EXHIBIT 99.2
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(Form S-3)
AGREEMENT TO ASSIGN SALES CONTRACT
AND DEVELOPMENT DOCUMENTS
Approximately 00 Xxxx Xxxxxx, Xxxxxx, Xxxxxxxx
THIS AGREEMENT TO ASSIGN SALES CONTRACT AND DEVELOPMENT DOCUMENTS
(hereinafter this "AGREEMENT"), is made and entered into as of the 22nd day
of July, 1996, between BRISTOL OAKHURST DEVELOPMENT L.L.C., an Illinois
limited liability company (hereinafter called "ASSIGNOR") and AMLI
RESIDENTIAL PROPERTIES, L.P., a Delaware limited partnership (hereinafter
called "ASSIGNEE").
RECITALS
A. Bristol Chicago Development Corp., an Illinois corporation
("BRISTOL") is the purchaser under that certain Sales Agreement, dated May
17, 1995, by and between Bristol and Aurora Venture, an Illinois limited
partnership (the "CONTRACT SELLER"), with attached Addendum (such
agreement, as amended in accordance with the terms hereof, being herein
called the "SALES CONTRACT" and being attached hereto as EXHIBIT A). The
Sales Contract was assigned by Bristol to Assignor.
B. Pursuant to the Sales Contract, and subject to the terms and
conditions therein set forth, Assignor has the right to acquire
approximately 29 acres in Aurora, DuPage County, Illinois (the "PROPERTY")
as described in EXHIBIT A-1. Terms used herein and not otherwise defined
herein shall have the meanings given such terms in the Sales Contract.
C. Subject to the terms and conditions hereof, Assignor desires to
assign to Assignee all of Assignor's right, title and interest (i) to
purchase the Property including without limitation, Assignor's rights in
and to the Sales Contract (the "PURCHASE RIGHTS") and (ii) in and to all
existing plans, drawings, specifications, permits, licenses, governmental
approvals, development rights, Regulatory Approvals (defined below),
agreements (with governmental bodies, architects, engineers, consultants or
other persons or entities) and other materials related to the development
of the Property (the "DEVELOPMENT RIGHTS"; all written materials evidencing
the Development Rights are called the "DEVELOPMENT DOCUMENTS" and are more
particularly described on EXHIBIT K which shall be prepared by Assignor
within ten (10) days after the date of this Agreement and submitted to
Assignee for its approval during the Review Period [defined below]) as a
464-unit luxury multifamily community known as The Crossings at Oakhurst
North (the "PROJECT"), and Assignee desires to accept such assignment and
to assume and agree to perform, subject to the terms and conditions hereof,
all of the Purchaser's duties, obligations and liabilities under the Sales
Contract and the Development Documents.
AGREEMENT:
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NOW, THEREFORE, for and in consideration of the sum of Ten Dollars
($10.00) and other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged:
1. AGREEMENT TO PURCHASE AND SELL. Assignee agrees to accept and
Assignor agrees to contribute the Purchase Rights and the Development
Rights for the consideration and subject to the terms and conditions set
forth in this Agreement.
2. CONTRIBUTION.
a. EXCHANGE AMOUNT. The value of the Purchase Rights and
the Development Rights (the "EXCHANGE AMOUNT") is One Million Five Hundred
Eighty Five Thousand and No/100 Dollars ($1,585,000.00), to be paid to
Assignor in two parts as set forth below in consideration for the
contribution and assignment to Assignee of the Purchase Rights and the
Development Rights. A portion of the Exchange Amount valued at One Million
One Hundred Thousand and No/100 Dollars ($1,100,000.00) (the "INITIAL
EXCHANGE AMOUNT") shall be paid in full in the manner provided herein at
the Closing Date (as defined below). The remainder of the Exchange
Amount, valued at Four Hundred and Eighty Five Thousand and No/100 Dollars
($485,000.00) (the "FINAL EXCHANGE AMOUNT"), shall (subject to Assignee's
offset rights as set forth in SECTION 3 hereof) be paid in full in cash
within ten (10) business days after the date on which all buildings
comprising Project have received a final certificate of occupancy in a form
in which the City of Aurora (the "CITY") customarily issues such
certificates with no conditions other than those which are standard on the
City's customary form of certificate of occupancy. On the Closing Date the
Initial Exchange Amount will, at Assignor's option, either (i) be payable
entirely in the form of units of limited partnership interest ("UNITS") of
Assignee or (ii) up to twenty percent (20%) of the Initial Exchange Amount
will be payable in cash and the remaining portion of the Initial Exchange
Amount will be payable in the form of Units. Not less than five (5) days
prior to the Closing Date, Assignor shall provide written notice to
Assignee identifying what portion of the Initial Exchange Amount will be
payable in cash or Units. The number of Units to be delivered to Assignor
will be equal to the quotient of (i) the difference between the Initial
Exchange Amount less any portions thereof payable in cash and (ii) the
average closing price on the New York Stock Exchange of the common shares
of beneficial interest, par value $.01 per share (the "COMMON SHARES"), of
Amli Residential Properties Trust, a Maryland real estate investment trust
("ARPT") for the five (5) business day period immediately preceding the
first business day prior to the Closing Date.
b. CONVERSION OF UNITS. The Units received by Assignor as
provided above shall have the rights and limitations afforded Units as set
forth in the Partnership Agreement (defined below), including rights with
respect to conversion into Common
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Shares (herein, such Common Shares given in conversion are referred
to as "SHARES") which conversion right shall be subject to the terms and
provisions set forth in the Partnership Agreement and which right may be
exercised at any time in accordance with such terms. ARPT will endeavor to
file a registration statement for the registration of resales by the
Assignor of such Shares within a reasonable period of time after the
Closing Date. On the Closing Date, Assignor, Assignee and ARPT shall
execute the put agreement in the form attached hereto as EXHIBIT B (the
"PUT AGREEMENT").
