EXHIBIT 4(m)
AGREEMENT FOR PURCHASE AND SALE
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THIS AGREEMENT is entered into by ROYAL PALM BEACH COLONY LIMITED
PARTNERSHIP, a Delaware limited partnership ("Seller"), and TCR SFA APARTMENTS,
INC., a Texas corporation ("Buyer"). The "Effective Date" of this Agreement is
the date on which the last party has signed this Agreement and delivered a fully
executed original to the other party.
BACKGROUND:
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Seller is currently the owner of that certain property located in the
Village of Royal Palm Beach in Palm Beach County, Florida, containing
approximately 21.8 acres, together with the abandoned Crestwood Boulevard
right-of-way, all of which is more particularly described in Exhibit "A"
attached hereto and made a part hereof ("Property"). The parties to this
Agreement have agreed to the sale and purchase of the Property on the terms and
conditions which are set forth in this document.
AGREEMENT:
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1.00 Purchase and Sale.
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Subject to all of the terms and conditions of this Agreement, the
Seller will sell to the Buyer and the Buyer will purchase from the Seller the
Property, together with all appurtenances, rights, easements, and rights of way
incident thereto and together with all state, municipal and county development,
utility, impact and other fees paid by Seller relating to the Property
("Governmental Fees") as more particularly described herein.
2.00 Purchase Price.
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The purchase price to be paid by the Buyer to the Seller for the
Property is $2,040,000 ("Purchase Price"). The Purchase Price shall be payable
as hereinafter described.
If, in connection with the site plan submission and approval process
described in Paragraph 4.01 hereof, the Buyer is unable to obtain an approved
site plan for at least 272 rental apartment units, then the Purchase Price shall
be reduced by the sum of $7,500 for each unit under 272 units which is not on
the approved site plan. However, if the number of approved units is less than
250 units, then the Buyer shall, in its sole discretion, either acquire the
property for a purchase price based upon 250 units (i.e. $1,875,000), or
terminated this Agreement, whereupon the Escrow Agent shall refund any deposits
placed hereunder to the Buyer and the parties shall be relieved of all further
obligations and liabilities hereunder.
2.01 Deposit.
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Within 2 days of the Effective Date, the Buyer shall deposit with Broad
and Xxxxxx ("Escrow Agent") the sum of $50,000 ("First Deposit") which shall be
invested in an interest bearing account selected by Buyer. Upon receipt of
final, unappealable site plan approval from the Village of royal Palm Beach for
a minimum of 250 apartment units, Buyer shall deposit an additional $50,000
("Second Deposit") with Escrow Agreement and Escrow Agent shall hold the second
deposit upon the same terms as the First Deposit. The First Deposit, the Second
Deposit and the deposit described in Paragraph 6.0 are collectively referred to
as the "Deposit". The disposition of the Deposit shall be in accordance with the
terms and conditions of this Agreement. Upon closing, interest shall be paid to
the Buyer.
2.02 Payment of Purchase Price.
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At the time of closing, the Buyer will pay to Seller by cashier's check
or by wire transfer of funds the Purchase Price as adjusted for prorations and
adjustments as set forth in this Agreement. Upon closing, the Escrow Agent will
return the Deposit to the Buyer.
3.00 Title and Title Insurance.
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Within twenty (20) days from the Effective Date the Buyer shall obtain
a commitment for an ALTA Form B owner's title insurance policy issued by a title
insurance company reasonably acceptable to Buyer. The title insurance commitment
shall have a date subsequent to the Effective Date and shall show that title to
the Property is good and marketable and insurable subject to no liens,
encumbrances, exceptions or qualifications which would preclude the Buyer, in
its sole discretion, from constructing and developing a rental apartment
community upon the Property. The Buyer shall have fifteen (15) days from receipt
of the commitment in which to examine the condition of title. If the Buyer fails
to provide the Seller with written notice of specific defects which make title
to the Property other than as required by this paragraph within the fifteen (15)
day period, then, for all purposes of this Agreement, the Buyer shall be deemed
to have accepted title in the condition described in the commitment. Any title
exceptions which are not objected to within the fifteen (15) day period shall be
deemed to be permitted exceptions.
If the Buyer timely notifies the Seller that title does not satisfy the
requirements of this paragraph, then the Seller agrees to use reasonable
diligence to make title good, marketable and insurable, for which purpose the
Seller shall have a reasonable time but in no event more than one hundred twenty
(120) days from the receipt of the Buyer's written notice that title is
unacceptable. After reasonable diligence on the part of the Seller, if title is
not rendered as required by this paragraph, then at the end of the one hundred
twenty (120) day period any money deposited by the Buyer at the election of
Buyer, shall be returned to Buyer, this Agreement shall be terminated and all
parties hereto shall be released from any and all obligations and liabilities
hereunder. At any time prior to such termination, the Buyer may elect by written
notice to the Seller to waive any defects in title, in which event the closing
shall take place pursuant to this Agreement without any abatement in price. The
obligation of the Seller to cure title defects shall include an obligation to
expend money (but not in excess of $5,000.00) but not to commence and pursue
litigation.
4.00 Investigation Period.
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a. Commencing on the Effective Date, the Buyer shall have sixty (60)
days ("Investigation Period") in which to determine that the Property can be
improved with a rental apartment project pursuant to a plan feasible and
satisfactory to the Buyer in its sole discretion (the "Intended Improvements").
