EXECUTION COPY
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REDEMPTION AGREEMENT
BETWEEN
POST APARTMENT HOMES, L.P.,
A GEORGIA LIMITED PARTNERSHIP
AND
JRC ACQUISITION CORPORATION
AN ILLINOIS CORPORATION
AS OF FEBRUARY 27, 2004
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POST CANYON(R) APARTMENTS XXXXXX COUNTY, GEORGIA
POST CHASE(R) APARTMENTS GWINNETT COUNTY, GEORGIA
POST CORNERS(R) APARTMENTS GWINNETT COUNTY, GEORGIA
POST COURT(R) APARTMENTS GWINNETT COUNTY, GEORGIA
POST LANE(R) APARTMENTS XXXX COUNTY, GEORGIA
POST MILL(R) APARTMENTS XXXX COUNTY, GEORGIA
POST LAKE(R) APARTMENTS SEMINOLE COUNTY, FLORIDA
TABLE OF CONTENTS
PAGE
ARTICLE 1 AGREEMENT TO CONVEY AND ACCEPT................................................. 2
1.1 AGREEMENT TO CONVEY AND ACCEPT............................................................ 2
1.2 PROPERTY DEFINED.......................................................................... 4
1.3 PERMITTED EXCEPTIONS...................................................................... 4
1.4 OPTION MONEY.............................................................................. 4
1.5 OWNERSHIP OF POST(R) TRADENAMES AND SERVICE MARKS......................................... 5
1.6 TRANSITION OF PROPERTY MANAGEMENT. UPON CLOSING,......................................... 6
1.7 DEPOSIT OF LETTER OF CREDIT AS OPTION MONEY............................................... 7
ARTICLE 2 REDEMPTION..................................................................... 8
2.1 PROPERTY VALUE............................................................................ 8
2.2 REDEMPTION CONSIDERATION.................................................................. 8
2.3 VALUATION OF PREFERRED UNITS.............................................................. 9
2.4 JUPITER'S PURCHASE OF PREFERRED UNITS..................................................... 9
2.5 ASSUMED PROJECT FINANCING................................................................. 10
2.6 PROJECT FINANCE CONDITION................................................................. 13
2.7 ASSUMPTION OF OTHER ASSUMED DEBT.......................................................... 13
2.8 JUPITER'S FAILURE OR INABILITY TO ACQUIRE PREFERRED UNITS................................. 15
2.10 EXERCISE OF CASH OPTION................................................................... 17
ARTICLE 3 TITLE AND SURVEY............................................................... 17
3.1 TITLE EXAMINATION; COMMITMENT FOR TITLE INSURANCE......................................... 17
3.2 SURVEY.................................................................................... 17
3.3 TITLE OBJECTIONS; CURE OF TITLE OBJECTIONS................................................ 18
3.4 CONVEYANCE OF TITLE....................................................................... 20
3.5 PRE-CLOSING "GAP" TITLE DEFECTS........................................................... 20
3.6 POST'S COVENANT NOT TO ENCUMBER........................................................... 21
ARTICLE 4 INSPECTION PERIOD.............................................................. 21
4.1 RIGHT OF INSPECTION....................................................................... 21
4.2 RIGHT OF TERMINATION...................................................................... 22
ARTICLE 5 CLOSING........................................................................ 22
5.1 TIME AND PLACE............................................................................ 22
5.2 POST'S OBLIGATIONS AT CLOSING............................................................. 23
5.3 JUPITER'S OBLIGATIONS AT CLOSING.......................................................... 25
5.4 CREDITS AND PRORATIONS.................................................................... 26
5.5 CLOSING COSTS............................................................................. 29
5.6 CONDITIONS PRECEDENT TO OBLIGATION OF JUPITER............................................. 31
5.7 CONDITIONS PRECEDENT TO OBLIGATION OF POST................................................ 32
5.8 JUPITER'S SECTION 1031 EXCHANGE........................................................... 33
ARTICLE 6 REPRESENTATIONS, WARRANTIES AND COVENANTS...................................... 34
6.1 REPRESENTATIONS AND WARRANTIES OF POST.................................................... 34
6.2 KNOWLEDGE OF POST DEFINED................................................................. 38
6.3 SURVIVAL OF POST'S REPRESENTATIONS AND WARRANTIES......................................... 38
6.4 COVENANTS OF POST......................................................................... 39
6.5 REPRESENTATIONS AND WARRANTIES OF JUPITER................................................. 41
6.6 SURVIVAL OF JUPITER'S REPRESENTATIONS AND WARRANTIES...................................... 43
6.7 COVENANTS OF JUPITER...................................................................... 43
ARTICLE 7 DEFAULT........................................................................ 44
7.1 DEFAULT BY JUPITER........................................................................ 44
7.2 DEFAULT BY POST........................................................................... 44
7.3 NOTICE OF DEFAULT; OPPORTUNITY TO CURE.................................................... 45
7.4 RECOVERABLE DAMAGES....................................................................... 45
ARTICLE 8 RISK OF LOSS................................................................... 46
8.1 MINOR DAMAGE.............................................................................. 46
8.2 MAJOR DAMAGE.............................................................................. 46
8.3 DEFINITION OF MAJOR DAMAGE................................................................ 47
ARTICLE 9 COMMISSIONS.................................................................... 47
9.1 BROKER'S COMMISSION....................................................................... 47
9.2 BROKERAGE REPRESENTATIONS AND INDEMNITIES................................................. 48
9.3 EXECUTION BY BROKERS...................................................................... 49
9.4 SURVIVAL.................................................................................. 49
ARTICLE 10 DISCLAIMERS AND WAIVERS........................................................ 49
10.1 NO RELIANCE ON DOCUMENTS.................................................................. 49
10.2 DISCLAIMERS............................................................................... 50
10.3 RESERVATION OF JUPITER'S RIGHT OF CONTRIBUTION UNDER ENVIRONMENTAL LAWS................... 52
10.4 EFFECT AND SURVIVAL OF DISCLAIMERS........................................................ 52
ARTICLE 11 ESCROW AGENT................................................................... 52
11.1 INVESTMENT OF OPTION MONEY................................................................ 52
11.2 PAYMENT AT CLOSING........................................................................ 52
11.3 PAYMENT ON DEMAND......................................................................... 52
11.4 EXCULPATION OF ESCROW AGENT............................................................... 53
11.5 STAKEHOLDER............................................................................... 53
11.6 INTEREST.................................................................................. 53
11.7 EXECUTION BY ESCROW AGENT................................................................. 54
ARTICLE 12 MISCELLANEOUS.................................................................. 54
12.1 CONFIDENTIALITY........................................................................... 54
12.2 PUBLIC DISCLOSURE......................................................................... 54
12.3 ASSIGNMENT................................................................................ 54
12.4 NOTICES................................................................................... 54
12.5 MODIFICATIONS............................................................................. 57
12.6 CALCULATION OF TIME PERIODS............................................................... 57
12.7 SUCCESSORS AND ASSIGNS.................................................................... 57
12.8 ENTIRE AGREEMENT.......................................................................... 57
12.9 FURTHER ASSURANCES........................................................................ 57
12.10 COUNTERPARTS........................................................................... 58
12.11 SEVERABILITY........................................................................... 58
12.12 APPLICABLE LAW......................................................................... 58
12.13 NO THIRD PARTY BENEFICIARY............................................................. 58
12.14 EMPLOYEES.............................................................................. 58
12.15 POST'S ACCESS TO RECORDS AFTER CLOSING................................................. 58
12.16 CAPTIONS............................................................................... 59
12.17 CONSTRUCTION........................................................................... 59
12.18 TERMINATION OF AGREEMENT............................................................... 59
12.19 SURVIVAL............................................................................... 59
12.20 TIME OF ESSENCE........................................................................ 59
12.21 COVENANT NOT TO RECORD................................................................. 59
12.22 LIMITATION OF POST'S LIABILITY......................................................... 59
12.23 RADON GAS.............................................................................. 60
12.24 INDEMNIFICATION FOR REDEMPTION DISPUTES................................................ 60
12.25 SCHEDULES.............................................................................. 60
REDEMPTION AGREEMENT
THIS REDEMPTION AGREEMENT (this "AGREEMENT") is made as of February 27,
2004 (the "EFFECTIVE DATE"), by and between POST APARTMENT HOMES, L.P., a
Georgia limited partnership ("POST"), and JRC ACQUISITION CORPORATION, an
Illinois corporation ("JUPITER").
FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK, a New York
corporation ("ESCROW AGENT"), THE APARTMENT GROUP, LLC, a licensed real estate
broker in each of Georgia and Florida (the "BOND PROJECT BROKER") and APARTMENT
REALTY ADVISORS, INC., a Georgia licensed real estate broker (the "POST LANE
BROKER") are parties to this Agreement for the limited purposes set forth
herein. (The Bond Project Broker and the Post Lane Broker are sometimes
collectively referred to herein as the "BROKERS".)
WITNESSETH:
RECITALS:
A. Post is the owner of the Property (as defined in ARTICLE 1).
B. Post has previously issued to a third party 2,800,000 preferred
partnership units in Post designated as 8% Series D Redeemable Preferred Units,
having a liquidation value of $25.00 per unit plus accrued and unpaid quarterly
distributions thereon (the "PREFERRED UNITS").
C. Jupiter desires to acquire the Preferred Units from the holder or
holders thereof for a price approximately equal to the liquidation value of such
Preferred Units, which may include a prepayment premium and investment banking
or brokerage fee approved by Post.
D. Post desires to redeem the Preferred Units by distributing the
Property, subject to the liabilities described herein, at the direction of
Jupiter, and Jupiter desires to tender the Preferred Units in redemption to Post
in exchange for such distribution of the Property, all upon and subject to the
terms and conditions of this Agreement.
E. Post and Jupiter intend that the redemption of such Preferred Units
be treated as a complete liquidation of Jupiter's limited partnership interest
in Post, and that the distribution of the Property to Jupiter under Section 2.2
constitute, under Section 736(b) of the Internal Revenue Code of 1986, as
amended (the "CODE"), consideration paid by Post in exchange for Jupiter's
interest in the property of Post.
