PURCHASE AND SALE AGREEMENT
EXHIBIT
10.1
THIS
PURCHASE AND SALE AGREEMENT (as it may be amended and/or assigned pursuant
to
the terms hereof, this “Agreement”)
is
made and entered into as of the 17th day of July, 2008 by and between Brookside
Properties, Inc., a Tennessee corporation (“Buyer”),
and
TRB Chattanooga LLC, a Tennessee limited liability company (“Seller”).
R
E C I T A L S:
1. Agreement
to Sell and Purchase.
(a) For
and in consideration of the Xxxxxxx Money (as defined in Section
3
hereof)
in hand paid by Buyer to the Nashville, Tennessee office of First American
Title
Insurance Company (“Escrow
Agent”)
in
accordance with Section
3
hereof,
the mutual covenants and agreements contained herein and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to
purchase and take from Seller, subject to and in accordance with all of the
terms and conditions of this Agreement, the following:
(i) (i) All
of
that certain lot, tract or parcel of improved real estate located in
Chattanooga, Xxxxxxxx County, Tennessee, the improved tracts containing
approximately 20 acres, all as more particularly described on Exhibit
A
attached
hereto and incorporated herein by this reference, together with all plants,
shrubs and trees located thereon, and together with all rights, ways and
easements appurtenant thereto, including, without limitation, all of Seller’s
right, title and interest in and to the land underlying, the air space overlying
and any public or private ways or streets crossing or abutting said real estate
(collectively, the “Land”);
(ii) (ii) All
buildings, structures and other improvements of any and every nature located
on
the Land, including, without limitation, the Marina Pointe containing
308 apartment
dwellings, together with any and all fixtures attached or affixed to the Land
or
to any such buildings, structures or other improvements (collectively, the
“Improvements”);
(iii)
(iii) All
goods, equipment, machinery, apparatus, fittings, furniture, furnishings,
supplies, spare parts, appliances, tools, historical records regarding the
operation and/or leasing of the Land and Improvements and other personal
property of every kind located on the Land or within the Improvements and used
in connection with the operation, management or maintenance of the Land or
the
Improvements, excluding any such items owned by tenants of the Land or the
Improvements, but specifically including, without limitation, the property
described on Exhibit
B
attached
hereto and incorporated herein by this reference (collectively, the
“Personalty”);
(iv) (iv) All
of
the right, title and interest of the Seller as “lessor”
or
“landlord”
in,
to
and under all leases and other agreements for the use, occupancy or possession
of all or any part of the Land or the Improvements, including, without
limitation, (A) all the tenant leases, including, without limitation, security
deposits held in connection therewith, all as scheduled and identified on
Exhibit
C
attached
hereto and incorporated herein by this reference (as amended and/or assigned,
collectively, the “Existing
Leases”),
and
(B) all new tenant leases, amendments to Existing Leases, renewals of Existing
Leases or other agreements for use, occupancy or possession of all or any part
of the Land or the Improvements entered into between the Commencement Date
(as
defined in Section
33
hereof)
and the Closing Date (as defined in Section
4
hereof)
in accordance with the terms and conditions of this Agreement (as amended,
collectively, the “New
Leases”)
(the
Existing Leases and the New Leases shall be referred to herein collectively
as
the “Leases”);
and
(v) (v) All
of
the right, title and interest (if any) accruing to the owner of the Land and
the
Improvements in, to and under: (A) those service and other contracts and
agreements, including, without limitation, phone, cable, laundry, landscaping
and trash removal contracts, if any, scheduled and identified on Exhibit
D
attached
hereto and incorporated herein by this reference (as amended, collectively,
the
“Service
Agreements”)
excepting only those which Buyer, by written notice delivered to Seller within
the Inspection Period (as defined in Section
5(c)
hereof),
elects not to assume (collectively, the “Rejected
Agreements”)
provided that such Service Agreements are capable of being terminated on thirty
(30) or less days’ notice; (B) the name “Marina Pointe” (the “Trade
Name”);
(C)
the phone and facsimile numbers of Marina Pointe and any and all marketing
material and other collateral material used in connection with Marina Pointe
(collectively, the “Marketing
Material”);
(D)
all guaranties, warranties and agreements from contractors, subcontractors,
vendors and suppliers regarding their performance, quality of workmanship and
quality of materials supplied in connection with the construction, manufacture,
development, installation and operation of any and all Improvements and
Personalty (collectively the “Warranties”);
and
(E) certificates, licenses, permits, authorizations, consents and approvals
(collectively, the “Permits”),
but
only to the extent the foregoing are related to the use, occupancy, possession
and/or operation of the Land and the Improvements and only to the extent the
same are assignable.
(vi) (b) The
Land,
the Improvements and the Personalty are hereinafter sometimes collectively
called the “Project”
and
all
the foregoing are hereinafter sometimes collectively called the “Property.”
2. Purchase
Price; Method of Payment.
The
purchase price for the Property shall be Twenty Four Million Five Hundred
Thousand and No/100 Dollars ($24,500,000.00) (the “Purchase
Price”).
The
Purchase Price shall be paid on the Closing Date to Seller, subject to the
Closing Adjustments (as defined in Section
9
hereof)
and the payment of Closing Costs (as defined in Section
11
hereof),
by wire delivery of funds through the Federal Reserve System to an account
designated in writing by the Escrow Agent.
3. Xxxxxxx
Money.
Within
two (2) Business Days (as defined in Section
33
hereof)
of the Commencement Date, Buyer shall deliver to Escrow Agent the sum of Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00) (together with all
interest actually earned thereon after invested by the Escrow Agent, the
“Xxxxxxx
Money”).
Upon
receipt of the Xxxxxxx Money, Escrow Agent shall hold the Xxxxxxx Money in
an
interest bearing account at an FDIC insured bank. On the Closing Date, the
Xxxxxxx Money shall be applied as part payment of the Purchase Price. The
rights, duties and obligations of Seller, Buyer and Escrow Agent with respect
to
the escrow created hereby shall be governed by the provisions of an escrow
agreement in the form of Exhibit
E
attached
hereto and incorporated herein by this reference.
4. Closing.
The
closing of the purchase and sale of the Property as described in this Agreement
(the “Closing”)
shall
take place in escrow through the offices of the Escrow Agent on such date as
may
be agreed upon by Buyer and Seller (the “Closing
Date”);
provided,
however,
that
the Closing Date shall be on or before thirty (30) days after the expiration
of
the Inspection Period. This Agreement and such other agreements or instruments
as may be reasonably necessary to consummate the transaction contemplated hereby
shall be collectively referred to as the “Closing
Documents.”
B. 5. Access
and Inspection; Delivery of Documents and Information by Seller; Examination
by
Buyer; Seller’s Consents.
(a) Between the Commencement Date and the Closing Date, Buyer and Buyer's
agents and designees shall have the right, upon not less than one (1) business
day’s prior notice (which, notwithstanding the provisions of Section
31
hereof,
may be given by email), to enter the Project for the purposes of inspecting
the
Property, including, without limitation, the inspection (subject to the
applicable Leases) of each individual apartment unit comprising the Property,
copying on-site records that directly relate to the operation of the Project,
and making any other non-invasive investigations and inspections as Buyer may
reasonably require to assess the condition of the Property; provided, however,
that such activities by or on behalf of Buyer on the Project shall not
materially damage or interfere with the operations of the Project. Buyer further
agrees to indemnify and hold Seller harmless from and against any and all
claims, causes of action, attorneys fees and costs, damages, costs, injuries
and
liabilities directly resulting from the activities of Buyer and/or Buyer's
agents or designees at or on the Project. Between the Commencement Date and
the
Closing Date, Seller shall provide to Buyer on or before the 15th
day of
each month a Rent Roll, Operating Statements and Delinquency Report (each as
hereinafter defined)
for
the
Property. Within the twenty (20) day period following the Closing Date, Seller
shall provide to Buyer the Rent Roll and Operating Statement for the final
month
(or portion thereof) of Seller’s ownership of the Property. Notwithstanding
anything to the contrary contained elsewhere in this Agreement, the provisions
of this Section
5(a)
shall
survive the termination of this Agreement for a period of six (6)
months.
(i) (b) Seller
and/or its property manager for the Property (“Property
Manager”)
have
previously delivered various documentation to Buyer. From and after the
Commencement Date, Seller shall cooperate and shall cause Property Manager
to
cooperate with all reasonable requests for additional information (to the extent
that Seller or Property Manager shall have such requested additional
information). Notwithstanding the foregoing, Buyer understands that Seller
only
recently acquired the Property by deed in lieu of foreclosure and accordingly
Seller does not have an extensive ownership history with the Property nor did
Seller obtain many customary due diligence items at the time of its acquisition
of the Property. Therefore, Buyer understands that a good portion of the
information that might normally be available with respect to a property owned
long-term will not be available in respect of the Property.
