georgia surveyor and
all matters shown on such survey shall be considered Permitted Exceptions.
Buyer, at its expense and prior to the end of the Inspection Period, may have
the surveyor update the survey of the Property in accordance with the 1992
"Minimum Standard Detail Requirements for Land Title Surveys" jointly
established by the ALTA and the ACSM so that the survey meets the requirements
of an Urban Survey, as defined in the current accuracy standards jointly adopted
ALTA and ACSM and includes Items 2, 3, 4, 6, 8, 9, 10, 11 and 13 of Table A
thereof. The updated survey shall also include a metes and bounds legal
description of the land and contain a surveyor's certification in form
reasonably acceptable to Buyer. If the survey shows any unpermitted
encroachments, overlaps, rights-of-way or easements on the Land, or that any
improvements located on the Land encroach on other land, written notice to that
effect shall be given to Seller before the expiration of the Inspection Period,
and Seller shall have the same time to remove such survey defects as this
Agreement allows for curing Title Defects. If Seller fails to remove or cure all
material survey defects within the above-stated period, then at the option of
Buyer (i) the Escrow Agent shall return the Deposit to Buyer and this Agreement
shall be terminated, whereupon Seller and Buyer shall be relieved of all
obligations to each other under this Agreement, other than the Inspection
Indemnity, or (ii) Buyer may close on this Agreement as if no such survey defect
existed. For purposes of this Agreement, a survey defect shall not be deemed a
material defect if the Title Insurer issuing the Title Commitment agrees to
remove from the Title Commitment and the resulting title insurance policy
thereto the standard printed exception relating to matters that would be
disclosed by an accurate survey and such title company does not insert in place
of such standard printed exception a specific exception relating to the
particular survey defect or to matters appearing on the survey in general.
3.03 Failure to Cure Title or Survey Defects.
If Seller shall not cure or eliminate the Title Defects, and Seller shall
have no obligation to do so, Buyer, as its only rights or remedies, may elect
to accept such title to the Land as Seller may be able to convey, without
reduction of Purchase Price payable at Closing or Buyer may terminate this
Agreement and the Deposit shall be refunded to Buyer by the Escrow Agent. Upon
such refund and reimbursements, this Agreement shall be null and void and the
parties
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hereto shall be relieved of all further obligations and liabilities, except for
the Inspection Indemnity.
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3.04 Inspection Period.
(a) Buyer shall have through the forty-fifth (45th) day
following the Contract Date within which to undertake such physical inspections
and investigations and inquiries concerning the Property (including both Land
and Improvements) and any matters relating to the use, operation and occupancy
of the Property as shall be necessary or desirable for Buyer to evaluate the
feasibility and advisability of purchasing the Property (the "Inspection
Period"). This shall include, without limitation of the foregoing, independent
investigations and inquiries concerning all applicable building, zoning,
environmental and other codes, ordinances, statutes, rules and regulations
affecting the Property and its use, as well as the availability of access and
all utility services thereto and shall include interviews of the employees of
Seller; provided, however, Buyer agrees that an Owner's representative must be
present during such interviews and that there will be no discussion with said
employees with regard to said employees' future employment by Buyer. Buyer may
also conduct such physical inspections of the Improvements as shall be necessary
or desirable, including but not limited to structural inspections, appraisals,
review of electrical, heating, air conditioning and plumbing systems, termite
inspections and other investigations and inquiries. Buyer shall bear all costs
of any such inspections and investigations, and in no event, shall any of the
cost thereof be paid by or charged or apportioned to Seller. For purposes of
undertaking physical inspections and investigations of the Property, including
any non-destructive soil borings or surveys required or desired by Buyer, Seller
hereby grants to Buyer and its agents full right of access and entry upon the
Property and any part thereof during the Inspection Period, subject to the
rights of all tenants in possession. Buyer, as a condition to its exercise of
such right of access, specifically agrees to defend, indemnify and save and hold
Seller harmless from and against any and all loss, damage, liability, suit,
claim, cost or expense (including reasonable attorney's fees) arising from the
exercise by Buyer or its agents of this right of access and entry. The indemnity
and hold harmless obligation in the preceding sentence is herein referred to as
the "Inspection Indemnity" which shall survive the Closing and any termination
of this Agreement. Prior to entry on the Property, Buyer shall furnish Seller
with a certificate of insurance insuring Buyer and Seller against liability in a
combined single limit amount of at least $1,000,000.00. Buyer and its agents
and employees also shall have the right during normal business hours during the
Inspection Period to inspect any and all books and records relating to the
Property and to make copies thereof at Buyer's cost and expense. No discount on
the Purchase Price will be allowed based upon the outcome of the Buyer's
investigation during the Inspection Period. Buyer agrees that it will give
Seller forty-eight (48) hours prior notice of its intent to go on the Property
to conduct its inspection per the terms of this paragraph. Buyer may do only
non-destructive and not any destructive tests on the Property.
(b) In the event that the results of any inspections,
investigations or inquiries are, in Buyer's sole opinion and within Buyer's sole
discretion, unacceptable to Buyer for any or no reason, and Buyer notifies
Seller in writing of that fact within the Inspection Period, then, at the
Buyer's sole option, Buyer may terminate this Agreement and forthwith receive a
full and immediate return of the Deposit less $100.00 which shall be paid to
Seller in consideration of Seller's having held the Property off the market. In
such event and upon Buyer's receipt of the
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Deposit, this Agreement and the rights and obligations of the parties hereunder
shall thereupon cease, terminate and be null and void, except for the
Inspection Indemnity and Buyer's obligation to maintain as confidential all
information concerning the Property or Seller learned as a result of Seller's
disclosures to Buyer pursuant to this Section 3.04. If Buyer fails to notify
Seller in writing before the conclusion of the Inspection Period of Buyer's
intention to terminate this Agreement, then the Deposit shall become
nonrefundable absent Seller's breach of this Agreement and Buyer shall deposit
the $99,000.00 additional Deposit with the Escrow Agent prior to the end of the
Inspection Period.
