AGREEMENT TO SELL REAL ESTATE
This AGREEMENT TO SELL REAL ESTATE ("Agreement") is made
between the parties hereafter named this 16th day of September,
1997.
1. PARTIES
1.1 MIG-OAK RAMBLE ASSOCIATES LIMITED PARTNERSHIP, a
Michigan limited partnership, with offices c/o Acquest Realty
Advisors, Inc., 00 X. Xxxx Xxxx Xxxx, Xxxxx 00, Xxxxxxxxxx Xxxxx,
Xxxxxxxx 00000 ("Seller").
1.2 XXXXXX RESIDENTIAL PROPERTIES, INC., a Maryland
corporation, whose address is One Lincoln Centre, 0000 XXX Xxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000 ("Purchaser").
2. RECITALS
2.1 Seller is the owner of certain real property located
in Hillsborough County, Florida, improved by a two hundred fifty-six (256)
apartment complex and other amenities containing
approximately two hundred twenty nine thousand three hundred eighty
net rentable square feet (229,380), located at 00000 Xxxxxxxxx
Xxxxx, Xxxxx, Xxxxxxx 00000, legally described in Exhibit 2.1
attached to this Agreement (the "Premises"). The Premises,
together with certain personal property located thereon owned by
Seller and used or useful in connection with the Premises is
referred to collectively herein as the "Property". Where
separately referred to, the personal property is hereafter referred
to as the "Personal Property".
2.2 Purchaser desires to purchase the Property from
Seller, and Seller is willing to sell the same subject to the terms
and conditions hereof.
NOW, THEREFORE, it is agreed by and between the parties as
follows:
3. AGREEMENTS
3.1 Sale. Purchaser agrees to purchase the Property
from Seller, and Seller agrees to sell the Property to Purchaser,
under the terms set forth in this Agreement.
3.2 Binding Upon Purchaser. By execution of this
Agreement, Seller and Purchaser shall be bound by the terms and
conditions hereof, subject, however, to the contingencies provided
herein.
3.3 Purchase Price. The purchase price for the Property
is Ten Million Dollars ($10,000,000) (the "Purchase Price"),
payable in cash or federal funds by wire transfer to Seller upon
closing of the Property sale.
3.4 Xxxxxxx Money Deposit. Simultaneously with the
execution of this Agreement, Purchaser will deliver to the Title
Company (as hereinafter defined) an xxxxxxx money deposit in the
amount of One Hundred Thousand Dollars ($100,000) (the "Deposit").
The Deposit shall be: (a) applied to the Purchase Price if the
transaction described in this Agreement is consummated; or (b)
returned to Purchaser if Purchaser cancels this Agreement pursuant
to Purchaser's cancellation rights hereunder; or (c) be paid over
and retained by Seller as liquidated damages as Seller's sole
remedy in the event Purchaser defaults hereunder, as provided in
Paragraph 3.16. The Deposit shall be returned to Purchaser in the
event Purchaser cancels this Agreement pursuant to Paragraph 3.7.
3.5 Purchaser's Due Diligence. Purchaser shall have
thirty (30) days from the date hereof to conduct such due diligence
as Purchaser deems necessary with respect to the Property (the "Due
Diligence Period"). During the Due Diligence Period, Seller will
permit Purchaser access to the Property on reasonable notice by
Purchaser, during normal business hours, and will make available to
Purchaser for review and copying at Purchaser's expense, such
written information concerning the Property as Seller has in its
possession or under its control including, to the extent in
existence and within the files of Seller or the property manager,
those items set forth in Schedule I attached hereto. Purchaser
agrees to indemnify, protect, defend and save Seller harmless from
any and all claims, actions, liabilities, damages, costs or causes
of action of any kind, nature or description, including attorneys'
fees, as arise because of or as are related to Purchaser's
activities during the Due Diligence Period. Notwithstanding
anything to the contrary contained in this Paragraph 3.5, Purchaser
acknowledges and agrees that it shall not make or perform any
physical tests or procedures on, about or to the Property
including, but not limited to, soil sampling, soil boring, material
sampling, excavations, and the like without Seller's prior written
consent, which consent may be granted or withheld by Seller in its
sole and absolute discretion. Seller shall notify Purchaser of its
decision to grant or to withhold its consent within five (5)
business days following Seller's receipt of Purchaser's request for
permission to perform any physical test or procedure. In the event
Seller withholds Its consent to Purchaser performing any physical
test or procedure, Purchaser shall have the right to cancel this
Agreement. Provided Seller has granted its consent to Purchaser
performing any physical test or procedure, if Purchaser's agents go
on the Premises and perform labor thereon such as soil boring or
environmental inspections, Purchaser shall provide Seller with
evidence of xxxxxxx'x compensation and liability insurance
satisfactory to Seller to protect Seller from any liability
concerning such activities. The results of all tests or procedures
shall be confidential and shall not be disclosed by Purchaser to
any third party without Seller's prior written consent.