(ii)
(c) Buyer
shall have fifteen (15) days after the Commencement Date (the “Inspection
Period”)
within
which to examine the Property and to conduct title examinations, soil tests,
non-invasive environmental surveys and/or audits, non-invasive mechanical and
structural studies and analyses, make surveys, obtain financing for the purchase
of the Property and conduct all other investigations of the Property as Buyer
deems necessary to determine whether the Property is suitable and satisfactory
to Buyer. Notwithstanding
anything to the contrary set forth in this Agreement, this Agreement shall
terminate on the date that Seller or Seller’s counsel receives written notice
from Buyer or Buyer’s counsel that the results of Buyer’s examinations and
investigations undertaken during the Inspection Period are unsatisfactory to
Buyer, provided that such written notice is received by Seller or Seller’s
counsel on or before the expiration of the Inspection Period. If Seller or
Seller’s counsel fails to receive such notice before the expiration of the
Inspection Period, then this Agreement shall continue in full force and effect
in accordance with, and subject to, all the terms and conditions hereof. Buyer
shall have the right to determine, in Buyer’s sole and absolute judgment and
discretion, whether or not the results of its inspection activities are
satisfactory.
C. (d) If
this
Agreement is terminated by Buyer pursuant to Section
5(c)
hereof,
the Xxxxxxx Money shall be refunded to Buyer within two (2) Business Days of
Seller’s or Seller’s counsel’s receipt of Buyer’s or Buyer’s counsel’s written
notification of the termination of this Agreement, all rights and obligations
of
the parties under this Agreement shall expire immediately upon the termination
of this Agreement (except as otherwise expressly provided herein), and this
Agreement shall become null and void upon the termination of this Agreement
(except as otherwise expressly provided herein). Seller acknowledges that Buyer
will expend time, money and other resources in connection with the examination
and investigation of the Property, and that, notwithstanding the fact that
this
Agreement may terminate pursuant to this Section 5,
such
time, money and other resources expended constitutes good, valuable, sufficient
and adequate consideration for Seller’s execution of and entry into this
Agreement.
6. Title.
(a) For
the purposes of this Agreement, “good
and marketable fee simple title”
shall
mean fee simple ownership that is: (i) free of all claims, liens and
encumbrances of any kind or nature whatsoever other than the Permitted
Exceptions (as defined in this Section
6(a)),
and
(ii) insurable by Escrow Agent, at the then current standard rates under the
standard form of ALTA owner’s policy of title insurance (ALTA Form B or
equivalent), with the standard printed exceptions therein deleted, without
exception other than for the Permitted Exceptions and containing such coverages
and endorsements as shall be reasonably required by Buyer’s counsel (the
“Title
Policy”).
For
the purposes of this Agreement, the term “Permitted
Exceptions”
shall
mean: (A) current taxes not yet due and payable, (B) tenants in possession
under
unrecorded residential leases affecting the Property, as tenants only without
any rights to purchase the Property, and (C) such other matters not objected
to
in writing by Buyer during the Inspection Period.
D. (b) During
the Inspection Period, Buyer shall obtain a title insurance commitment from
Xxxxxxx & Xxxxxxxxx Title, Inc., as agent for the Escrow Agent, together
with copies of all of the encumbrances listed therein (the “Commitment”).
During the Inspection Period, Buyer shall examine the Commitment and the Survey
(as defined in Section
7
hereof),
and give Seller written notice of objections that render Seller’s title to the
Property less than good and marketable fee simple title and any objections
to
the Survey (each a “Defect”),
except
that Buyer shall not object to liens for real estate taxes not yet due and
payable and shall not be required to object to voluntary
mortgage liens, security interests, tax liens for delinquent taxes or mechanics
liens placed or caused by Seller’s actions, including without limitation the
Redi-Floors Claim
(as
defined in Section
12(e)
hereof),
it being understood and agreed by the parties the Seller shall be obligated
to
satisfy such liens, or cause such exceptions to be removed from the Title Policy
by Closing.
Thereafter, Buyer shall have until the Closing Date in which to reexamine the
Commitment and Survey and in which to give Seller written notice of any
additional objections for matters not existing during the Inspection Period
and
disclosed by such reexamination (each a “Defect”).
Seller shall have until ten (10) days prior to the Closing Date in which to
satisfy all Defects specified in Buyer’s initial notice of title objections, and
until the Closing Date in which to satisfy the Defects specified in the
subsequent notice by Buyer of title objections first disclosed during the
re-examination provided for in the third sentence of this Section
6(b).
Seller
shall notify Buyer that a Defect has been cured upon the curing of such
Defect.
(c) If
the
Commitment and/or the Survey discloses Defects and Buyer gives timely written
notice of objections to the Defects as required in Section
6(b)
hereof
(“Title
Objections”),
Seller shall cure the Defects as long as the aggregate cost of effecting such
cure does not exceed Fifty Thousand and No/100 Dollars ($50,000.00). In the
event the aggregate cost of effecting such cure(s) exceeds Fifty Thousand and
No/100 Dollars ($50,000.00), Seller shall have the option, but not the
obligation (other than those required to be removed as set forth in this
Agreement) to cure the same. In the event the cost of effecting such cure
exceeds Fifty Thousand and No/100 Dollars ($50,000.00), Seller shall have until
five (5) Business Days after receipt of the Title Objections in which to
indicate to Buyer in writing which of the Defects Seller will cure. If the
cost
of effecting such cure exceeds Fifty Thousand and No/100 Dollars ($50,000.00)
and Seller has not notified Buyer in writing of Seller’s agreement to cure any
Title Objection within five (5) Business Days after receipt of the Title
Objections, Seller will be deemed to have agreed not to cure the Title
Objections. If Seller so declines to so cure or remove any Title Objections,
Buyer may elect either to (i) terminate this Agreement, in which event the
Xxxxxxx Money shall be refunded to Buyer within two (2) Business Days of Buyer’s
request for same request, all rights and obligations of the parties under this
Agreement shall expire, and this Agreement shall become null and void except
with respect to any obligations which survive the termination of this Agreement;
(ii) if, but only if, such objection is based upon either (A) a defect, claim,
lien or encumbrance arising after the Commencement Date, or (B) a judgment,
lien, mortgage or other claim placed or caused by Seller’s actions for a sum of
money (excluding claims arising by, through or under Buyer), satisfy the
objections, after deducting from the Purchase Price the cost of satisfying
objections that can be satisfied by the payment of money; or (iii) waive such
requirements in which event such Defects shall be deemed Permitted Exceptions
and proceed to Closing.
7. Survey.
Seller
shall deliver to Buyer a copy of the most recent as-built survey prepared by
Xxxxx Engineering Associates (the “Existing
Survey”).
Seller shall cause the Existing Survey to be updated to comply with the
Surveyor’s Instructions attached hereto as Exhibit
M
and
incorporated herein by this reference (the “Updated
Survey”).
The
cost of the Updated Survey shall be borne in accordance with Section
11
hereof.
8. Environmental
Assessments.
Buyer
shall have the right, at its cost and expense, to cause to be undertaken and
completed a current environmental site assessment of the Property prepared
by an
environmental inspection and engineering firm designated by Buyer (the
“Environmental
Assessment”).
Seller hereby assigns to Buyer any and all right that Seller has in and to
the
existing environmental reports delivered by Seller to Buyer pursuant to the
terms hereof. The Environmental Assessment shall contain such information as
Buyer shall require.
9. Closing
Adjustments.
(a) The
prorations and adjustments described in this Section
9
(collectively the “Closing
Adjustments”)
shall
be made between Buyer and Seller at Closing or thereafter in accordance with
Section
9(b)
hereof.
(i) (i) All
city,
state and county ad valorem taxes and similar impositions levied or imposed
upon
or assessed against the Property (the “Taxes”)
for
the year in which Closing occurs shall be prorated as of midnight the day before
the Closing Date. In the event the Taxes are not determinable at the time of
Closing, the Taxes shall be prorated on the basis of the 2007 Tax xxxx (the
“Estimated
Taxes”).
In
the event any of the Taxes are delinquent at the time of Closing, Seller shall
pay same at Closing. If the Taxes are not paid at Closing, Seller shall deliver
to Buyer the bills for the Taxes promptly upon receipt thereof and Buyer shall
thereupon be responsible for the payment in full of the Taxes within the time
fixed for payment thereof and before the same shall become delinquent.
Notwithstanding the foregoing, in the event actual Taxes for 2008 exceed the
Estimated Taxes for 2008 (the “Tax
Excess”)
or
Estimated Taxes for 2008 exceed the actual Taxes for 2008 (the “Tax
Refund”),
Seller and Buyer shall prorate and pay such Tax Excess or such Tax Refund as
follows:
(1) (A) Seller
shall be responsible for a portion of the Tax Excess or shall receive credit
for
the Tax Refund prorated from January 1, 2008 through midnight of the day prior
to the Closing Date based upon a 365 day calendar year. Buyer shall notify
Seller of any Tax Excess or Tax Refund. The notification shall include a
calculation of the amount due to Buyer from Seller in the case of a Tax Excess
or the amount due to Seller from Buyer in the case of a Tax Refund. Seller
shall
have thirty (30) days from Seller’s receipt of such notification to pay its
portion of the Tax Excess to Buyer and Buyer shall have thirty (30) days from
Buyer’s delivery of such notification to Seller to pay Seller its portion of the
Tax Refund.
(2) (B) Buyer
shall be responsible for a portion of the Tax Excess prorated from the Closing
Date through December 31, 2008 based upon a 365 day calendar year. Buyer shall
assume responsibility for payment of all 2008 Taxes as of the Closing Date,
and
shall notify Seller of any Tax Excess or Tax Refund pursuant to the terms of
Section
9(a)(i)(A)
hereof.