(c) On or within ten (10) days from the Contract Date, Seller shall
furnish to Buyer true and correct copies, to the extent in Seller's possession
and to the extent that same were prepared for Seller, of real estate tax bills
and utility bills for the period of Seller's ownership, and Seller's most recent
survey, soil reports, environmental reports, site plans, termite reports,
certificates of occupancy, notice of any insurance claims during the period of
Seller's ownership, copies of all pending, known or threatened litigation
against the Property or Seller relating to the Property, existing owner's title
insurance policies and any updates thereto and all service and maintenance
contracts pertaining to the Land and Improvements. Seller shall also provide to
Buyer within such time period a copy of Seller's income, expense and other
operating statements for the period of Seller's ownership through the Contract
Date including a current rent roll and make available to Buyer for review
Seller's books and records relating to the Property. During the Inspection
Period Seller will make available for Buyer's review a copy of Seller's
insurance policy covering the Property
(d) Buyer hereby agrees to hold and maintain as confidential all
information acquired from Seller pursuant to the rights of inspection and
disclosure provided for pursuant to this Section 3.04. Buyer may, however,
disclose the information to its partners, investors, lenders, accountants,
attorneys, engineers, consultants, and other professional advisors to the extent
Buyer deems it necessary regarding the purchase of the Property. Whenever Buyer
deems it necessary to disclose the information to such third parties, however,
Buyer shall inform them of the confidentiality requirements of this Agreement.
In the event Buyer should breach this covenant of confidentiality, either prior
to Closing or subsequent to the termination of this Agreement should a Closing
not occur for any reason, then Seller, upon a showing of Buyer's breach of the
confidentiality requirements referenced in this paragraph, shall be entitled to
an immediate injunction to preclude any further disclosures and Seller shall be
entitled to recover from Buyer, after a court finding of a breach on the part of
Buyer, all damages, both direct and consequential, including reasonable
attorney's fees and costs, incurred as a result thereof. Buyer hereby agrees
that a proper jurisdiction and venue to bring any action to enforce this
Subsection 3.04(d) shall be in the state or federal courts of Xxxx County,
Georgia.
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ARTICLE IV
LEASES
4.01 Existing Leases.
(a) Seller represents to Buyer that all existing apartment
leases at the Property (the "Leases") and any other rights to the use or
occupancy of the apartments at the Property (the "Tenancies") are identified on
Exhibit E attached hereto.
(b) Between the Contract Date and the Closing Date, Seller
shall perform or cause to be performed all obligations of Seller or the landlord
under the terms of the Leases.
(c) To the best of Seller's knowledge, Seller warrants to Buyer
that all the Leases are in full force and effect and that no tenant under any of
the Leases has any pending claim or basis for any claim for any reduction,
deduction or set off against the landlord or the rent due thereunder. Seller
further warrants that to the best of Seller's knowledge, except as respects the
First Mortgage, Seller has the sole right to collect the rents due under the
Leases and that neither the Leases nor the right to collect the rents due
thereunder has been assigned, pledged, hypothecated or otherwise encumbered by
Seller. During the Inspection Period, Buyer shall have the right to review and
inspect copies of all documents comprising the Leases and to make necessary
copies thereof. Buyer shall also have the right to review and inspect all
Tenants' files and documents therein including, but not limited to, applications
and credit histories. Seller warrants that to the best of Seller's knowledge,
there are no amendments, modifications, extensions or renewals of such Leases
that are not reflected by such documents and Exhibit E. Exhibit E shall set
forth the following information with respect to each Lease: (i) the name of each
tenant residing in each unit number designation; (ii) the apartment number(s)
occupied by such tenant; (iii) the commencement and termination dates of the
Lease; and (iv) all allowances, concessions, free rent or reduced rent payable
thereunder; and (v) the amounts of security deposits for each unit and tenancy.
(d) At Closing, Seller shall certify a rent roll and
collections report to Buyer properly containing information with respect to each
of the tenants under each Lease, as follows: (i) the full and correct name of
each tenant residing in each unit number designation; (ii) the date upon which
the last rent payment was made and the period such payment was attributable to;
(iii) the amount of the last rent payment made; (iv) the amount of any prepaid
rent, security deposit, key deposit, pet deposit and the like paid to Seller or
the landlord under each Lease, including accrued interest, if any; and (v) all
arrearages owing from said tenant.
4.02 Status of Leases and Tenancies at Closing.
If any apartment unit is vacant on the Closing Date, Buyer shall
accept the Property subject to such vacancy, provided that Seller shall not
grant any concessions or rent abatements for any period following the Closing
Date without Buyer's prior written consent, except in
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accordance with market conditions. Seller agrees to make rent ready any
apartment unit at the Property which becomes vacant five (5) or more days prior
to the Closing Date.
ARTICLE V
SERVICE CONTRACTS
During the Inspection Period, Buyer shall have the right to review
and inspect and make necessary copies of all service, maintenance, and
commission agreements presently in effect with respect to the use or operation
of the Property, which contracts are described on the attached Exhibit G (the
"Service Contracts"). Seller and Buyer agree that any existing Management
Contract will be canceled at Closing. All of the Service Contracts shall be
assigned by Seller to Buyer at the Closing, and shall be assumed by Buyer.