The inclusion of the Investigation Period in this Agreement shall not in any
manner alter, modify or limit the conditions precedent to closing set forth in
Paragraph 5.00 hereof or Seller's Warranties set forth in Paragraph 10.00
hereof. Seller acknowledges that Buyer will be expending funds during the
Investigation Period, and that such expenditures constitute full and valuable
consideration for this Agreement and the Investigation Period.
b. Among other things, during the Investigation Period the Buyer shall
review the (i) adequacy of utility service which is or will be made available to
a boundary of the Property; (ii) impact fees and other charges which will be
incurred in connection with the development of the Property, including sewer and
water connection fees; (iii) soil conditions; (iv) market surveys relating to
the need for Buyer's intended improvement in the area of the Property; and (v)
any such other items as Buyer may deem pertinent. During the Investigation
Period, Seller shall provide Buyer and its agents with access to the Property
and Buyer shall be permitted to clear the Property as necessary for survey
purposes and soil borings.
c. The Buyer hereby indemnifies and holds the Seller harmless from any
damage, loss, cost or expense including, but not limited to, attorneys' fees and
costs incurred by the Seller as a result of the negligence, recklessness or
willful misconduct of any of Buyer's agents or employees who enter the Property.
Prior to entering onto the Property, Buyer shall provide Seller with evidence of
liability insurance coverage reasonably satisfactory to Seller.
Buyer shall have no indemnification obligation or other liability for,
or in connection with any claims arising from pre-existing conditions on or
under the Property, or those arising from the presence, discovery, or
disturbance of "Hazardous Substances" as such term is defined in the
Comprehensive Environmental Response, Compensation and Liability Act. 42 U.S.C.
ss. 96-0 et seq. and the regulations promulgated thereunder (as amended from
time to time) and shall include oil and oil waste as those terms are defined in
the Clean Water Act, 33 U.S.C. ss1251 et seq. and the regulations promulgated
thereunder (as amended from time to time), the Resource, Conservation and
Recovery Act, 42 U.S.C.ss6901 et seq. and the Florida Resource Recovery and
Management Act, Florida Statutes ss403.70-403.73, each as amended from time to
time and shall include any other elements or compounds contained in the list of
hazardous substances adopted by the United States Environmental Protection
Agency (the "EPA") and the list of toxic pollutants designated by Congress or
the EPA as defined by any other Federal, State or local statute, law, ordinance,
code, rule, regulation, order or decree relating to standards of conduct
concerning any toxic or dangerous waste or substance.
d. Within fifteen (15) days after the Effective Date, Seller agrees to
provide Buyer with copies of all documents in Seller's possession pertaining to
the Property and the proposed development thereof, if any, including , but not
limited to, surveys, site plans, proposed governmental regulations, agreements
relating to school, water, sewer, road and recreational impact fees, association
documents, developers agreements (whether recorded or not), and any other
document in Seller's possession or in the possession of any of Seller employees,
agents or independent contractors, if any.
e. If for any reason the Buyer, in its sole discretion, determines
during the Investigation Period that the Intended Improvements cannot be built
on the Property, then no later than 6:00 p.m. on the last day of the
Investigation Period, the Buyer shall, in writing, notify the Seller that it has
elected not to proceed and thereupon the Deposit shall be returned to the Buyer
and the parties hereto shall be relieved of all liabilities and obligations
under this Agreement. In the event, Buyer fails to notify Seller in writing
prior to the expiration of the Investigation Period, Buyer shall be deemed to
have elected to proceed. If Buyer elects not to proceed, it will provide Seller
with copies of surveys, soil tests and third party market studies, if any, which
it has obtained during the Investigation Period.
4.01 Development Approval.
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If Buyer elects to proceed with this transaction pursuant to the terms
of Paragraph 4.00 hereof, Buyer will promptly thereafter initiate the planning,
design, approval and permitting process for the development of the Property and
the construction of the Intended Improvements and will thereafter diligently and
continuously pursue obtaining the Development Approvals in a time sequence
deemed reasonable by Buyer in its discretion. Such approvals and permits are
hereinafter collectively the "Development Approvals", and will include, but not
be limited to:
a. Site Plan Approval.
b. Plat approval and recordation of any amendments necessary to permit
the constructions and development of the Intended Improvements on the Property:
c. All approvals relative to concurrency issues; and
d. All building, engineering and utility permits required for the
development and construction of the Intended Improvements; and
e. All necessary approvals from the appropriate governmental
authorities (including reasonable variances which Buyer deems necessary) in
order to permit the commencement of development and construction of the Intended
Improvements.
Seller agrees to cooperate with Buyer in obtaining the Development
Approvals, provided Seller shall not thereby be required to incur any costs.
Seller's cooperation shall include, but not be limited to the execution of
consents, applications, petitions and agreement as may be required by applicable
governmental authorities or entities ("Development Applications") and attendance
by Seller at meetings, proceedings or hearings (if required). If Seller fails or
refuses to execute and deliver to Buyer any Development Applications within five
(5) business days of Buyer's delivery of same to Seller, the time periods for
Buyer's performance hereunder and the closing date shall be extended for the
number of days Buyer has been delayed in the approval and permitting process
attributable to Seller's failure to deliver to Buyer the requested Development
Applications, provided, however, if Seller fails or refuses to execute any
Development Applications for a period in excess of ten (10) business days after
delivery of same by Buyer to Seller, Buyer may elect (i) to extend the time for
obtaining Development Approvals and the closing date for the number of days
Buyer has been delayed in the approval and permitting process attributable to
seller's failure to deliver to Buyer the requested Development Applications, or
(ii) Buyer may deem the Seller in default of this Agreement.