(ii) (ii) All
utility charges and reimbursement for utility charges for the Project
(including, without limitation, telephone, water, storm and sanitary sewer,
electricity, gas (if any), garbage and waste removal) (to the extent not paid
or
payable by tenants under Leases) shall be prorated as of midnight the day before
the Closing Date, transfer fees required with respect to any such utility shall
be paid by or charged to Buyer, and Seller shall claim from the applicable
utility company any deposits held on account for Seller.
(iii) (iii) All
paid
rents, together with any other sums paid by tenants under the Leases, shall
be
prorated as of midnight of the day prior to the Closing Date. In the event
that,
at the time of Closing, there are any past due or delinquent rents or other
sums
owing by any tenants of the Project (collectively, the “Delinquent
Rent”),
Buyer
shall have the exclusive right to collect such Delinquent Rent and shall remit
to Seller its pro-rata share thereof, to the extent, and only to the extent,
that the aggregate rents received by Buyer from each such tenant owing
Delinquent Rent exceed the sum of (A) the aggregate rents and other sums then
due and payable by such tenant for periods from and after the Closing Date,
and
(B) any reasonable and necessary amounts expended by Buyer to collect such
Delinquent Rent. Buyer shall have no obligation to collect or enforce collection
of any Delinquent Rent from or against any tenant. In the event that, after
Closing, Seller receives any payments of rent or other sums due from tenants
under Leases, Seller shall promptly forward such payments to Buyer for Buyer’s
disbursement in accordance with this Section
9(a)(iii).
(iv) (iv) Buyer
shall receive a credit against the Purchase Price in the amount of all tenant
security deposits paid by tenants under Leases, and interest accrued thereon,
contingently payable to such tenants for whose account they are maintained,
and
Seller shall retain such funds free and clear of any and all claims on the
part
of tenants under Leases. After Closing, Buyer shall be responsible for
maintaining as tenant security deposits, the aggregate amount so credited to
Buyer in accordance with the provisions of the Leases relevant
thereto.
(v) (v) All
amounts payable under any of the Service Agreements (other than the Rejected
Agreements, which shall be payable by Seller), including any signing bonuses,
incentive payments and/or other upfront money, shall be prorated as of midnight
the day before the Closing Date. Buyer does not assume any obligation under
any
Service Agreement for acts or omissions that occur prior to Closing. Buyer
does
not assume any obligation under any Rejected Agreement.
(vi)
(vi) All
other
continuing items of paid expense and collected income regarding the operation
and ownership of the Property shall be prorated as of midnight the day before
the Closing Date.
E. (b) Seller
shall prepare a proposed proration schedule for the Property (the “Proration
Schedule”)
and
deliver it to Buyer at least four (4) Business Days prior to the Closing Date,
including the items specified above and any other items the parties determine
necessary. Seller and Buyer shall finalize and agree upon the Proration Schedule
at least two (2) Business Days prior to the Closing Date. The
parties acknowledge that not all invoices for expenses incurred with respect
to
the Property prior to the Closing will be received by the Closing and that
a
mechanism needs to be in place so that such invoices can be paid as received.
All of the Closing Adjustments will be done on an interim basis at the Closing
and will be subject to final adjustment in accordance with this Section
9(b).
After
Closing, upon receipt by Buyer of an invoice for the Property’s operating
expenses that are attributable in whole or in part to a period prior to the
Closing and that were not apportioned at Closing, Buyer shall submit to Seller
a
copy of such invoice with such additional supporting information as Seller
shall
reasonably request. After Closing, upon receipt by Seller of an invoice for
the
Property’s operating expenses that are attributable in whole or in part to a
period after the Closing and that were not apportioned at Closing, Seller shall
submit to Buyer a copy of such invoice with such additional supporting
information as Buyer shall reasonably request. Within ten (10) days of receipt
of such copy, the party owing money to the other party shall pay to such party
an amount equal to the portion of such invoice attributable to the applicable
period.
F. (c) In
the
event that any of the prorations or adjustments described in this Section
9
are
based upon estimated or erroneous information, then the parties shall make
between themselves any equitable adjustment required by reason of any difference
between such estimated or erroneous amounts and the actual amounts of such
sums.
In making the prorations required by this Section
9,
the
economic burdens and benefits of ownership of the Property for the Closing
Date
shall be allocated to Buyer. The provisions of this Section 9 shall survive
the
Closing.
10. Proceedings
at Closing.
On the
Closing Date, the Closing shall take place as follows:
G. (a) Seller
shall deliver to Escrow Agent the following documents and instruments, duly
executed by or on behalf of Seller: (i) a Special Warranty Deed in the form
attached hereto as Exhibit
F
and
incorporated herein by this reference conveying the Land and the Improvements
utilizing the legal description set forth on Exhibit A
hereto;
(ii) a Xxxx of Sale in the form attached hereto as Exhibit
G
and
incorporated herein by this reference conveying the Personalty; (iii) an
Assignment and Assumption of Tenant Leases in the form attached hereto as
Exhibit H
and
incorporated herein by this reference transferring and assigning the Leases;
(iv) an Assignment and Assumption of Service Agreements, Warranties, Permits
and
Trade Name in the form attached hereto as Exhibit
I
and
incorporated herein by this reference transferring and assigning the Service
Agreements (other than the Rejected Agreements), the Warranties, the Permits
and
the Trade Name; (v) a certificate and affidavit of non-foreign status; (vi)
a
Title Affidavit in the form attached hereto as Exhibit
J
and
incorporated herein by this reference; (vii) a settlement statement with respect
to the Closing duly executed by Seller; (viii) a Quitclaim Deed in the form
attached hereto as Exhibit
K
and
incorporated herein by this reference utilizing the legal description set forth
on the Survey if requested by Buyer; and (ix) such other documents or
instruments as are reasonably required by Buyer or the Escrow Agent in order
to
consummate the transactions contemplated by this Agreement.
H. (b) Seller
shall deliver to Escrow Agent the following, if the same have not been
theretofore delivered by Seller to Buyer:
(i) (i) Evidence
in form and substance reasonably satisfactory to Buyer that Seller has the
power
and authority to execute and enter into this Agreement and to consummate the
sale of the Property, and that any and all actions required to authorize and
approve the execution of and entry into this Agreement by Seller, the
performance by Seller of all of Seller’s duties and obligations under this
Agreement, and the execution and delivery by Seller of all Closing Documents
to
be executed and delivered to Buyer at Closing, have been
accomplished.
(ii) (ii) An
updated Rent Roll current as of the Closing Date furnishing all the information
set forth in the Rent Roll with respect to the Leases, which shall be certified
by Seller as being true and correct in all material respects as an exhibit
to
the Assignment and Assumption of Tenant Leases executed and delivered by Seller
to Buyer at Closing.
(iii) (iii) A
letter
prepared by Buyer (if delivered to Seller at, or before, the Closing Date)
directed to all “lessees” or “tenants” under the Leases, notifying such
“lessees” or “tenants” of the transfer of ownership of the Property and the
assignment to Buyer of the Leases, and directing such “lessees” or “tenants” to
make rental payments and all other payments required under the Leases to Buyer
as of the Closing Date.
(iv) (iv) Copies
of
the then current Operating Statements certified to be true and correct in all
material respects by Seller or Property Manager.
(v) (c) Seller
shall deliver to the Property or make available to the Buyer at the Property
the
following in connection with the Property on or before the Closing
Date:
(vi) (i) Rent
Roll, Delinquency Report, Prepaid Report, Availability Report and Resident
Ledgers, each dated the first Business Day preceding the Closing
Date.
(vii) (ii) All
keys
to the Property and every lock thereon in the possession of Seller.
(viii) (iii) To
the
extent the same are in Seller’s possession, within Seller’s control or can
reasonably be obtained by Seller prior to Closing, the originals of the
Warranties and the Permits.
(ix) (iv) The
executed originals (or copies) of the Leases and the Service Agreements (other
than the Rejected Agreements).
I.
(d) Buyer
shall deliver to Escrow Agent the following, if the same have not been
theretofore delivered by Buyer to Seller:
(i) (i) A
Special
Warranty Deed in the form attached hereto as Exhibit
F.
(ii) (ii) A
Xxxx of
Sale in the form attached hereto as Exhibit
G.
(iii) (iii) An
Assignment and Assumption of Tenant Leases in the form attached hereto as
Exhibit H.
(iv) (iv) An
Assignment and Assumption of Service Agreements, Warranties, Permits and Trade
Name in the form attached hereto as Exhibit
I.
(v) (v) The
Purchase Price in accordance with the provisions of this Agreement.
(vi) (vi) A
certified copy of all appropriate action authorizing the execution, delivery
and
performance by Buyer of this Agreement and the other Closing
Documents.
(vii) (vii) A
settlement statement with respect to the Closing duly executed by
Buyer.
(viii) (viii) Such
other Closing Documents as may be reasonably necessary to consummate the
transactions with Seller under this Agreement.
(ix) (e) If
requested in writing by either party, the Escrow Agent shall confirm its status
as the “Reporting Person” in writing, which such writing shall comply with the
requirements of Section 6045(e) of the United States Code and the regulations
promulgated thereunder.
11. Closing
Costs.
Buyer
shall pay for all deed transfer taxes, conveyance taxes and deed document stamps
on the transfer of the Property and for all recording costs incurred in
connection with the transfer of the Property and Buyer’s taking title to the
Property. Seller shall pay (i) the premium for the Title Policy, (ii) the title
search or cancellation fee associated with the Title Policy, (iii) the cost
of
endorsements to the Title Policy, and (iv) the cost of the Updated Survey.