Between the Contract Date and the Closing Date, Seller shall not enter into any
additional Service Contracts that are not terminable on 30 or fewer days notice
and shall not renew, amend, extend, unless cancellable on 30 or fewer days
notice, or terminate any existing Service Contracts without the written consent
of Buyer, which consent may not be withheld unreasonably.
ARTICLE VI
TIME
6.01 Time of the Essence.
Time, and timely performance, is of the essence of this Agreement
and of the covenants and provisions hereunder. Any time period that shall end on
a Saturday, Sunday, legal holiday, or bank holiday shall extend to 5:00 P.M. of
the next full business day.
6.02 Contract Date.
The date from which commences any time period used for measuring performance or
events hereunder shall be the date when the last one of Seller and Buyer has
properly executed this Agreement as evidenced on the signature page (the
"Contract Date").
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
7.01 Seller Representations and Warranties.
Seller represents and warrants to Buyer as follows:
(a) To the best of Seller's knowledge, the conveyance of the
Property to Buyer pursuant to this Agreement will not be a violation by Seller
of any applicable statute, ordinance, governmental restriction, or regulation,
or any private restriction or agreement.
(b) To the best of Seller's knowledge, no special assessments
of any kind (special,
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bond or otherwise) are pending or levied against the Property which are
outstanding and unpaid.
(c) The books and records to be made available by Seller to
Buyer are the true books and records maintained by Seller in connection with the
Property.
(d) Seller has no written employment contracts with any
employees of the Property, or if Seller has any such contracts, they will be
terminated effective as of the Closing Date and Seller shall indemnify Buyer in
respect of any such written employment contracts.
(e) To the best of Seller's knowledge, Seller has not received
notices of any violations by the Property of state or municipal ordinances,
orders or requirements.
(f) The Rent Roll delivered by Seller to Buyer accurately sets
forth for each apartment unit at the Property, the tenant's name, apartment
number, monthly rental and security deposit held. There are no leases for
apartments which affect the Property other than as set forth on the Rent Roll,
and there are no non-residential leases at the Property other than an existing
lease to the laundry room equipment company.
(g) There is no litigation or proceeding pending for which
Seller has received notice or service of process or, to the best of Seller's
knowledge, threatened against Seller or the Property which could affect Buyer or
the Property upon or subsequent to the Closing Date.
(h) To the best of Seller's knowledge, there are no
condemnation or environmental proceedings pending, nor are there any proposed
changes in zoning or other land use regulations contemplated, against all or any
part of the Property. No portion of the Property has been affected by fire or
other casualty, except for such portions as have been fully repaired or restored
to their condition prior to such fire or other casualty.
(i) To the best of Seller's knowledge, Seller has received no
notice of default under any of the Service Contracts.
(j) Seller is not a "foreign person" as such term is defined in
Section 1445(f)(3) of the Internal Revenue Code of 1986, as amended.
(k) Each person executing and delivering this Agreement and all
documents to be executed and delivered by Seller at Closing represents and
warrants to Buyer that he has due and proper authority to execute and deliver
same. Seller has the full right, power and authority to sell and convey the
Property to Buyer as provided herein and to carry out its obligations hereunder.
The consummation by Seller of the transaction which is the subject of this
Agreement will not conflict with or result in a breach of any of the terms of
any agreement or instrument to which Seller is bound or constitute a default
thereunder and the Board of Directors of Seller's sole general partner, Xxxxxxx
Realty Investors, Inc., has authorized and approved the execution and delivery
of this Agreement, the transaction which is the subject of this Agreement, and
all documents to be executed and delivered by Seller at Closing, and the consent
of the limited
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partners in Seller or the shareholders in Xxxxxxx Realty Investors, Inc. is not
required therefor.
(l) To the best of Seller's knowledge, the schedule of Personal
Property listed on Exhibit B to this Agreement contains a correct and complete
list of all material personal property owned by Seller and located at or used in
connection with the operation of the Property. All Personal Property is, and as
of the Closing Date will be, owned by Seller free from encumbrances or liens
except for the First Mortgage.
(m) To the best of Seller's knowledge, Seller has not received
any notice from any applicable governmental agency seeking any information or
alleging any violation of Environmental Law (as hereinafter defined). To the
best of Seller's knowledge, and except as disclosed in that certain
environmental report dated March 16, 1996 prepared by Law Engineering and
Environmental Services, Inc., which Seller has previously delivered to Buyer,
Seller has not caused or permitted the Property to be used to generate,
manufacture, refine, transport, treat, store, handle, dispose, transfer, produce
or process any Hazardous Materials (as hereinafter defined) or solid waste,
except in compliance with all applicable Environmental Laws, and Seller has not
caused or permitted, and has no knowledge of, any Release (as hereinafter
defined) by Seller of any hazardous materials on-site or off-site of the
Property. "Hazardous Materials" shall mean all substances regulated or deemed or
defined as toxic or hazardous under Environmental Law, including, without
limitation, any flammable explosives, radioactive materials, hazardous
materials, hazardous wastes, hazardous or toxic substances, or related
materials, asbestos or any materials containing asbestos. "Environmental Law"
shall mean any Federal, state or local environmental law, ordinance, rule, or
regulation including, without limitation, the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section
Section 9601, et seq.), the Hazardous Materials Transportation Act, as amended
(40 U.S.C. Section Section 9601 et seq.), and the rules and regulations adopted
and publications promulgated pursuant thereto. "Release" shall mean releasing,
spilling, leaking, pumping, emitting, emptying, discharging, ejecting, escaping,
leaching, disposing, seeping, infiltrating, draining or dumping, including both
the present and past tense, as appropriate.