5.00 Conditions Precedent to Buyer's Obligation to Close.
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The following are specific conditions which must be satisfied prior to,
and must be true at closing BUT, THE FAILURE TO SATISFY ANY OF THESE CONDITIONS
SHALL NOT EXTEND THE CLOSING AS DESCRIBED IN SECTION 6.00A. BELOW:
a. The Property is zoned to permit the development of Buyers, Intended
Improvements.
b. The Buyer has obtained the Development Approvals.
c. There are no governmental prohibitions (including zoning
restrictions or conditions or water, sewer, building or other moratoria in
effect) that prevent Buyer from proceeding to construct and occupy Buyer's
Intended Improvements.
d. There shall be direct, uninterrupted and continuous ingress and
egress access for pedestrian and vehicular traffic from the Property to a public
road or road right-of-way and all necessary curb cuts and street opening permits
shall have been obtained or approved.
e. An updated environmental audit of the Property (performed at Buyer's
expense) shall indicated no adverse environmental conditions as of the closing.
f. Title to the Property shall be good, marketable and insurable and
subject only to the Permitted Exceptions.
6.00 Closing.
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a. The purchase and sale contemplated by this Agreement shall be closed
on the earlier of nine (9) months after the Effective Date or the date which is
fifteen (15) days after Buyer obtains building permits for the Intended
Improvements. The closing will be held at the offices of Seller's attorney in
Palm Beach County or at such other place as the parties may mutually agree upon.
b. If Buyer has been diligently pursing the receipt of building permits
from the Village of Royal Palm Beach but has not obtained them within nine (9)
months from the Effective Date, then Buyer shall be entitled to three successive
30-day extensions of the Closing. In order to obtain each 30-day extension, the
Buyer shall provide the Seller with five days' prior notice of its election to
extend the Closing for 30 days. The written Notice shall be simultaneously
accompanied with a $25,000 payment of an additional deposit to the Seller.
During any of the 30-day extensions of the Closing, the Buyer will continue its
diligent pursuit of building permits. If the Buyer fails to obtain building
permits by the end of any of the extension periods, and if the Buyer elects not
to close, then any of the $25,000 additional deposits made by the Buyer shall be
retained by the Seller and the balance of the Deposit held by the Escrow Agent
shall be returned to the Buyer. If the Buyer closes this transaction then all of
the $25,000 additional deposits as well as the Deposit, shall be credited toward
the payment of the Purchase Price.
b. Notwithstanding anything contained herein to the contrary, at any
time prior to the scheduled closing, the buyer in its sole discretion may elect
to close this transaction. Buyer shall exercise this election by delivering to
the Seller written notice of the Buyer's intention to close which notice shall
set a closing date not less than ten (10) days nor more than forty-five (45)
days from the date of the notice.
6.01 Seller's Deliverance.
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Seller shall deliver to the Buyer at the closing the following
documents, dated as of the closing date, the delivery and accuracy of which
shall be a condition to the Buyer's obligation to consummate the purchase and
sale:
a. Warranty Deed. A statutory warranty deed in recordable form, duly
executed by the Seller, conveying to the Buyer good, marketable and insurable
fee simple title to the Property subject only to those exceptions contained in
the title commitment, with the legal description provided in the title
commitment.
b. Affidavit. A no-lien and exclusive possession affidavit of a form
and content customarily used in Palm Beach County, Florida. The no-lien
affidavit shall relate to any activity of the Seller at the Property within the
period that a mechanic's lien can be filed based on such activity prior to the
closing.
c. FIRPTA Affidavit. In order to comply with the requirements of the
Foreign Investment Real Property Tax Act of 1980 "(FIRPTA"), Seller will deliver
to Buyer at closing Seller's affidavit under penalty of perjury stating the
Seller is not a "foreign person," as defined in Section 1445 of the Internal
Revenue Code of 1986 and the U.S. Treasury Regulations thereunder., setting
forth Seller's taxpayer identification number, and that Seller intends to file a
United States income tax return with respect to the transfer. Seller represents
and warrants to Buyer that it has not made nor does Seller have any knowledge of
any transfer of the Property or any part thereof that is subject to any
provisions of FIRPTA that has not been fully complied with by either transferror
or transferee.
As required by law, if Seller fails to comply with the requirement of
this paragraph, Buyer shall withhold 10% of the Purchase Price in lieu of
payment thereof to Seller and pay it over instead to the Internal Revenue
Service in such form and manner as may be required by law.
d. Seller's Certificate. A duly executed certification that every
warranty of the Seller under this Agreement is true and correct as of the
closing as if made by the Seller at such time.
e. Evidence of Authority. Duly executed resolutions, authorizing the
appropriate officers or partners of Seller to execute and deliver any of the
above-listed documents on behalf of the Seller. Additionally, Seller shall
deliver to the Buyer current certificates of good standing.
f. Other Documents. Such other documents as may reasonable be required
by the Buyer iln order to consumate the transaction contemplated by this
Agreement. Seller shall also deliver to Buyer and Buyer's attorney copies of all
of the foregoing documents at least five (5) days prior to closing for Buyer's
review.
6.02 Buyer's Deliveries.
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At the closing, and after the Seller has complied with all of the terms
and conditions of this Agreement and simultaneously with Seller's delivery of
the documents required in Paragraph 6.01, the Buyer shall:
a. Purchase Price. Pay to the Seller by wire transfer of funds the
Purchase Price, adjusted for the prorations and other payments for in this
Agreement; and
b. Corporate Resolution. Deliver to Seller a corporate resolution, duly
executed, authorizing Buyer to close the subject transaction.
c. Other Documents. Deliver such other documents as may reasonably be
required by the Seller in order to consummate the transaction contemplated by
this Agreement.