Seller shall pay its own attorneys’ fees, and Buyer shall pay its own attorneys’
fees. Any charges by the Escrow Agent for closing the transaction contemplated
by this Agreement and disbursing the proceeds of same shall be paid half by
Seller and half by Buyer. All
other
costs and expenses of the transaction contemplated hereby shall be borne by
the
party incurring the same. The costs described in this Section
11
shall be
referred to herein as the “Closing
Costs.”
The
provisions of this Section
11
shall
survive the termination of this Agreement to the extent such Closing Costs
are
incurred.
12. Warranties,
Representations and Covenants of Seller.
As of
the Commencement Date and again as of the Closing Date in the event this
Agreement is not terminated in accordance with the terms hereof, Seller
represents, warrants and covenants with Buyer as follows:
J. (a) Seller
is
a limited liability company, duly organized and validly existing under the
laws
of the State of Tennessee.
K. (b) Seller
has the power and authority to own and operate the Property. Seller is not
in
default under its organizational documents and no consents, approvals, waivers,
notifications, acknowledgments or permissions by any third party are required,
or if required have been obtained, in order for Seller to execute and perform
under this Agreement.
L. (c) This
Agreement constitutes the valid and binding obligation of Seller pursuant to
the
terms hereof, subject, however, to bankruptcy and similar laws affecting the
rights and remedies of creditors generally.
M. (d) The
execution and delivery of this Agreement and the other Closing Documents to
be
executed and delivered by Seller and the performance by Seller of Seller’s
duties and obligations under this Agreement and the other Closing Documents
to
be executed and delivered by Seller are consistent with and not in violation
of,
and will not create any adverse condition under, any contract, agreement or
other instrument to which Seller is a party, any judicial order or judgment
of
any nature by which Seller is bound, or the organizational documents of
Seller.
N. (e) Except
for a mechanic’s lien and related claim filed by Redi-Floors (collectively, the
“Redi-Floors
Claim”),
neither the Seller nor any of the Property is subject to demand, suit or lien
proceeding or litigation of any kind, pending or outstanding, before any court
or administrative, governmental or regulatory authority, agency or body,
domestic or foreign, or to any order, judgment, injunction or decree of any
court, tribunal or other governmental authority, or, to Seller’s knowledge,
threatened in writing, that would have a materially adverse effect on the
business or financial condition of Seller or any of the Property or in any
way
be binding upon Buyer or affect or limit Buyer’s full use and enjoyment of any
of the Property or that would limit or restrict in any way the Seller’s right or
ability to enter into this Agreement and consummate the assignments, transfers,
conveyances and any other transaction contemplated hereby.
O. (f) Seller
is
not in violation or default with respect to any contract, indenture, deed of
trust or loan to which it is a party or by which it is bound, which violation
or
default would interfere with the ability of Seller to execute, deliver or
perform its obligations under this Agreement and/or the Closing Documents
required to be executed by Seller.
P. (g) Seller
will pay or cause to be paid promptly when due all Taxes, all sewer and water
charges and all other governmental charges levied or imposed upon or assessed
against the Property between the Commencement Date and the Closing Date, and
will pay or cause to be paid all operating expenses incurred in the use,
occupancy and operation of the Property between the Commencement Date and the
Closing Date; provided, however, that Seller may, in good faith, contest any
of
such taxes, assessments and charges.
Q. (h) Between
the Commencement Date and the Closing Date, Seller shall operate the Property
in
the ordinary course of business and shall maintain and repair the Property
so
that, on the Closing Date, the Property will be in the same condition as it
exists on the Commencement Date, ordinary wear and tear and loss by casualty
excepted; during
the period commencing on the Commencement Date and ending on the earlier of
the
Closing Date or the date of the termination of this Agreement in accordance
with
the terms hereof, Seller shall not schedule any non-routine inspections of
the
Property by third parties unless required by law or by Seller’s
insurer(s).
R. (i) To
the
knowledge of Seller: (1) the Leases scheduled and identified on Exhibit C
hereto
are the only leases or other agreements for use, occupancy or possession
presently in force with respect to all or any portion of the Property; and
(2)
Exhibit
C
hereto
contains the current rent schedule of the Leases listing each tenant space
rented in the Project by number and other appropriate designations and setting
forth the name(s) of each tenant, the rent payable for the use of the respective
tenant space, any rent concessions, the status of rent payable, the amount
of
any tenant security deposits with respect to such tenant space required by
the
Leases and held by Seller and the lease commencement, move-in and expiration
date. Seller further represents and agrees that (a) the information set forth
on
Exhibit C
hereto
regarding the Leases, including, without limitation, information regarding
tenant security deposits and the Delinquency Report, is true, complete and
correct in all material respects; (b) Seller will deliver to Buyer at the
Property at Closing all original Leases in its possession; (c) no tenant of
the
Property is in material default under any Lease in a manner that affects the
Property; (d) no tenant of the Property is claiming that Seller as “lessor” or
“landlord” is in material default under any Leases; (e) except as set forth on
Exhibit
C
hereto,
there are no material rent concessions or offsets with respect to any of the
Leases; and (f) there are no options in favor of the “lessees” or “tenants”
under any of the Leases to purchase all or any portion of the
Property.
S. (j) Between
the Commencement Date and the Closing Date, Seller shall not make or enter
into
any New Lease or modify, amend, renew and extend existing Leases or enter into
any other agreement for the use, occupancy or possession of all or any part
of
the Property (each a “Lease
Agreement”)
without Buyer’s prior written consent unless such Lease Agreement (i) is entered
into in the ordinary course of business, (ii) is substantially in the form
of
the form lease used by Seller at the Property, and (iii) provides for monthly
rent for a (A)
Floorplan A1
unit at
the Project equal to or greater than $639.00,
(B) Floorplan A2 unit
at
the Project equal to or greater than $699.00,
(C) Floorplan A3 unit at the Project equal to or greater than $816.00, (D)
Floorplan B1 unit at the Project equal to or greater than $899.00, or (E)
Floorplan C1 unit at the Project equal to or greater than $999.00.
T. (k) Between
the Commencement Date and the Closing Date, Seller shall in good faith attempt
to comply with all obligations of the “lessor” or “landlord” under the Leases.
Except with the written consent of Buyer, Seller shall take no action by act
or
omission that would waive a default by a tenant under a Lease other than
accepting rent or other payments from such tenant after the due date thereof.
Seller shall not terminate or take any enforcement action with respect to any
Lease prior to Closing without Buyer’s written consent except in the ordinary
course of business and in accordance with prior operations of the
Property.
U. (l) To
Seller’s knowledge, the Service Agreements are the only management, service and
other contracts and agreements relating to the ownership and operation of the
Property; the Service Agreements are in full force and effect; and there are
no
material uncured defaults thereunder. Seller shall advise Buyer immediately
of
any default by any party to a Service Agreement to which Seller becomes aware.
On or before the Closing Date, the Rejected Agreements shall be terminated
by
Seller at no cost to Buyer. Between the Commencement Date and the Closing Date,
Seller shall not make or enter into any new Service Agreement or modify, amend,
renew and extend any existing Service Agreement or enter into any other contract
at the Property (other than a New Lease in accordance with the terms hereof)
without Buyer’s prior written consent, which is not to be unreasonably withheld
or delayed.
V. (m) Seller
shall cause the Property Manager to certify to Buyer that the Operating
Statements delivered to Buyer pursuant to this Agreement are true, correct
and
complete in all material respects and present fairly the financial condition
of
the Property.
W.
(n) Seller
currently has in place the public liability, casualty and other insurance
coverage with respect to its Property that Seller deems reasonable and each
of
such insurance policies is in full force and effect and all premiums due and
payable thereunder were fully paid when due. Evidence of such insurance is
attached hereto as Exhibit
L
and
incorporated herein by this reference.
X. (o) To
Seller’s knowledge, there are no pending, threatened or contemplated
condemnation proceedings involving all or any portion of the
Property.
Y. (p) Following
the Commencement Date, Seller shall promptly deliver to Buyer written notice
of
any casualty or taking involving the Property.
(q) The
existing management agreement for the Property will be terminated on or prior
to
the Closing Date with no liability to Buyer.
Z. (r) During
the term of this Agreement, Seller shall not market the Property to third
parties nor enter into any agreement to sell or option the Property or any
portion thereof to any third party.
AA. (s) On
or
before the Closing Date, Seller shall pay any fines or assessments (other than
Taxes) imposed against the Property before the Closing Date.
(t) On
the
Closing Date, each vacant tenant space within the Property that became vacant
more than five (5) Business Days prior to Closing will be in rent ready
condition, including without limitation, (i) painting, (ii) cleaning, (iii)
appliances, mechanical equipment and lighting in working condition, and (iv)
vinyl, carpeting and flooring in reasonably good condition. Excluding casualties
which are covered by Section 17 hereinbelow, with respect to each tenant space
within the Property that has been vacant for more than five (5) Business Days
prior to Closing that is not in a rent ready condition at the Closing, Buyer
shall receive a credit against the Purchase Price in the sum of $1,500.00 for
each such tenant space.
BB. All
representations and warranties of Seller in this Agreement shall be deemed
to
survive for a period of six (6) months from the date made and no
longer.
13. Warranties,
Representations and Covenants of Buyer.