3.6 Title Insurance and Survey.
3.6.1 Simultaneously herewith Seller has
provided Purchaser with a copy of the Xxxxx Land Survey, dated May
22, 1986 (the "Survey"). Within fourteen (14) days after the date
hereof, Seller at its sole expense shall furnish Purchaser with a
current update of the Survey. The updated Survey shall show the
location of the Premises and of all improvements thereon, all
recorded easements and, if necessary for an understanding thereof
by description, all roads, rights-of-way and applicable flood plain
information, including the designation of any applicable flood
plain map. The updated Survey shall contain a legal description of
the boundaries of the Premises. The description of the land
contained in the updated Survey and in the title policy shall be
used for the purpose of the description to be contained in Seller's
special warranty deed described subsequently herein.
3.6.2 Within fourteen (14) days after the date
hereof, Seller shall deliver to Purchaser a commitment for an
owner's title insurance policy ("Title Commitment") issued by
Safeco Land Title of Dallas, an agent for Chicago Title Insurance
Company, 0000 Xxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: L. Xxxxx Xxxx ("Title Company") and copies of selected
instruments pertaining thereto. Seller agrees to pay the premium
for the owner's title policy to be issued in the amount of the
Purchase Price. To the extent that Purchaser desires endorsements
to the title policy or ALTA extended coverage, and such
endorsements or coverage are available without any further action
or cost to Seller, such endorsements or coverage shall be provided
and all increases in the premium as a result thereof shall be borne
by Purchaser.
3.6.3 Purchaser shall have through and including
the expiration of the Due Diligence Period in which to give written
notice to Seller specifying Purchaser's objection to the status of
title to the Premises. At the and of the Due Diligence Period,
Purchaser shall have no further right to object to the status of
Seller's title to the Premises.
3.6.4 If Purchaser notifies Seller in writing of
title objections within the Objection Period then, prior to the
closing, Seller at its sole option and in its sole discretion,
shall have the right, but not the obligation, to satisfy any such
objections at Seller's sole cost and expense. Within five (5) days
of the receipt by Seller of Purchaser's title objections, Seller
shall notify Purchaser in writing of its decision as to whether or
not to satisfy any such objections. If Seller satisfies the
objections, closing shall take place as scheduled. If Seller
elects not to satisfy, or for any reason fails to satisfy all of
Purchaser's objections, Purchaser shall have the option to either:
(a) waive all unsatisfied objections and close the transaction,
without deduction or credit on the Purchase Price; or (b) terminate
this Agreement, in which latter event the parties shall have no
further or other obligation to or with one another hereunder. Only
those matters approved or waived by Purchaser during the Due
Diligence Period shall be deemed to be permitted title exceptions
(the "Permitted Title Exceptions").
3.7 Purchaser's Right to Cancel. During the Due
Diligence Period, Purchaser has the right to cancel this Agreement
by giving to Seller notice as provided in Paragraph 3.16. If
notice is not delivered within the Due Diligence Period,
Purchaser's right to cancel this Agreement shall terminate as of
the end of such period, except nothing in this paragraph shall
Terminate the right of the Purchaser to cancel this Agreement
pursuant to Paragraph 3.6.4 or if any of the matters set forth in
Paragraph 3.9 occur.
3.8 Allocation of Purchase Price. Within the Due
Diligence Period, Purchaser and Seller shall agree in writing as to
the allocation of the Purchase Price between the Premises and
Personal Property. If Purchaser and Seller fail to agree within
such period, the entire Purchaser Price shall be allocated to the
Premises.