6.03 Closing and Recording Costs.
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The Seller shall pay the cost of documentary stamps to be affixed to
the deed, surtax on the deed of conveyance, if any, one-half of the cost of the
owner's title insurance policy premium, and all recording costs (except the cost
of recording curative documents required pursuant to the terms of Paragraph 3.00
hereof, which costs shall be paid by the Seller). Buyer shall pay the cost of
the boundary survey and one-half of the cost of the title insurance premium.
7.00 Taxes and Prorations.
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At the closing, the taxes on the Property shall be prorated between the
parties on the basis of the taxes paid for the most recent year that has been
assessed and billed. If the actual taxes for the year of closing are not
determinable at the closing date, then the parties agree to re-prorate taxes
promptly upon issuance of the tax xxxx for the year of closing. Special
assessment liens certified as of closing shall be paid by the Seller. Pending
liens shall be assumed by the Buyer.
8.00 Possession.
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The Buyer shall be granted full possession of the Property as of the
closing.
9.00 Survey.
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Buyer will obtain a current boundary survey of the Property dated
subsequent to the Effective Date. The survey shall be certified to the Seller,
the Buyer, the lending institution designated by Buyer, if any, the title agent
and the title insurance company. The survey shall be prepared by a licensed
Florida land surveyor in accordance with the minimum technical standards
established by the Florida Board of Land Surveyors and shall be sufficient to
cause the deletion from the title commitment matters which would be disclosed by
an accurate survey. The survey shall contain a certification of the acreage
contained within the Property, the average elevation of the Property and the
FEMA flood zone designation, and shall disclose all instruments of record as
designated in the Title Evidence. The survey shall show that there are no
encroachments on the Property. Any encroachments shown shall be treated as a
title defect in accordance with Paragraph 3.00. Buyer shall notify Seller of
survey defects prior to the expiration of the title review period.
10.00 Seller's Warranties.
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Seller hereby warrants to Buyer as follows:
a. Seller owns the Property subject only to the title exceptions which
are reflected in the title commitment described in section 3.00.
b. There are no condemnation or eminent domain proceedings pending or
to the best of Seller's knowledge contemplated against the Property or any part
thereof, and the Seller has received no notice of the desire of any public
authority to take or use the Property or any part thereof.
c. There are no pending suits or proceedings against or affecting the
Seller or any part of the Property which (i) do or could affect title to the
Property or any part thereof; or (ii) do or could prohibit or make unlawful the
consummation of the transaction contemplated by this Agreement, or render Seller
unable to consummate the same.
d. To the best of Seller's knowledge no toxic and/or hazardous wastes
as defined by Federal or Florida law have been used or stored in, on, under or
about the
Property.
e. Seller has full power and authority to execute and deliver this
Agreement and all documents now or hereafter to be delivered by it pursuant to
this Agreement and to perform all obligations arising under this Agreement.
f. This Agreement and Seller's Documents do not and will not contravene
any provision of Seller's Agreement of Limited Partnership or any present
judgment, order, decree, writ or injunction, or any provision of any currently
applicable law or regulation.
g. Seller is a limited partnership duly organized and validly existing
under the laws of the State of Delaware.
h. The Property is or at the time of closing will be free and clear of
all liens except for ad valorem taxes for the year 1998, not yet due and
payable, and for all subsequent years;
i. Seller has received no notice of and to its knowledge there is no
violation of any law, regulation, ordinance, order or judgment affecting the
Property.
j. Seller has no knowledge of any unrecorded easements, restrictions or
encumbrances affecting all or any part of the Property.
k. Seller is not aware of any facts which prohibit it from closing this
Agreement in accordance with the terms hereof.
l. There are no agreements, waivers or other arrangements providing for
any extension of time with respect to the assessment of any type of tax or
deficiency against Seller in respect of the Property, nor to the best of
Seller's knowledge, are there any actions, suits, proceedings, investigations or
claims for additional taxes and assessments asserted by any taxing authority.
m. There are no mechanics' or materialmen's liens against the Property
and if subsequent to closing hereunder, any mechanics' or other liens shall be
filed against the Property or against Buyer or its assigns, based upon any act
or omission occurring prior to closing on the Property, Seller shall take such
action, within ten (10) days after the filing thereof, by bonding, deposit,
payment or otherwise, as will remove, transfer or satisfy such lien of record
against the Property, at Seller's sole cost and expense.
n. There are no parties in possession of any portion of the Property,
whether as lessees, tenants-at-sufferance, trespassers or otherwise.
At the closing, the Seller shall, in writing, reaffirm to the Buyer the
truth and correctness, as of the closing date, of each of the warranties and
agrees to indemnify and hold the Buyer harmless from any loss or damage suffered
by the Buyer on account of the untruth or incorrectness of any such warranties.
11.00 Covenants of Seller.
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Seller hereby convenants with the Buyer as follows:
a. Between the date of this Agreement and the closing, Seller will not,
without the Buyer's prior written consent, create by its consent any
encumbrances on the Property nor will Seller accept any additional advances
under any existing mortgage on the Property. For purposes of this provision the
term "encumbrances" shall mean any liens, claims, options, mortgages or other
encumbrances, encroachments, rights-of-way, leases, easements, covenants,
conditions or restrictions.
b. Between the date of this Agreement and the date of closing, Seller
will not file any application for any change of the present zoning
classification of the Property unless such change is requested by the Buyer and
is consistent with the Intended Improvements.