AGREEMENTS:
THEREFORE, in consideration of the terms and conditions contained in this
Agreement and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Post, Jupiter, Escrow Agent and
Brokers hereby agree as follows:
ARTICLE 1
AGREEMENT TO CONVEY AND ACCEPT
1.1 AGREEMENT TO CONVEY AND ACCEPT. Subject to the terms and conditions
hereinafter set forth, Post agrees to distribute and convey to Jupiter and
Jupiter agrees to accept from Post, in redemption of the Preferred Units, the
following:
(a) those certain tracts or parcels of land containing the
approximate number of acres and located in the Counties and States as set
forth below, as more particularly described on Schedules 1.1(a)-1 through
1.1(a)-7, attached hereto and made a part hereof (the property described
in this clause (a) being herein referred to collectively as the "LAND");
PROJECT COUNTY AND STATE APPROX. ACRES SCHEDULE
Post Canyon(R) Apartments Xxxxxx County, Georgia 38.8 1.1(a)-1
Post Chase(R) Apartments Gwinnett County, Georgia 33.2 1.1(a)-2
Post Corners(R) Apartments Gwinnett County, Georgia 39.0 1.1(a)-3
Post Court(R) Apartments Gwinnett County, Georgia 34.1 1.1(a)-4
Post Lane(R) Apartments Xxxx County, Georgia 13.8 1.1(a)-5
Post Mill(R) Apartments Xxxx County, Georgia 47.0 1.1(a)-6
Post Lake(R) Apartments Seminole County, Florida 82.5 1.1(a)-7
(b) those rights, easements and appurtenances pertaining to the
Land, including (i) all right, title and interest of Post (if any) in and
to adjacent streets, alleys or rights-of-way, (ii) all right, title and
interest of Post with respect to any easements that benefit or burden the
Land, and (iii) all right, title and interest of Post (if any) in any
water rights or oil, gas and mineral rights that benefit or burden the
Land (the property described in this clause (b) herein referred to
collectively as the "RELATED RIGHTS");
(c) the buildings, structures, fixtures and other improvements on
the Land, including specifically, without limitation, those certain
buildings having the names, street addresses and number of apartment units
as set forth below (the property described in this clause (c) being herein
referred to collectively as the "IMPROVEMENTS", and the Land, the Related
Rights and the Improvements being hereinafter sometimes collectively
referred to as the "REAL PROPERTY"):
PROJECT XXXXXX XXXXXXX XXXXXXXXX XXXXX
Xxxx Xxxxxx(X) Apartments 0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000 494 Xxxxx
0
Xxxx Xxxxx(X)Xxxxxxxxxx 0000 X. Xxxxxxxx Xxxxxx Xx. X.X. 410 Units
Xxxxxx, Xxxxxxx 00000
Post Corners(R)Apartments 0000 Xxxxxxxxx Xxxxxxx Xxxxxx X.X. 000 Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Post Court(R)Apartments 0000 Xxxx Xxxxx 000 Xxxxx
Xxxxxx, Xxxxxxx 00000
Post Lane(R)Apartments 000 Xxxxxx Xxxxx Xxxx X.X. 000 Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Post Mill(R)Apartments 0000 Xxxxxxx Xxxx Xxxx, X.X. 000 Xxxxx
Xxxxxxxx, Xxxxxxx 00000
Post Lake(R)Apartments 000 Xxxx Xxxx Xxxxx 000 Xxxxx
Xxxxxx, Xxxxxxx 00000
TOTAL APARTMENT UNITS 3,468 Units
(d) all of Post's right, title and interest in and to those items
of tangible personal property located on the Land or within the
Improvements owned by Post and used exclusively in CONNECTION with the
ownership, use, maintenance or operation of the Land and the Improvements,
and specifically including those items of tangible personal property
identified on Schedules 1.1(d)-1 through 1.1(d)-7 attached hereto and
incorporated herein by this reference, but excluding (i) cash and cash
equivalents, (ii) computer software and computer files, (iii) any time
clocks, (iv) personal property owned by tenants under the Leases, (v) any
equipment installed by, or in connection with, any telecommunication or
utility provider and which is owned by any party other than Post, (vi) any
items owned by employees of Post or any property manager, (vii) any items
leased to Post, and (viii) all brochures, advertising copy, promotional
materials, manuals, reports, portfolios, binders, training materials and
other similar items on which the name "Post" or any of the Marks (as
defined in Section 1.5 ) appears (the property described in this clause
(d), other than the excluded items, being herein referred to collectively
as the "TANGIBLE PERSONAL PROPERTY"):
SCHEDULE FOR INVENTORY OF TANGIBLE
PROJECT PERSONAL PROPERTY
Post Canyon(R) Apartments 1.1(d)-1
Post Chase(R) Apartments 1.1(d)-2
Post Corners(R) Apartments 1.1(d)-3
Post Court(R) Apartments 1.1(d)-4
Post Lane(R) Apartments 1.1(d)-5
Post Mill(R) Apartments 1.1(d)-6
Post Lake(R) Apartments 1.1(d)-7
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(e) all of Post's right, title and interest as landlord or lessor
in, to and under all agreements listed and described on Schedules 1.1(e)-1
through 1.1(e)-7 (collectively, the "RENT ROLL") attached hereto and made
a part hereof, pursuant to which any portion of the Land or Improvements
is used or occupied by anyone other than Post (the property described in
this clause (e) being herein referred to collectively as the "LEASES");
PROJECT RENT ROLL SCHEDULE
Post Canyon(R) Apartments 1.1(e)-1
Post Chase(R) Apartments 1.1(e)-2
Post Corners(R) Apartments 1.1(e)-3
Post Court(R) Apartments 1.1(e)-4
Post Lane(R) Apartments 1.1(e)-5
Post Mill(R) Apartments 1.1(e)-6
Post Lake(R) Apartments 1.1(e)-7
(f) all of Post's right, title and interest in, to and under (i)
the Designated Service Contracts (as defined in Section 6.7 (b) of this
Agreement), (ii) all assignable existing warranties and guaranties issued
to or inuring to the benefit of Post in connection with the Improvements
or the Tangible Personal Property, and (iii) all governmental permits,
licenses and approvals, if any, belonging to or inuring to the benefit of
Post and pertaining to the Real Property or the Tangible Personal
Property, but only to the extent that such permits, licenses and approvals
are assignable and only to the extent that such permits, licenses and
approvals relate to the Real Property or the Tangible Personal Property as
opposed to other property of Post, and excluding any rights in or to the
use of the Marks (the property described in this clause (f), other than
the excluded items, being sometimes herein referred to collectively as the
"INTANGIBLE PROPERTY").
1.2 PROPERTY DEFINED. The Land, the Related Rights, the Improvements, the
Tangible Personal Property, the Leases and the Intangible Property are
hereinafter sometimes referred to collectively as the "PROPERTY." The apartment
communities commonly known as Post Canyon(R) Apartments, Post Chase(R)
Apartments, Post Corners(R) Apartments, Post Court(R) Apartments, Post Lane(R)
Apartments, Post Mill(R) Apartments and Post Lake(R) Apartments are sometimes
referred to individually as "PROJECT" and collectively as the "PROJECTS."
1.3 PERMITTED EXCEPTIONS. The Property shall be conveyed, and Jupiter
shall accept the Property, subject to the matters which are, or are deemed to
be, Permitted Exceptions pursuant to ARTICLE 3 hereof (herein referred to
collectively as the "PERMITTED EXCEPTIONS").
1.4 OPTION MONEY.
(a) Within three (3) business days following the Effective Date,
Jupiter shall deposit with the metropolitan Atlanta, Georgia office of
Escrow Agent (0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxx, Xxxxxxx 30067) the
sum of TWO MILLION AND NO/100 DOLLARS ($2,000,000.00) (the "FIRST
DEPOSIT") by wire transfer of immediately available funds.
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(b) If Jupiter does not exercise the right to terminate this
Agreement in accordance with Section 4.2 hereof, then Jupiter shall, on or
before the Inspection Date (as defined in Section 4.2 hereof), deposit
with such office of Escrow Agent the additional sum of ONE MILLION AND
NO/100 DOLLARS ($1,000,000.00) (the "SECOND DEPOSIT") by wire transfer of
immediately available funds.
(c) The First Deposit and the Second Deposit, when and to the
extent deposited, shall constitute option money and are herein referred to
collectively as the "OPTION MONEY."
(d) Escrow Agent shall invest the Option Money pursuant to
Jupiter's directions and in accordance with the terms and conditions of
ARTICLE 11. All interest accruing and other income earned on such sum
shall become a part of the Option Money and shall be distributed as Option
Money in accordance with the terms of this Agreement. If Jupiter fails to
deliver any portion of the Option Money to the Escrow Agent within the
time period or periods specified above, Jupiter shall be in default
hereunder, and Post shall be entitled to exercise its rights and remedies
under Section 7.1 .
(b) In any event, if Jupiter is entitled to have the Option Money
returned to Jupiter pursuant to any provision of this Agreement, ONE
HUNDRED AND NO/100 DOLLARS ($100.00) of the Option Money shall
nevertheless be paid to Post as good and sufficient consideration for
entering into this Agreement. In addition, Post acknowledges that Jupiter,
in evaluating the Property and performing its due diligence investigation
of the Property, will devote internal resources and incur expenses, and
that such efforts and expenses of Jupiter also constitute good, valuable
and sufficient consideration for this Agreement.
1.5 OWNERSHIP OF POST(R) TRADENAMES AND SERVICE MARKS.
(a) Jupiter acknowledges and agrees that the names "Post(R)",
"Post Canyon(R)", "Post Chase(R)", "Post Corners(R)", "Post Court(R)",
"Post Lane(R)", "Post Mill(R)", "Post Lake(R)", and "Post Apartment
Homes(R)" and any other trade name or service xxxx which includes the word
"Post" or any other trade name or service xxxx (including the "Post tulip"
logo) of Post (hereinafter collectively referred to as the "MARKS"), and
each of them, are trade names and service marks of Post; that the Marks,
and each of them, are the sole and exclusive property of Post, which owns
all right, title, and interest in and to the Marks, and each of them; and
that, by this Agreement, Jupiter shall acquire no ownership right or
interest of any kind in or to the Marks, or any of them. Jupiter further
acknowledges and agrees that any use by Jupiter of the Marks, or any of
them, in any manner in connection with the Property or otherwise, will
result in immediate and irreparable injury to Post and its affiliates, and
that Post and/or its affiliates shall be entitled to temporary,
preliminary, and permanent injunctive relief against Jupiter in the event
of any such use of the Marks, or any of them, by Jupiter, or in the event
of any other violation by Jupiter of this Section 1.5 .
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(b) Post and Jupiter shall cooperate with each other in connection
with the prompt removal of the "Post" name from each Project following the
Transition Date (as defined in Section 1.6) for such Project, including
changes in signage, lease forms, marketing materials and the like. Jupiter
agrees to attach a substantial, temporary sign over the existing
"Post(R)", "Post Canyon(R)", "Post Chase(R)", "Post Corners(R)", "Post
Court(R)", "Post Lane(R)", "Post Mill(R)", "Post Lake(R)", or "Post tulip"
logo on all sign(s) in each Project no later than the Sign Change Date (as
defined below) for such Project so that the word "Post" and the "Post
tulip" will not be visible. Jupiter shall keep such temporary signage in
place until Jupiter installs permanent replacements of such signage, and
Jupiter shall install such permanent replacement signage in each Project
on or before the date that is one hundred twenty (120) days after the
Transition Date for such Project. All other signage on any Project
containing the "Post(R)" name or any of the Marks shall be promptly
removed or replaced, but in any event, on or before the Sign Change Date
for such Project. "SIGN CHANGE DATE" means (i) with respect to those
Projects for which Jupiter assumes management responsibility at Closing,
the thirtieth (30th) day from and after Closing, and (ii) with respect to
each other Project, the seventh (7th) day from and after the Transition
Date for such Project
(c) From and after the Transition Date for each Project through
the date on which all signs or other marketing materials which include any
Xxxx have been removed from the Project, Jupiter shall display in a
prominent position in the leasing center of such Project a sign stating
that such Project is no longer under the management or ownership of Post
or any affiliate of Post. The size, content and location of such sign
shall be subject to the approval of Post, not to be unreasonably withheld
or delayed.
(d) Jupiter shall indemnify, hold harmless and defend Post from
and against any and all claims, demands, causes of action, liabilities,
losses, costs, damages and expenses (including reasonable attorneys fees
and expenses and court cost incurred in defending any such claim or in
enforcing this indemnity) of whatsoever nature that may be incurred by
Post and arising out of or in connection with the presence of any of Marks
on any sign or other materials located on any Project from and after the
Transition Date for such Project, or the use of any Xxxx on or after the
Transition Date for such Project in connection with the ownership,
operation, management, leasing or disposition of such Project.
(e) This Section 1.5 shall survive the Closing.
1.6 TRANSITION OF PROPERTY MANAGEMENT. Upon Closing, Post and Jupiter
shall cooperate with one another to effect a smooth transition of property
management for the Projects. The parties intend that upon Closing, Jupiter will
assume responsibility for management of two or more of the Projects and will
engage Post pursuant to a property management agreement (the "MANAGEMENT
AGREEMENT") to manage each of the other Projects. Under such management
arrangement, Jupiter shall assume responsibility for management of the remaining
Projects at the rate of two or more Projects each thirty (30) days, such that
Jupiter will have assumed full responsibility for management of the Property no
later than ninety (90) days after closing. Jupiter and Post shall commence to
negotiate diligently and in good faith the form
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and content of the Management Agreement promptly following the Effective Date.
If Jupiter and Post have not agreed in writing as to the form of the Management
Agreement by the Inspection Date, then Post shall have no obligation to manage
any Project following closing unless and until Jupiter and Post agree otherwise
in writing. The date on which Post ceases to manage any Project (whether at
Closing or thereafter under the Management Agreement) is referred to herein as
the "TRANSITION DATE" for such Project.
1.7 DEPOSIT OF LETTER OF CREDIT AS OPTION MONEY.
(a) Jupiter may, at its option, deposit with Escrow Agent, in lieu of
any deposit of Option Money to be made pursuant to Section 1.4, an irrevocable
letter of credit substantially in the form of Schedule 1.7, attached hereto and
incorporated herein by this reference (and, in the case of the Second Deposit,
Jupiter may, rather than provide a new letter of credit, cause the issuer of the
letter of credit to increase the amount of the letter of credit for the First
Deposit to the sum of THREE MILLION DOLLARS ($3,000,000.00) and extend the term
of such letter of credit as described below). Any such letter of credit shall be
issued in favor of Escrow Agent and shall be in the amount of the required
deposit of Option Money. Such letter of credit shall be issued by an Approved
Bank and shall have an expiry date of no earlier than (i) sixty (60) days after
the Inspection Date, in the case of the First Deposit, and (ii) three hundred
thirty (330) days after the Effective Date, in the case of the Second Deposit
(and the expiry date of any letter of credit deposited as the First Deposit
shall also be extended to three hundred thirty (330) days after the Effective
Date when the Second Deposit is due pursuant to Section 1.4).