c. TRANSFER AND PLEDGE OF UNITS. Assignor acknowledges that
the transfer or pledge of the Units held by it shall be subject to
the restrictions set forth in ARTICLE XI of that certain Amended and
Restated Agreement of Limited Partnership of Amli Residential Properties,
L.P., dated as of February 15, 1994, as amended by that certain First
Amendment to Amended and Restated Agreement of Limited Partnership of Amli
Residential Properties, L.P., dated as of July 3, 1995 and as further
amended by that certain Second Amendment to Amended and Restated Agreement
of Limited Partnership, dated January 30, 1996 (herein, as amended and as
it may hereafter be amended from time to time, the "PARTNERSHIP AGREEMENT")
and to compliance with applicable laws including the Securities Act of
1933, as amended (the "SECURITIES ACT") and all other applicable securities
laws. Subject to the foregoing, to the extent Assignor desires to pledge
the economic interest allocable to the Units to a financial institution in
connection with a loan transaction, Assignee agrees it shall cause ARPT to
execute a consent in the form of EXHIBIT C attached hereto (the "PLEDGE
CONSENT"). Both Assignor and Assignee acknowledge that SECTION 11.4(a) of
the Partnership Agreement makes special provisions to allow transferees of
Units who are an Affiliate (as defined in the Partnership Agreement) or a
member of the Immediate Family (as defined in the Partnership Agreement) of
the transferor to become Substituted Limited Partners (as defined in the
Partnership Agreement).
d. DOCUMENTS EVIDENCING UNITS. On the Closing Date,
Assignor shall execute and deliver, and cause its members (the "MEMBERS")
to execute and deliver, a certificate in the form of EXHIBIT D attached
hereto and Assignor shall execute and deliver a joinder to the Partnership
Agreement in the form of EXHIBIT E attached hereto. Assignee agrees that
it shall, as soon as practicable after the execution of the above
referenced joinder, execute a certificate to Assignor attaching a true and
correct copy of EXHIBIT A to the Partnership Agreement, which EXHIBIT A
will be amended to identify Assignor as a holder of the applicable number
of Units as issued to it in accordance with the terms hereof. In addition,
Assignee shall execute a Unit certificate, substantially in the form of
EXHIBIT F attached hereto, acknowledging the number of Units held by
Assignor.
e. REPRESENTATIONS AND WARRANTIES CONCERNING UNITS.
Assignor covenants and agrees to make, and to cause its Members to make,
such representations and warranties to Assignee and ARPT as either Assignee
or ARPT may deem reasonably necessary to
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confirm that the issuance of the Units pursuant to the terms hereof
complies with the Securities Act and all applicable securities laws.
Without limiting the foregoing or the representations set forth in SECTION
9 hereof, Assignor represents and warrants as follows:
1) Assignor is duly formed, validly existing and in
good standing under the laws of Illinois; (ii) Assignor has all requisite
power and authority to invest in the Units and the Shares as provided
herein; (iii) such investment will not result in any violation of or
conflict with any term of the charter, by-laws or operating agreement of
Assignor or any other organizational document or instrument by which it is
bound or any law or regulation applicable to it and (iv) such investment
has been duly authorized by all necessary action on behalf of Assignor;
2) Each Member that is a natural person is at least 21
years of age, a citizen of the United States and legally competent to join
in the execution of this Agreement and to make the certifications,
representations and warranties contained herein;
3) The Units and the Shares are being acquired for the
Assignor's or Members' own account and not with any view toward the resale
or distribution thereof, or with any present intention of selling or
distributing any of the Units or the Shares;
4) Assignor and the Members have such knowledge and
experience in financial and business matters that they are capable of
evaluating the merits and risks of an investment in the Units and the
Shares;
5) Assignor and the Members have carefully reviewed
all documents of which they have requested copies, have been furnished with
all other materials that they consider relevant to an investment in the
Units and the Shares (including, without limitation the Partnership
Agreement and the Amended and Restated Declaration of Trust, dated January
31, 1994, and Amended and Restated Bylaws of ARPT) and have had a full
opportunity to ask questions of and receive answers from Assignee or a
person or persons acting on behalf of Assignee concerning the terms and
conditions of an investment in the Units and the Shares;
6) All written information which Assignor and the
Members have provided to Assignee concerning Assignor and the Members,
their financial positions and their knowledge of financial and business
matters, or the knowledge of financial and business matters of the person
making the investment decision on behalf of Assignor or the Members,
including all information contained herein, is correct and complete in all
material respects as of the date hereof and may be
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relied upon, and if there should be any material change in such
information prior to the Closing Date, Assignor will immediately provide
Assignee with notice of such change;
7) Assignor's and the Members' addresses in Illinois
and Maryland listed herein is Assignor's principal place of business and
are Members' principal residences and Illinois is the only jurisdiction in
which an offer to sell the Units and the Shares was made to Assignor or the
Members;
8) Assignor and each Member is an accredited investor
within the meaning of Rule 501 of Regulation D. Assignor was not formed,
organized or reorganized for the specific purpose, even among other
purposes, of acquiring the Units or the Shares;
9) Each Member is a natural person (i) whose net worth
(either individually or jointly with spouse) exceeds $1,000,000 at the time
of this Certificate or (ii) who had an individual income in excess of
$200,000 in each of the two most recent years or joint income with that
person's spouse in excess of $300,000 in each of those years and has a
reasonable expectation of reaching the same income level in the current
year; and
10) The sole Members of the Assignor are: Xxxxxx X.
Xxxxx, Xxxxxxx X. Xxxxx and Xxxxx Xxxxxx and their respective principal
residences are 0000 Xxxxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, 0000 Xxxxxxxxx,
Xxxxxxxxx, Xxxxxxxx 00000 and 00000 Xxxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxx
00000.