12.00 Moratoria.
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If, at the time of closing, there are sewer, water, building or other
moratoria in effect which would interfere with the immediate construction and
occupancy of the Intended Improvements, then Buyer, at its sole option, may: (i)
close the transaction without regard to the moratoria; or (ii) extend the
closing for up to ninety (90) days (without placing any additional deposits). If
at the end of the 90-day period the moratorium has not been removed, Buyer may
elect to terminate the Agreement and obtain a refund of the Deposit, whereupon
the parties shall be relieved from all further liabilities and obligations
hereunder. If the moratorium is lifted within the 90 day extension period, then
the closing shall take place within 15 days after the date that the moratorium
is lifted.
13.00 Real Estate Commissions.
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Seller hereby warrants to the Buyer that Seller has not engaged or
dealt with any broker or agent other than RTL Realty, Inc. ("Seller's Broker"),
with respect to the purchase and sale of the Property as contemplated by this
Agreement. Seller shall indemnify and hold the Buyer harmless against any and
all liability, cost, damage and expense (including, but not limited to,
attorneys' fees and costs of litigation and appeals) Buyer shall ever suffer or
incur because of any claim by any broker or agent, including Seller's Broker,
claiming to have dealt with the Seller, whether or not meritorious, for any
commission or other compensation with respect to this Agreement or to the
purchase and sale of the Property in accordance with this Agreement. Seller's
broker shall be paid at closing by Seller, a commission determined pursuant to a
separate agreement.
Buyer hereby warrants to the Seller that Buyer has not dealt with any
broker or agent, other than Seller's Broker with respect to the purchase and
sale of the Property as contemplated by this Agreement. Buyer shall indemnify
and hold the Seller harmless against any and all liability, loss, cost, damage
and expense (including, but not limited to, attorneys' fees and costs of
litigation and appeal) Seller shall ever suffer or incur because of any claim by
any broker or agent, other than Seller's Broker, claiming to have dealt with the
Buyer, whether or not meritorious, for any commission or other compensation with
respect to this Agreement or to the purchase and sale of the Property in
accordance with this Agreement.
14.00 Condemnation.
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In the event of the institution against the record owner of the
Property of any proceedings, judicial, administrative or otherwise, relating to
the taking, or to a proposed taking of any portion of the Property by eminent
domain, condemnation or otherwise (which materially impairs the proposed
development of the Intended Improvements on the Property) prior to closing, or
in the event of the taking of any portion of the Property by eminent domain,
condemnation or otherwise, prior to closing, then the Seller shall notify the
Buyer promptly and the Buyer shall have the option, in its sole and absolute
discretion of either (i) terminating this Agreement and obtaining a full refund
of the Deposit (upon which the Buyer's Deposit shall be returned to Buyer); or
(ii) closing in accordance with the terms of this Agreement, but at such closing
the Seller shall assign to the Buyer all of its right, title and interest in and
to any net awards that have been or may be made with respect to such eminent
domain proceeding or condemnation. Such election must be made by the Buyer
within thirty (30) days of the notice furnished by Seller. If Buyer fails to
make an election in writing, Buyer shall be deemed to have elected alternative
(i).
15.00 Default.
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If this transaction does not close solely due to a refusal or default
on the part of the Buyer (including, without limitations Buyer's failure to
close when it is obligated to close pursuant to the terms hereof) then any
deposit placed under this Agreement shall be delivered by the Escrow Agent
(together with interest thereon) to the Seller as liquidated and agreed upon
damages; and thereafter, the Buyer shall be relieved from all further
obligations under this Agreement and the Seller shall have no further claim
against the Buyer for specific performance or for damages by reason of the
failure of the Buyer to close this transaction.
If this transaction fails to close due to a default on the part of the
Seller, then at the option of the Buyer any deposits placed under this Agreement
(together with interest thereon) shall be returned by the Escrow Agent to the
Buyer, together with all interest earned thereon, provided however, that such
return shall not limit Buyer's right to maintain an action for specific
performance or for actual out-of-pocket documented damages incurred by Buyer in
connection with this Agreement and the rights and obligations of Buyer
hereunder, which damages shall be limited to monies paid by Buyer or owed by
Buyer to third parties (other than Buyer or its salaried employees in connection
with this transaction.
16. Escrow.
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Any Escrow Agent receiving funds is authorized and agrees by acceptance
thereof to promptly deposit and to hold same in escrow and to disburse same
subject to clearance thereof in accordance with terms and conditions of this
Agreement. Failure of clearance of funds shall not excuse performance by the
Buyer. In the event of doubt as to its duties or liabilities under the
provisions of this Agreement, the Escrow Agent may, in its sole discretion,
continue to hold the monies which are the subject of this escrow until the
parties mutually agree to the disbursement thereof, or until a judgment of a
court of competent jurisdiction shall determine the rights of the parties
thereto, or it may deposit all the monies then held pursuant to this Agreement
with the Clerk of the Circuit Court of Palm Beach County, Florida, and upon
notifying all parties concerned of such action, all liability on the part of the
Escrow Agent shall fully terminate, except to the extent of accounting for any
monies theretofore delivered out of escrow. In the event of any suit between
Buyer and Seller wherein the Escrow Agent is made a party by virtue of acting as
such Escrow Agent hereunder, or in the event of any suit wherein Escrow Agent
interpleads the subject matter of this escrow, the Escrow Agent shall be
entitled to recover a reasonable attorney's fee and costs incurred, said fees
and costs to be charged and assessed as court cost in favor of the prevailing
party. All parties further agree that the Escrow Agent shall not be liable to
any party or person whomsoever for misdelivery to Buyer or Seller of monies
subject to this esrow unless such misdelivery shall be due to willful breach of
this Agreement or gross negligence on the part of the Escrow Agent. Seller and
Buyer agree that the status of Buyer's counsel as Escrow Agent under this
Agreement does not disqualify such law firm from representing the Buyer in
connection with this transaction and in any disputes that may arise between
Seller and Buyer concerning this transaction, including any dispute or
controversy with respect to the Deposit.