(n) To the best of Seller's knowledge, neither Seller nor
Seller's managing agent has received any written notice which remains
outstanding from any insurance company or inspection or rating bureau setting
forth any requirements as a condition to the continuation of any insurance
coverage on or with respect to the Property or the continuation thereof at the
existing premium rates. Seller has received no notice from the holder of the
First Mortgage of a default thereunder or the existence of a fact, condition or
circumstance that will, if not remedied, cause a default thereunder with the
passing of time or the giving of notice, or both.
The term "knowledge" when applied to Seller in this Agreement,
means the actual, but not constructive, knowledge of Xxxxxxx X. Xxxxxxx, the
President of the sole general partner of Seller, after due inquiry of the
resident manager of the Property, the maintenance supervisor of the Property,
the staff accountant for the Property, and the Vice President of Operations of
the property management company for the Property, and not anything which he
should have known, but did not know. Whenever reference is made in this
Agreement to a notice having been
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received by Seller the same shall mean a notice which actually has been
received by Xxxxxxx X. Xxxxxxx or of which he has been advised after due
inquiry of the resident manager of the Property.
Seller's warranties and representations shall survive the consummation of
the transaction contemplated herein through December 15, 1997. Any lawsuit or
other proceeding by Buyer against Seller in respect of any such warranties or
representations must be commenced by Buyer, if at all, no later than December
31, 1997. If Buyer fails to notify Seller no later than December 15, 1997 of a
breach by Seller of any warranty or representation contained in this Agreement,
or if Buyer fails to file suit against Seller no later than December 31, 1997
in respect of any breach by Seller of a warranty or representation contained in
this Agreement, Buyer's right to file suit against Seller or otherwise recover
against Seller in respect of any such breach of a warranty or representation
shall be terminated and null and void. Notwithstanding the foregoing, if Buyer
has knowledge that any of the representations and warranties of Seller in this
Agreement are inaccurate in any respect prior to the Closing Date, and if such
inaccuracy does not result from any act or omission of Seller between the date
hereof and the Closing Date, Buyer's sole and exclusive remedy, waiving all
other remedies, is either to (i) terminate this Agreement by giving notice to
Seller in which event the Escrow Agent promptly shall return to Buyer so much
of the Deposit as is then held by Escrow Agent, and thereafter this Agreement
shall terminate and be null and void and of no further force or effect, except
for the Inspection Indemnity, and neither Buyer nor Seller shall have any
further rights, remedies, duties, liabilities or obligations to the other, or
(ii) waive that representation and warranty as to such inaccuracy and proceed
to consummate the transaction contemplated herein. Buyer acknowledges that
Seller shall have no liability for any representations or warranties of Seller
in this Agreement which were true when made and as of the Closing Date, but
which become untrue following the Closing Date.
7.02 Representations and Acknowledgments of Buyer.
(a) Buyer shall have the right to assign, on the Closing Date,
but not before, its interest in this Agreement to any limited partnership, the
sole general partner of which is a related entity of American Equity Corp. Buyer
shall not have the right to assign its interest in this Agreement to any other
party without obtaining the written consent of Seller. Any assignment or
attempted assignment by Buyer in violation of this Section 7.02(a) shall be null
and void and of no force and effect. Buyer hereby agrees that any assignment by
Buyer will not relieve Buyer of its obligations and liabilities hereunder.
(b) Buyer's execution and performance of this Agreement will
not cause Buyer to be in default under, or in breach of, any other existing
agreement or obligation.
(c) Buyer will take prior to Closing all necessary legal
actions to authorize or confirm its authority to enter into and perform all the
terms of this Agreement.
7.03 Seller's Obligation to Cure Violations.
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(a) Except as otherwise provided herein, all notices of
violations of law or governmental ordinances, orders or requirements which were
noted or issued prior to the Closing by any governmental department, agency or
bureau having jurisdiction as to conditions affecting the Property and all liens
which have attached to the Property prior to the Closing pursuant to any
applicable governmental ordinances, orders or requirements shall be removed or
complied with by Seller, so long as the cost of removal or compliance does not
exceed $5,000.00. If the cost of such removal or compliance exceeds $5,000.00
and Buyer is unwilling to waive compliance, then Seller shall have the option to
terminate this Agreement and the Deposit shall be returned to Buyer. If such
removal or compliance has not been completed prior to the Closing, and such
removal or compliance can be accomplished by the payment of a specified sum of
money, then Seller shall pay to Buyer at the Closing such sum, not to exceed
$5,000.00, as is necessary to effect or complete such removal or compliance, and
Buyer shall be required to accept title to the Property subject thereto.
ARTICLE VIII
CONTINGENCIES OF CLOSING
8.01 Buyer's Contingencies.
The obligation of Buyer to close is expressly made subject to the following
conditions, each of which is for the sole benefit of Buyer and may be waived in
writing by Buyer, at its sole option and discretion:
(a) the truth and accuracy as of the date hereof and the
Closing Date of each and every warranty and representation herein made by
Seller, and the execution by Seller of a certificate reaffirming the truth of
such warranties and representations as of the day of Closing;
(b) the timely performance by Seller of each and every
obligation imposed upon Seller hereunder; and
(c) the execution and delivery by Seller to Buyer of each and
every instrument required by this Agreement to be executed and delivered by
Seller to Buyer.
8.02 Seller's Contingencies.
The obligation of Seller to close is expressly made subject to the following
conditions, each of which is for the sole benefit of Seller and may be waived
in writing by Seller, at its sole option and discretion:
(a) the execution and delivery by Buyer to Seller of each and
every instrument required by this Agreement to be executed and delivered by
Buyer to Seller;
(b) the timely performance by Buyer of each and every
obligation imposed upon it
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hereunder; and
(c) the payment of the monies by Buyer to Seller as provided in
Article II hereof.