The representations and warranties set forth above are true and
correct in all material respects as of the date hereof and shall also be
true and correct in all material respects as of the Closing Date.
f. ACKNOWLEDGMENTS CONCERNING UNITS. Assignor and the
Members is aware and understands that:
1) Assignee is relying upon the certifications,
representations, warranties, and agreements of Assignor and the Members
contained in this Agreement in determining the applicability of certain
laws and regulations to the transactions contemplated pursuant to the
Agreement and accordingly such certifications, representations and
warranties shall survive the closing under this Agreement;
2) No federal or state agency has passed upon the
Units or the Shares or made any finding or determination as to the fairness
of Assignor's investment
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in the Units or the Shares, or the terms of the offer and the
sale of the Units or the Shares;
3) Assignor and the Members must bear the economic
risk of an investment in the Units and the Shares for an indefinite period
of time because (i) the Units and the Shares have not been registered under
the Securities Act, and, therefore, cannot be sold or transferred unless
either they are subsequently registered under the Securities Act or an
exemption from such registration is available and (ii) the Units and the
Shares cannot be sold or transferred unless they are registered under
applicable state securities laws or an exemption from such registration is
available; and
4) There is no market for the Units and no such market
is likely to develop and the Shares, when issued upon exchange of Units,
will be "restricted securities" within the meaning of Rule 144 under the
Securities Act.
3. REIMBURSEMENT OF COSTS. Upon the closing of this transaction,
Assignee agrees to reimburse Assignor for certain acceptable third party
costs incurred and actually paid by Assignor related to the development of
the Project through June 30, 1996. With respect to costs incurred and
actually paid by Assignor from and after July 1, 1996 to the Closing Date,
Assignor shall submit a written statement of such costs and only those
costs pertaining to on-going development activity with respect to the
Project (as opposed to sale or closing activity related to the transaction
described herein) shall be reimbursable, provided that all activity of
Xxxxx Xxxxxxx (EH Consultants) pertaining to the Project shall be
reimbursable. An estimated amount of the reimbursement will be determined
by the parties during the Review Period and will be delivered in writing to
Assignor prior to the expiration of the Review Period. A final
reimbursement statement will be delivered to Assignor on the Closing Date.
Such final reimbursement statement is subject to the reasonable approval of
Assignor. Prior to and as a condition of such reimbursement, Assignor
shall provide to Assignee lien waivers, or partial lien waivers, as the
case may be, each in form and substance reasonably satisfactory to Assignee
and the Title Insurer (defined below) from such third parties confirming
payment for the work performed under their respective agreements and the
amounts paid to such third parties as follows: prior to the Closing Date
Assignor shall (i) provide current lien waivers from the land planner, JEN
Land Design, Inc. (the "PLANNER"), the civil engineer, SDI Consultants,
Ltd. (the "ENGINEER"), the architect, Bloodgood Xxxxx Xxxxxx Architects &
Planners, Inc. (the "ARCHITECT"), (ii) use its best efforts to provide lien
waivers from all other parties doing lienable work with respect to the
Project and (iii) provide such indemnities, cash, escrows, sworn
statements, or other agreements as may be required by the Title Insurer to
provide title insurance coverage to Assignee over liens arising by acts of
Assignor, Bristol or other parties not claiming through Assignee with
respect to the Project. Any amounts still owed to such third parties as of
the Closing Date for work already performed shall be paid on the Closing
Date by Assignee if such costs are identified in the final reimbursement
statement or by Assignor, from its own funds, if such costs are not
identified on the final reimbursement statement. Any reimbursement
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to Assignor for costs identified in the final reimbursement statement shall
be in an amount equal to the lesser of (i) that portion of such costs
incurred and actually paid by Assignor and (ii) that portion of such costs
confirmed in the lien waivers or partial lien waivers as having been paid
to the applicable service provider. Assignor shall execute and deliver,
and shall cause Bristol to execute and deliver, a general undertaking and
indemnity agreement, in the form of EXHIBIT G attached hereto in order to
indemnify Assignee from any claims of third parties performing services or
work in connection with the Project that did not submit lien waivers as of
the Closing Date. Such general undertaking and indemnity agreement shall
provide that Assignee may off-set unsatisfied claims covered by such
general undertaking and indemnity agreement, which are not insured over by
the Title Insurer to Assignee's reasonable satisfaction, against the Final
Exchange Amount. In addition to lien waivers, Assignor shall provide
Assignee with vendor's certificates substantially in the form of EXHIBIT H
attached hereto (or such other form on which the parties may agree, acting
reasonably) from parties providing on-going services or from parties which
provide professional services on which Assignee will rely.
4. XXXXXXX MONEY. Assignee shall deposit $50,000 in cash as
xxxxxxx money (the "XXXXXXX MONEY") within three (3) business days
following the later of execution of this Agreement (the "CONTRACT DATE")
and the satisfaction of the conditions set forth in SECTION 12 hereof, in a
strict joint order escrow account (the "ESCROW") with Chicago Title
Insurance Company (the "TITLE INSURER"), as escrow trustee, with such funds
to be deposited in an insured interest bearing account designated by
Assignee. The Xxxxxxx Money shall thereafter be non-refundable to Assignee
provided Assignor fulfills its obligations under this Agreement and all
conditions precedent have been satisfied or waived; provided that the
Xxxxxxx Money shall, on the Closing Date, be disbursed to Assignee. Upon
closing of the purchase and sale of the Property to Assignee pursuant to
SECTION 5(e) below, Assignee will cause the xxxxxxx money posted by
Assignor as purchaser under the Sales Contract to be refunded to Assignor,
including any interest accrued thereon.
5. CONDITIONS PRECEDENT TO ASSIGNEE'S OBLIGATION TO CLOSE.
Assignee's obligation to purchase the Purchase Rights and the Development
Rights shall be subject to the following conditions precedent (the
"CONDITIONS PRECEDENT"), any of which may be waived by Assignee.