3.9 Closing of Transaction. Closing of the Property
sale shall take place on the fifteenth (15th) day following the
termination of the Due Diligence Period or on such prior date as
the parties hereto agree in writing (the "Closing Date") provided,
however, that Purchaser shall have no obligation to consummate this
transaction if:
3.9.1 There shall have been a material adverse
change in the physical condition of the Property through damage by
fire or other casualty. If the cost of restoration is fully
covered by insurance proceeds in amounts satisfactory to Purchaser,
and Purchaser shall have a right to such proceeds or to terminate
this Agreement and receive an immediate return of the Deposit;
3.9.2 There is a material change in condition of
the Premises title from the condition approved by Purchaser during
the Due Diligence Period.
3.9.3 There is pending or threatened any legal
action against Seller or the Premises which, if adversely
determined, could have a material adverse effect upon the Premises,
the use thereof, or performance of this Agreement.
3.10 Seller's Representations and Warranties. Following
the Due Diligence Period, Purchaser agrees to accept the Property
in an "as is" condition. ANY WARRANTIES OF OR WITH RESPECT TO
FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY,
HABITABILITY, PROFITABILITY, OR MARKETABILITY ARE SPECIFICALLY
DISCLAIMED. FURTHER, SELLER DOES NOT MAKE, NOR WILL SELLER MAKE,
ANY OTHER REPRESENTATION OR WARRANTY OR COVENANT, EXPRESSED OR
IMPLIED, WITH RESPECT TO THE PROPERTY OR ANY MATTER SET FORTH IN
THIS AGREEMENT, EXCEPT:
3.10.1 Seller's deed to the Premises shall be a
special warranty deed in the form of Exhibit 3.10.1, and the xxxx
of sale for the Personal Property shall be in the form of Exhibit
3.10.1(a).
3.10.2 Seller has no knowledge of the existence
of any fact or circumstance which at the date of execution of this
Agreement and as of the Closing Date, would constitute a breach by
Seller of any term or condition of this Agreement.
3.10.3 There are no service contracts relating to
the Property except as disclosed on Exhibit 3.10.3. To the extent
that the Purchaser requests that Seller terminate any service
agreement which by its terms is terminable, Purchaser shall, prior
to the Closing Date, terminate such service agreements.
3.10.4 The existing first mortgage in favor of
Comerica Investment Fund G shall be terminated and released at the
closing of the sale of the Property.
3.10.5 Seller is, and at Closing will be, the
sole person holding good, indefeasible and marketable fee simple
title to the Property, free and clear of all liens and encumbrances
except the Permitted Title Exceptions.
3.10.6 This Agreement has been duly authorized
and executed by Seller and is a valid and binding obligation of,
and is enforceable, in accordance with its terms, against Seller.
The documents delivered to Purchaser at Closing will be duly
authorized and executed by Seller and will be a legal, valid and
binding obligation of, and will be enforceable in accordance with
their terms against, Seller.
3.10.7 To the best of Seller's knowledge: (A) the
Property and the operation thereof (including the handling of
tenant security and other deposits) currently in substantial
compliance with the requirements of all governmental agencies; (B)
the zoning classification of the Property permits the operation of
Improvements thereon as a use by right; and (C) Seller knows of no
commitments or agreements with any of the governmental agencies
affecting the Property which have not been fully disclosed to
Purchaser in writing. For purposes of this Agreement, "to the best
of Seller's knowledge" means the current actual conscious knowledge
without investigation of Xxxxx Xxx, President of Acquest Realty
Advisors, Inc., the general partner of Seller.
3.10.8 To the best of Seller's knowledge, Seller
has received no notices and is unaware of any facts or conditions
which, with notice or lapse of time, might constitute uncured
violations at the Property of any applicable statute, ordinance or
regulation, relating to the Property, its construction, or any
occupancy thereof, nor, to the best of Seller's knowledge, are
there presently pending or threatened against Seller or against the
Property or, to the best of Seller's knowledge, against anyone, any
judgments, judicial proceedings or administrative actions relating
to any of the above matters of a material nature.