As of
the Commencement Date and again as of the Closing Date in the event this
Agreement is not terminated in accordance with the terms hereof, Buyer
represents, warrants and covenants with Seller as follows:
CC.
(a) Buyer
is
a corporation, duly organized and validly existing under the laws of the State
of Tennessee.
DD. (b) Buyer
has
the lawful right, power and authority and the financial capacity to enter into
and deliver this Agreement and the other Closing Documents required to be
executed and delivered by Buyer and to perform its obligations hereunder and
thereunder.
EE. (c) There
are
no actions, suits or proceedings pending or to Buyer’s knowledge threatened
against, by or affecting Buyer that question the validity or enforceability
of
this Agreement or any action taken by Buyer under this Agreement, in any court
or before any governmental authority, domestic or foreign.
FF. (d) The
execution and delivery of this Agreement and the other Closing Documents
required to be executed and delivered by Buyer and the performance by Buyer
of
Buyer’s duties and obligations under this Agreement and the other Closing
Documents required to be executed and delivered by Buyer are consistent with
and
not in violation of, and will not create any adverse condition under, any
contract, agreement or other instrument to which Buyer is a party, any judicial
order or judgment of any nature by which Buyer is bound, or the organizational
documents of Buyer.
GG. (e) On
the
Closing Date, all action will have been taken by Buyer authorizing and approving
the execution of and entry into this Agreement, the execution and delivery
by
Buyer of the documents and instruments to be executed and delivered by Buyer
on
the Closing Date pursuant to the terms of this Agreement, and the performance
by
Buyer of Buyer’s duties and obligations under this Agreement and all other acts
necessary and appropriate for the consummation of the purchase of the Property
as contemplated by and provided for in this Agreement.
HH. 14. Conditions
to Buyer’s and Seller’s Obligations.
(a)
Buyer’s obligation to consummate the purchase of the Property on the Closing
Date shall be subject to the satisfaction or performance of the following terms
and conditions, any one or more of which may be waived by Buyer, in whole or
in
part, on or as of the Closing Date:
(i) (i) Seller
shall have materially complied with all covenants and provisions required by
this Agreement to be complied with by Seller before, on, or as of the Closing
Date;
(ii) (ii) The
representations and warranties of Seller in this Agreement shall be true and
correct in all material respects on and as of the Closing Date; and
(iii) Between
the end of the Inspection Period and the Closing Date, no more than ten (10)
apartments shall have become vacant and not been re-leased.
(b) If
any of
the conditions set forth in Section
14(a)
hereof
have not been satisfied, waived or performed on or as of the Closing Date,
Buyer
shall have the right, at Buyer’s option, either: (i) to terminate this Agreement
by giving written notice to Seller on or before the Closing Date, in which
event
all rights and obligations of the parties under this Agreement shall expire
except as otherwise provided herein; or (ii) if such failure of condition
constitutes a willful breach of representation or warranty by Seller,
constitutes a failure by Seller to perform any of the terms, covenants,
conditions, agreements, requirements, restrictions or provisions of this
Agreement, or otherwise constitutes a willful default by Seller under this
Agreement, to exercise such rights and remedies as may be provided for in
Section
16
hereof.
In the event Buyer elects the option set forth in Section
14(b)(i)
above,
the Xxxxxxx Money shall be refunded to Buyer within two (2) Business Days of
Buyer’s request for same. It is understood, however, that a failure of a
condition shall not by itself constitute a willful default of Seller hereunder
entitling Buyer to any remedy beyond a termination and return of the Xxxxxxx
Money.
II. (c) Seller’s
obligation to consummate the sale of the Property on the Closing Date shall
be
subject to the satisfaction or performance of the following terms and
conditions, any one or more of which may be waived by Seller, in whole or in
part, on, or as of the Closing Date:
(i) (i) Buyer
shall have materially complied with all covenants and provisions required by
this Agreement to be complied with by Buyer before, on, or as of the Closing
Date; and
(ii) (ii) The
representations and warranties of Buyer in this Agreement shall be true and
correct in all material respects on and as of the Closing Date.
JJ. (d) If
any of
the conditions set forth in Section
14(c)
hereof
have not been satisfied, waived or performed on or as of the Closing Date,
then
Seller shall have the right, at Seller’s option, either: (i) to terminate this
Agreement by giving written notice to Buyer on or before the Closing Date,
in
which event all rights and obligations of the parties under this Agreement
shall
expire except as otherwise provided herein, or (ii) if such failure of condition
constitutes a willful breach of representation or warranty by Buyer, constitutes
a failure by Buyer to perform any of the terms, covenants, conditions,
agreements, requirements, restrictions or provisions of this Agreement or
otherwise constitutes a willful default by Buyer under this Agreement, to
exercise such rights and remedies as may be provided for in Section 16
hereof.
15. Possession
at Closing.
Seller
shall surrender possession of the Property to Buyer on the Closing Date, subject
to the Leases.
16. Remedies.
(a) If
(i) Buyer shall fail to perform or comply with any of the terms, covenants
or
agreements required by this Agreement to be performed or complied with by Buyer,
or (ii) the purchase and sale of the Property are otherwise not consummated
in accordance with the terms and provisions of this Agreement due to a default
by Buyer under this Agreement, the Xxxxxxx Money shall be delivered to Seller
as
full liquidated damages for such default. The parties acknowledge that Seller’s
actual damages in the event of a default by Buyer under this Agreement will
be
difficult to ascertain, that the Xxxxxxx Money represents the parties’ best
estimate of such damages and that the parties believe the Xxxxxxx Money is
a
reasonable estimate of such damages. The parties expressly acknowledge that
the
foregoing liquidated damages are intended not as a penalty, but as full
liquidated damages in the event of Buyer’s default and as compensation for
Seller’s taking the Property off the market during the term of this Agreement.
Such delivery of the Xxxxxxx Money shall be the sole and exclusive remedy of
Seller by reason of a default by Buyer under this Agreement.
KK. (b) If
(i)
Seller shall fail to perform or comply with any of the terms, covenants or
agreements required by this Agreement to be performed or complied with by
Seller, or if (ii) the purchase and sale of the Property are otherwise not
consummated in accordance with the terms and provisions of this Agreement due
to
a default by Seller under this Agreement, then and in either of such events
Buyer may, as its sole and exclusive remedy, at law or in equity, at its option
either (A) compel Seller to convey the Property to Buyer by a suit for
specific performance, and, if Buyer prevails in such suit, to recover all costs
incidental to such suit, including reasonable attorneys’ fees, or (B) declare
this Agreement terminated, in which event (i) all rights and obligations of
the
parties under this Agreement shall expire (except as otherwise expressly
provided herein) and this Agreement shall become null and void (except as
otherwise expressly provided herein), (ii) Escrow Agent shall remit the Xxxxxxx
Money to Buyer within two (2) business days of such termination, and (iii)
in
the event that Seller’s breach shall be willful, Seller shall, within five (5)
Business Days of receipt of a written request for reimbursement (with attached
invoices), pay to Buyer a sum equal to the lesser of (A) actual expenses
directly incurred by Buyer with third parties as part of its due diligence,
or
(B) $75,000.00.
LL.
17.
Risk of Loss. (a) In the event of loss or damage to the Property or any
portion thereof which is not "major" (as hereinafter defined), this Agreement
shall remain in full force and effect and the repairs shall be completed
in
accordance with Section 17(c) hereof. Seller shall give Buyer written
notice of such loss or damage with seven (7) business day of the occurrence
of
such loss or damage, together with delivery from Seller to Buyer of the Casualty
Information (as defined in Section 17(b) hereof).
MM.
(b)
In the event of a "major" loss or damage, Buyer may terminate this Agreement
by
written notice to Seller within ten (10) days after Buyer receives written
notice from Seller of the occurrence of major loss or damage, together with
the
Casualty Information, in which event the Xxxxxxx Money shall be refunded
to
Buyer within two (2) Business Days of Buyer's request for same. If Buyer
does
not elect to terminate this Agreement within ten (10) days after Buyer receives
written notice from Seller of the occurrence of major loss or damage, together
with the Casualty Information, then Buyer shall be deemed to have elected
to
proceed with the Closing with the Property in its then condition and Buyer
shall
close without reduction or abatement in the Purchase and with an assignment
of
the proceeds (if any) under Seller's insurance policy not yet spent towards
the
repairs. The "Casualty Information" shall include the following: (i) detailed
information regarding Seller's insurance that covers the loss or damage in
question with appropriate backup documentation, including without limitation,
the amount of insurance coverage, applicable deductibles and rent loss coverage,
(ii) the estimated cost to repair Project to its condition immediately preceding
the loss or damage in question with appropriate backup documentation, and
(iii)
the estimated time to repair Project to its condition immediately preceding
the
loss or damage in question with appropriate backup documentation if available.
NN.