(b) In the event Jupiter elects to deposit such a letter of credit with
Escrow Agent, any requirement under this Agreement that the Option Money be
refunded or returned to Jupiter shall mean that the original letter of credit
shall be returned to Jupiter without having been drawn upon. In addition, any
requirement under this Agreement that the Option Money be paid over to Post
shall mean that Escrow Agent shall draw upon the letter of credit according to
its terms in full and pay over to Post the full amount of the Option Money.
Where this Agreement provides that Escrow Agent shall pay over ONE HUNDRED
DOLLARS ($100.00) of the Option Money to Post and refund the balance of the
Option Money to Jupiter, Jupiter shall have the option of depositing with Escrow
Agent ONE HUNDRED DOLLARS ($100.00) in cash, to be paid over by Escrow Agent to
Post, and receiving back from Escrow Agent the original letter of credit without
such letter of credit having been drawn upon.
(c) If Escrow Agent shall not have received written instructions signed
by Post and Jupiter instructing Escrow Agent to return the Letter of Credit to
Jupiter without having been drawn upon, then at any time on or after the tenth
(10th) business day prior to the expiry date of such letter of credit, upon
written request from either Post or Jupiter (the "DRAW NOTICE"), Escrow Agent
shall be entitled to, and is hereby irrevocably and unconditionally authorized,
instructed and directed to, draw upon such letter of credit in the full amount
thereof and hold the proceeds of such letter of credit as Option Money in
accordance with this Agreement. Escrow Agent shall have no duty or authority
following receipt of any Draw Notice to confirm or verify the right of the party
giving the Draw Notice to do so, nor shall Escrow Agent have the right not
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to draw upon the Letter of Credit in full following receipt of any Draw Notice,
whether or not any other party shall object to the Draw Notice or otherwise
dispute the Draw Notice or the proper disposition of the Letter of Credit or
Option Money.
(d) If the Closing Date or any extension of the Closing Date as provided
herein is less than ten (10) business days prior to or is after the expiry date
of the letter of credit, then Escrow Agent shall be entitled to, and is hereby
irrevocably and unconditionally authorized, instructed and directed to, draw
upon such letter of credit in the full amount thereof, and hold the proceeds
thereof as Option Money in accordance with this Agreement, unless a replacement
letter of credit in the same amount and otherwise in accordance with the terms
of this Section 1.7 is delivered to Escrow Agent at least ten (10) business days
prior to the expiry date of the letter of credit; such a replacement letter of
credit shall have an expiry date at least sixty (60) days after the Closing
Date, as so extended.
(e) "Approved Bank" means any one of Deutsche Bank AG, New York Branch,
or any national bank with its principal place of business in metropolitan
Atlanta, Georgia, Chicago, Illinois or New York City, New York and which is
approved by Post in its good faith business judgment; provided, however, that in
order to constitute an Approved Bank, such bank must have a branch office in
metropolitan Atlanta, Georgia, Chicago, Illinois, or New York City, New York at
which any letter of credit described in this Section 1.7 may be drawn and paid
in full in immediately available funds.
ARTICLE 2
REDEMPTION
2.1 PROPERTY VALUE. Post and Jupiter agree that the gross value of the
Property is TWO HUNDRED THIRTY-TWO MILLION AND NO/100 DOLLARS ($232,000,000.00)
(the "PROPERTY VALUE"). The Property Value is allocated among the Projects
comprising the Property as set forth on Schedule 2.1, attached hereto.
2.2 REDEMPTION CONSIDERATION. At Closing, Post shall convey the Property
to Jupiter in the manner provided in this Agreement. In exchange for such
conveyance, Jupiter shall deliver to Post at Closing consideration having an
aggregate value equal to the Property Value, in the following manner:
(a) Jupiter shall assign and tender the Preferred Units to Post
for redemption pursuant to such instruments as are necessary or reasonably
desirable to effect such assignment, tender and redemption, and otherwise
in accordance with this Agreement and in form and substance reasonably
acceptable to Jupiter. The Preferred Units shall be valued for purposes of
the redemption at the Agreed Total Unit Value (as defined herein).
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(b) Jupiter shall assume the Assumed Project Financing in the
manner contemplated in Section 2.5 . The parties estimate that the
outstanding balance of the Assumed Project Financing as of Closing will be
approximately ONE HUNDRED NINETEEN MILLION EIGHTY-FIVE THOUSAND AND NO/100
DOLLARS ($119,085,000.00).
(c) Jupiter shall assume the Other Assumed Debt as contemplated in
Section 2.7 . The Other Assumed Debt shall have an outstanding balance as
of Closing equal to the sum of (i) the Property Value, minus (ii) the
Agreed Total Unit Value, minus (iii) the outstanding balance of the
Assumed Project Financing as of Closing. The parties estimate that the
outstanding balance of the Other Assumed Debt as of Closing will be
approximately FORTY-TWO MILLION NINE HUNDRED FIFTEEN THOUSAND AND NO/100
DOLLARS ($42,915,000.00).
2.3 VALUATION OF PREFERRED UNITS. Post and Jupiter agree that the
aggregate value of the Preferred Units (the "AGREED TOTAL UNIT VALUE") shall be
the lesser of the Actual Price or the Maximum Total Unit Value, as follows:
(a) The "ACTUAL PRICE" means the sum of (i) the aggregate price
actually paid by Jupiter for the Preferred Units, inclusive of any amounts
attributable to prepayment premiums or similar charges and any amounts
paid by Jupiter for investment banking or brokerage fees, and inclusive of
any amounts paid by Jupiter for the accrued and unpaid quarterly
distribution on the Preferred Units as of the date of acquisition, plus
(ii) if Jupiter purchases the Preferred Units prior to the Closing Date,
the accrued and unpaid quarterly distribution on the Preferred Units from
the date of Jupiter's acquisition of such units through the Closing Date
(but without duplication of any such amounts included under clause (i)).
Any Special Transaction Costs included in the Actual Price at Closing
shall not also be reimbursed under Section 5.5(b).
(b) The "MAXIMUM TOTAL UNIT VALUE" means the sum of (i) Seventy
Million and No/100 Dollars ($70,000,000.00), plus (ii) the accrued and
unpaid quarterly distribution on the Preferred Units as of the Closing
Date, plus (iii) SEVEN HUNDRED THOUSAND AND NO/100 DOLLARS ($700,000.00).
The Agreed Total Unit Value shall be used for purposes of this Agreement
notwithstanding that the actual value of the Preferred Units on the Closing Date
may differ.
2.4 JUPITER'S PURCHASE OF PREFERRED UNITS.
(a) Jupiter shall make commercially reasonable good faith efforts
(i) to negotiate and enter into an agreement (a "UNITS PURCHASE
AGREEMENT") for Jupiter's purchase of the Preferred Units from the current
holder or holders thereof (collectively, the "UNITHOLDER"), and (ii) after
entering into a Units Purchase Agreement, to enforce Jupiter's rights
under the Units Purchase Agreement and to purchase the Preferred Units
pursuant to such agreement no later than the time immediately prior to the
Closing under this Agreement. Such purchase of the Preferred Units may
occur at any time prior to Closing, at Jupiter's election. Jupiter shall
not be required to enter into a Units Purchase
9
Agreement if the purchase price for the Preferred Units is greater than
the Maximum Total Unit Value or if the other terms and conditions of such
agreement are not acceptable to Jupiter, acting reasonably.
(b) If Jupiter is unable, after making commercially reasonable
good faith efforts, to enter into a Units Purchase Agreement with the
Unitholder, then Jupiter shall not for that reason be in default under
this Agreement, provided that Jupiter shall give prompt notice of such
fact to Post, setting forth in reasonable detail Jupiter's efforts to
purchase such units and negotiations with the Unitholder.
(c) If Jupiter has entered into a Units Purchase Agreement but the
Unitholder fails or refuses to perform under such agreement, then Jupiter
shall not for that reason be in default under this Agreement provided
Jupiter (i) gives prompt notice to Post when Jupiter first becomes aware
of the Unitholder's failure or refusal to perform, and (ii) makes
commercially reasonable efforts to enforce such Units Purchase Agreement.
Jupiter shall not be required to institute any litigation or other
enforcement proceeding against the Unitholder to enforce the Units
Purchase Agreement, provided Jupiter will consider in good faith any
request by Post that Jupiter do so if Post agrees to reimburse Jupiter for
the cost of such proceeding and such proceeding does not materially delay
the Closing.
(d) If Jupiter fails or is unable, after complying with the
foregoing requirements of this Section 2.4 to purchase the Preferred Units
for a price equal to or less than the Maximum Total Unit Value (and as a
consequence is unable to tender the Preferred Units to Post at Closing as
contemplated in this Agreement), then the provisions of Section 2.8 shall
apply.
(e) For the avoidance of doubt, Jupiter's obligation to purchase
the Preferred Units under this Agreement is subject to the provisions of
Section 5.6. Post confirms that Jupiter intends to provide in the Units
Purchase Agreement that the closing under such agreement is also subject
to the conditions set forth in Section 5.6.
(f) In the event of any litigation between Jupiter and Post as to
whether Jupiter has made commercially reasonable good faith efforts as
required under this Section 2.4, Post shall bear the burden of proof on
such question, and unless Post carries such burden of proof, it shall be
conclusively presumed that Jupiter acted in a commercially reasonable and
good faith manner. However, in no event shall such burden of proof limit
in any way Post's right to give a Draw Notice to Escrow Agent pursuant to
Section 1.7, or Escrow Agent's obligation to draw upon the letter of
credit following such a Draw Notice.
2.5 ASSUMED PROJECT FINANCING.
(a) All of the Projects other than Post Lane(R) Apartments (the
"BOND PROJECTS"), together with certain other apartment communities owned
by Post (the "OTHER PROJECTS"), are subject to financings obtained by Post
from local housing
10
authorities (the "AUTHORITIES") and funded by the Authorities through the
issuance of tax-exempt multifamily housing revenue bonds (the "BONDS").
Xxxxxx Xxx has provided credit enhancement for the Bonds. Such bond
financing and credit enhancement arrangements are collectively referred to
as the "PORTFOLIO FINANCING." The Portfolio Financing is the subject of
extensive documents involving various parties, including Post, Xxxxxx Mae,
the Authorities, trustees for the holders of the Bonds, tender agents,
remarketing agents and others (collectively, the "BOND PARTICIPANTS"). The
Portfolio Financing is comprised of the Bond Financing and the Xxxxxx Xxx
Financing, as such terms are defined below.
(b) The Portfolio Financing encompasses two separate but related
sets of financial arrangements:
(1) First, Post has obtained loans from the Authorities (the
"AUTHORITY LOANS") which have been funded by the Authorities from
the proceeds of the Bonds. In connection with each Authority Loan,
Post has undertaken various obligations to the applicable Bond
Participants. The Authority Loans and the related obligations of
Post to those Bond Participants other than Xxxxxx Mae are referred
to collectively as the "BOND FINANCING".
(2) Second, Post has entered into a master reimbursement
agreement and related documents (collectively, the "XXXXXX XXX
FINANCING") with Xxxxxx Mae, pursuant to which Xxxxxx Xxx has agreed
to provide credit enhancement for the Bonds and Post has agreed,
among other matters, to reimburse Xxxxxx Mae for any amounts paid by
Xxxxxx Xxx in respect of the Bonds as a result of providing such
credit enhancement.
(c) Post's obligations under the Portfolio Financing are secured
by mortgages and related security instruments encumbering each of the Bond
Projects and the Other Projects (the "MORTGAGES"). To the extent the
Mortgages secure the Xxxxxx Mae Financing, the Mortgages are
cross-defaulted and cross-collateralized with one another. In addition,
the Xxxxxx Xxx Financing places limitations on the ability of Post to
release any of the Bond Projects or the Other Projects from the effect of
the Xxxxxx Mae Financing, including releases in connection with the sale
or other conveyance of any Bond Project or Other Project.