3.10.9 To the best of Seller's knowledge, no
Hazardous Materials are located on or about the Property. To the
best of Seller's knowledge, the Property does not contain any
underground tanks for the storage or disposal of Hazardous
Materials. Further, to the best of Seller's knowledge, (A) the
Property previously has not been used for the storage, manufacture
or disposal of Hazardous Material, (B) no complaint, order,
citation or notice with regard to air emissions, water discharges,
noise emissions and Hazardous Materials, if any, or any other
Applicable Environmental Laws from any person, government or entity
has been issued to Seller, and (C) Seller has complied with all
Applicable Environmental Laws. For the purposes of this
representation, "Applicable Environmental Laws" means any and all
applicable laws pertaining to health or the environment, including,
without limitation, the Superfund Reauthorization and Amendments
Act of 1988 ("XXXX"), the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ("CERCLA"), the Resource
Conservation and Recovery Act of 1976 ("RCRA"), as well as any and
all other laws, ordinances, rules and/or regulations created or
imposed by any governmental authority having jurisdiction with
respect to the Property, whether local, state or federal,
pertaining to environmental regulation, contamination, clean-up or
disclosure, as now existing and/or as hereafter amended, and
"Hazardous Materials" means any toxic materials, hazardous, waste
or hazardous substance (as these terms are defined in the
Applicable Environmental Laws) and including, without limitation,
any asbestos or asbestos-related products or materials and any
oils, petroleum-derived compounds or pesticides.
3.10.10 To the best of Seller's knowledge, no
action has been taken with respect to work performed or delivery of
material which would give rise to a lien on the Property. To the
best of Seller's knowledge, at closing, there will be no claim in
favor of any person or entity which is or could become a lien on
the Land, the improvements, or the Personal Property, arising out
of the furnishing of labor or materials to the Property other than
claims or liens arising from acts of Purchaser; there will be no
unpaid assessments against the Property, except for Property taxes
assessed but not due and payable at the time of Closing; and there
will be no claim in favor of any person or entity (including the
present management) for any unpaid commissions or fees for leasing
of the Property.
3.10.11 Seller will not renew, amend, or reduce
the coverage under, or cancel, any existing policy or procure any
new policy other than in the ordinary course of business without
Purchaser's prior, written consent, which shall not be unreasonably
withheld, conditioned or delayed. Purchaser, at Closing, shall
obtain its own insurance coverage.
3.10.12 Seller, at its expense, will maintain the
Property in its current condition until closing excepting only
ordinary wear and tear and damage or loss thereto covered by
insurance.
3.10.13 Seller shall continue the operation of the
Property in the normal and usual manner, will not remove any
fixtures, furnishings, equipment or personal property subject to
this Agreement, except for repair or replacement, and the Property
will be managed, operated, maintained, repaired and redecorated in
the ordinary course of business consistent with past practices.
3.10.14 At closing, no contract of any kind,
including contracts for servicing, operating or managing the
Property, will be effective and binding upon the Property or
Purchaser, except as disclosed on Exhibit 3.10.3. Seller will not
enter into any other service, operating or management contracts
relative to the Property that cannot be canceled on thirty (30)
days notice without the prior, written consent of Purchaser, nor
will Seller make, or agree to, prior to closing, any change or
modification to the contracts set forth in Exhibit 3.10.3, other
than in the ordinary course of business, without the prior, written
consent of Purchaser. If an agreement concerning the management of
the Property currently is in effect and is not set forth at Exhibit
3.10.3, it shall be terminated effective on the Closing Date.
3.10.15 Seller agrees that benefits or
compensation accrued prior to closing, and due or claimed to be due
either before or after closing, to employees or former employees of
Seller shall constitute obligations of Seller only, and Seller
agrees to indemnify and hold Purchaser harmless from all such
obligations and claims.
3.10.16 Seller will not borrow any money or do, or
fail to do, any other act or thing which would cause the Property
or any Personal Property to become pledged or otherwise utilized as
collateral or in any way stand as security for any indebtedness or
obligation.
3.10.17 To the knowledge of Seller, the
consummation of the transaction contemplated herein will not result
in the breach of any provision in any lease or other agreement
affecting the Property.
3.10.18 Seller is not a "foreign person" within
the meaning of Sections 1445 and 7701 of the Internal Revenue Code
of 1954, as amended; Seller is not a non-resident alien, foreign
corporation, foreign partnership, foreign trust, or foreign estate
(as those terms are defined in the Internal Revenue Code of 1986,
as now existing or hereafter amended).
3.10.19 All ad valorem taxes and personal property
taxes which are due and payable on or prior to the Closing Date
will have been paid in full.
3.10.20 None of the representations contained in
Paragraph 3.10 shall survive the closing.