17.00 Entire Agreement.
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This Agreement constitutes the entire agreement between the parties
with respect to the transaction contemplated herein, and it supersedes all prior
understandings or agreements between the parties.
18.00 Binding Effect.
---------------
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, devisees, personal representatives ,
successors and permitted assigns.
19.00 Survival of Paragraphs.
-----------------------
Except for the warranties contained in the deed and other closing
documents none of the terms, conditions and warranties contained herein shall
survive the closing and delivery of the deed of conveyance contemplated by this
Agreement for a period of six (6) months.
20.00 Waiver; Modification.
---------------------
The failure by the Buyer or Seller to insist upon or enforce any of
their rights shall not constitute a waiver thereof, and nothing shall constitute
a waiver of the Buyer's or Seller's right to insist upon strict compliance with
the terms of this Agreement. Either party may waive the benefit of any provision
or condition for its benefit which is contained in this Agreement. No oral
modification of this Agreement shall be binding upon the parties and any
modification must be in writing and signed by the parties.
21.00 Governing Law; Venue.
---------------------
This Agreement shall be governed by and construed under the laws of the
State of Florida. The venue of any litigation arising out of this Agreement
shall be Palm Beach County, Florida.
22.00 Headings.
---------
The paragraph headings as set forth in this Agreement are for
convenience or reference only and shall not be deemed to vary the content of
this Agreement or limit the provisions or scope of any paragraph herein.
23.00 Notices.
--------
Any notice, request, demand, instruction or other communication to be
given to either party, except where required by the terms of this Agreement to
be delivered at the closing, shall be in writing and shall be sent via telecopy,
or by registered or certified mail, return receipt requested, or by express
overnight courier, as follows:
If to Buyer: TCR SFA Apartments, Inc.
0000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xx. Xxxx Xxxxxxxx
with copy to: Broad and Xxxxxx
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx, Esquire
If to Seller: Royal Palm Beach Colony LP
0000 X. Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
with copy to: Xxxxxx Xxxxxxx, Esquire
000 Xxxxxx Xxxxxxx Xxxx
Xxxxx Xxxxx, XX 00000
and
Xx. Xxxxx Xxxxxx
0000 Xxxxxxxx Xxx.
Xxxxxxx Xxxxx, XX 00000
Notice shall be deemed given if forwarded by telecopy on the date sent
provided the sender has received a confirmation of such transmittal and receipt.
If forwarded by certified mail through the facilities of the United States
Postal Office, notice shall be deemed given on the third day following the date
that the notice in question is deposited in the facilities of the U.S. Postal
Service. If notice is forwarded by express overnight courier, it shall be deemed
given on the day following the date that the notice in question is deposited in
the facilities of an express overnight courier.
24.00 Assignment; Gables Residential Trust or one of its affiliates
-----------
This Agreement may not be assigned by the Buyer except to an entity
controlled by or under common control with the Buyer, or in the event of an
assignment, the Buyer shall be released from any and all of its obligations
hereunder, provided that the assignee of such rights agrees to be fully bound by
the terms and conditions of this Agreement as if such assignee were the original
party hereto.
25.00 Attorneys' Fees.
----------------
In the event that it becomes necessary for either party to bring suit
to enforce the terms of this Agreement, then the prevailing party shall be
entitled to recover all costs, including attorneys' fees, incurred in connection
with such litigation (including appellate proceedings) against the nonprevailing
party.
26.00 Time of the Essence.
--------------------
Time is of the essence with respect to each provision of this Agreement
which requires that action be taken by either party within a stated time period,
or upon a specified date. Provided however, if the date for performance is on a
Saturday, Sunday or federal holiday, the date for performance shall be extended
to the next business day.
27.00 Construction.
-------------
Each party hereto acknowledges that all parties hereto participated
equally in the drafting of this Agreement and that, accordingly, no court
construing this Agreement shall construe it more stringently against one party
than the other.
28.00 Counterparts.
-------------
To facilitate execution, this Agreement may be executed in an many
counterparts as may be required; and it shall not be necessary that the
signature of , or on behalf of, each party, or that the signatures of all
persons required to bind any party, appear on each counterpart; but it shall be
sufficient that the signature of, or on behalf of, each party, or that the
signature of the persons required to bind the party appear on one or more of
such counterparts. All counterparts shall collectively constitute a single
agreement.
29.00 Signage.
--------
Commencing upon the Effective Date and ending upon the termination of
this Agreement, Seller grants to Buyer the right to erect a sign, reasonably
acceptable to Seller, upon the Property advertising the proposed development by
Buyer and directing inquiries regarding the proposed development to Buyer. If
this Agreement is terminated for any reason, Buyer shall promptly remove any
sign erected by Buyer.