(c)
If this Agreement is not terminated pursuant to Section 17(b) hereof and
if
prior to Closing Seller has not performed all repairs necessary to bring
the
Property to its condition immediately prior to such loss or damage, Seller
shall
assign to Buyer all of Seller's right, title and interest to any claims and
proceeds Seller may have with respect to any casualty insurance policies
or
condemnation awards relating to the Property, except to the extent needed
to
reimburse Seller for sums it expended prior to the Closing for the restoration
or repair of such Property. In the event that Seller elects to perform repairs
upon the Property, Seller shall use reasonable efforts to complete such repairs
prior to Closing. If Seller assigns a casualty or condemnation claim to Buyer,
at Closing there shall be credited against the Purchase Price (i) an amount
equal to the amount of any insurance proceeds or condemnation awards actually
collected by Seller as a result of any such damage or destruction or
condemnation occurring after the Commencement Date, less any sums reasonably
expended by Seller prior to the Closing in restoring or repairing the Property,
(ii) any applicable insurance deductibles, and (iii) any rent loss proceeds
applicable to the Property for the time period commencing on the Closing
Date.
If such proceeds or awards have not been collected as of the Closing, then
such
proceeds or awards shall be assigned to Buyer at Closing, except to the extent
needed to reimburse Seller for sums it expended prior to the Closing for
the
restoration or repair of such Property. Upon Closing, full risk of loss with
respect to the Property shall pass to Buyer.
(d)
For
purposes of Section 17(a) and Section 17(b) hereof, "major" loss
or damage refers to the following: (i) loss or damage to the Property or
any
portion thereof such that the cost of repairing or restoring the Property
to a
condition substantially similar to that of the Property prior to the event
of
damage would be, in the opinion of an architect selected by Buyer and reasonably
approved by Seller, equal to or greater than One Hundred Thousand Dollars
($100,000.00) and (ii) any loss due to a condemnation which permanently and
materially impairs (A) the current use of the Property, (B) access to the
Property, and/or (C) signage at the Property. If Seller does not give notice
to
Buyer of Seller's reasons for disapproving an architect within five (5) Business
Days after receipt of notice of the proposed architect, Seller shall be deemed
to have approved the architect selected by Buyer.
18. Negotiation
of Documents.
The
parties agree that prior to Closing they will in good faith negotiate all
Closing Documents consistent with the provisions of this Agreement.
19. Notice
of Developments.
After
the execution hereof and prior to Closing, Seller will give prompt written
notice to Buyer of any material change in Seller and/or the Property or of
any
material modifications to the representations, warranties and/or covenants
contained herein that are necessary to make the representations, warranties
and/or covenants contained herein remain true and correct, but only to the
extent that Seller acquires actual knowledge thereof. After the execution hereof
and prior to Closing, Buyer will give prompt written notice to Seller of any
material change in Buyer or of any modifications to the representations,
warranties and/or covenants contained herein that are necessary to make the
representations, warranties and/or covenants contained herein remain true and
correct, but only to the extent that Buyer acquires actual knowledge thereof.
Each party hereto will give prompt written notice to the other party of any
material development affecting the ability of such party to consummate the
transactions contemplated by this Agreement.
20. Assignment.
This
Agreement may not be assigned by Buyer, in whole or in part, without the prior
written consent of Seller, which consent shall not be unreasonably withheld,
conditioned or delayed. Notwithstanding the foregoing, this Agreement may be
assigned by Buyer without the prior written consent of Seller as long as the
assignee of this Agreement is an entity whose managing member or general partner
is (a) a principal of Buyer, or (b) an entity that is controlled by a principal
of Buyer.
21. Parties.
This
Agreement shall be binding upon and enforceable against, and shall inure to
the
benefit of, Buyer and Seller and their respective legal representatives,
successors and assigns.
22. Broker
and Commission.
All
negotiations relative to this Agreement and the purchase and sale of the
Property as contemplated by and provided for in this Agreement have been
conducted by and between Seller and Buyer without the intervention of any person
or other party as agent or broker. Seller and Buyer warrant and represent to
each other that there are and will be no broker’s commissions or fees payable in
connection with this Agreement or the purchase and sale of the Property by
reason of their respective dealings, negotiations or communications. Seller
and
Buyer shall and do each hereby indemnify, defend and hold harmless the other
from and against the claims, demands, actions and judgments of any and all
brokers, agents and other persons or entities alleging a commission, fee or
other payment to be owing by reason of their respective dealings, negotiations
or communications in connection with this Agreement or the purchase and sale
of
the Property. The terms and provisions of this Section
22
shall
survive the Closing or any termination of this Agreement.
23. Indemnity.
(a)
Seller hereby agrees, for itself and its successors and assigns, jointly and
severally, to indemnify, defend and hold the Buyer harmless from and against
any
and all damage, cause of action, action, proceeding, expense (including, without
limitation, reasonable expenses of investigation and reasonable attorneys’ fees
and expenses), loss, cost, claim or liability (each a “Claim”)
suffered or incurred by Buyer as a result of any intentional untruth, inaccuracy
or breach in or of any of the representations, warranties, covenants or
agreements made by Seller herein. It is the express intention and agreement
of
the parties that the indemnity set forth in this Section
23(a)
shall
survive the consummation of the transactions contemplated in this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, Seller
shall not have any liability for any Claim that is asserted more than six (6)
calendar months after the Closing Date except with respect to Claims for which
notice of the breach or inaccuracy of the representations, warranties, covenants
or agreements giving rise to such right of indemnity have been given to Seller
by written notice from Buyer at any time within the six (6) month period
following the Closing Date.
OO. (b) Buyer
hereby agrees, for itself and its successors and assigns, to indemnify, defend
and hold Seller harmless from and against any Claim suffered or incurred by
Seller as a result of any intentional untruth, inaccuracy or breach in or of
any
of the representations, warranties, covenants or agreements made by Buyer
herein. It is the express intention and agreement of the parties that the
indemnity set forth in this Section
23(b)
shall
survive the consummation of the transactions contemplated in this Agreement.
Notwithstanding anything to the contrary contained in this Agreement, Buyer
shall not have any liability for any Claim that is asserted more than six (6)
calendar months after the Closing Date except with respect to Claims for which
notice of the breach or inaccuracy of the representations, warranties, covenants
or agreements giving rise to such right of indemnity have been given to Buyer
by
written notice from Seller at any time within the six (6) month period following
the Closing Date.
PP. (c) Any
party
entitled to indemnification under this Agreement (the “Indemnified
Party”)
shall
give prompt written notice to the party against whom indemnity is sought
pursuant to this Agreement (the “Indemnifying
Party”)
as to
the assertion of any claim, or the commencement of any suit, action or
proceeding in respect of which indemnity may be sought under this Agreement.
Except as otherwise provided in Section
23(a)
and
Section
23(b)
hereof,
the omission of the Indemnified Party to notify the Indemnifying Party of any
such claim shall not relieve the Indemnifying Party from any liability in
respect of such claim that such Indemnifying Party may have to the Indemnified
Party on account of this Agreement, except, however, the Indemnifying Party
shall be relieved of liability to the extent that the failure so to notify
(i)
shall have caused prejudice to the defense of such claim, or (ii) shall have
increased the costs or liability of the Indemnifying Party by reason of the
inability or failure of the Indemnifying Party (because of the lack of prompt
notice from the Indemnified Party) to be involved in any investigations or
negotiations regarding any such claim, nor shall the omission of the Indemnified
Party to notify the Indemnifying Party of any such claim relieve the
Indemnifying Party from any other liability that the Indemnifying Party may
have
to the Indemnified Party. In case any such claim shall be asserted or commenced
against an Indemnified Party and such Indemnified Party shall notify the
Indemnifying Party thereof, the Indemnifying Party shall be entitled to
participate in the negotiation or administration thereof and, to the extent
such
Indemnifying Party may desire, to assume the defense thereof with counsel
reasonably satisfactory to the Indemnified Party, and, after notice from the
Indemnifying Party to the Indemnified Party of such Indemnifying Party’s
election so to assume the defense thereof, which notice shall be given within
thirty (30) days of the Indemnifying Party’s receipt of such notice from such
Indemnified Party, the Indemnifying Party will not be liable to the Indemnified
Party hereunder for any legal or other expenses subsequently incurred by the
Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation. In the event that the Indemnifying Party does not desire
to assume the defense, conduct or settlement of any claim, the Indemnified
Party
shall not settle such claim without the written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld or delayed.
QQ. (d) Nothing
in this Section
23
shall be
construed to mean that the Buyer or Seller shall be responsible for any
obligations, acts or omissions of the other prior to Closing except for such
obligations and liabilities expressly assumed pursuant to this
Agreement.
24. Further
Assurances; Survival.
At
Closing, and from time to time thereafter, Seller (at Buyer’s expense) shall do
all such additional and further acts, and shall execute and deliver all such
additional and further instruments and documents, as Buyer or Buyer’s counsel
may reasonably require to fully vest in and assure to Buyer full right, title
and interest in and to the Property to the full extent contemplated by this
Agreement and otherwise to effectuate the purchase and sale of the Property
as
contemplated by and provided for in this Agreement. Except as otherwise provided
herein, all the provisions of this Agreement (including, without limitation,
the
representations, covenants and warranties of Seller as set forth in this
Agreement) shall survive the consummation of the purchase and sale of the
Property on the Closing Date, the delivery of the Special Warranty Deed and
the
payment of the Purchase Price for a period of six (6) months following the
Closing Date.
25. Modification.
This
Agreement supersedes all prior discussions and agreements between Seller and
Buyer with respect to the purchase and sale of the Property and other matters
contained herein, and this Agreement contains the sole and entire understanding
between Seller and Buyer with respect thereto. This Agreement shall not be
modified or amended except by an instrument in writing executed by or on behalf
of Seller and Buyer.
26. Applicable
Law.