ARTICLE IX
THE CLOSING
9.01 Closing Date.
(a) The closing and transfer of title pursuant to this
Agreement ("Closing") shall take place on or before sixty (60) days following
the expiration of the Inspection Period (the "Closing Date"). The Closing shall
take place on the Closing Date at 10:00 A.M. at the offices of Holt, Ney,
Zatcoff & Xxxxxxxxx, 000 Xxxxxxxx Xxxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 00000, or
at such other place upon which Seller and Buyer may agree in writing. If Buyer
and Seller are not able to agree on the Closing Date, the Closing Date shall be
on the 60th day following expiration of the Inspection Period.
(b) Buyer may extend the Closing Date for one (1) thirty (30)
day period. For each thirty (30) day extension, Buyer shall deposit with the
Escrow Agent at least five (5) days prior to the otherwise scheduled Closing
Date an additional Thirty Thousand Dollars ($30,000.00) which additional deposit
or deposits plus interest shall become a part of the Deposit, shall be
non-refundable except as otherwise herein specifically provided, and shall be
credited against the Purchase Price, or otherwise applied as herein specified.
9.02 Seller's Closing Expenses.
Seller shall pay at or prior to Closing the cost of (i) recording any documents
required to cure any title defects or objections; (ii) Georgia transfer tax
required to be affixed to the Deed; and (ii) such other expenses incurred by
Seller or necessary to Seller's performance of the Agreement.
9.03 Buyer's Closing Expenses.
Buyer shall pay at Closing the cost of (i) recording the instruments of
conveyance; (ii) title insurance commitment and policy premiums and title
examination expenses; (iii) survey; and (iv) such other expenses incurred by
Buyer or necessary to Buyer's performance of the Agreement.
9.04 Closing Prorations and Adjustments.
(a) The following prorations and adjustments shall be made
between the parties at the Closing as of 11:59 p.m. on the day prior to the
Closing Date:
(i) Prepaid rent, and all other income and expense in
respect of the Property, with Seller being entitled to all such income and
obligated for all expenses through the day prior to the Closing Date. Tenant
Security Deposits will be transferred by credit against the Purchase
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Price and Buyer will hold and apply the Security Deposits as the Leases and
Georgia law require and will indemnify, defend and hold Seller harmless in
respect thereto. No proration shall be made in relation to delinquent rents
existing, if any, as of the Closing Date. In adjusting for uncollected rents,
no adjustment shall be made in Seller's favour for rents which have accrued and
are unpaid as of Closing, but Buyer shall pay Seller such accrued and unpaid
rents, as and when collected by Buyer, it being agreed that Buyer shall not be
deemed to have collected any such arrearages attributable to the period prior
to Closing until such time as the tenant is current in the payment of all rents
accruing in the month of and after the Closing. Buyer agrees to xxxx tenants
of the Property for all past due rents and to take any additional reasonable
actions requested by Seller to collect rents that are accrued but unpaid as of
the Closing, provided that Buyer shall not be obligated to incur any
out-of-pocket third party expense in connection with such actions and Buyer
shall not be obligated to take any action to terminate a tenancy. Seller
reserves the right to bring suit against tenants of the Property to collect for
accrued but unpaid rents owed Seller as of the Closing Date, but Seller may
not, subsequent to Closing, bring suit for possession of the premises occupied
by such tenants;
(ii) ad valorem real estate and personal property taxes
imposed upon or levied against the Property, the Land, the Improvements or the
Personal Property;
(iii) water, sewer, electric, gas and other utility
charges, if any, on the basis of final meter readings taken on the day prior to
the Closing Date. Buyer shall open a new account in Buyer's name;
(iv) charges under Service Contracts assigned to and
assumed by Buyer, as provided in this Agreement; and
(v) In the event that Seller pays a prepayment penalty
to the holder of the First Mortgage (based on the yield maintenance formula) in
an amount less than $108,000.00, Buyer shall receive a credit against the
Purchase Price in an amount equal to the difference between $108,000.00 and the
amount of the prepayment penalty paid by Seller. In the event that the
prepayment penalty paid by Seller exceeds $108,000.00, Buyer will pay to Seller
as an addition to the Purchase Price that part of the prepayment penalty which
exceeds $108,000.00.
(b) If the Closing shall occur at a time when the current
year's tax assessment for the Land, Improvements or Personal Property has not
been fixed, the proration of taxes at the Closing shall be upon the basis of the
tax imposed for the immediately preceding period applied to latest assessed
valuation. Promptly after the new tax assessment is fixed and the rate
established, the proration of taxes shall be recomputed if a recomputation would
result in a difference of at least $100.00 to either party. Any discrepancy
resulting from such recomputation and any other errors or omissions in computing
other prorations at Closing shall be promptly corrected upon notice and demand
by either party, which obligations shall survive the Closing. All reprorations
must be effected no later than December 15, 1997 and thereafter Seller and Buyer
shall have no further reproration obligation.
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9.05 Closing Documents to be Executed by Seller.
Seller shall deliver or cause to be delivered to Buyer on or before the
Closing Date, at Seller's sole cost and expense, the following original
documents, each of which must be properly executed by Seller:
(a) Limited Warranty Deed.
(b) A Xxxx of Sale, having warranties of title only, otherwise
on an "as is, where is" basis without warranty or representation, transferring
to Buyer all of Seller's right, title and interest in the Improvements, the
Personal Property, and any and all other rights of Seller described in Section
1.02 which are not included in the Deed.