a. FEASIBILITY CONTINGENCY. Assignee shall have until the
date that is thirty (30) days after the execution of this Agreement (the
"REVIEW PERIOD"), or such later date as mutually agreed to by the parties
to perform a feasibility analysis of the Property. Within ten (10) days
after the date of this Agreement, Assignor shall prepare for Assignee's
review and approval a true and complete list of all Development Documents,
which list, after it is approved by Assignee, shall supplement the list
attached to this Agreement on the date hereof as EXHIBIT K. During the
Review Period Assignee will conduct and review soil tests, engineering,
planning, site planning, utilities, wetlands, environmental risk, title,
survey, CC&R and other reviews determined to be necessary by the Assignee
and Assignee will review and determine the cost, existence and
transferability of items 1, 4, 6, 7, 9 and 10 of the Regulatory Approvals
(as defined
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below). In addition, Assignee shall review the costs proposed to be
reimbursed by Assignee pursuant to SECTION 3 above. If Assignee
determines, in its sole discretion, that the Property is not suitable for
development by Assignee, or Assignor and Assignee (each acting reasonably)
are unable to agree upon either (i) the costs to be reimbursed or (ii) the
final list of Development Documents to be attached as EXHIBIT K, then
Assignee shall have the right to terminate this Agreement by delivering
written notice thereof to Assignor at any time prior to the end of the
Review Period, in which case the Xxxxxxx Money shall be promptly refunded
to Assignee and this Agreement shall be terminated. If Assignee fails to
so notify Assignor, then Assignee shall be deemed to have waived this
feasibility contingency and this Agreement shall remain in full force and
effect, subject to the Regulatory Approvals contingency and other
contingencies set forth herein and therein. At such time as Assignee has
approved the revised list of Development Documents as provided herein,
EXHIBIT K shall be revised to incorporate such approved list.
The "Regulatory Approvals" shall be all governmental approvals
required to develop the Property for the use detailed in the Development
Documents including (without limitation) the following:
1) Evidence of planned unit development, preliminary
plat and preliminary plan, and final plat and final plan approval of the
Project from the City including a copy certified by the City of the
ordinances granting such approvals and of all plans, agreements and other
submissions on which such approval is based;
2) recordation of a final plat of subdivision for the
Property;
3) issuance of a building permit for the construction
of (i) all grading, site work, roadwork, utilities, and other
infrastructure serving or required to be built in connection with the
Project, and (ii) pool area, recreation center and first planned
residential buildings, together with evidence satisfactory to Purchaser
(which may be in the form of a letter from the City) that all building,
engineering and other plans for the balance of the Project have been
approved, that the City is ready to issue a building permit for such
construction upon the payment of specified permit fees, and identifying
specifically by latest revision date all plans approved by the City upon
which permits have been or may be issued;
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4) evidence of the amount of DuPage County ("COUNTY")
impact fees which will be assessed against the Project, which evidence may
be in the form of a letter from the County;
5) if any of the roads adjoining or serving the
Property are not City roads, then issuance of a curb cut and
other applicable construction permits by the authority controlling such
roads (e.g., County, IDOT) permitting the construction of all curb cuts,
de-acceleration or acceleration lanes, turn lanes, or other improvements
required to be constructed in connection with the Project;
6) evidence (which may consist of issuance of the
applicable permit or a letter from the Engineer that all permits for tap on
and service of the Project with water and sanitary sewer in sufficient
capacities either have been issued by,or will be available upon payment of
specific permit and tap on fees to, all applicable authorities including
the Fox Valley Metropolitan Water Reclamation District and the IEPA;
7) an agreement with the school, park, fire, police,
library and any other applicable districts specifying the amount of impact
fees payable to each, or other evidence (such as a letter from the
applicable district) of the amount of or absence of these fees or other
applicable impact fees, land donations or other similar payment or donation
obligations;
8) written and recorded easement agreements for any
utility lines or improvements (such as storm ponds) not located entirely
within the Property;
9) a certificate from the Engineer, the Architect and
W-T Engineering in the form of EXHIBITS I-1, I-2 and I-3 attached hereto
and additionally addressing other matters which Assignee may reasonably
request; and
10) evidence reasonably satisfactory to Assignee that
the total fees incurred in connection with obtaining the Regulatory
Approvals, including but not limited to, impact fees, permit fees, plan
review fees and other development fees and costs imposed by governmental or
regulatory agencies, will not exceed $1,500 per apartment unit, in the
aggregate.
b. REGULATORY APPROVALS CONTINGENCY. On or prior to the
Closing Date, Assignee shall ascertain costs and the existence and
transferability of all Regulatory Approvals specified as items 2, 3, 5 and
8 above (the "PERMIT APPROVALS"). The Permit Approvals shall be in form
and substance acceptable to Assignee. If Assignee determines, in its sole
discretion, that the Property does not have the Permit Approvals, then
Assignee shall have the right to terminate this Agreement by delivering
written notice thereof to Assignor at any time prior to the Closing Date,
in which case the
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Xxxxxxx Money shall be promptly refunded to Assignee and this
Agreement shall be terminated.
c. CONSTRUCTION CONTRACT CONTINGENCY. On or prior to the
Closing Date, Assignee shall have received a binding bid to enter into a
construction general contract in form and substance and with a contractor
approved by Assignee in its sole discretion. It is understood that from
and after the date hereof, Assignee and Assignor shall mutually cooperate
in attempting to achieve such a contract in a form entirely acceptable to
Assignee based upon a bid set of plans and specifications which replicate,
in all material respects, the plans and specifications of Amli at Aurora
Crossing, dated June 25, 1996 (except for those items of particular
difference between the two projects such as the newly designed clubhouse
and the snap-on stone facade). Assignee shall submit to the chosen
contractor a list of alternates to the construction contract to be priced
in addition to the basic plans and specifications. Assignee shall be the
sole negotiator of the contract, but drafts shall be mutually reviewed and
to the maximum extent possible the suggestions of Assignor shall be raised
in the negotiations and covered in such drafts. In the event that this
condition is not satisfied on or prior to the Closing Date, then Assignee
shall have the right to terminate this Agreement by delivering written
notice to Assignor any time on or prior to the Closing Date, in which case
the Xxxxxxx Money shall be promptly refunded to Assignee and this Agreement
shall be terminated.
d. HOME OWNER'S ASSOCIATION CONTINGENCY. Without limiting
Assignee's right to disapprove title and survey matters during the Review
Period, on or prior to the Closing Date, Assignee shall have received all
approvals required pursuant to that certain Amended and Restated
Declaration of Covenants, Conditions and Restrictions for Oakhurst North
Community Association, recorded May 3, 1996 in the DuPage County Recorder's
Office as Document No. R96-073226 (the "DECLARATION OF COVENANTS"),
including, but not limited to any approvals required pursuant to ARTICLES
XI and XIII thereof. During the Review Period, Assignee must receive
evidence reasonably satisfactory to it that the residents of the Project
will have a vested right to use the community pool and clubhouse described
in the Declaration of Covenants upon the payment of reasonable fees or
dues.
e. INSPECTION. Subject to executing the License Agreement
referred to in SECTION 12(c) hereof, Assignee and its agents and
contractors shall have (and Assignor shall cause the Contract Seller to
provide) unlimited access to the Property prior to the Closing Date,
including the right to take soil tests and borings. Assignee shall repair
any damage caused by its entry and shall indemnify, defend and hold
Assignor and Contract Seller harmless with respect to any damage to the
Property or injury to any person caused by Assignee, its agents, employees
or contractors in connection with its investigations of the Property.