This
Agreement shall be governed by, construed under and interpreted and enforced
in
accordance with the laws of the State of Tennessee.
27. Counterparts.
This
Agreement may be executed in several counterparts, each of which shall be deemed
an original, and all of such counterparts together shall constitute one and
the
same instrument. A facsimile transmission or electronic mail transmission of
an
original signature shall be binding hereunder.
28. Time.
Time is
and shall be of the essence in this Agreement.
29. Captions.
The
captions and headings used in this Agreement are for convenience only and do
not
in any way restrict, modify or amplify the terms of this Agreement.
30. Exhibits.
Each
and every Exhibit referred to or otherwise mentioned in this Agreement is
attached to this Agreement and is and shall be construed to be made a part
of
this Agreement by such reference or other mention at each point at which such
reference or other mention occurs, in the same manner and with the same effect
as if each Exhibit were set forth in full and at length every time it is
referred to or otherwise mentioned.
31. Notices.
All
notices, requests, demands, tenders and other communications under this
Agreement shall be in writing to the address or facsimile number for each party
set forth below its execution of this Agreement. Any such notice, request,
demand, tender or other communication shall be deemed to have been duly given:
(a)
if
served in person, when served; (b) if sent by facsimile (provided that such
facsimile transmission is confirmed by telephone or a statement generated by
the
transmitting machine) upon completion of transmission, or if transmission is
completed after 5:00 p.m. Central Time or on a day other than a Business Day,
on
the next succeeding Business Day; (c) if by overnight courier, on the first
Business Day after delivery to a nationally recognized overnight courier; or
(d)
if by certified mail, return receipt requested, upon receipt.
Rejection or other refusal to accept, or inability to deliver because of changed
address or facsimile number of which no notice was given, shall be deemed to
be
receipt of such notice, request, demand, tender or other communication. Any
party, by written notice to the others in the manner herein provided, may
designate an address, phone number and/or facsimile number different from that
stated herein. Any
notice, request, demand, tender or other communication from legal counsel of
a
party hereto shall be deemed notice from such party for purposes of this
Section
31.
32. Attorneys’
Fees.
In the
event of any litigation arising out of this Agreement, the party substantially
prevailing in obtaining the relief sought, in addition to all other sums that
the other party may be required to pay, shall recover reasonable attorneys’ fees
and disbursements actually incurred by such prevailing party. This shall survive
the termination of this Agreement.
33. Commencement
Date; Holidays.
For the
purposes of this Agreement, “Commencement
Date”
means
the date this Agreement is executed by Buyer or Seller, whichever is later
as
evidenced by the “Date
of Execution”
below
the signature blocks to this Agreement, and the Xxxxxxx Money has been deposited
with Escrow Agent. The
term
“Business Day” shall mean a day other than a Saturday, Sunday, federal holiday
or other day on which commercial banks in Chattanooga, Tennessee are authorized
or required by law or executive order to close. If the last day upon which
performance hereunder would otherwise be required or permitted is not a Business
Day, then the time for such performance shall be extended to the next day that
is a Business Day. The
final
day of any period to be calculated hereunder shall be deemed to end at 5:00
o'clock p.m. (Central Time).
34. Number
and Gender.
As used
in this Agreement, the singular number shall include the plural and the plural
shall include the singular, and the use of any gender shall be applicable to
all
genders, unless the context would clearly not admit such construction. All
capitalized terms defined in this Agreement shall have the same meanings when
used in the exhibits attached hereto.
35. Invalid
Provision.
In the
event any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect, the remainder of this Agreement shall not be
affected, and this Agreement shall be construed as if such invalid, illegal
or
unenforceable provision had never been contained in this Agreement.
(1) 36. OFAC
Matters.
Each of
Seller and Buyer represent, warrant and agree as follows as applicable to each
of them:
RR. A.
Seller
and Buyer, and all direct or to their knowledge indirect beneficial owners
of
Seller and Buyer, are in compliance with all laws, statutes, orders,
legislation, rules and regulations of any federal, state or local governmental
authority in the United States of America applicable to such Persons (as
hereinafter defined), including, without limitation, the requirements of
Executive Order No. 13224, 66 Fed. Reg. 49079 (Sept. 25, 2001) (the “Order”) and
other similar requirements contained in the rules and regulations of the Office
of Foreign Asset Control, Department of the Treasury (“OFAC”) and in any
enabling legislation or other Executive Orders in respect thereof (the Order
and
such other laws, statutes, rules, regulations, legislation, or orders are
collectively called the “Orders”). For purposes of this subsection, “Person”
shall mean any corporation, partnership, limited liability company, joint
venture, individual, trust, real estate investment trust, banking association,
federal or state savings and loan institution and any other legal entity,
whether or not a party hereto; and
(i) B. Neither
Seller nor Buyer nor any of the direct or to their knowledge indirect beneficial
owners of Seller nor Buyer:
(1) 1. is
listed
on the Specially Designated Nationals and Blocked Persons List maintained by
OFAC pursuant to the Order and/or on any other list of terrorists or terrorist
organizations maintained pursuant to any of the rules and regulations of OFAC
or
pursuant to any other applicable Orders (such lists are collectively referred
to
as the “Lists”);
(2) 2. has
been
determined by competent authority to be subject to the prohibitions contained
in
the Orders;
(3) 3. is
owned
or controlled by, nor acts for or on behalf of, any Person on the Lists or
any
other Person who has been determined by competent authority to be subject to
the
prohibitions contained in the Orders;
4. shall
transfer or permit the transfer of any interest in Seller or such parties to
any
Person who is, or whose beneficial owners are, listed on the Lists;
or
5. shall
assign this Agreement or any interest herein, to any Person who is listed on
the
Lists or who is engaged in illegal activities (or to a Person in which a Person
who is listed on the Lists or who is engaged in illegal activities has any
beneficial interest).
This
Section 36 shall survive the Closing.
37. Property
Sold "AS
IS".
(a)
BUYER EXPRESSLY UNDERSTANDS AND AGREES AND ACKNOWLEDGES THAT SELLER WOULD NOT
HAVE ENTERED THIS AGREEMENT WITHOUT THE EXPRESS PROVISIONS OF THIS SECTION
37
BEING INCLUDED IN THIS AGREEMENT. IN PARTICULAR, BUYER ACKNOWLEDGES THAT SELLER
ONLY RECENTLY ACQUIRED THE PROPERTY BY DEED IN LIEU OF FORECLOSURE AND THEREFORE
SELLER IS BOTH UNWILLING AND UNABLE TO MAKE ANY REPRESENTATIONS OR WARRANTIES
CONCERNING THE PROPERTY OTHER THAN THE REPRESENTATIONS AND WARRANTIES SET FORTH
IN THIS AGREEMENT AND/OR THE CLOSING DOCUMENTS. IT IS UNDERSTOOD THAT, EXCEPT
AS
SET FORTH IN THIS AGREEMENT AND/ THE CLOSING DOCUMENTS, THE PROPERTY AND ALL
IMPROVEMENTS AND FIXTURES COMPRISING THE PROPERTY SHALL BE DELIVERED
"AS
IS",
“WHERE
IS”
IN
THEIR PRESENT CONDITION AND WITH ALL FAULTS, SUBJECT TO REASONABLE WEAR AND
TEAR
AND DETERIORATION BETWEEN THE COMMENCEMENT DATE AND THE CLOSING DATE. SELLER
SHALL NOT BE LIABLE FOR ANY LATENT OR PATENT DEFECTS IN THE PROPERTY. BUYER
ACKNOWLEDGES THAT, EXCEPT AS HEREIN SPECIFICALLY SET FORTH AND/OR THE CLOSING
DOCUMENTS, NEITHER SELLER NOR ANY OF ITS REPRESENTATIVES, EMPLOYEES, MEMBERS,
OFFICERS, DIRECTORS, SHAREHOLDERS, TRUSTEES, MEMBERS, PARTNERS, COUNSEL OR
AGENTS HAS MADE OR WILL IN THE FUTURE MAKE ANY DISCLOSURES, REPRESENTATIONS
OR
WARRANTIES AS TO THE PHYSICAL CONDITION, STATE OF REPAIR, TENANCY, INCOME,
EXPENSES OR OPERATION OF THE PROPERTY. EXCEPTING ONLY THOSE REPRESENTATIONS
SPECIFICALLY SET FORTH IN THIS AGREEMENT AND/OR THE CLOSING DOCUMENTS, BUYER
ACKNOWLEDGES THAT BUYER HAS NOT RELIED ON ANY REPRESENTATIONS, WARRANTIES OR
OTHER STATEMENTS WHETHER ORAL OR WRITTEN IN BUYER’S DECISION TO ACQUIRE THE
PROPERTY IN ACCORDANCE WITH THE TERMS HEREOF. BUYER ALSO ACKNOWLEDGES THAT
BUYER
HAS NOT AND AGREES THAT IT WILL NOT IN THE FUTURE RELY ON ANY "BROKER SET-UPS"
OR ANY OTHER COMMUNICATIONS FROM ANY REAL ESTATE BROKER, MANAGING AGENT OR
SIMILAR PARTY.