(c) All Leases pertaining to the Property.
(d) A schedule of all security deposits and credit to Buyer in
the amount of such security deposits, including any interest thereon, held by
Seller on the Closing Date under the Leases.
(e) A certified rent roll.
(f) A notice to each tenant under each of the Leases
instructing the tenants to forward all further payments and correspondence to
Buyer.
(g) An assignment to Buyer of the Leases set forth on Exhibit E
and any other leases permitted hereby which will contain an assumption by Buyer
and a cross-indemnity.
(h) An assignment of all Service Contracts which are in effect
on the Closing Date and which are to be assigned by Seller to Buyer which will
contain an assumption by Buyer and a cross-indemnity.
(i) The Service Contracts, any warranties of the equipment,
fixtures and improvements, including any general warranties regarding
improvements constructed within one year prior to the Closing Date in Seller's
possession.
(j) Assignment of all written warranties and guarantees which
Seller has received from subcontractors and materialmen with respect to the
Property, along with a general assignment of all miscellaneous warranties and
guaranties made by third parties with respect to the Property (all without
representation or warranty by Seller).
(k) To the extent they are then in Seller's possession and not
posted at the Property, certificates, licenses, permits, authorizations and
approvals issued for or with respect to the Property by governmental and
quasi-governmental authorities having jurisdiction.
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(l) Assignment from Seller to Buyer of all rights of Seller to
use the name "Autumn Ridge Apartments" in connection with the operations of the
Property, only, Seller reserving right to use of name outside Xxxx County,
Georgia.
(m) A closing statement setting forth all of the closing
expenses of Seller and Buyer, including closing prorations and adjustments, and
setting forth the net cash due to Seller and the cash required to close on the
part of Buyer (the "Closing Statement").
9.06 Closing Documents to be Executed by Buyer.
Buyer shall deliver or cause to be delivered to Seller on or before the Closing
Date, at Buyer's sole cost and expense, the following:
(a) If Buyer is a corporation, a resolution of Buyer's Board of
Directors authorizing the purchase of the Property.
(b) Properly executed copies of the Closing Statement.
(c) All other certificates and documents required of Buyer by
the Title Insurer in order to issue the title insurance policies in accordance
with this Agreement.
(d) Any other documents required under this Agreement.
ARTICLE X
DESTRUCTION, DAMAGE OR CONDEMNATION
10.01 Insurance.
Between the Contract Date and the Closing Date, Seller shall keep the Property
insured as presently insured.
10.02 Non-Material Damage.
If the property is damaged by fire, act or God, or other casualty prior to the
Closing and if the Property can be restored prior to Closing at a cost less
than One Million Dollars ($1,000,000.00) to substantially the same condition
existing prior to such damage, Seller shall so restore the Property and the
Closing Date shall be as set forth in this Agreement. In the event that the
Property cannot be so restored prior to Closing and the cost to repair is less
than $1,000,000.00, Seller shall deliver to Buyer at Closing all insurance
proceeds plus that additional amount, if any, which is required to repair or
restore such damage, which amount shall be mutually determined by Buyer and
Seller, and there shall be no reduction of the Purchase Price.
10.03 Material Damage.
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If the Property is materially damaged by fire, act of God, or other casualty
prior to the Closing, and the Property cannot be restored to substantially the
same condition existing prior to such damage, Buyer may elect to (i) terminate
this Agreement and receive as Buyer's sole remedy a return of the Deposit, or
(ii) Buyer may elect to take title to the Property on the Closing Date provided
herein, together with such insurance proceeds as may be available to Seller or
Buyer for the repair or restoration of such damage, and there shall be no
reduction of the Purchase Price. If Buyer elects to take title to the Property
in its damaged condition, Seller shall assign or deliver to Buyer any and all
insurance proceeds or insurance contracts or contract rights for the repair and
restoration of the Property. Materially is herein defined to mean damage to
the Property costing in excess of $1,000,000.00 to repair.
10.04 Condemnation.
If any condemnation or eminent domain proceedings are commenced by any
competent public authority with respect to the Property, or any part thereof,
prior to the Closing, Seller shall promptly give Buyer written notice thereof,
and Buyer shall have the option, to be exercised within fifteen (15) days of
such notice, to (i) close the purchase of the Property on the Closing Date
subject to such proceedings, whereupon any award paid or to be paid in
connection therewith shall be paid to or assigned to Buyer by Seller at the
Closing, or (ii) terminate this Agreement and receive a return of the Deposit,
whereupon the rights and obligations of the parties to this Agreement shall
cease and terminate.
ARTICLE XI
REAL ESTATE COMMISSION
11.01 Real Estate Commission.
(a) This Agreement was not brought about, directly or
indirectly, by any real estate agency or broker other than Xxxxxx & Xxxxxx (the
"Broker") and no commission or fee will be payable on the sale hereunder other
than to the Broker. American Equity and Realty Corporation of New York
("AERCNY") has been employed by Buyer to act as a consultant with respect to
this transaction and Buyer agrees to pay AERCNY its agreed-upon fees and to
indemnify, defend and hold Seller harmless in respect thereto. AERCNY agrees
that in no event will Seller be obligated to it for any compensation whatsoever.
In the event of a Closing, Seller shall pay the Broker a real estate commission
in the amount of One Hundred Thousand Dollars ($100,000.00). Each party hereto
represents and warrants that it has employed no brokers or real estate agencies
in the creation of or the negotiations relating to this Agreement other than the
Broker, and each party shall indemnify and hold the other harmless against any
cost, claims or expenses (including attorneys fees), arising by reason of any
breach by such party of its warranty and representation under this section.