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f. CLOSING OF SALES CONTRACT. Assignee shall not be
obligated to close this Agreement unless the Contract Seller under
the Sales Contract has performed all of its obligations thereunder and
Assignor is prepared to proceed with the Closing of the Sales Contract in
the manner described in SECTION 8. In the event that this condition is not
satisfied on or prior to the Closing Date then Assignee shall have the
right to terminate this Agreement at any time on or prior to the Closing
Date, in which case the Xxxxxxx Money shall be promptly refunded to
Assignee and this Agreement shall be terminated. Notwithstanding the
foregoing, in the event that the reason that the Closing is not occurring
is because of the failure of the Contract Seller to perform under the Sales
Contract, then Assignee shall have the following additional options in lieu
of terminating this Agreement, which options must be exercised by notice to
Assignor within five (5) business days after the scheduled Closing Date.
Assignee may extend this Agreement up to an additional 60 days during which
time Assignor shall use commercially reasonable efforts, excluding the
pursuit of legal action, to enforce the Sales Contract against the Contract
Seller. Alternatively, Assignee may close the exchange by paying the
Initial Exchange Value and receiving assignments of the Purchase Rights and
Development Rights, in which event Assignee may pursue legal remedies
against the Contract Seller in the Sales Contract directly, and Assignor
shall have no further interest therein. If Assignee chooses the extension
option and the Sales Contract is not closing at the end of the extension,
then at such time Assignee may choose by notice to Assignor within five (5)
business days after an expiration of the extension period either to
terminate (and receive a refund of the Xxxxxxx Money) or to complete the
exchange as set forth in the prior sentence.
6. CONVEYANCE. On the Closing Date, Assignor shall contribute and
assign all the Purchase Rights and the Development Rights to Assignee or
its designee pursuant to an Assignment and Assumption Agreement (the
"ASSIGNMENT") in the form of EXHIBIT J attached hereto. The Assignment of
the Purchase Rights shall be consented to by the Contract Seller. The
Assignment of the Development Rights shall be consented to by consultants
and contractors who are parties to the Development Documents.
7. SURVEY AND TITLE COMMITMENT. Assignor shall deliver to
Assignee within fifteen (15) business days from the date hereof, a current
ALTA plat of survey of the Property showing the subdivided lot legal
description of the Property, certified to Assignee and the Title Insurer
and meeting the minimum standard detail requirements of ALTA/ACSM adopted
in 1992 as well as a commitment for an ALTA Owner's Title Insurance Policy
Form B-June, 1987 from the Title Insurer with respect to the Property,
dated after the Contract Date. Assignor shall consult with and obtain
written approval from Assignee, which approval shall not be unreasonably
withheld, of any notice or determination required to be given or made to
Contract Seller with regard to objections to title or survey matters under
the Sales Contract. Assignee shall approve or disapprove all matters of
title and survey within the Review Period. All costs of the survey that
exceed those provided for in the Sales Contract shall be paid by Assignor
and all costs of
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the title commitment and policy that exceed those provided for in the Sales
Contract shall be paid by Assignee.
8. CLOSING. If the conditions precedent set forth herein are
either satisfied or waived by Assignee as evidenced by written notice to
Assignor, then the closing under this Agreement shall take place on a date
(the "CLOSING DATE") specified by Assignee, which date shall not be less
than fifteen (15) days after such notice and shall not be more than thirty
(30) days following the end of the Review Period. The closing under this
Agreement and the Sales Contract shall take place simultaneously, and the
closing under this Agreement shall be conditioned upon the Closing under
the Sales Contract. The Assignment shall be delivered to the Contract
Seller at the Closing under the Sales Contract, and all conveyances under
the Sales Contract shall be made directly to Assignee, provided that the
delivery of the Assignment to the Contract Seller shall not be effective
unless and until the Closing under the Sales Contract has taken place,
unless Assignee elects under SECTION 5(e) above to pursue remedies directly
against the Contract Seller. The transactions described herein shall be
closed through an escrow with the Title Insurer at its Wheaton, Illinois
office, with each party to pay one-half of such escrow fees.
9. REPRESENTATIONS AND WARRANTIES OF ASSIGNOR. Assignor
represents and warrants to Assignee as of the date hereof and as of the
Closing Date (as defined below) that:
a. a true, accurate and complete copy of the Sales Contract
is attached hereto as EXHIBIT A, and the Sales Contract has not been
modified or amended;
b. a true, accurate and complete list of the Development
Documents will be provided to Assignee within ten (10) days of the date of
this Agreement and, upon approval by Assignee, will be attached hereto as
EXHIBIT K;
c. Assignor is the absolute owner of the Purchase Rights and
the Development Rights and has the right to assign the Purchase Rights and
the Development Rights;
d. Assignor has not given or received any notice of default
or breach under the Sales Contract or Development Documents, and to
Assignor's knowledge, no such default or breach exists and no event or
circumstance exists which with the giving of notice or passage of time or
both would constitute a default or breach under the Sales Contract or
Development Documents by any party thereto;
e. The Purchase Rights and the Development Rights are free
of any lien or charge and are not subject to any assignment, transfer, or
hypothecation;
f. Assignor has been duly organized and is validly existing.