3.11 Environmental Matters. Except as provided in
Paragraph 3.10.9, Seller makes no representations or warranties of
any kind with respect to the existence or absence of any hazardous
or regulated substances on or about the Premises or of any
contamination thereof, Purchaser acknowledges and agrees that as of
the Closing Date, it has been given full and adequate opportunity
to inspect the Property, and that Purchaser is fully satisfied with
said reports and the results of Its own investigation. Purchaser,
as of the Closing Date, agrees to release Seller from any and all
claims, harm, damages and liability as Purchaser now has or will
ever have against Seller resulting from the existence of hazardous
substances or contamination on the Premises.
3.12 Closing Adjustments. At closing of the sale of the
Property, taxes, expenses and other items shall be adjusted, as of
the Closing Date, as follows:
3.12.1 Operating Expenses. Operating expenses of
the Property accrued through and including the Closing Date shall
be paid by Seller, and Seller shall indemnify and hold Purchaser
harmless from all liability, loss, cost and expense by reason
thereof. Purchaser shall pay all operating expenses incurred after
the Closing Date and shall indemnify Seller and hold Seller
harmless from all liability, loss, cost and expense by reason
thereof. Operating expenses include all normal expenses
attributable to the Property, including any management fees.
3.12.2 Taxes. Seller shall pay all general real
property taxes, installments and special assessments, if any, which
are a lien upon the Property and are due as of or before the
Closing Date, except that current general real property taxes shall
be prorated as of the Closing Date and special assessments payable
in installments shall be payable by Seller only for installments
due before the Closing Date and shall be prorated as to any
installment due after the Closing Date for the period through the
Closing Date. The proration of current general real property taxes
shall be allocated on the basis of due dates of the respective
taxing authorities. Any refund received as a result of any
existing tax appeal commenced by Seller and relative to Seller's
period of ownership shall be the property of Seller.
3.12.3 Rents. All rents collected by the Seller
under any leases up to and including the Closing Date which are
applicable to the period subsequent to the Closing Date, and all
other revenues arising from the Property collected by Seller which
are allocable to the period subsequent to the Closing Date shall be
taken as a credit by Purchaser against the Purchase Price. To the
extent that Purchaser subsequently collects any rentals or revenues
allocable to the period prior to the Closing Date, the Purchaser
shall remit the same to Seller forthwith, it being understood,
however, that rents collected after the Closing Date shall first be
applied to current rents due and payable and thereafter to
delinquent rents. For purposes of this paragraph, only actual
rents collected shall be prorated. There shall be no proration of
uncollected rents. Purchaser shall be entitled to a credit against
the Purchase Price in the amount of all tenant security deposits in
the actual possession of Seller. Purchaser shall use its best
efforts to collect such revenues and to the extent Purchaser
collects such revenues allocable to the period prior to the Closing
Date, Purchaser shall remit the same to Seller forthwith.
3.12.4 Utilities. Utility charges shall not be
prorated but, rather, instructions shall be given to the utility
companies by Seller (with a duplicate copy of such instruction
being provided concurrently to Purchaser) to read the meters on the
Closing Date and to issue separate statements thereafter. If
applicable, utility deposits will be credited to Seller and
assigned to Purchaser at closing. In the event that any provider
of utilities shall refuse to issue separate statements in the
manner aforesaid, applicable utility charges shall be adjusted in
the manner of rents.
3.13 Expenses of Sale. Seller shall be required to pay
only the cost of recording the special warranty dead, the cost of
the owner's title insurance policy (except for endorsements and
coverage obtained at the request of Purchaser which shall be
Purchaser's sole obligation), the brokerage commissions of LePaul
Partners, its own attorneys' fees and the cost of the updated
Survey and, except as set forth in this Paragraph 3.13, no other
costs or expenses.
3.14 Closing Matters. Upon the Closing Date: (a) Seller
shall deliver to Purchaser the special warranty dead, xxxx of sale
and an assignment of all leases and service contracts, if any,
affecting the Property which shall be assumed by Purchaser and
Seller's rights under the terms of the Settlement Agreement in the
lawsuit known as COX x. Xxxxx Oil Company, et al, Civil Action No.