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(b) In the event of a default by Buyer, the failure of a
Closing condition, or in the event for any other reason, including a default by
Seller or Buyer, no Closing occurs, no real estate commission will be owing or
paid to the Broker, nor shall the Broker be entitled to any portion of the
forfeited Deposit. The Broker has joined in the execution of this Agreement for
the sole purpose of acknowledging the provisions of this section and agreeing to
execute a broker's lien waiver at closing and that this Agreement may be amended
by Seller and Buyer without execution by Broker provided such amendment does not
affect Broker's entitlement to its commission.
ARTICLE XII
ACCOUNTS PAYABLE
12.01 Accounts Payable.
Unless prorated with Buyer at Closing, any and all of Seller's accounts payable
as of the date of Closing shall be paid by Seller not later than thirty (30)
days subsequent to the Closing Date, or, in the event that Seller has not been
billed for any such accounts payable accruing on or before the date of Closing,
payment shall be made within thirty (30) days after Seller actually receives
any such later billing.
ARTICLE XIII
DEFAULT
13.01 Notice of Default.
No default as to any provision of this Agreement shall be claimed or charged by
either party against the other until notice thereof has been given to the
defaulting party in writing, and such default remains uncured for a period of
five (5) days after the defaulting party's receipt of such notice.
Notwithstanding the above, the Closing Date shall not be changed, delayed,
postponed, or extended by any requirement for notice of default, if such
default consists of failure to appear at Closing.
13.02 Default by Buyer.
In the event that the transaction contemplated herein is not closed and
consummated because of Buyer's failure or breach to perform its obligations
hereunder, Seller may obtain so much of the Deposit as is then held by Escrow
Agent from Escrow Agent as agreed-upon liquidated damages and not as a penalty,
it being otherwise difficult or impossible to estimate or determine Seller's
actual damages, and which liquidated damages shall be in lieu of any other
damages or the right to specific performance, and, upon Seller's receipt of
such liquidated damages, this Agreement shall terminate and be null and void
and of no further force or effect, and neither Seller nor Buyer shall have any
further rights, remedies, duties, liabilities or obligations to the other
hereunder, except for the Inspection Indemnity.
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13.03 Default by Seller.
In the event that the transaction contemplated herein is not closed and
consummated because of Seller's failure or breach to perform its obligations
hereunder or because of a breach by Seller of any of the representations and
warranties made herein by Seller, Buyer shall have the right only (i) to
terminate this Agreement by giving notice thereof to Seller and Escrow Agent,
and upon receipt of such notice Escrow Agent shall return so much of the
Deposit as is then held by Escrow Agent to Buyer and thereafter this Agreement
shall terminate and be null and void and of no further force or effect, except
for the Inspection Indemnity, and neither Seller nor Buyer shall have any
further rights, remedies, duties, liabilities or obligations to the other
hereunder, or (ii) to xxx Seller for specific performance of its obligations
under this Agreement; which remedies specified in (i) and (ii) shall be in lieu
of any other rights or remedies for Buyer, including, without limitation, any
right or claim for damages; provided, however, in the event that the remedy of
specific performance is not available to Buyer because Seller has conveyed or
encumbered the Property, Buyer may pursue a claim against Seller for
compensatory damages not to exceed $700,000.00. If Buyer consummates the
transaction contemplated in this Agreement it shall be conclusively deemed to
have waived any breach by Seller of any covenant, representation or warranty
under this Agreement which the Buyer knew existed prior to the Closing.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.01 Binding Effect.
The rights and obligations created by this Agreement shall be binding upon and
inure to the benefit of Seller and Buyer and their successors and assigns.
Whenever used the singular number shall include the plural, the plural the
singular, and the use of any gender shall include all genders, as the context
requires.
14.02 Non-Merger of Certain Provisions.
Only the provisions of the last paragraph of Section 7.01, and Sections
3.04(a), 9.04(b), 11.01(a), and 12.01 of this Agreement shall survive the
Closing as herein provided, and shall not be merged into the documents of
conveyance from Seller to Buyer at Closing. If either party shall violate any
of the provisions that survive the Closing of this Agreement, the other party
will be entitled to recover all costs and attorney's fees incurred in
connection with the enforcement of such provisions.
14.03 Entire Agreement.
This Agreement contains the entire understanding between Buyer and Seller and
each agrees that no representation has been made by or on behalf of the other
that is not contained in this
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Agreement, and that in entering into this Agreement neither party relied upon
any representation not herein contained.
14.04 Applicable Law.
This Agreement shall be interpreted and enforced in accordance with the laws of
the State of Georgia. Each party acknowledges that all parties hereto
participated in the drafting of this Agreement and that, accordingly, no court
construing this Agreement shall construe it more stridently against one party
than the other.
14.05 Captions.
The captions for each section of this Agreement are for convenience of
reference only and in no way define, describe, extend, or limit the scope or
intent of this Agreement, or the intent of any provision hereof.
14.06 Recording Prohibited.
Neither this Agreement nor any memorandum thereof may be recorded by Buyer in
the Public Records of any County in the State of Georgia, and if this Agreement
or any memorandum thereof is recorded by Buyer, at the option of Seller the
Agreement will become null and void by the act and fact of recording and Buyer
will forfeit the Deposit.
14.07 Severability.
If any provision of this Agreement shall be held to be invalid or unenforceable
to any extent, the same shall not affect in any respect whatsoever the validity
or enforceability of the remainder of this Agreement.