Assignor has the full right and authority and has obtained any and all
consents required therefor to enter into the Sales Contract, the
Development Documents and this Agreement and
12
consummate or cause to be consummated the sale and assignments
contemplated therein and herein. The persons signing the Sales Contract,
the Development Documents and this Agreement on behalf of Assignor are
authorized to do so. The Sales Contract, the Development Documents and
this Agreement have been properly authorized and executed and constitute
the valid and binding obligations of Assignor, enforceable in accordance
with their terms;
g. There is no agreement to which Assignor is a party or
binding on Assignor which is in conflict with the Sales Contract, the
Development Documents or this Agreement;
h. There is no action or proceeding pending or, to
Assignor's knowledge, threatened against the Assignor which challenges or
impairs Assignor's ability to execute, deliver or perform this Agreement;
i. The Property is zoned to permit the uses contemplated by
the Project and to Assignor's knowledge, the Regulatory Approvals are all
those necessary for the construction of the Project other than issuance of
building, construction or curb cut permits, which permits are available
upon payment of the fees listed under clause (k) below.
j. Assignor has delivered to Assignee a true and complete
copy of all plans, agreements, ordinances or other written materials
entered into with, or issued or approved by the City, any utility provider,
local school, park or other district or other governmental body in
connection with the Property and Project and Regulatory Approvals, and at
closing will deliver all of the Regulatory Approvals;
k. To Assignor's knowledge, based on Assignor's due
investigation and inquiry, a true, accurate and complete list of all fees
exceeding $300 assessed or likely to be assessed by any governmental entity
or utility provider associated with the Project (including without
limitation, all such permit fees, impact fees, review fees, inspection
fees, tap-on fees, and recapture fees) is attached hereto as EXHIBIT L; and
l. Assignor has deposited $50,000 as Xxxxxxx Money under the
Sales Contract with Title Insurer as escrowee.
10. REPRESENTATIONS AND WARRANTIES OF ASSIGNEE: Assignee
represents and warrants to Assignor that:
a. Assignee has been duly organized and is validly existing.
Assignee has the full right and authority and has obtained any and all
consents required to enter into this Agreement and consummate or cause to
be consummated the sale and make or cause to be made transfers and
assignments contemplated herein, subject to completing its due
13
diligence review and approval of the Property and the Development
Documents. The persons signing this Agreement on behalf of Assignee are
authorized to do so. This Agreement has been authorized and properly
executed and will constitute the valid and binding obligations of Assignee,
enforceable against Assignee in accordance with its terms.
b. There is no agreement to which Assignee is a party or to
Assignee's knowledge binding on Assignee which is in conflict with this
Agreement.
c. There is no action or proceeding pending or, to
Assignee's knowledge, threatened against the Assignee which challenges or
impairs Assignee's ability to execute, deliver or perform this Agreement.
d. The Units of Assignee are free and clear of any lien or
charge, are not subject to any assessments and are convertible to Common
Shares as set forth in and subject to the limitations set forth in SECTION
2 of this Agreement.
11. PAYMENT OF REAL ESTATE BROKERS. Each party represents to the
other that no real estate broker has been used in connection with this
transaction and no real estate broker's commissions shall be payable to any
party. Assignee agrees to defend, indemnify and hold Assignor harmless
from and against any claim for a real estate broker's commission, or fee by
any other party claiming by, through or under Assignor. Assignor agrees to
defend, indemnify and hold Assignee harmless from and against any claim for
a real estate broker's commission or fee by any other party claiming by,
through or under Assignee.
12. SALES CONTRACT.
a. EXTENSION. Assignor shall have delivered to Assignee a
true, correct and complete copy of the Sales Contract, extended and in full
force and effect with the following changes each of which must be approved
by Assignee:
1) The dates which may be chosen for the Closing Date
thereunder shall be amended to be consistent with the Closing Date which
may be specified hereunder.
2) SECTION 4 shall be amended to provided that
Contract Seller shall escrow at closing its pro rata share of accrued but
unpaid real estate taxes allocable to the Property and Contract Buyer
(which shall mean the party holding the purchaser's interest in the Sales
Contract, which is currently Assignor and shall be Assignee if this
transaction closes) shall deposit current year post-closing taxes in the
same escrow, which shall be used only to pay real estate taxes allocable to
the Property. The escrow will be interest bearing and Contract Buyer will
pay all escrow fees.
14
3) SECTION 13.1 shall be amended to provide that
Contract Seller has approved the documents comprising the Final Plan and
Plat (the "FINAL PLAN") which was approved by the City in Resolution PDFKL
96-16 on April 11, 1996 and any updated or additional Project plans which
may currently exist, and that Contract Seller shall have no further rights
to approve such plans or modifications thereof, provided that Contract
Buyer shall still be subject to the approval requirements in the
Declaration of Covenants.
4) SECTION 14.3 shall be amended to provide that all
landscaping "in the landscape easements along Eola and Liberty" shall be
completed by the time required in SECTION 14.3. The landscape easements
shall be identified and provisions for maintenance of such easements
satisfactory to Contract Buyer shall be negotiated.
5) SECTION 14.4 shall provide that (i) Contract Seller
must provide an easement (either through an existing easement or a new
easement) satisfactory to Contract Buyer (acting reasonably) for drainage
into the Facility (as defined in the Sales Contract) and into any other
shared detention areas on the Final Plan, (ii) all work (other than work to
be performed by Contract Buyer on the Property) on the Facility (including
sidewalks, street lighting and landscaping) and such other shared detention
areas must be complete, and (iii) the Facility has been conveyed to the
Association (as defined in the Declaration of Covenants). If any of (i),
(ii) or (iii) are not completed at the closing, then the payment required
by SECTION 14.4 shall be made into an escrow until all of items (i), (ii)
and (iii) are satisfied. SECTION 14.4 shall also be amended to address
maintenance rights and obligations regarding the Facility and other shared
detention areas in a manner satisfactory to Contract Buyer.
6) SECTION 20 shall be modified to set forth Contract
Seller's consent to the assignment of the Sales Contract from Bristol to
Assignor and to the assignment of the Sales Contract to Assignee or to a
permitted assignee as defined in SECTION 17 below.