(d) The principal documents evidencing and securing the Portfolio
Financing are described in Schedules 2.5(d)-1 though 2.5(d)-6, attached
hereto and made a part hereof by this reference, as follows:
PORTFOLIO
BOND PROJECT FINANCING DOCUMENTS
Post Canyon(R) Apartments 2.5(d)-1
Post Chase(R) Apartments 2.5(d)-2
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Post Corners(R) Apartments 2.5(d)-3
Post Court(R) Apartments 2.5(d)-4
Post Mill(R) Apartments 2.5(d)-5
Post Lake(R) Apartments 2.5(d)-6
(e) Post and Jupiter will use commercially reasonable efforts to
obtain the separation of the Portfolio Financing into two separate
financing packages, one related solely to the Bond Projects (the "Assumed
Project Financing") and the other related solely to the Other Projects
(the "Other Project Financing"). Among other matters, the parties intend
for such separation to eliminate any cross-default and
cross-collateralization between the financing of the Bond Projects and the
financing of the Other Projects. In connection with such arrangement, Post
and Jupiter will work cooperatively and use commercially reasonable good
faith efforts for (i) Jupiter to assume the Assumed Project Financing and
(ii) Post to be released from continuing liability for the Assumed Project
Financing. The separation of the Portfolio Financing, assumption of the
Assumed Project Financing by Jupiter and release of Post from continuing
liability for the Assumed Project Financing are collectively referred to
as the "ASSUMPTION AND RELEASE TRANSACTION". The Assumption and Release
Transaction will include the following matters:
(1) Consents and approvals from the Bond Participants;
(2) Jupiter's assumption of all obligations of Post under or
relating to the Bond Financing with respect to the Bond Projects and
arising from and after Closing, but not with respect to the Other
Projects; the parties anticipate this will include Jupiter entering
into amendments to existing Bond Financing documents with various
Bond Participants, or new Bond Financing documents; the parties
intend that Jupiter's assumption of the Bond Financing with respect
to the Bond Projects will not result in the imposition of any
material additional restrictions on any Project, provided Jupiter
does not seek to make any material change to the existing Bonds and
related Bond documentation (such as, for example, an extension of
the maturity of the Bonds);
(3) Jupiter's assumption of all obligations of Post under or
relating to the Xxxxxx Xxx Financing with respect to the Bond
Projects and arising from and after Closing, but not with respect to
the Other Projects; the parties anticipate this will include (i)
Jupiter entering into a new master reimbursement agreement and
related documents with Xxxxxx Mae with respect to the Bond Projects,
on terms similar to the Xxxxxx Xxx Financing, and (ii) Post entering
into amendments to Post's existing master reimbursement agreement
and related documents with Xxxxxx Mae so as to release the Bond
Projects from the effect of such documents; provided, however, that
Jupiter will not be obligated to use Xxxxxx Xxx to provide credit
enhancement for the Bond Financing and may elect to use another
source of credit enhancement for the Bond Financing.
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(4) The release of Post from any continuing recourse or
non-recourse liability for the Bond Financing or the Xxxxxx Mae
Financing with respect to the Bond Projects, but not with respect to
the Other Projects, provided, however, that Jupiter shall not be
obligated to assume any obligation arising from facts or
circumstances first occurring prior to Closing Date;
(5) The release of the Bond Projects from any cross-default
or cross-collateralization with the Other Projects, and the release
of the Other Projects from any cross-default or
cross-collateralization with the Bond Projects; and
(6) The release to Post of any cash deposits, hedge
instruments and other forms of collateral delivered by Post to
Xxxxxx Xxx in connection with the Portfolio Financing, to the extent
such deposits, instruments and collateral relate to the Bond
Projects but not the Other Projects.
2.6 PROJECT FINANCE CONDITION.
(a) Post and Jupiter acknowledge that the Assumption and Release
Transaction is a complex series of transactions which will involve the
participation and agreement of Post, Jupiter and the other Bond
Participants on many matters, and that this Agreement does not describe
all of the essential terms of the Assumption and Release Transaction. In
addition to any other conditions set forth in this Agreement, the
obligations of Post and Jupiter to close under this Agreement are subject
to and conditioned upon Post, Jupiter and the other Bond Participants
consummating the Assumption and Release Transaction on or prior to the
Closing Date on terms and conditions and pursuant to agreements and
instruments which are approved by Post and Jupiter (insofar as such terms,
conditions, agreements and instruments are relevant to Post and Jupiter,
as the case may be) each acting in its sole and absolute discretion. The
condition set forth in this Section 2.6 (a) is referred to as the "PROJECT
FINANCE CONDITION."
(b) In the event the Project Finance Condition is not satisfied on
or before the Closing Date, as such date may have been extended pursuant
to the terms of this Agreement, then either Post or Jupiter may terminate
this Agreement by delivering written notice of such termination to the
other such party on or before such date, and upon delivery of such notice
of termination, this Agreement shall terminate and the Option Money shall
be returned to Jupiter in accordance with Section 1.4 of this Agreement,
and thereafter neither party hereto shall have any further rights,
obligations or liabilities hereunder except to the extent that any right,
obligation or liability set forth herein expressly survives termination of
this Agreement.
2.7 ASSUMPTION OF OTHER ASSUMED DEBT.
(a) For purposes of this Agreement, the following terms have the
following meanings:
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(1) "LENDER" means, collectively, the lender or lenders
holding the Other Assumed Debt.
(2) "OTHER ASSUMED DEBT" means pre-existing Post debt or
debt incurred by Post to refinance pre-existing Post debt, other
than the Portfolio Financing, as designated by Post and approved by
Jupiter, acting reasonably. The Other Assumed Debt shall have an
outstanding balance as of Closing (currently estimated at
approximately $42,915,000) equal to the sum of (A) the Property
Value, minus (B) the Agreed Total Unit Value, minus (C) the balance
of the Assumed Project Financing as of Closing. Unless otherwise
agreed in writing by Post and Jupiter in their sole discretion, the
Other Assumed Debt:
(i) may be an unsecured recourse liability, provided that
Jupiter may require that such debt be converted upon assumption by
Jupiter to a non-recourse debt secured by such collateral as
Jupiter, Post and the Lender may agree,
(ii) shall be separate from and shall not be cross-defaulted
with any other indebtedness or obligation of Post or Jupiter,
(iii) shall be held by one or more institutional lenders,
provided that if there is more than one institutional lender there
shall be a single agent acting on behalf of the group of lenders,
(iv) shall be subject to prepayment in whole or in part at
any time one week or more after Closing with no prepayment premium,
(v) shall not require Jupiter to pay any assumption fee,
(vi) shall bear interest at a floating rate, and
(vii) shall have a maturity not less than 30 days from and
after Closing.
(b) Jupiter shall use commercially reasonable good faith efforts
to assume the Other Assumed Debt at Closing, and Post shall use
commercially reasonable good faith efforts to obtain Lender's consent to
such assumption. Among other things, the parties acknowledge that such
assumption will include the following matters:
(1) consents and approvals from the Lender;
(2) Lender's agreement that Jupiter shall have no liability
with respect to defaults under the Other Assumed Debt arising from
events or circumstances first occurring prior to Jupiter's
assumption of the Other Assumed Debt, or for any other indebtedness
or liability of Post to Lender; and
(3) Lender's release of Post from any liability for the
Other Assumed Debt from and after Jupiter's assumption of the Other
Assumed Debt; provided,
14
however, that Jupiter shall not be obligated to assume any
obligations arising from facts or circumstances first occurring
prior to Closing Date.
(c) In addition to any other conditions set forth in this
Agreement, but only if the Cash Option is not available pursuant to
Section 2.8 or 2.9, the obligations of Post and Jupiter to close under
this Agreement are subject to and conditioned upon Post, Jupiter and the
Lender consummating the assumption of the Other Assumed Debt on or prior
to the Closing Date on terms and conditions and pursuant to agreements and
instruments which are approved by Post and Jupiter (insofar as such terms,
conditions, agreements and instruments are relevant to Post and Jupiter,
as the case may be) each acting reasonably (provided that in exercising
its right of reasonable approval, Jupiter may take into account whether,
during the period prior to the date of permitted prepayment, such debt
bears an interest rate in excess of Jupiter's regular cost of funds or
imposes costs on Jupiter in excess of principal and interest after taking
into account any adjustments to value or loan amount or other protections
offered by Post to offset any such excess interest rate or other cost (it
being understood, however, that Post will not pay for or provide any
adjustments to value or loan amount or other protection with respect to
any such excess interest rate or other cost from and after the date of
permitted prepayment) and whether Lender imposes unreasonable collateral
requirements with respect to such debt. The condition set forth in this
Section 2.7(c) is referred to as the "OTHER DEBT CONDITION".
(d) If (1) the Other Debt Condition is not satisfied on or before
the Closing Date, as such date may have been extended pursuant to the
terms of this Agreement, and (2) the Cash Option is not available pursuant
to Section 2.8 or 2.9, then either Post or Jupiter may terminate this
Agreement by delivering written notice of such termination to the other
such party on or before such date, and upon delivery of such notice of
termination, this Agreement shall terminate and the Option Money shall be
returned to Jupiter in accordance with Section 1.4 of this Agreement, and
thereafter neither party hereto shall have any further rights, obligations
or liabilities hereunder except to the extent that any right, obligation
or liability set forth herein expressly survives termination of this
Agreement. Such right of termination shall not be available to either Post
or Jupiter, nor shall the Other Debt Condition apply, if the Cash Option
is available under Section 2.8 or 2.9.
2.8 JUPITER'S FAILURE OR INABILITY TO ACQUIRE PREFERRED UNITS. If Jupiter
fails or is unable, after complying in all material respects with the
requirements of Section 2.4 , to purchase the Preferred Units for a price equal
to or less than the Maximum Total Unit Value (and is therefore unable to tender
the Preferred Units to Post at Closing as contemplated in this Agreement), then
Section 2.7 shall not apply and Jupiter shall have the right and option (the
"CASH OPTION"), but not the absolute obligation, in lieu of the consideration
described in Section 2.2 , to deliver to Post at Closing consideration having an
aggregate value equal to the Property Value, in the following manner:
(a) Jupiter shall assume the Assumed Project Financing in the
manner contemplated in Section 2.5 .
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(b) Jupiter shall pay to Post a sum (the "CASH BALANCE") equal to
(A) the Property Value, minus (B) the outstanding balance of the Assumed
Project Financing as of Closing. If Jupiter exercises the Cash Option, the
parties anticipate that the Cash Balance will be approximately ONE HUNDRED
TWELVE MILLION NINE HUNDRED FIFTEEN THOUSAND AND NO/100 DOLLARS
($112,915,000.00).
(c) Jupiter's payment of the Cash Balance shall be made by (i)
wire transfer of immediately available federal funds to a bank account of
Escrow Agent designated by Escrow Agent to Jupiter in writing prior to
Closing ("ESCROW AGENT'S ACCOUNT"), and (ii) delivery to Escrow Agent of
Jupiter's written instructions to release the full amount of the Cash
Balance to Post immediately. If Escrow Agent has not received the Cash
Balance, together with instructions from Jupiter to disburse such funds to
Post immediately, on or before 2:00 p.m. (Atlanta, Georgia, local time) on
the Closing Date, then Post (provided Post is not in default hereunder)
shall be entitled to receive from Jupiter, for each full or partial day of
delay in Post's receipt of the Cash Balance, an additional sum equal to
the amount of interest accrued on the Cash Balance on a daily basis at the
rate of six percent (6%) per annum. For this purpose, each day shall be
the 24-hour period commencing at 2:00 p.m. (Atlanta, Georgia, local time)
each calendar day.
(d) If Jupiter does not exercise the Cash Option, then the Option
Money shall be paid over to Post as consideration for the Cash Option and
for the agreements of Post contained in this Agreement (and shall
constitute liquidated damages as contemplated in Section 7.1 to the same
extent as if Jupiter's failure to exercise the Cash Option constituted a
default by Jupiter under this Agreement).
(e) If Jupiter exercises the Cash Option but does not close, then
Jupiter shall be in default of this Agreement and Post shall have all
rights and remedies available to Post under ARTICLE 7, provided that:
(1) if Jupiter exercises the Cash Option but does not close
as a result of a default by Post under this Agreement, then Jupiter
shall have all of the rights and remedies available to Jupiter for
such default under ARTICLE 7, including but not limited to the right
to demand the return of the Option Money;
(2) if Jupiter exercises the Cash Option but does not close
because a condition precedent to Jupiter's obligation to close is
not satisfied and Jupiter elects pursuant to Section 5.6 not to
close, then Jupiter may terminate this Agreement and obtain a refund
of the Option Money in accordance with Sections 1.4 and 5.6 ; and
(3) if Jupiter exercises the Cash Option but a condition to
Post's obligation to close is not satisfied and Post elects pursuant
to Section 5.7 not to close, then Jupiter may obtain a refund of the
Option Money as provided in Section 5.7 .