30.00 Radon Gas.
----------
The following disclosure is required to be furnished to Buyer under
Florida law:
Radon is a naturally occurring radioactive gas that, when it has
accumulated in a building in sufficient quantities, may present health risks to
persons who are exposed to it over time. Levels of radon that exceed federal and
state guidelines have been found in buildings in Florida. Additional information
regarding radon and radon testing may be obtained from your county public health
center.
31.00 Commercial Outparcel.
---------------------
Simultaneously with its execution of this Agreement, the Seller will
provide the Buyer with a legal description of approximately 1.6 acres more or
less which shall be part of Parcel C of the Property and which will be adjacent
to the existing adjacent shopping center property. The 1.6 acre parcel shall be
excluded from the Property and shall be retained by the Seller, to be included
as part of the adjoining shopping center.
IN WITNESS WHEREORF, the parties have executed this Agreement as of the
day and year last below written.
BUYER:
TCR SFA APRATMENTS, INC., a
Texas corporation
By:
Name:
Title:
Date:
SELLER:
ROYAL PALM BEACH COLONY LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Xxxxx Management Company
Inc., as Managing General
Partner
By:
Name:
Title:
Date:
The undersigned agrees to act as Escrow Agent in accordance with the
terms of this Agreement.
BROAD AND XXXXXX
Xxxxxxx X. Xxxxxx, P.A.
Partner
By: /s/Xxxxxxx X. Xxxxxx
--------------------
Xxxxxxx X. Xxxxxx
FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE
--------------------------------------------------
THIS FIRST AMENDMENT TO AGREEMENT FOR PURCHASE AND SALE is entered
into by ROYAL PALM BEACH COLONY LIMITED PARTNERSHIP, a Delaware limited
partnership ("Seller"), and GABLES EAST CONSTRUCTION, INC., a Georgia
corporation ("Buyer").
BACKGROUND:
-----------
Seller executed an Agreement for Purchase and Sale (the "Agreement")
with an Effective Date of March 19, 1998 in which TCR SFA Apartments, Inc., a
Texas corporation was the buyer. Pursuant to an Assignment dated April 1, 1998.
TCR SFA Apartments, Inc. assigned all of its right, title and interest as buyer
to the Buyer. Seller and Buyer have agreed to amend the Agreement in accordance
with the terms of this First Amendment.
AGREEMENT:
----------
1.00 Purchase Price.
---------------
The parties agree that the text of paragraph 2.00 of the Agreement is
amended to read as follows:
The purchase price to be paid by the Buyer to the Seller for the
Property is $2,250,000 ("Purchase Price"). The Purchase Price shall be
payable as hereinafter described.
If, in connection with the site plan submission and approval process
described in Paragraph 4.01 hereof, the Buyer is unable to obtain an
approved site plan for at least 300 rental apartment units, then the
Purchase Price shall be reduced by the sum of $7,500 for each unit
under 300 units which is not on the approved site plan. However, if the
number of the approved units is less than 290 units then the Buyer
shall, in its sole discretion either acquire the Property for a
Purchase Price based upon 290 units (i.e. $2,175,000) or terminate this
Agreement, whereupon the Escrow Agent shall refund any deposits placed
hereunder to the Buyer and the parties shall be relieved of all further
obligations and liabilities hereunder.
2.00 Mitigation Costs.
-----------------
a. During the Investigation Period the Buyer has learned that the
Property includes wetlands which cannot be developed without the approval of
South Florida Water Management District ("SFWMD"); the Village of Royal Palm
Beach ("Village"); and/or the Army Corps of Engineers ("ACOE"). In order to
obtain such approvals, the Buyer anticipates the imposition of mitigation
requirements by SFWMD, Village and ACOE that will result in a substantial
financial obligation upon the Buyer. For purposes of this paragraph, the
payments required by SFWMD, Village and/or ACOE, together with professional
fees incurred by Buyer in pursuing development permits for the wetlands, will
be referred to as "Mitigation Cost". The Seller agrees that it will pay the
first $270,000 of the Mitigation Cost.
b. Promptly following the execution of this First Amendment, the Buyer
will retain an engineering firm reasonably acceptable to the Seller for the
purpose of: (i) ascertaining the exact area of the jurisdictional wetlands; and
(ii) assisting the Buyer in its submissions to governmental agencies for the
necessary permits to develop the wetlands. Once the Buyer has ascertained the
exact area of jurisdictional wetlands and has applied for development permits,
it will afford the Seller an opportunity to negotiate with SFWMD, the Village,
and/or ACOE to obtain permission to contribute land which is owned by the Seller
in an effort to reduce the Mitigation Cost.
c. Seller agrees that within a reasonable time after the Buyer has
applied for its permits to develop the wetlands, it will make a final decision
whether or not it will contribute land in an effort to reduce the Mitigation
Cost. Seller acknowledges that it must make its decision promptly in order to
avoid any delay in the issuance to Buyer of permits for the wetlands
development. The Seller acknowledges that any delay on its part in making its
decision whether or not to contribute land may delay the Buyer's efforts in
securing its Development Approvals. Accordingly, any such delay on the part of
the Seller shall serve to extend the closing date by the same amount of time as
the delay.
d. By way of an example, assume that the Mitigation Cost is determined
to be $350,000. Assume also that by contributing land the Seller can reduce the
Mitigation Cost by $150,000. By doing so, the Seller will be responsible for the
payment of $120,000 of Mitigation Cost and the Buyer will be responsible for the
balance. If the contribution of land by the Seller results in a reduction of the
Mitigation Cost from $350,000 to $300,000, then the Seller will be responsible
for $220,000 of Mitigation cost and the Buyer will be responsible for the
balance. Upon closing, the Buyer shall be entitled to a credit against the
Purchase Price for the amount of the Mitigation Cost which is the
responsibility of the Seller.