7) SECTION 34 and EXHIBIT R shall be amended to
provide that the right of first refusal shall not apply to an assignment of
the Sales Contract or the transfer of the Property to Assignee or an
affiliate of Assignee, including subsequent assignments or transfers by
Assignee or an affiliate of Assignee to an entity in which Assignee or an
affiliate of Assignee has a partnership, members or other similar interest.
Contract Seller agrees upon request to issue a release of the right of
first refusal when it terminates. Contract Seller also agrees to issue a
confirmation of the subordination of the right of first refusal to a
construction lender in such form as may be reasonably requested by such
construction lender. EXHIBIT R shall also be amended to add the following
to
15
restriction 2 thereunder: "or modify any development rights or
development approvals affecting the Property."
8) SECTION 38 shall be amended to allow the use of
"Oakhurst North" or "Oakhurst" in the marketing name of the apartment
community to be constructed on the Property.
9) Provision shall be made to permit Contract Buyer to
install a lighted water feature in the Facility.
10) The Sales Contract shall be amended to provide for
the terms and conditions set forth in that certain Amendment to Sales
Agreement, undated and unsigned by Contract Seller, but executed by Bristol
on June 26, 1996.
b. DUE DILIGENCE. Assignor shall cause the Contract Seller
to consent in writing to Assignee's access to the Property pursuant to
SECTION 5.a. and d. hereof. Assignee agrees to enter into a License
Agreement substantially in the form of EXHIBIT D to the Sales Contract if
the Contract Seller requests. Assignee shall indemnify, defend and hold
the Contract Seller harmless with respect to any damage to the Property or
injury to any person caused by Assignee, its agents, employees or
contractors in connection with its investigation of the Property.
c. ESTOPPEL. Prior to the expiration of the Review Period
and again on the Closing Date, Assignor shall deliver to Assignee an
estoppel from the Contract Seller (i) confirming that the Sales Contract,
as modified as set forth in this SECTION, is in full force and effect, (ii)
confirming that there are no defaults or other modifications, (iii)
confirming the amount of xxxxxxx money on deposit, (iv) confirming the net
acreage of the Property and the final purchase price, (v) confirming that
Contract Seller's (as required in the Sales Contract) and the Design Review
Committee's approval (as required under the Declaration of Covenants) of
the most current Project plans, including without limitation the landscape
plan and budget, and any signage plans, and (vi) confirming such other
matters as are reasonably requested by Assignee.
13. CONSULTING AGREEMENT WITH ASSIGNOR. As of the Closing Date, as
additional consideration for the exchange herein, Assignor and Assignee
shall enter into a consulting agreement in the form of EXHIBIT M attached
hereto to provide continuing basic services with respect to the Property
and the Project.
14. DEFAULT.
a. ASSIGNOR'S DEFAULT. If this transaction fails to close
as a result of Assignor's default, the Xxxxxxx Money shall be returned to
Assignee. In addition, Assignee shall be entitled to such remedies for
Assignor's breach of contract as may be
16
available at law and in equity, including, without limitation, the
remedy of specific performance, which the parties agree was bargained for
because of the unique nature of the rights to be transferred hereunder and
the difficulty of compensating Assignee with damages, provided, however, if
Assignor is in default due to causes beyond its reasonable control,
Assignee shall not be entitled to pursue Assignor for monetary damages.
Assignor shall be deemed to be in default under this Agreement if it fails
to proceed with the Closing under the Sales Contract on the Closing Date or
otherwise defaults under the Sales Contract.
b. ASSIGNEE'S DEFAULT. If this transaction fails to close
due to the default of Assignee, then Assignor's sole remedy shall be to
terminate this Agreement and to retain the Xxxxxxx Money as liquidated
damages, Assignor waiving all other rights or remedies in the event of such
default by Assignee. The parties acknowledge that Assignor's actual
damages in the event of a default by Assignee under this Agreement will be
difficult to ascertain, and that such liquidated damages represent the
parties' best estimate of such damages.
15. NO AMENDMENTS. As long as this Agreement remains in full force
and effect, Assignor shall perform all of its obligations under the Sales
Contract, shall not amend or modify the Sales Contract (except as set forth
in SECTION 12.a.) and shall not make any elections, issue any approvals,
give any notice, or otherwise take any action with respect to the Sales
Contract or the Property without the prior written consent of Assignee
which consent shall not be unreasonably withheld or delayed.
16. SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties set forth in this Agreement shall be continuing and shall
survive for a period of nineteen (19) months following the Closing Date.
Each party shall indemnify and hold the other harmless from and against any
loss, cost, liability or expense, including reasonable attorneys fees,
incurred by reason of any breach of any of its representations or
warranties under this Agreement. Notwithstanding anything to the contrary
contained in this SECTION 16, if Assignee has actual knowledge prior to
closing that a representation or warranty made by Assignor is false,
despite any lack of knowledge on the part of Assignor, and Assignee
proceeds with the closing, then any claims of Assignee for breach of such
representation or warranty shall be deemed waived as of the Closing Date.
For purposes of this SECTION 16, Assignee's knowledge shall be deemed to
mean the actual knowledge of Xxxxxxx X. Xxxx or Xxxxxxx X. Xxxx without
inquiry or investigation.
17. SUCCESSORS AND ASSIGNS. This Agreement shall bind and inure to
the benefit of the parties hereto and their respective successors and
assigns, provided that this Agreement may not be assigned by Assignor
without Assignee's consent, which consent may be withheld in Assignee's
sole discretion. Assignee may not assign this Agreement, other than to a
"permitted assignee", without Assignor's prior written consent, which
consent shall not be unreasonably withheld. A partnership or limited
liability company having Assignee or ARPT as a general
17
partner or managing member shall be a "permitted assignee". Any assigning
party shall remain liable for the obligations of its assignee.
18. NOTICES. Upon the execution and delivery of this Agreement,
Assignor and Assignee shall deliver a copy of this Agreement to the
Contract Seller, and request that a copy of any notices sent to Assignor
under the Sales Contract also be sent to Assignee.
All notices required or permitted hereunder shall be in writing
and shall be served on the parties at the following addresses:
If to Assignor: Bristol Oakhurst Development L.L.C.