16
2.9 PARTNERSHIP AMENDMENT. If Post determines that it is necessary or
desirable to do so, Post may seek consent from its limited partners to an
amendment to the Second Amended and Restated Partnership Agreement of Post
Apartment Homes, L.P., as amended, as proposed by Post's general partner in good
faith to address certain tax considerations arising from the redemption
transaction contemplated herein (the "PARTNERSHIP AMENDMENT"). If Post shall not
have obtained the necessary consents and approvals of Post's limited partners to
the Partnership Amendment, if any, then Post, at Post's election, may deliver to
Jupiter written notice that Post is not willing to close the transaction
contemplated herein as a redemption (the "AMENDMENT NOTICE"), provided, however,
that if Post delivers the Amendment Notice to Jupiter less than five (5)
business days prior to the Closing, then the Closing Date shall be extended, if
necessary, to a date that is no less than five (5) business days following
Jupiter's receipt of the Amendment Notice. Following Jupiter's receipt of the
Amendment Notice Jupiter shall have the Cash Option but shall not have the right
to close the transaction as contemplated herein as a redemption of the Preferred
Units. Accordingly, following Jupiter's receipt of the Amendment Notice, (1)
Jupiter shall be treated for all purposes under this Agreement as having failed
or being unable, after complying with the requirements of Section 2.4, to
purchase the Preferred Units (and as therefore being unable to tender the
Preferred Units to Post at Closing as contemplated in this Agreement), (2)
Jupiter shall have the same rights and liabilities as are set forth in Section
2.8, and (3) Section 2.7 shall not apply. Jupiter shall have no obligation to
close the purchase of the Preferred Units prior to the date on which Post has
obtained all necessary consents to and approvals of the Partnership Amendment or
has waived such requirement in writing.
2.10 EXERCISE OF CASH OPTION. Jupiter and Post shall each endeavor in good
faith to provide notice to the other party that of the circumstances under which
the Cash Option is available under Section 2.8 or 2.9. However, if the Cash
Option becomes available to Jupiter in accordance with this Agreement, then in
no event shall Jupiter's right to exercise the Cash Option expire prior to the
date which is three (3) business days following Jupiter's receipt of written
notice from Post stating that the Cash Option is available and may be exercised
by Jupiter. If Jupiter exercises the Cash Option, then the Closing Date shall be
extended, if necessary, to a date not more than five (5) business days following
such exercise of Cash Option by Jupiter.
ARTICLE 3
TITLE AND SURVEY
3.1 TITLE EXAMINATION; COMMITMENT FOR TITLE INSURANCE. Post has obtained
from Escrow Agent (in its capacity as title insurer sometimes herein called the
"TITLE COMPANY"), at Post's expense, and delivered to Jupiter title insurance
commitments (individually a "TITLE COMMITMENT" and collectively the "TITLE
COMMITMENTS") issued by Fidelity National Title Insurance Company, covering the
Property, which Title Commitments are more particularly described in Schedule
3.1, attached hereto and by this reference made a part hereof.
3.2 SURVEY. Jupiter acknowledges that Post has, at Post's expense,
delivered to Jupiter surveys of the Real Property as more particularly described
in Schedule 3.2, attached hereto and
17
by this reference made a part hereof. Such surveys are referred to herein
individually as A "SURVEY" and collectively as the "SURVEYS". For purposes of
the Deed to be delivered to Jupiter at the Closing with respect to each Project,
the legal description of such Project shall be the legal description appearing
in Schedules 1.1(a)-1 through 1.1(a)-7, less and except any right-of-way or
other conveyances previously made by Post. If, however, the metes and bounds
description of any Project drawn from the Survey reflects a legal description
different from the legal description appearing in Schedules 1.1(a)-1 through
1.1(a)-7, then Post shall also deliver a quit claim deed at Closing containing
the legal description drawn from the Survey.
3.3 TITLE OBJECTIONS; CURE OF TITLE OBJECTIONS.
(a) Jupiter shall have until March 16, 2004 (the "TITLE OBJECTION
DEADLINE") to notify Post, in writing, of such objections as Jupiter may
have to the Title Commitments (including the title exception documents
referred to therein) or the Surveys, other than the Permitted Exceptions
described in clauses (a) through (e) of Section 3.4. Any item contained in
the Title Commitments and any matter shown on the Surveys to which Jupiter
does not object on or before the Title Objection Deadline shall be deemed
a "PERMITTED EXCEPTION".
(b) In the event Jupiter shall notify Post of objections to title
or to matters shown on the Surveys on or before the Title Objection
Deadline, Post shall have the right, but not the obligation, to cure such
objections. On or before the seventh (7th) day following the Title
Objection Deadline, Post shall notify Jupiter in writing whether Post
elects to attempt to cure any such objections (and Post's failure to
provide such a notice shall be deemed an election by Post not to cure any
such objection). If Post elects to attempt to cure, and provided that
Jupiter shall not have terminated this Agreement in accordance with
Section 4.2 hereof, then Post shall use commercially reasonable efforts to
attempt to remove, satisfy or cure the same. For this purpose Post shall
be entitled to a reasonable extension of the Closing if additional time is
required, but in no event shall the extension extend for more than thirty
(30) days. If Post elects (or is deemed to have elected) not to cure any
valid objections specified in Jupiter's notice, or if Post notifies
Jupiter of Post's intent to cure any objection and thereafter Post fails
or is unable to effect a cure prior to Closing (or any date to which the
Closing has been extended), then in either such case Jupiter shall have
the right to elect one, but not both, of the following options, which
election must in each case be made within the time period provided in
paragraph (c) below:
(1) to accept a conveyance of the Property subject to the
Permitted Exceptions, specifically including any matter objected to
by Jupiter which Post is unwilling or unable to cure, and without
reduction of the Property Value; or
(2) to terminate this Agreement by sending written notice
thereof to Post, and upon delivery of such notice of termination,
this Agreement shall terminate and the Option Money shall be
returned to Jupiter in accordance with Section 1.4 of this
Agreement, and thereafter neither party hereto shall have any
further rights, obligations or liabilities hereunder except to the
extent that any
18
right, obligation or liability set forth herein expressly survives
termination of this Agreement.
(c) If Post notifies Jupiter that Post does not intend to attempt
to cure any title objection, or if Post is deemed to have elected not to
cure any title objections, or if Post notifies Jupiter of Post's intent to
cure any objection and Post later notifies Jupiter that Post has failed or
will be unable to effect a cure thereof, then in any such case Jupiter
shall, no later than the fifth (5th) business day after receiving Post's
notice or the date of Post's deemed election, as applicable (the "TITLE
ACCEPTANCE DEADLINE"), notify Post in writing whether Jupiter shall elect
to accept the conveyance under clause (b) (1) above or to terminate this
Agreement under clause (b) (2) above. If Jupiter does not notify Post in
writing on or before the Title Acceptance Deadline of Jupiter's election
to accept the conveyance under clause (b)(1) above (the "TITLE ACCEPTANCE
NOTICE"), then Jupiter shall be deemed to have elected to terminate this
Agreement. Upon any such termination (or deemed termination) of this
Agreement pursuant to Jupiter's rights under this Section 3.3(c), the
Option Money shall be immediately returned to Jupiter and Jupiter and Post
shall have no further rights and obligations hereunder except those which
expressly survive termination of this Agreement. If Jupiter provides the
Title Acceptance Notice on or before the aforementioned time on the Title
Acceptance Deadline, then Jupiter shall no longer have the right to
terminate this Agreement under this Section 3.3(c), and (subject to the
other provisions of this Agreement) shall be bound to proceed to Closing
and consummate the transaction contemplated hereby pursuant to the clause
(b)(1) above and the other terms of this Agreement.
(d) Notwithstanding anything contained herein to the contrary,
Post shall be obligated at Closing to discharge (a) all mortgages of Post
(regardless of whether Jupiter objects to such mortgage), other than
mortgages evidencing or securing the Assumed Project Financing, (b) all
undisputed monetary liens arising by, through or under Post, other than
liens evidencing or securing the Assumed Project Financing, and (c)
disputed monetary liens arising by, through or under Post, of up to ONE
HUNDRED THOUSAND AND NO/100 DOLLARS ($100,000.00) in the aggregate. In the
case of any disputed monetary lien(s) arising by, through or under Post in
excess of One Hundred Thousand and No/100 Dollars ($100,000.00) in the
aggregate, Post shall, if Post elects not to discharge such lien(s) prior
to Closing, indemnify Jupiter in a form reasonably acceptable to Jupiter
against such lien(s), provided, however, that in no event shall Post have
an obligation to discharge or indemnify Jupiter against any disputed
monetary lien(s) arising by, through or under Post in an amount in excess
of THREE MILLION AND NO/100 DOLLARS ($3,000,000.00) in the aggregate. (The
term "mortgage" as used herein includes any mortgage, deed of trust, deed
to secure debt and similar security instrument securing an indebtedness of
Post and encumbering the Property or any portion thereof; the terms
"discharge" and "discharged" as used herein include compliance with a
statutory bonding procedure that has the legal effect of removing the
mortgage or item as a lien on the Property or otherwise allows the
mortgage or item to be removed from the title exceptions in the Title
Policy).
19
(e) Post will cooperate with Jupiter in a reasonable manner to
assist Jupiter in resolving any objections to title Jupiter's credit
enhancer may have, but Post shall have no obligation to cure or correct
title matters other than as set forth in this Section 3.3.
3.4 CONVEYANCE OF TITLE. At Closing, Post shall convey and transfer the
Property to Jupiter. It shall be a condition to Jupiter's obligation to close
this transaction that title to the Real Property conveyed and transferred to
Jupiter shall be such title to the Real Property as will enable the Title
Company to issue to Jupiter an extended coverage American Land Title Association
(ALTA) Form 1992 Owner's Policy of Title Insurance (the "TITLE POLICY") covering
the Real Property, in the full amount of the Property Value, subject only to the
following matters, which shall be deemed to be Permitted Exceptions:
(a) the rights of tenants, as tenants only, under the Leases
described in the Rent Roll and any new Leases entered into between the
Effective Date and Closing and (if required) approved by Jupiter in
accordance with the terms of this Agreement;
(b) the lien of all ad valorem real estate taxes and assessments
not yet due and payable as of the date of Closing, subject to adjustment
as herein provided;
(c) local, state and federal laws, ordinances or governmental
regulations, including but not limited to, building, zoning and land use
laws, ordinances and regulations, now or hereafter in effect relating to
the Property;
(d) all matters identified in Schedules 3.4-1 through 3.4-7,
attached hereto and by this reference made a part hereof;
(e) all mortgages and other encumbrances evidencing or securing
the Assumed Project Financing.
(f) additional items, if any, approved or deemed approved by
Jupiter pursuant to Sections 3.3 , 3.5 and 3.6 hereof.
3.5 PRE-CLOSING "GAP" TITLE DEFECTS. Whether or not Jupiter shall have
furnished to Post any notice of title objections pursuant to the foregoing
provisions of this Agreement, Jupiter may, at or prior to Closing, notify Post
in writing of any objections to title first raised by the Title Company or the
applicable surveyor and first arising between (a) the effective date of the
Title Commitments and Surveys, as applicable, and (b) the date on which the
transaction contemplated herein is scheduled to close; provided, however, that
Jupiter must notify Post of any such objections within five (5) business days of
Jupiter's first receipt of the updated title commitment, updated survey or other
document, whichever first provides notice of the condition giving rise to any
such objection. With respect to any objections to title set forth in such
notice, Post shall have the same option to cure and Jupiter shall have the same
option to accept title subject to such matters or to terminate this Agreement as
those which apply to any notice of objections made by Jupiter on or before the
Title Objection Deadline. If Post elects to attempt to cure any such matters,
Post shall have the right, at its election, to extend the date for Closing by a
reasonable additional time to effect such a cure, but in no event shall the
Closing be extended for more than thirty (30) days.
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3.6 POST'S COVENANT NOT TO ENCUMBER. Post agrees that, between the
Effective Date and the Closing Date, Post will not sell, assign, rent, convey
(absolutely or as security), grant a security interest in, or otherwise encumber
or dispose of, the Property (or any part thereof or estate therein) in any
manner that will survive Closing, except as approved in writing by Jupiter or as
expressly provided in this Agreement. Notwithstanding the foregoing, Post shall
have the right to (i) continue leasing apartment units in the Property in the
manner described in Section 6.4 (b) hereof, (ii) terminate, amend or enter into
service contracts in the manner described in Section 6.4 (h) hereof and (iii)
use, deplete, remove or replace items of Tangible Personal Property in the
ordinary course of business. In addition, and notwithstanding the foregoing,
Post shall have the right, for tax planning or other purposes, to transfer all
or part of the Property or any interest therein to any parent, subsidiary or
other entity that is affiliated with or related to Post provided (A) such entity
assumes and agrees to be bound by the obligations of Post under this Agreement
and (B) any such transfer shall not release or relieve Post of its obligations
to Jupiter under this Agreement.