3.00 Status of Agreement.
--------------------
The Investigation Period has terminated. The Buyer has reviewed and
approved a title insurance commitment subject, however, to the certain matters
which have been raised as title objections in a letter dated May 8, 1998 from
Xxxxxxx X. Xxxxxx, Esquire, to Xxxxxx Xxxxxxx, Esquire.
4.00 No Further Modification.
------------------------
Except as modified in this First Amendment, the Agreement remains
unchanged and continues in full force and effect.
SELLER:
ROYAL PALM BEACH COLONY LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: Xxxxx Management Company, Inc.
as Managing General Partner
By: /s/Xxxxx Xxxxxx
---------------
Name: Xxxxx Xxxxxx
Title: Authorized Agent
Date: June , 1998
BUYER:
GABLES EAST CONSTRUCTION, INC., a
Georgia corporation
By: /s/Xxxx Xxxxxxxx
----------------
Name: Xxxx Xxxxxxxx
Title: Vice President
Date: June 30, 1998
SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT
-----------------------------------------------
THIS SECOND AMENDMENT TO PURCHASE AND SALE AGREEMENT ("Amendment") is
executed as of the date set forth below by and between ROYAL PALM BEACH COLONY
LIMITED PARTNERSHIP, a Delaware limited partnership ("Seller") and GABLES EAST
CONSTRUCTION, INC. a Georgia corporation ("Buyer").
WITNESSETH:
-----------
WHEREAS, Seller and TCR SFA Apartments, Inc. entered into that certain
Agreement for Purchase and Sale with an Effective Date of March 19, 1998 which
was amended by the terms of a First Amendment dated June 30, 1998 ("Agreement");
and
WHEREAS, the Agreement was assigned to Buyer by that certain Assignment
dated April 1, 1998; and
WHEREAS, Seller and Buyer desire to amend the Agreement as more
particularly set forth herein.
NOW THEREFORE, in consideration of the premises, the undertakings and
agreements of Seller and Buyer herein contained, and the sum of TEN AND NO/100
DOLLARS ($10.00) and other good and valuable consideration paid and/or given by
each of the parties hereto to the other, the receipt and sufficiency of which
are hereby acknowledged, Seller and Buyer, intending to be legally bound, do
hereby agree as follows:
1. The foregoing recitals are true and correct and are incorporated
herein by reference. Capitalized terms which are not defined in this First
Amendment shall have the same meaning as set forth in the Agreement.
2. No later than December 19, 1998, the Buyer shall deliver Seventy
Five Thousand Dollars ($75,000) to the Seller which sum shall be held by the
Seller and treated as an addition to the Deposit, the disposition of which shall
be governed by the Agreement. Such additional deposit is refundable to the Buyer
only if the Seller defaults under the Agreement. Otherwise, it shall be retained
by the Seller and credited against the Purchase Price.
3. Paragraph 6.00 of the Agreement is deleted and replaced with the
following:
a. The Closing shall be held on March 19, 1998 at the offices of
Seller's counsel in Palm Beach County or at such other place as the parties may
agree upon.
b. If the Buyer has been diligently pursuing the receipt of building
permits from the Village of Royal Palm Beach but has not obtained them by the
date of Closing, then the Buyer shall be entitled to two (2) successive thirty
(30) day extensions of the Closing. In order to obtain each thirty (30) day
extension, the Buyer shall provide the Seller with five (5) days's prior written
notice of its election to extend the Closing for thirty (30) days, which notice
shall be accompanied by the payment to Seller of the sum of Twenty Five Thousand
Dollars ($25,000) (for each extension). Upon the Closing, one-half (1/2) of the
amounts paid to extend the Closing shall be credited against the Purchase Price.
The remaining one-half (1/2) shall not be credited against the Purchase Price.
The $25,000 payment(s) described herein are refundable to the Buyer only if the
Seller defaults under the Agreement. Otherwise, they shall be retained by the
Seller and one-half (1/2) of each such payment shall be credited against the
Purchase Price. During any of the 30-day extensions of the Closing, the Buyer
will continue its diligent pursuit of building permits.
4. Except as modified herein, the Agreement shall remain unchanged and
shall continue in full force and effect. In the event of any conflict between
the terms of the Agreement and this Addendum, the terms of this Addendum shall
control.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
day upon which the last party executes this Amendment.
Witnesses SELLER:
ROYAL PALM BEACH COLONY LIMITED
PARTNERSHIP, a Delaware limited partnership
/s/Xxxxxxx Xxxxxxxxxx By: Xxxxx Management Company, Inc., as
--------------------- Managing General Partner
Print Name: Xxxxxxx Xxxxxxxxxx
By: /s/Xxxxx Xxxxxx
---------------
Name: Xxxxx Xxxxxx
Title: Authorized Agent
Date:_______________
BUYER:
GABLES EAST CONSTRUCTION, INC.,
/s/Xxxxxxx Xxxxxxx a Georgia corporation
------------------
Xxxxxxx Xxxxxxx
By: /s/Xxxx Xxxxxxxx
/s/Xxxxxxxx X. Xxxx ----------------
Print Name: Xxxxxxxx X. Xxxx Name: Xxxx Xxxxxxxx
Title: Vice President
Date: December 15, 1998