18844 filed in the Chancery Court for Oblon County, Tennessee, as
such Agreement was approved by the Court; (b) the Purchaser shall
deliver to Seller the Purchase Price less the Deposit; (c) the
adjustments specified herein shall take place; (d) to the extent
that Seller has any books or records pertaining to the Premises
same shall be delivered to Purchaser at closing or as soon as
possible thereafter; (e) shall deliver, or arrange at the closing
for the delivery of, an owner's title insurance policy issued by
the Title Company; and (f) possession of the Premises shall be
delivered to Purchaser subject to the rights of any tenants of the
Property.
3.15 Default. If Seller shall perform or tender
performance of Seller's obligation under this Agreement and
Purchaser shall fail to perform its obligations hereunder, Seller
may terminate this Agreement by notice to Purchaser, in which
latter event the Deposit shall be retained by Seller as liquidated
damages and neither party shall have any other or further liability
to the other except that if Purchaser shall challenge Seller's said
right to retain the Deposit and Seller shall prevail against said
challenge, Purchaser shall pay all of Seller's costs and legal
expenses, including reasonable attorney fees. If Purchaser shall
perform or tender performance of Purchaser's obligations under this
Agreement and Seller shall fail to perform, then Purchaser shall be
entitled to terminate this Agreement and receive an immediate
return of the Deposit or seek specific performance, in which event
this Agreement shall be terminated, deemed void and of no further
effect, and the parties shall have no further obligations to one
another.
3.16 Notice. All notices given hereunder shall be in
writing or by telecommunication device capable of creating a
written record, including without limitation, telefax or telecopy
and shall be deemed to have been received when delivered by hand,
courier, telefax or telecopy, or if mailed, then three (3) days
after deposit of the same in the United States Mail, provided the
notice is sent with all postage fully prepaid thereon, and
addressed as follows:
If to Seller: Mig-Oak Ramble Associates Limited Partnership
c/o Acquest Realty Advisors, Inc.
00 X. Xxxx Xxxx Xxxx
Xxxxx 00
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Fax Mail: (000) 000-0000
With a Xxxx Xxxxxx & Xxxxxx
copy to: 000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Gold, Esq.
Fax Mail. (000) 000-0000
If to: Xxxxxx Residential Properties
One Lincoln Centre,
0000 XXX Xxxxxxx,
Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxx
Fax Mail: (000) 000-0000
With a Xxxxxx Xxxxx Xxxx Xxxx & Xxxxx
copy to: 0000 Xxxxxxxx Xxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attention: Xxxxx Xxxxxx
Fax Mail: (000) 000-0000
or to such person or other address as the party receiving such
notice shall have requested in writing in accordance with the
provisions of this Paragraph 3.17.
3.17 Brokers. Other than LaPaul Partners, who was
retained by and the payment of whose commission shall be the sole
responsibility of Seller, each party represents and warrants to the
other that it has not retained any broker in connection with this
transaction, and each party agrees to indemnify the other from any
liability, cost and expense by reason of any claim by any broker
retained by such party.
3.18 Time of the Essence. It is expressly agreed by the
parties that time is of the essence with respect to this Agreement.
3.19 Assignment. This Agreement is non-assignable and
Purchaser shall have no right to assign its rights under this
Agreement to any other person or entity other than an affiliate of
Purchaser without the prior written consent of Seller, which
consent shall be in Seller's sole and absolute discretion.
3.20 Attorney's Fees. If either party hereto employs an
attorney to enforce or defend its rights under this Agreement, the
prevailing party shall be entitled to recover its reasonable
attorney fees from the other party.
3.21 Return of Documents. If this Agreement is
terminated and Purchaser is entitled to a return of the Deposit,
Purchaser shall promptly deliver to Seller all documents received
from Seller or its agents or representatives in connection with
this matter, and all studies and reports received by Purchaser.
Seller may request, and if requested Purchaser shall provide Seller
with, a termination certificate wherein the parties acknowledge
that all documents have been returned and that Purchaser has not
and will not disclose any information with respect to the Property
to any other person or entity.
3.22 Complete Agreement. This Agreement constitutes the
entire agreement between Seller and Purchaser with respect to the
Property, and there are no other agreements in existence, written
or oral, express or implied, as of the date hereof. Any amendments
to this Agreement shall be valid only if the same is in writing and
executed by the parties hereto.
3.23 Applicable Law. This Agreement and the construction
and enforcement hereof shall be governed by the laws of the State
of Florida.