ARTICLE 4
INSPECTION PERIOD
4.1 RIGHT OF INSPECTION.
(a) Beginning upon the date of execution of the Access Agreement
and continuing so long as this Agreement remains in full force and effect,
Jupiter has had and shall continue to have the right to make a physical
inspection of the Property and to examine at such place or places at the
Property, in the offices of the property manager or elsewhere as the same
may be located, any operating files maintained by Post or its property
manager in connection with the leasing, maintenance and/or management of
the Property, including, without limitation, the Leases, lease files,
tenant income certifications (to the extent in Post's possession), service
contracts, bills, invoices, receipts and other general records relating to
the income and expenses of the Property, correspondence, surveys, plans
and specifications, warranties for services and materials provided to the
Property, engineering reports, and similar materials, but excluding
materials not directly related to the leasing, maintenance, and/or
management of the Property such as Post's internal memoranda, financial
projections, insurance policies, appraisals, accounting and tax records
and similar proprietary or confidential information.
(b) Jupiter understands and agrees that any on-site inspections of
the Property shall be governed by and conducted in accordance with that
certain Access Agreement between Jupiter and Post dated January 28, 2004
(the "ACCESS AGREEMENT"). The parties hereby affirm that the Access
Agreement remains in full force and effect under its terms, and the Access
Agreement is incorporated herein by this reference.
(c) Jupiter shall indemnify, hold harmless and defend Post from
and against any and all claims, demands, causes of action, liabilities,
losses, costs, damages and expenses (including reasonable attorneys' fees
and expenses and court costs incurred in defending any such claim or in
enforcing this indemnity) of whatsoever nature
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(individually a "CLAIM" and collectively, "CLAIMS") that may be incurred
by Post and arising out of or in connection with the acts or omissions of
Jupiter and its agents, representatives, contractors and consultants, or
any of them, including but not limited to Claims arising out of or in
connection with personal injury or death of persons, loss, destruction or
damage to property, or liens or claims of lien filed against the Property.
This Section 4.1 (c) shall survive Closing or any termination of this
Agreement.
4.2 RIGHT OF TERMINATION. Post agrees that in the event Jupiter
determines, in Jupiter's sole discretion, that it does not wish to acquire the
Property for any reason or no reason, then Jupiter shall have the right to
terminate this Agreement by giving written notice of such termination to Post on
or before March 31, 2004 (the "INSPECTION DATE"). Upon any such termination of
this Agreement pursuant to Jupiter's rights under this Section 4.2 , the Option
Money shall be returned to Jupiter in accordance with Section 1.4 hereof, and
Jupiter and Post shall have no further rights and obligations hereunder except
those which expressly survive termination of this Agreement. If Jupiter fails to
give Post timely notice of termination on or before the Inspection Date, then
Jupiter shall no longer have the right to terminate this Agreement under this
Section 4.2 and (subject to any contrary provisions of this Agreement) shall be
bound to proceed to Closing and consummate the transaction contemplated hereby
pursuant to the terms of this Agreement. Time is of the essence with respect to
the provisions of this Section 4.2. The period commencing on the Effective Date
and ending on the Inspection Date is sometimes referred to herein as the
"INSPECTION PERIOD".
ARTICLE 5
CLOSING
5.1 TIME AND PLACE.
(a) The consummation of the transaction contemplated hereby
("CLOSING") shall be held at the at the offices of King & Spalding LLP,
000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000 at 10:00 A.M. (Atlanta,
Georgia local time) on April 30, 2004 (or such extended date as may be
provided under other provisions of this Agreement). At Closing, Post and
Jupiter shall perform the obligations set forth in, respectively, Section
5.2 and Section 5.3 . The Closing may be held at such other place or such
earlier time and date as Post and Jupiter shall mutually approve in
writing. The date on which the Closing is scheduled to occur hereunder
(or, if earlier, the date on which Closing occurs) is sometimes referred
to herein as the "CLOSING DATE".
(b) If, as of April 30, 2004, either Jupiter or Post has not
obtained from the Bond Participants such consents, if any, as are
necessary for the Assumption and Release Transaction in accordance with
this Agreement (the "BOND CONSENTS"), either Jupiter or Post may extend
the Closing Date to a date no later than the earlier to occur of (i) the
tenth (10th) business day following receipt of the Bond Consents or (ii)
June 30, 2004. In order for any such extension by either Jupiter or Post
to be effective, written notice of
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such extension must be given to and received by the other party no later
than April 30, 2004.
5.2 POST'S OBLIGATIONS AT CLOSING. At Closing, Post shall:
(a) deliver to Jupiter a duly executed limited warranty deed with
respect to each Project in the form attached hereto as Schedule 5.2(a) and
by this reference made a part hereof, conveying the Real Property to
Jupiter subject to the Permitted Exceptions (the "DEED"), provided that
the Deed shall be conformed as a special warranty deed with respect to the
Post Lake(R) Project in Florida;
(b) deliver to Jupiter two counterparts of a xxxx of conveyance
and assignment and assumption of leases and service contracts with respect
to each Project, in the form attached hereto as Schedule 5.2(b) and by
this reference made a part hereof, duly executed by Post, pursuant to
which (i) Post shall convey the Tangible Personal Property and the
Intangible Property associated with such Project to Jupiter, and (ii) Post
shall assign to Jupiter, and Jupiter shall assume from and after the date
of Closing, Post's interest in and to the Leases and Designated Service
Contracts associated with such Project, as amended or supplemented
pursuant to this Agreement (the "XXXX OF CONVEYANCE AND ASSIGNMENT");
(c) join with Jupiter to execute a notice with respect to each
Project (the "TENANT NOTICE") in form and content reasonably satisfactory
to Jupiter and Post, which Jupiter shall send to each tenant under each of
the Leases informing such tenant of the conveyance of the Property and of
the assignment to Jupiter of Post's interest in, and obligations under,
the Leases (including, if applicable any security deposits) and directing
that all rent and other sums payable after the Closing under each such
Lease shall be paid as set forth in the notice.
(d) join with Jupiter in the execution and delivery of such
assignment and assumption agreements as are agreed upon by Post, Jupiter
and the applicable Bond Participants in connection with the assignment and
assumption of the Assumed Project Financing;
(e) join with Jupiter in the execution of such assignment and
assumption agreements as are agreed upon by Post, Jupiter and the Lender
in connection with the assignment and assumption of the Other Assumed
Debt;
(f) deliver to Jupiter a certificate ("POST'S CLOSING
CERTIFICATE"), dated as of the date of Closing and duly executed by Post,
stating that the representations and warranties of Post contained in
Section 6.1 of this Agreement are true and correct in all material
respects as of the date of Closing (with appropriate modifications to
reflect any changes therein or identifying any representation or warranty
which is not, or no longer is, true and correct and explaining the state
of facts giving rise to the change); a then current Rent Roll for each
Project shall be attached to Post's Closing Certificate in substitution of
Schedules 1.1(e)-1 through 1.1(e)-7 which are attached to this Agreement,
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provided that the representations and warranties of Post as to the Rent
Roll in Post's Closing Certificate shall be limited to those set forth in
Section 6.1(d) of this Agreement. The inclusion of any change or exception
in such certificate shall not prejudice Jupiter's rights under this
Agreement with respect to the subject matter of such change or exception.
(g) deliver to Jupiter two counterparts of the Management
Agreement, duly executed by Post, as contemplated in Section 1.6.
(h) deliver to Jupiter such evidence as Jupiter's counsel and/or
the Title Company may reasonably require as to the authority of the person
or persons executing documents on behalf of Post;
(i) deliver to Jupiter an affidavit duly executed by Post stating
that Post is not a "foreign person" as defined in the Federal Foreign
Investment in Real Property Tax Act of 1980 and the 1984 Tax Reform Act;
(j) deliver to the Title Company a title insurance affidavit with
respect to each Project, if required by the Title Company, duly executed
by Post or a representative of Post, in form and content reasonably
satisfactory to Post and the Title Company;
(k) deliver to Jupiter at the place of Closing or at the
respective Projects the Leases, the Designated Service Contracts and
licenses and permits, if any, in the possession of Post or Post's agents,
including any originally executed Leases and Designated Service Contracts
in Post's possession at the respective Projects or otherwise in Post's
reasonable control, together with such leasing and property files and
records which are material in connection with the continued operation,
leasing and maintenance of each Project, and all keys to the Improvements
which are in Post's possession;
(l) deliver to Jupiter possession and occupancy of the Property,
subject to the Permitted Exceptions;
(m) deliver to Escrow Agent written instructions to return the
Option Money to Jupiter promptly following Closing in accordance with
Section 11.2 hereof, after deducting and paying over to Post any net
credits due Post pursuant to Section 5.4 (c); and
(n) deliver such additional documents as shall be reasonably
requested by the Title Company or required to consummate the transaction
contemplated by this Agreement; provided, however, that in no event shall
Post be required to indemnify the Title Company, Jupiter, or any other
party pursuant to any such documents, or undertake any other material
liability not expressly contemplated in this Agreement, unless Post elects
to do so in its sole discretion;
(o) if the legal description with respect to any Project which
appears in Schedules 1.1(a)-1 through 1.1(a)-7, attached hereto, differs
from the legal description of such Project drawn from the applicable
Survey, Post shall at Closing deliver (in addition
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to the Deed) a quit claim deed conveying such Project pursuant to the
legal description drawn from the applicable Survey, which legal
description shall be subject to Post's approval, which approval shall not
be unreasonably withheld;
(p) deliver to Escrow Agent such certificate or affidavit, if any,
as is required under applicable provisions of Georgia and Florida law and
regulation, to assure Escrow Agent that Georgia and Florida sales tax
withholding is not required. If Post fails to deliver such certificate or
affidavit, and otherwise fails to provide Escrow Agent reasonably
satisfactory assurance that withholding is not required, then Escrow Agent
shall be entitled to withhold applicable Georgia and Florida sales taxes
if and to the extent required by applicable state law and regulation; and
(q) deliver to Jupiter in electronic format such Rent Roll and
other information as Jupiter shall reasonably request concerning the
Leases and residents, to the extent such information is held by Post in
electronic format, but Post shall not be required to deliver to Jupiter
any computer software. Post and Jupiter shall cooperate with one another
reasonably and in good faith prior to and after Closing so as to enable
Post to deliver such information to Jupiter, which obligation shall
survive Closing for a reasonable period of time to the extent not
performed at or prior to Closing.
5.3 JUPITER'S OBLIGATIONS AT CLOSING. At Closing, Jupiter shall:
(a) tender the Preferred Units to Post in accordance with Section
2.2 ;
(b) join Post in execution of the Xxxx of Conveyance and
Assignment and the Tenant Notice with respect to each Project. In
connection with the Tenant Notice, Jupiter shall deliver to each and every
tenant of each Project a signed statement acknowledging Jupiter's receipt
and responsibility for each tenant's security deposit (to the extent
credited or delivered by Post to Jupiter at Closing), if any, all in
compliance with and pursuant to the applicable law. The provisions of this
Section 5.3 (b) shall survive Closing;
(c) join with Post in the execution and delivery of such
assignment and assumption agreements as are agreed upon by Post, Jupiter
and the applicable Bond Participants in connection with the assignment and
assumption of the Assumed Project Financing;
(d) join with Post in the execution of such assignment and
assumption agreements as are agreed upon by Post, Jupiter and the Lender
in connection with the assignment and assumption of the Other Assumed
Debt;
(e) deliver to Post such evidence as Post's counsel and/or the
Title Company may reasonably require as to the authority of the person or
persons executing documents on behalf of Jupiter;
(f) deliver to Post a certificate dated as of the date of Closing
and duly executed by Jupiter, reaffirming the provisions of Section 6.7
(a) and ARTICLE 10 and
25
confirming that such provisions remain and will continue in full force and
effect as of and after the Closing;
(g) deliver to Post two counterparts of the Management Agreement,
duly executed by Jupiter, as contemplated in Section 1.6; and
(h) deliver such additional documents as shall be reasonably
requested by the Title Company or required to consummate the transaction
contemplated by this Agreement, provided, however, that in no event shall
Jupiter be required to undertake any other material liability not
expressly contemplated in this Agreement, unless Jupiter elects to do so
in its sole discretion.