(b) IN
PARTICULAR, EXCEPT AS HEREIN SPECIFICALLY SET FORTH AND/OR THE CLOSING
DOCUMENTS, SELLER HAS NOT MADE (AND IS UNWILLING TO MAKE) ANY DISCLOSURES,
REPRESENTATIONS OR WARRANTIES IN RESPECT OF (I) THE PHYSICAL CONDITION OF THE
PROPERTY (INCLUDING, WITHOUT LIMITATION, IN RESPECT OF THE PRESENCE,
NON-PRESENCE OR CONDITION OF HAZARDOUS MATERIALS (HEREAFTER DEFINED), (II)
THE
COMPLIANCE OR NON-COMPLIANCE OF THE PROPERTY WITH ANY PLANS OR SPECIFICATIONS
OR
WITH APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, THOSE RELATING TO THE
PROTECTION OF THE ENVIRONMENT OR THE HEALTH, SAFETY, ACCESSIBILITY OR WELFARE
OF
EMPLOYEES, WORKERS OR GUESTS TO THE PROPERTY (INCLUDING BUT NOT LIMITED TO
THE
OCCUPATIONAL SAFETY AND HEALTH ACT, AS AMENDED, AND THE AMERICAN WITH
DISABILITIES ACT, AS AMENDED)), (III) THE REVENUES, INCOME OR EXPENSES OF THE
PROPERTY, (IV) THE ADEQUACY OR INADEQUACY OF THE UTILITIES, IF ANY, PROVIDED
TO
THE PROPERTY, (V) THE ZONING OF THE PROPERTY OR (VI) ANY OTHER MATTER WHATSOEVER
AND WHETHER OR NOT CONCERNING THE PROPERTY. BUYER ACKNOWLEDGES THE FOREGOING
AND
WARRANTS AND REPRESENTS THAT TO BUYER’S KNOWLEDGE, THIS AGREEMENT PROVIDES FOR
SUFFICIENT TIME AND OPPORTUNITY FOR BUYER TO INSPECT THE PROPERTY AND OTHER
MATTERS DEEMED IMPORTANT TO BUYER REGARDING THE PROPERTY, THAT BUYER (OR ITS
PRINCIPAL OFFICER IF BUYER SHALL BE AN ENTITY) IS EXPERIENCED IN OWNING REAL
PROPERTY SIMILAR TO THE PROPERTY AND THAT BUYER IS REPRESENTED BY ADVISORS
AND
COUNSEL OF BUYER’S CHOOSING.
(c) For
purposes hereof, “Hazardous Materials” shall mean and refer to explosives,
radioactive materials, asbestos, asbestos-containing materials, polychlorinated
biphenyls, lead, lead-based paint, radon, under and/or above ground storage
tanks, hazardous materials, toxic substances, hazardous wastes, hazardous
substances, mold, petroleum, petroleum based materials or any other materials
or
substances which are listed or regulated in the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
6901, et seq.),
the
Resources Conservation and Recovery Act of 1976 (42 U.S.C. Section 6901,
et seq.),
the
Clean Water Act (33 U.S.C. Section 1251, et seq.),
the
Safe Drinking Water Act (14 U.S.C. Section 1401, et seq.),
the
Hazardous Materials Transportation Act (49 U.S.C. Section 1801, et seq.),
the
Toxic Substance Control Act (15 U.S.C. Section 2601, et seq.),
or any
other applicable federal, state or local laws.
(d) By
not
terminating this Agreement at the expiration of the Inspection Period and
proceeding to Closing, without further documentation, Buyer, on behalf if itself
and all of its officers, directors, members, managers, trustees, beneficiaries,
shareholders, employees, representatives, successors and assigns, and their
affiliates (collectively, the “Releasors”),
will
automatically be deemed to have waived and relinquished any and all claims,
rights and remedies Releasors may now or hereafter have against Seller, its
successors, assigns, officers, directors, members, managers, trustees,
beneficiates, shareholders, employees, representatives, and their respective
successors, assigns and affiliates (the “Seller
Parties”),
whether known or unknown, which may arise from or be related to this Agreement
or in any manner related to the Property (including without limitation any
past,
present or future presence or existence of Hazardous Materials on, under or
about the Property, any past present or future violation of any rules,
regulations or laws, now or hereafter enacted relating to the Property, the
physical or structural condition of the Property, the financial performance
of
the Property or any other matter or claim in any manner related to this
Agreement or the Property) except as otherwise specifically set forth herein;
provided, however, that the release contained herein shall not be deemed to
void
the effect of any agreement, representation or warranty of Seller specifically
contained in this Agreement which agreement, representation or warranty by
its
term is specifically set forth to survive Closing. This section shall survive
the Closing and the recordation of the deed and will not be deemed merged into
the deed upon its recordation.
(e) Buyer
is
hereby notified that residential dwellings built prior to 1978 may present
exposure to lead from lead-based paint that may place young children at risk
of
developing lead poisoning. Lead poisoning in young children may produce
permanent neurological damage, including learning disabilities, reduced
intelligence quotient, behavioral problems and impaired memory. Lead poisoning
also poses a particular risk to pregnant women. The seller of any interest
in
residential real property is required to provide the buyer with any information
on lead-based paint hazards from risk assessments or inspections in the seller's
possession and notify the buyer of any known lead-based paint hazards. A risk
assessment or inspection for possible lead-based paint hazards is recommended
prior to purchase of the Property (the "Lead-Based Paint Inspection"). Buyer
acknowledges that it has read understood the lead warning statement above and
has received the Lead Hazard Information Pamphlet Protect
your Family From Lead in Your Home. Buyer
shall have the Inspection Period to notify Seller of any defects or issues
raised by the Lead-Based Paint Inspection that Buyer is not satisfied with.
Seller represents that to its knowledge, the Improvements were constructed
following 1978.
(f) Buyer
acknowledges that Seller may have information concerning the
condition of the property, including information about its environmental
and/or structural condition
including possibly prior
environmental or structural inspection reports. Buyer
also specifically acknowledges
that Seller is under no obligation or duty to disclose such
information to Buyer,
and
that Buyer is
not entitled to and does not expect any such disclosure. Buyer
acknowledges that Seller does not wish to expose itself to any potential claims
(including without limitation that any such information
(including without limitation environmental and building condition
reports) is
in any
manner deficient or that the information disclosed is not all of the relevant
information that Seller may have on the matter) and Buyer
agrees
that it has or will be having its own environmental and structural reports
commissioned by licensed and insured consultants chosen by Buyer
and that
Buyer
will be
relying solely on those reports in
making
any assessments or conclusions as
to the
environmental and/or
physical
condition of the Property.
Buyer
agrees
that Seller shall have no obligation to provide any information regarding the
environmental or physical condition of the Property
but in
the event that Seller should provide any such information (notwithstanding
that
Seller has no obligation to do so), Buyer
acknowledges that any such information may not be all such information
available
to Seller on
any
particular topic. Buyer hereby
waives
any claim against Seller and the Seller Parties related to any such information
(including without limitations claims that such information is wrong, is
inaccurate, is incomplete or that Seller knew or should have known that such
information is wrong, is inaccurate and/or is incomplete).
Notwithstanding the foregoing, Seller has not intentionally withheld any
engineering or environmental reports that it possesses that materially and
adversely contradict any other information Seller may have
provided.
(g) This
Section
37
shall
survive the Closing or earlier termination of this Agreement.
SIGNATURE
PAGE TO FOLLOW.
THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
IN
WITNESS WHEREOF, Seller and Buyer have caused their duly authorized
representatives to execute and deliver this Agreement, all as of the day and
year first written above.
|
BUYER:
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Brookside
Properties, Inc., a Tennessee corporation
|
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By:_________________________________________
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Print
Name:_________________________________
|
|
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Title:________________________________________
|
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Date
of Execution: July ______, 2008
|
|
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Initial
address for notices:
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0000
Xxxxxxx Xxxxx Xxxx, Xxxxx X000
|
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Xxxxxxxxx,
Xxxxxxxxx 00000
|
|
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Attention:
Xxx Xxxxxx
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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With
a copy to:
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Xxx
X. Xxxxxxxx
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0000
Xxxxxxxx Xxxxx
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Xxxxxxxxx,
Xxxxxxxxx 00000
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Telephone:
(000) 000-0000
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Facsimile:
(000) 000-0000
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SIGNATURE
PAGE TO FOLLOW.
THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.
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SELLER:
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TRB
Chattanooga LLC, a Tennessee limited liability company
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By:_________________________________________
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Xxxx
X. Xxxxx
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Senior
Vice President of the Member
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Date
of Execution: July ____, 2008
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Initial
address for notices:
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Xxxxxxx
X. Xxxxx, President
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TRB
Chattanooga LLC
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00
Xxxxxx Xxxx Xxxx, Xxxxx 000
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Xxxxx
Xxxx, Xxx Xxxx 00000
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Telephone:
000.000.0000
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Facsimile:
516.684.4902
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With
a copy to:
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Xxxx
X. Xxxxx, Senior Vice President
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TRB
Chattanooga LLC
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00
Xxxxxx Xxxx Xxxx, Xxxxx 000
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Xxxxx
Xxxx, Xxx Xxxx 00000
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Telephone:
000.000.0000
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Facsimile:
516.684.4903
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And
with a copy to:
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Xxxx
X. XxXxxxx, Esq.
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Xxxx
and Xxxxxxx, PLC,
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Suite
2000, One Nashville Place
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000
0xx Xxxxxx Xxxxx
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Xxxxxxxxx,
Xxxxxxxxx 00000-0000
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Telephone:
000.000.0000
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Facsimile:
615.726.0573
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