3.24 Liability of Officers of Purchaser. This Agreement
and all documents, agreements, understandings, and arrangements
relating to this transaction have been executed by the undersigned
in his/her capacity as an officer or director of Purchaser which
has been formed as a Maryland corporation pursuant to the Articles
of Incorporation of Purchaser, and not individually, and neither
the directors, officers or stockholders of Purchaser shall be bound
or have any personal liability hereunder or thereunder. Seller
shall look solely to the assets of Purchaser for satisfaction of
any liability of the Purchaser in respect of this Agreement and all
documents, agreements, understandings and arrangements relating to
the transaction contemplated by this Agreement and will not seek
recourse or commence any action against any of the directors,
officers or stockholders of Purchaser or any of their personal
assets for the performance or payment of any obligation hereunder
or thereunder. The foregoing shall also apply to any future
documents, agreements, understandings, arrangements and
transactions between the parties hereto.
3.25 Liability of Partners of Seller. This Agreement and
all documents, agreements, understandings, and arrangements
relating to this transaction have been executed by the undersigned
in his/her capacity as an officer of the general partner of Seller
and not individually, and the partners, general or limited, of
Seller shall not be bound in their individual capacity or have any
personal liability hereunder or thereunder. Purchaser shall look
solely to the assets of Seller for satisfaction of any liability of
the Seller in respect of this Agreement and all documents,
agreements, understandings and arrangements relating to the
transaction contemplated by this Agreement and will not seek
recourse or commence any action against any of the partners,
general or limited, of Seller or any of their or its personal
assets for the performance or payment of any obligation hereunder
or thereunder. The foregoing shall also apply to any future
documents, agreements, understandings, arrangements and
transactions between the parties hereto.
3.26 Confidentiality. The parties hereto hereby agree
that they will use all commercial efforts to maintain the
confidentiality of the terms of the transaction contemplated
hereby, the contents of this Agreement and related documents, if
any, except that Purchaser may disclose material terms which are
required to be disclosed by applicable securities laws or as
required by any national securities exchange on which Purchaser's
common stock may be listed and Purchaser may include a copy of this
Agreement in its filings with the Securities and exchange
Commission. The foregoing shall in no way prohibit Seller from
disclosing the transaction to its agents and employees who may be
affected by the transaction.
3.27 Removal from Market. Seller will remove the
Property from the market and cease all discussion with other
prospective purchasers upon completion of the Due Diligence Period,
and shall not solicit, accept, negotiate or entertain any offers
(whether or not binding) regarding the Property during the term of
the Agreement, except that prior to the completion of the Due
Diligence Period, it may solicit, accept, negotiate or entertain
offers regarding the Property that are subordinate to this
Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Seller and Purchaser have caused this
Agreement to be executed by their duly authorized representatives
on the day and year first above written.
WITNESSES: PURCHASER
XXXXXX RESIDENTIAL PROPERTIES, INC.
a Maryland corporation
By:
Xxxx X. Xxxxx
Its: Vice President
SELLER
MIG-OAK RAMBLE ASSOCIATES LIMITED
PARTNERSHIP
By: Acquest Realty Advisors, Inc.
Its: General Partner
By:
Xxxxx Xxx
Its: President
I:\FINANCE\SECFIL~1\10-K-97\EX-10-12.WPD
9/10/97
EXHIBIT 2.1
Real property situated in Hillsborough County, Florida described
as:
Commence at the Southeast corner of the Northeast 1/4 of
the Northwest 1/4 of Section 0, Xxxxxxxx 00 Xxxxx, Xxxxx
00 Xxxx, Xxxxxxxxxxxx Xxxxxx, Xxxxxxx; thence run
N.00 degrees 53'28"W. along the East line of said Northeast 1/4
of the Northwest 1/4 a distance of 30.00 feet from the
point of beginning; thence run S.89 degrees 47'45"W. parallel
with the South line of said Northeast 1/4 of the
Northwest 1/4 872.90 feet; thence run N.01 degrees 26'34"W. a
distance of 681.72 feet; thence run N.88 degrees 33'26"E. a
distance of 138.12 feet to an intersection with a point
on a curve; thence along a curve to the right having a
radius of 185 feet, with a central angle of 24 degrees 05'59",
through an arc distance of 77.81 feet to point; thence
N.41 degrees 43'31"E. along a non-tangent line a distance of
570.36 feet; thence N.00 degrees 28'29"E. a distance of 208.12
feet; thence S.89 degrees 31'31"E. a distance of 285.96 feet;
thence S.00 degrees 53'28"E. a distance of 1357.32 feet to the
point of beginning.