14.08 Counterparts and Execution by Facsimile.
This Agreement may be executed in two or more counterparts, each of which shall
be and be taken to be an original, and all shall collectively be deemed one
instrument. For purposes of determining the Contract Date, the parties may
execute this Agreement and transmit a copy thereof by facsimile to the other
party, and any copy of the Agreement so executed shall be effective as an
original on the date of the facsimile. The original executed copy shall be
delivered no later than five (5) days following the date of the facsimile.
14.09 Amendments and Waivers.
This Agreement may not be amended, modified, altered, or changed in any
respect whatsoever except by a further agreement in writing duly executed by
the parties hereto. No failure by Buyer or Seller to insist upon the strict
performance of any covenant, duty, agreement, or condition of this Agreement or
to exercise any right or remedy upon a breach thereof shall
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constitute a waiver of any such breach or of such or any other covenant,
agreement, term, or condition. Either party hereto, by notice, may but shall be
under no obligation to, waive any of its rights or any conditions to its
obligations hereunder. No waiver shall affect or alter this Agreement but each
and every covenant, agreement, term, and condition of this Agreement shall
continue in full force and effect with respect to any other then-existing or
subsequent breach thereof.
14.10 Typewritten or Handwritten Provisions.
Handwritten and typewritten provisions inserted into this Agreement initialed
by both parties shall control over the typewritten provisions in conflict
therewith.
14.11 Notices. Any notice or demand which either party hereto is
required or may desire to give or deliver to or make upon the other party shall
be in writing and may be personally delivered, or by overnight courier (FedEx,
UPS etc.) return receipt requested, addressed as follows:
To Seller: Xxxxxxx Properties Residential, L.P.
Xxxxx X. Xxxxxxxx
Xxxxxxx Properties, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Copy to: Xxxxxxx X. Xxxxxxx, Esq.
Holt, Ney, Zatcoff & Xxxxxxxxx
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
To Buyer: The Benchmark Group
0000 Xxxxx Xxxx
Xxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxxx
Copy to: Xxxxxx X. Xxxxxx, Esq.
XxXxx & Xxxxxx
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxx Xxxx 00000
Any such notice, demand or document shall be deemed to be given, delivered or
made upon receipt of the same by the party to whom the same is to given,
delivered or made. Buyer and Seller may from time to time notify the other of
changes with respect to whom and where notices should be sent by sending
notification of such changes pursuant to this section. Any notice or demand
may be executed by and sent by and to the counsel for the Seller and the Buyer.
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14.12 Exhibits.
All Exhibits attached hereto are incorporated herein by this reference. In the
event of an inconsistency between the provisions of this Agreement and the
information set forth on any Exhibit, the terms of the Exhibit shall control.
14.13 Litigation and Attorney's Fees.
In the event it shall be necessary for either party to this Agreement to bring
suit to enforce or construe any provision hereof (before or after Closing) or
for damages on account of any breach of this Agreement, the prevailing party
shall be entitled to recover from the other in addition to any damages or other
relief granted as a result of such litigation, all costs and expenses of such
litigation and reasonable attorney's fees (including attorney's fees and costs
of appeals) as determined by the Court.
14.14 Section 1031 Exchange.
Seller may wish to consummate an exchange of the Property for other property of
like kind to be held by Seller as an investment and have the transaction
qualify as an exchange pursuant to Section 1031 of the United States Internal
Revenue Code, as amended. Buyer agrees to cooperate with Seller in effecting
such an exchange provided that Buyer shall not be required to take title to any
exchange property, such cooperation shall be at no cost or expense whatsoever
to Buyer, and such exchange shall not delay Buyer in the Closing of its
acquisition of the Property, nor excuse Seller from performing its obligations
under this Agreement in the event that Seller is unable or is delayed in
effecting such an exchange. Buyer also agrees that Buyer will, at the
direction of Seller or a third party intermediary acting at Seller's direction,
pay all proceeds of the sale of the Property to the third party intermediary
who will facilitate the "like-kind" exchange for Seller pursuant to an
intermediary exchange agreement between Seller and such third party
intermediary, and Buyer will execute documents to effectuate the exchange
provided that such documents impose no liability upon Buyer and do not require
Buyer to take title to any other property.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement for
Sale and Purchase Of Improved Property as of the date first above written.
XXXXXXX PROPERTIES
RESIDENTIAL, L.P.
a Georgia limited partnership
By: Xxxxxxx Realty Investors, Inc.,
a Georgia corporation and its sole
General Partner
April 14, 1997 By: /s/ Xxxxxxx Xxxxxxx
--------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------
Title: President
------------------------
ACG PARTNERSHIP HOLDINGS, L.P.
a Delaware limited partnership
By: Its General Partner
AMERICAN EQUITY CORP.
April 14, 1997 By: /s/ Xxxxxx X. Xxxxx
--------------------------
Name: Xxxxxx X. Xxxxx
-------------------------
Title: Vice President
------------------------
XXXXXX & XXXXXX, INC.
April 15, 1997 By: /s/ Xxxx Xxxxx
--------------------------
Name: Xxxx Xxxxx
-------------------------
Title: Sales Agent
------------------------
AMERICAN EQUITY AND REALTY
CORPORATION OF NEW YORK
April 14, 1997 By: /s/ Xxxxx X. Xxxxx
--------------------------
Name: Xxxxx X. Xxxxx
-------------------------
Title: President
------------------------
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Commonwealth Land Title Insurance Company joins in the execution of this
Agreement for the sole purpose of acknowledging the agreements as to the
holding and disbursement of the Deposit.
COMMONWEALTH LAND TITLE
INSURANCE COMPANY
April 21, 1997 By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
-------------------------
Title: Vice President
------------------------
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