Attn: Xxxxxxx Xxxxx
0000 Xxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Phone: 708/000-0000
Facsimile: 708/397-8597
and
Bristol Capital Corp.
Attn: Xxxxx Xxxxxx
0000 Xxxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Phone: 301/000-0000
Facsimile: 301/984-6099
with a copy to: Sonnenschein, Nath & Xxxxxxxxx
Attn: Xxxxxx X. Xxxxxxx
8000 Sears Tower
000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/876-7934
If to Assignee: Amli Residential Properties L.P.
Attn: Xxxxxxx X. Xxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/443-0909
18
with a copy to: Xxxxx, Xxxxx & Xxxxx
Attn: Xxxx Xxxxx
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Phone: 312/000-0000
Facsimile: 312/701-7711
Any such notices shall be either (a) sent by certified mail, return receipt
requested, in which case notice shall be deemed delivered three (3) days
after deposit, postage prepaid in the U.S. Mail, (b) sent by overnight
delivery using a nationally recognized overnight courier, in which case it
shall be deemed delivered one business day after deposit with such courier,
(c) sent by facsimile transmission, in which case notice shall be deemed
delivered upon transmission of such notice, or (d) sent by personal
delivery. The above addresses may be changed by written notice to the
other party; provided, however, that no notice of a change of address shall
be effective until actual receipt of such notice.
19. LIMITATION OF LIABILITY. Any obligation or liability
whatsoever of Assignee or ARPT which may arise at any time under this
Agreement or the Sales Contract shall be satisfied, if at all, out of
Assignee's or ARPT's respective assets only. No such obligation or
liability shall be personally binding upon, nor shall resort for the
enforcement thereof be had to, the property of any of their respective
partners, or the shareholders, trustees, officers, employees or agents of
Assignee or ARPT, regardless of whether such obligation or liability is in
the nature of contract, tort or otherwise. The negative capital account of
any partner in Assignee or the obligation of any partner in Assignee to
make a capital contribution to Assignee shall not be deemed to be an asset
of Assignee.
20. GOVERNING AGREEMENT. In the event of any conflict or
inconsistency between the terms and provisions of this Agreement and the
Sales Contract, the terms and provisions of this Agreement shall govern and
control. If any provision of this Agreement shall be deemed unenforceable
as a matter of law, the remainder hereof shall remain in full force and
effect.
21. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between Assignor and Assignee concerning the subject matter
hereof and supersedes all prior or contemporaneous agreements of the
parties, including without limitation, that certain letter, dated July 3,
1996 from Assignee to and accepted by Assignor.
19
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
BRISTOL OAKHURST DEVELOPMENT L.L.C.
By: /s/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------
Its: Manager
------------------------------
AMLI RESIDENTIAL PROPERTIES L.P.,
a Delaware limited partnership
By: Amli Residential Properties Trust, a Maryland
real estate investment trust
By: /s/ XXXXXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
------------------------------
20
JOINDER
The undersigned join in the execution of this Agreement solely for
the purpose of making the representations, warranties and acknowledgments
set forth in SECTION 2 of the Agreement applicable to Members of Assignor.
/s/ XXXXXX X. XXXXX
------------------------------
Xxxxxx X. Xxxxx
/s/ XXXXXXX XXXXX
------------------------------
Xxxxxxx Xxxxx
------------------------------
Xxxxx Xxxxxx
Subject to SECTION 19 of this Agreement, the undersigned joins in the
execution of this Agreement solely for the purpose of agreeing to the
undertakings to be performed by ARPT in accordance with SECTION 2 of this
Agreement.
AMLI RESIDENTIAL PROPERTIES TRUST, a
Maryland real estate investment trust
By: /s/ XXXXXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
------------------------------
FIRST AMENDMENT TO AGREEMENT TO ASSIGN SALES CONTRACT
AND DEVELOPMENT DOCUMENTS
First Amendment to Agreement to Assign Sales Contract and Development
Documents (the "AMENDMENT"), dated as of October 2, 1996, by and between
BRISTOL OAKHURST DEVELOPMENT L.L.C. ("ASSIGNOR"), and AMLI RESIDENTIAL
PROPERTIES, L.P. ("ASSIGNEE").
R E C I T A L S :
-----------------
A. Assignor and Assignee entered into an Agreement to Assign Sales
Contract and Development Documents dated July 22, 1996 (as amended, the
"AGREEMENT"). All initially-capitalized terms not defined herein shall
have the meanings ascribed to them in the Purchase Agreement.
B. Assignor and Assignee desire to amend the Agreement to reduce
the Exchange Amount to reflect additional impact fees attributable to the
acquisition and development of the Property.
NOW, THEREFORE, in consideration of the foregoing, the mutual
promises set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which the parties hereby acknowledge, the
parties agree as follows:
1. The foregoing recitals are incorporated herein by this
reference.
2. Section 2.a is hereby amended as follows:
a. The value of the Exchange Amount is hereby amended to be
$1,515,000.00; and
b. The Final Exchange Amount is hereby amended to be
$415,000.00.
3. Except as expressly amended hereby, the Purchase Agreement
continues in full force and effect, in accordance with its terms, and
embodies the entire agreement between the parties, and supersedes all prior
agreements and understandings relating to the subject matter hereof. The
Purchase Agreement may be further amended or supplemented only by an
instrument in writing executed by both parties.
4. This Amendment may be executed in any number of counterparts,
each of which shall be deemed to be an original, and all of such
counterparts shall constitute one instrument. To facilitate execution of
this Amendment, the parties may execute and exchange by telephone facsimile
counterparts of the signature pages.
IN WITNESS HEREOF, the parties have caused this Amendment to be
executed as of the date first above written.
BRISTOL OAKHURST DEVELOPMENT L.L.C.
By: /s/ XXXXXXX X. XXXXX
------------------------------
Name: Xxxxxxx X. Xxxxx
------------------------------
Title: Manager
------------------------------
AMLI RESIDENTIAL PROPERTIES L.P.,
a Delaware limited partnership
By: Amli Residential Properties Trust
By: /s/ XXXXXXXXX X. XXXXXXX
------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
------------------------------
Title: Vice President
------------------------------
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