TOGETHER WITH:
All of Seller's right, title and interest in and to that
certain Entrance Road Easement Agreement dated June 27,
1986, and recorded in Official Records Book 4850, Page
1647, as amended by Amendment to Entrance Road Easement
Agreement dated November 30, 1988, and recorded in
Official Records Book 5573, Page 1497, all of the Public
Records of Hillsborough County, Florida.
SCHEDULE 1
1. Seller's most current owner's title insurance policy and
a copy of all title reports and documents in Seller's possession.
2. A list and a copy of all Service Contracts, all documents
pertaining to any leased Personal Property, and all warranties,
guaranties and bonds relating to the Property, or any part thereof.
3. A complete, itemized and detailed inventory of the
Personal Property to be conveyed by Seller to Purchaser at the
closing,
4. A copy of (i) all income and expense statements for the
Property, for the year-to-date and for the most recently completed
prior year (prepared on a monthly basis), and annual operating
statements for the two (2) most recent fiscal years, (ii) operating
budgets for the Property for the current calendar year and the
upcoming calendar year, (iii) a capital expenditure budget for the
Property for the current calendar year and the upcoming calendar
year, and (iv) such other information as may be required by
Purchaser's accountants to perform a complete audit of the Property
for the twelve (12) month period ended December 31, 1996, and year-to-date 1997.
5. A copy of all ad valorem and other property tax
statements (including personal property tax statements) relating to
the Property for the current tax year and the immediately preceding
two (2) tax years, including copies of any assessments or
statements for the current or forthcoming year, including a summary
of any contested tax assessments relating to the Property for the
preceding two (2) years, and the results thereof.
6. A copy of (i) a resident rent roll for the Property,
showing actual occupancies, rentals, delinquencies, defaults,
security deposits, assigned parking spaces (if any), free rent,
rent concessions, resident incentives, lease terms, unit numbers,
unit types, and unit amenities; (ii) a current schedule of rental
rates for each type of unit within the improvements; and (iii) such
other pertinent information regarding the resident leases and
rental units, including, without limitation a schedule of the
appliances and amenities included in each type of rental unit.
7. A copy of all site plans, surveys, soil and substrate
reports and studies, engineering plans and studies, environmental
reports or studies, architectural renderings, plans and
specifications, construction contracts (with all applicable change
orders), floor plans, landscape plans, utility schemes and other
similar plans, diagrams of studies, if any, relating to the
Property.
8. A copy of the architect's certificate rendered at or
after the completion of construction of the improvements stating
that the improvements were constructed substantially in accordance
with the plans and specifications delivered to Purchaser hereunder.
9. A copy of all reports made by engineers, architects or
others, if any, relating to any structural problems or other
defects with respect to any part of the Property.
10. A copy of all certificates occupancy for the Property.
11. A copy of all swimming pool permits, boiler permits and
other licenses and permits for the Property required by law and
issued by any governmental authority having jurisdiction over the
Property or Seller.
12. A list of all employees currently employed in the
operation of the Property, setting forth his/her name, address,
telephone number, position, salary, benefits, bonuses, leasing
commissions, other incentives, apartment allowance (if applicable)
and tenure with the Property.
13. A schedule outlining, and invoices, contracts and/or work
orders pertaining to, any (i) carpet replacement, window
replacement, and appliance replacement over the past two (2) years
relating to the improvements, (ii) any other capital expenditures
over the past two (2) years at the Property, showing the nature of
the work, expense, date and unit or common area where the work was
done, and (iii) regular maintenance and repair at the Property
over the past twelve (12) months.
14. A copy of the standard form of resident lease, leasing
application, security and pet deposit documents, rules and
regulations, leasing brochures, occupancy checklist, current
marketing/leasing plans and business plans for the Property, other
standard forms and documents currently used in connection with the
leasing and marketing of the Property, and a profile of existing
resident base, including data on age, income, sex, household
structure, occupation, etc., to the extent such information is
available to Seller.
15. A list of all utility deposits or bonds for the Property
and a copy of all utility bills for the Property for the previous
twelve (12) months, excluding individually metered resident utility
bills.
16. Copies of and/or access throughout the Due Diligence
Period to all resident files.
17. Copies of any pertinent litigation of safety related
issues with respect to the Property.