5.4 CREDITS AND PRORATIONS.
(a) All income and expenses in connection with the operation of
the Property shall be apportioned, as of 11:59 p.m. on the day prior to
the Closing Date, AS if Jupiter were vested with title to the Property
during the entire Closing Date, such that, except as otherwise expressly
provided to the contrary in this Agreement, Post shall have the benefit of
income and the burden of expenses for the day preceding the Closing Date
and the Jupiter shall have the benefit of income and the burden of
expenses for the Closing Date and thereafter. Items (1)-(5) below will be
prorated at Closing utilizing the information known at that time. A
post-closing "true-up" shall take place within ninety (90) days of the
Closing Date to adjust the prorations of said items (1), (3), (4) and (5),
if necessary, and within a reasonable time to adjust the proration of said
item (2), if necessary. Such prorations shall be determined on a
Project-by-Project basis and also on an aggregate basis with respect to
the entire Property. Such prorated items shall include, without
limitation, the following:
(1) rents, if any, based on the amount collected for the
current month. The term "rents" as used in this Agreement includes
all payments due and payable by tenants under the Leases other than
refundable deposits, application fees, late charges, pet charges and
termination payments (of which deposits shall be treated as set
forth in Section 5.4 (b)(1), but such other amounts shall be
retained by Post); Post shall not receive a credit at Closing for
rents which are past due but not collected as of Closing;
(2) ad valorem taxes and assessments levied against the
Property (including personal property taxes on the Tangible Personal
Property), which shall be prorated as set forth in Section 5.4
(b)(2) hereof;
(3) payments under the Designated Service Contracts. To the
extent any rebate, concession or commission payable to Post under
any Designated Service Contract has accrued before Closing but has
not been paid to Post, Post shall receive a credit for such accrued
amounts at Closing;
26
(4) gas, electricity and other utility charges for which
Post is liable, if any, such charges to be apportioned at Closing on
the basis of the most recent meter reading occurring prior to
Closing; and
(5) any other operating expenses or other items pertaining
to the Property which are customarily prorated between a purchaser
and a seller in comparable commercial transactions in the area in
which the Property is located.
(6) interest and periodic expenses payable with respect to
the Assumed Project Financing (including, but not limited to,
periodic fees payable to Xxxxxx Xxx or any of the other Bond
Participants and any rebate obligations, but excluding any fees
relating to the closing of the transactions contemplated herein).
(b) Notwithstanding anything contained in the foregoing
provisions:
(1) At Closing, (A) Post shall, at Post's option, either
deliver to Jupiter any unforfeited resident deposits shown on the
Rent Roll or credit to Jupiter the amount of such unforfeited
resident deposits and any interest thereon, and (B) Jupiter shall
credit to the account of Post all refundable cash or other deposits
posted with utility companies serving the Property, or, at either
party's option, Jupiter shall contract directly with the utility
companies and Post shall be entitled to receive and retain such
refundable cash and deposits; provided that Jupiter and Post will
cooperate so that utility service to the Property is not
interrupted. For the purposes of this Section 5.4 (b)(1) the term
"unforfeited resident deposits" means any refundable resident
deposits which are held by Post and which Post has not applied, and
is not entitled to apply, against delinquent rents, property damage
or otherwise.
(2) Any ad valorem taxes paid at or prior to Closing shall
be prorated based upon the amounts actually paid for the current tax
year. If all taxes and assessments for the current tax year have not
been paid before Closing, then Post shall be charged at Closing an
amount equal to that portion of such taxes and assessments which
relates to the period before Closing and Jupiter shall pay the taxes
and assessments prior to their becoming delinquent. Any such
apportionment made with respect to a tax year for which the tax rate
or assessed valuation, or both, have not yet been fixed shall be
based upon the tax rate and/or assessed valuation last fixed. To the
extent that the actual taxes and assessments for the current tax
year differ from the amount apportioned at Closing, the parties
shall make all necessary adjustments by appropriate payments between
themselves following Closing upon the availability of the final tax
bills.
(3) Gas, electricity and other utility charges referred to
in Section 5.4(a)(4) above which are payable by any tenant to a
third party shall not be apportioned hereunder, and Jupiter shall
accept title subject to any of such charges which are unpaid and
Jupiter shall look solely to the responsible tenant for the payment
of the same. If Post shall have paid any of such charges on behalf
of any
27
tenant, but shall not have been reimbursed therefor by the time of
Closing, then Jupiter shall credit to Post an amount equal to all
such charges so paid by Post, but Post shall not receive credit at
Closing for any such reimbursements that are past due at the time of
Closing.
(4) As to gas, electricity and other utility charges
referred to in Section 5.4(a)(4) above, Post may on notice to
Jupiter elect to pay one or more of all of such items accrued to the
Closing Date directly to the person or entity entitled thereto, and
to the extent Post so elects and the utility company agrees to look
solely to Post for payment of any such item accrued prior to the
Closing Date, such item shall not be apportioned hereunder, and
Post's obligation to pay such item with respect to the period prior
to Closing directly in such case shall survive the Closing.
(5) Post shall pay in full all leasing commissions and
locators' and finders' fees, if any, due to leasing or other agents
(pursuant to a contractual arrangement with Post) for each Lease
entered into by Post prior to the Closing Date promptly when due. To
the extent any such leasing commissions and locaters' and finders'
fees are due and payable after Closing in connection with any lease
entered into by Post prior to the Closing Date, Post shall be
responsible for such commissions and fees and shall indemnify
Jupiter against, and hold harmless Jupiter from, any claims for
payment of such commissions or fees. Post shall not be responsible,
however, for any leasing commissions or locaters' or finders' fees
payable in connection with any Lease entered into by Jupiter on or
after the Closing Date or entered into by Post in its capacity as
manager under the Management Agreement from and after Closing Date.
(6) The Tangible Personal Property is included in this
conveyance, without further charge.
(7) Unpaid and delinquent rent collected by Post and Jupiter
after the date of Closing shall be delivered as follows: (a) if Post
collects any unpaid or delinquent rent for the Property, Post shall,
within fifteen (15) days after the receipt thereof, deliver to
Jupiter any such rent which jupiter is entitled to hereunder
relating to the date of Closing and any period thereafter, and (b)
if Jupiter collects any unpaid or delinquent rent from the Property,
Jupiter shall, within fifteen (15) days after the receipt thereof,
deliver to Post any such rent which Post is entitled to hereunder
relating to the period prior to the date of Closing. Post and
Jupiter agree that all rent received by Post or Jupiter after the
Closing shall be applied first to current rentals and then to
delinquent rentals, if any, in inverse order of maturity. Jupiter
will make a good faith effort after Closing to collect all rents in
the usual course of Jupiter's operation of the Property, but Jupiter
will not be obligated to institute any lawsuit or other collection
procedures to collect delinquent rents.
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(c) Any credits and prorations required under this Agreement shall
be delivered as follows:
(1) If any net credit is due to Post, then Post shall either
(a) receive such credit from a draw upon the Option Money, or (b)
Jupiter shall pay such amounts to Post in immediately available
funds at Closing, or after Closing in the event any post-closing
"true-up" is required.
(2) If any net credit is due to Jupiter, then Post shall pay
such amounts to Jupiter in immediately available funds at Closing,
or after Closing in the event any post-closing "true-up" is
required.
(d) The parties further agree that any cash payments made by Post
to Jupiter or by Jupiter to Post pursuant to this Section 5.4 relating to
credits or prorations shall be treated as if paid in a transaction
occurring between Post and a person who is not a partner of Post under
Section 707(a) of the Code.
(e) The provisions of this Section 5.4 shall survive Closing.
5.5 CLOSING COSTS.
(a) The parties shall pay the transaction and closing costs as
follows:
(1) Post and Jupiter shall each pay one-half (1/2) of (i)
all applicable transfer taxes, documentary stamp taxes and similar
charges relating to the transfer of the Property, other than the
Florida transfer taxes/documentary stamps on the Deed for Post
Lake(R) Apartments, (ii) the premium for the Title Policy in the
amount of the Property Value, and (iii) any escrow fee which may be
charged by Escrow Agent.
(2) Post shall pay (a) the costs of curing all title
objections for which Post is responsible under this Agreement,
including applicable recording costs, but not costs arising under
Section 3.3(e), (b) the cost of the Surveys provided by Post, (c)
the Special Transaction Costs, as defined in Section 5.5(d), (d) the
attorneys fees of Xxxxxx Mae in connection with the release of the
Bond Projects from the Xxxxxx Xxx Financing, (e) the fees of
SunTrust Capital Markets, Inc. or any other advisor for
representation of Post in connection with the transaction (but not
the fees of SunTrust Capital Markets, Inc. or other advisor for
representation of Jupiter in connection with the transaction and the
assumption of the Assumed Project Financing), (f) the lesser of
twenty percent (20%) of the Shared Costs (as defined below) or
$100,000, (g) Post's and the Lender's attorney's fees in connection
with the Other Assumed Debt, and (h) the Florida transfer
taxes/documentary stamps on the Deed for Post Lake(R) Apartments.
29
(3) Jupiter shall pay (I) the costs of recording the deed
from Post to Jupiter (other than the Florida transfer
taxes/documentary stamps on the Deed for Post Lake(R) Apartments),
(II) all additional title insurance premiums for endorsements, for
coverage in excess of the amount of the Property Value or for any
lender's policy, (III) the costs of Jupiter's assumption of the
Assumed Project Financing and any other financing obtained by
Jupiter, including all assumption fees and all mortgage or recording
taxes in connection with such assumption and financing, the
attorneys fees of Xxxxxx Mae in connection with such assumption, the
attorneys fees in connection with the delivery of the Bond Counsel
Opinion, all transfer and assumption fees payable to the
Authorities, and all Shared Costs other than the portion of the
Shared Costs payable by Post pursuant to clause (a)(2)(f) of this
Section, (IV) the cost of Jupiter's inspections of the Property, (V)
the fees of SunTrust Capital Markets, Inc. or any other advisor for
representation of Jupiter in connection with the transaction and the
assumption of the Assumed Project Financing, and (VI) the cost of
any special survey requirements or any update or revision of any of
the Surveys provided by Post.
(4) "SHARED COSTS" means the following costs in connection
with the Assumption and Release Transaction: (A) the fees of counsel
to the Authorities and, if applicable, counsel to the trustees for
the bondholders (but not bond counsel), (B) the fees, if any, of the
financial advisors to the Authorities, and (C) the application fees,
if any, payable to the Authorities. Shared Costs do no include (w)
any transfer and assumption fee, such as is anticipated to be
payable in connection with the Post Canyon (R) Bonds, (x) the fees
for any opinion of bond counsel, (y) the fees of Xxxxxx Xxx or any
other credit enhancer or of counsel to Xxxxxx Mae or any other
credit enhancer, or (z) any fees or costs associated in any way with
any future refunding of any of the Bonds.
(5) Except as expressly provided in clause (a)(2)(c) of this
Section, Jupiter and Post shall each be responsible for its own
attorneys' fees. All other costs and expenses incident to this
transaction and the closing thereof shall be paid by the party
incurring same.
(b) If the transaction contemplated in this Agreement does not
close for any reason other than the default of Jupiter hereunder, then
Post shall nevertheless reimburse Jupiter for its Special Transaction
Costs. In addition, if the transaction contemplated in this Agreement does
not close as a redemption transaction but does close under the Cash
Option, then Post shall nevertheless reimburse Jupiter for the Special
Transaction Costs, but Jupiter shall not incur additional Special
Transaction Costs after Jupiter in good faith determines that the
transaction will not close as a redemption. Jupiter shall provide Post
reasonable supporting documentation of all such Special Transaction Costs
for which Jupiter requests reimbursement from Post, including evidence of
the payment of such costs.
30
(c) If the transaction closes as a redemption transaction, then
Post will not be required to reimburse Jupiter for any Special Transaction
Costs which are included in the determination of the Actual Price (such as
investment banking fees or prepayment premiums).
(d) "SPECIAL TRANSACTION COSTS" means, collectively, (i) the
third-party costs and expenses of Jupiter's review and analysis of the
redemption feature of the transaction contemplated by this Agreement and
the Other Assumed Debt, including the fees of Jupiter's attorneys and
other professional advisors, and (ii) all reasonable third-party
transaction costs incurred by Jupiter due to the redemption feature of the
transaction and the Other Assumed Debt. "Special Transaction Costs" shall
include any xxxxxxx money deposit by Jupiter under the Units Purchase
Agreement which is forfeited by Jupiter for reasons other than Jupiter's
default under this Agreement, together with Jupiter's reasonable cost of
funds for such xxxxxxx money deposit. (The amount of any such xxxxxxx
money deposit by Jupiter under the Units Purchase Agreement and the terms
of such deposit shall be subject to Post's approval, but Jupiter shall
have no obligation to enter into a Units Purchase Agreement which calls
for the deposit of xxxxxxx money if Post does not give such approval.)
Without limitation, the parties acknowledge that the term "Special
Transaction Costs" does not include costs or expenses related to the
negotiation and execution of this Agreement, the Assignment and Release
Transaction, the Inspections or title examination and review, other costs
customarily incurred in real estate acquisition transactions, or other
costs specifically provided for in this Section 5.5(a) other than in
clause (2)(c) thereof. In no event shall Jupiter incur Special Transaction
Costs (other than investment banking fees and prepayment premiums included
in the Actual Price as defined in Section 2.3) in excess of $100,000.00 in
the aggregate, or (ii) any investment banking fees or prepayment premiums
which are due and payable if Jupiter does not in fact purchase the
Preferred Units.
5.6 CONDITIONS PRECEDENT TO OBLIGATION OF JUPITER. The obligation of
Jupiter to consummate the transaction hereunder shall be subject to the
fulfillment on or before the date of Closing (or such earlier time as otherwise
required hereby) of all of the following conditions, any or all of which may be
waived by Jupiter in its sole discretion:
(a) Post shall have delivered to Jupiter all of the material items
required to be delivered to Jupiter by Post or Post's agents pursuant to
the terms of this Agreement, including but not limited to, those provided
for in Section 5.2 .
(b) All of the representations and warranties of Post contained in
this Agreement shall be true and correct in all material respects as of
the date of Closing (with appropriate modifications permitted under this
Agreement or not adverse to Jupiter).
(c) Post shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed
and observed by Post as of the date of Closing.
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(d) At Closing at least ninety percent (90%) of the apartments
units in each Project shall be occupied under written leases by tenants
who are not more than ten (10) days delinquent in the payment of rent.
(e) The Title Company shall have delivered the Title Policy to
Jupiter as contemplated in Section 3.4 (or marked binder equivalent to
such Title Policy), subject to payment of the premiums for such Title
Policy in accordance with Section 5.5.
(f) Nationally recognized bond counsel shall have issued its
opinion in customary form, which opinion shall include customary
assumptions and qualifications, reasonably acceptable to Jupiter to the
effect that as of the Closing Date the interest on the Bonds is exempt
from gross income of the holders thereof for federal income tax purposes
("BOND COUNSEL OPINION").
(g) All other conditions precedent to Jupiter's obligation to
consummate the transaction hereunder (if any) which are set forth in this
Agreement shall have been satisfied on or before the date of Closing,
including the Project Finance Condition and, if applicable, the Other Debt
Condition.
In the event any of the foregoing conditions has not been satisfied by the
Closing Date, Jupiter shall have the right to terminate this Agreement by
written notice given to Post on the Closing Date, whereupon Escrow Agent shall
refund the Option Money to Jupiter and the parties shall have no further rights,
duties or obligations hereunder, other than those which are expressly provided
herein to survive the termination of this Agreement; provided, however, that if
any of the foregoing conditions has not been satisfied due to a default by
Jupiter or Post hereunder, then Jupiter's and Post's respective rights, remedies
and obligations shall instead be determined in accordance with ARTICLE 7.
5.7 CONDITIONS PRECEDENT TO OBLIGATION OF POST. The obligation of Post to
consummate the transaction hereunder shall be subject to the fulfillment on or
before the date of Closing of all of the following conditions, any or all of
which may be waived by Post in its sole discretion:
(a) Post shall have received the Property Value as adjusted
pursuant to and payable in the manner provided for in this Agreement.
(b) Jupiter shall have delivered to Post all of the material items
required to be delivered to Post by Jupiter or Jupiter's agents pursuant
to the terms of this Agreement, including but not limited to, those
provided for in Section 5.3.
(c) All of the representations and warranties of Jupiter contained
in this Agreement shall be true and correct in all material respects as of
the date of Closing (with appropriate modifications permitted under this
Agreement or not adverse to Post).
(d) Jupiter shall have performed and observed, in all material
respects, all covenants and agreements of this Agreement to be performed
and observed by Jupiter as of the date of Closing.
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(e) Bond counsel shall have issued the Bond Counsel Opinion in
form acceptable to Post.
(f) All other conditions precedent to Post's obligation to
consummate the transaction hereunder (if any) which are set forth in this
Agreement shall have been satisfied on or before the date of Closing,
including the Project Finance Condition and, if applicable, the Other Debt
Condition.
In the event any of the foregoing conditions has not been satisfied by the
Closing Date, Post shall have the right to terminate this Agreement by written
notice given to Jupiter on the Closing Date, whereupon Escrow Agent shall refund
the Option Money to Jupiter and the parties shall have no further rights, duties
or obligations hereunder, other than those which are expressly provided herein
to survive a termination of this Agreement; provided, however, if any of the
foregoing conditions has not been satisfied due to a default by Jupiter or Post
hereunder, then Jupiter's and Post's respective rights, remedies and obligations
shall instead be determined in accordance with ARTICLE 7.
5.8 JUPITER'S SECTION 1031 EXCHANGE. Jupiter may consummate the
acquisition of the Property as part of a so-called like kind exchange (the
"EXCHANGE") pursuant to Section 1031 of the Code, provided that: (a) the Closing
shall not be delayed or affected by reason of the Exchange nor shall the
consummation or accomplishment of the Exchange be a condition precedent or
condition subsequent to Jupiter's obligations under this Agreement; (b) Jupiter
may effect the Exchange through an assignment of this Agreement, or its rights
under this Agreement, to a qualified intermediary or exchange accommodation
title holder; (c) Post shall not be required to take an assignment of the
purchase agreement for the relinquished property or be required to acquire or
hold title to any real property other than the Real Property for purposes of
consummating the Exchange; and (d) Jupiter shall pay any additional costs that
would not otherwise have been incurred by Jupiter or Post had Jupiter not
consummated its acquisition through the Exchange. Post shall not by this
agreement or acquiescence to the Exchange (i) have its rights under this
Agreement affected or diminished in any manner or (ii) be responsible for
compliance with or be deemed to have warranted to Jupiter that the Exchange in
fact complies with Section 1031 of the Code. Jupiter further agrees to indemnify
and hold Post free and harmless from any cost, expense or liability, including
reasonable attorney fees, resulting from Post's participation in the Exchange.
Nothing contained in this Section, and no assignment by Jupiter of this
Agreement or Jupiter's rights under this Agreement, shall release Jupiter of any
of its obligations or liabilities under this Agreement, whether arising before,
at or after Closing. Notwithstanding the foregoing, should Jupiter fail to
effect the Exchange as contemplated in this Section, then and in any such event,
the acquisition by Jupiter of the Property shall be consummated in accordance
with the terms and conditions of this Agreement as though the provisions of this
Section had been omitted, except that Post shall be reimbursed and held harmless
from resulting costs and expenses as provided in this Section.
33
ARTICLE 6
REPRESENTATIONS, WARRANTIES AND COVENANTS
6.1 REPRESENTATIONS AND WARRANTIES OF POST. Post hereby makes the
following representations and warranties to Jupiter as of the Effective Date.
Such representations and warranties are subject to (i) those matters, if any,
disclosed in Post's disclosure statements attached hereto as Schedules 6.1-1
through 6.1-7 and made a part hereof by this reference (collectively, "POST'S
DISCLOSURE STATEMENT"), (ii) the Permitted Exceptions, and (iii) all other
applicable provisions of this Agreement, including without limitation ARTICLE
10. In addition, each individual representation and warranty is qualified to the
extent of any applicable information or exception which is otherwise expressly
disclosed in another representation or warranty specifically set forth in this
Agreement.
(a) ORGANIZATION AND AUTHORITY. Post has been duly organized and
is validly existing and in good standing as a limited partnership under
the laws of the State of Georgia and is qualified to transact business as
a foreign limited partnership in the State of Florida. Post has the full
right and authority to enter into this Agreement and to transfer the
Property pursuant hereto and to consummate or cause to be consummated the
transactions contemplated herein. The person signing this Agreement on
behalf of Post is authorized to do so. Neither the execution and delivery
of this Agreement nor any other documents executed and delivered, or to be
executed and delivered, by Post in connection with the transactions
described herein, will violate any provision of Post's organizational
documents or of any agreements, regulations, or laws to or by which Post
is bound. This Agreement has been duly authorized, executed and delivered
by Post, is a valid and binding obligation of Post and is enforceable
against Post in accordance with its terms subject to (i) applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws
affecting the rights of creditors generally; and (ii) the exercise of
judicial discretion in accordance with general principles of equity.
(b) CONSENTS. Post has obtained all consents and permissions (if
any) related to the transactions herein contemplated and required under
any covenant, agreement, encumbrance, law or regulation by which Post or
the Property is bound, other than such consents and permissions as may be
necessary or appropriate under the Portfolio Financing and the Other
Assumed Debt.
(c) PENDING ACTIONS. To Post's knowledge, no action, suit,
arbitration, administrative or judicial proceeding, or unsatisfied order
or judgment is pending (i) against Post which pertains directly to the
Property or the transaction contemplated by this Agreement or (ii) which
otherwise affects the Property specifically (as opposed to matters, if
any, which may affect similarly situated properties generally). In
addition, to Post's knowledge, no action, suit, arbitration,
administrative or judicial proceeding, or unsatisfied order or judgment is
pending against Post which, if adversely determined, would have a Material
Adverse Effect. As used in this Agreement, "MATERIAL ADVERSE EFFECT"
means, with respect to any fact or circumstance, that such fact or
circumstance would individually or in the aggregate have a material
adverse effect on title to the
34
Property or any portion thereof, on Post's ability to consummate the
transaction contemplated herein, or on the value or operation of the
Property.
(d) LEASES AND RENT ROLL. Post is the lessor or landlord under the
Leases. To Post's knowledge, the information contained in the Rent Roll is
true and correct in all material respects as of the date thereof. Except
as set forth in the Rent Roll, there are no other leases or occupancy
agreements affecting the Property (other than such Leases, if any, as may
have been entered into in the ordinary course of business since the date
of the Rent Roll). To Post's knowledge, except as otherwise set forth in
the Rent Roll, or the Leases (other than such Leases, if any, as may have
been entered into in the ordinary course of business since the date of the
Rent Roll), no rent concessions have been given to any tenants that would
be applied against rent after the Closing, and no rent has been paid in
advance by any tenants respecting a period subsequent to the Closing. To
Post's knowledge, Post is not in material default under any of the Leases,
except as set forth on the Rent Roll. Notwithstanding anything to the
contrary contained in this Agreement, Post does not represent or warrant
that any particular Lease will be in force or effect at Closing or that
the tenants under the Leases will have performed their obligations
thereunder. Other than as provided in Section 5.6 (d), the termination of
any Lease prior to Closing by reason of the tenant's default or for any
other reason not constituting a default by Post under this Agreement shall
not affect the obligations of Jupiter under this Agreement in any manner
or entitle Jupiter to an abatement of or credit against the Property Value
or give rise to any other claim on the part of Jupiter.
(e) CONDEMNATION. To Post's knowledge, Post has not received
written notice of any pending or threatened condemnation proceedings
relating to the Property.
(f) INSURANCE. To Post's knowledge, Post has not received written
notice from any insurance company or board of fire underwriters of any
defects or inadequacies in or on the Property or any part or component
thereof that would materially and adversely affect the insurability of the
Property or cause any material increase in the premiums for insurance for
the Property, that have not been cured or repaired.
(g) ENVIRONMENTAL MATTERS. Except as may be set forth in those
environmental reports and other matters, if any, identified on Schedules
6.1(g)-1 through 6.1(g)-7 (collectively, the "ENVIRONMENTAL REPORTS"),
complete copies of which have been provided by Post to Jupiter, (i) Post
has received no written notice from any governmental authority asserting
any violation of Environmental Laws related to the Property which has not
been cured or corrected as of the Effective Date, and (ii) to Post's
knowledge, Post has not commissioned any study relating to the presence or
absence of Hazardous Materials or Mold on the Property. The term
"ENVIRONMENTAL LAWS" includes without limitation the Resource Conservation
and Recovery Act and the Comprehensive Environmental Response,
Compensation, and Liability Act and other federal laws governing the
environment as in effect on the date of this Agreement together with their
implementing regulations as of the date of this Agreement applicable to
the Property, and all applicable state, regional, county, municipal and
other local laws,
35
regulations and ordinances that are equivalent or similar to the federal
laws recited above or that purport to regulate hazardous or toxic
substances and materials. The term "HAZARDOUS MATERIALS" includes
petroleum (including crude oil or any fraction thereof) and any substance,
material, waste, pollutant or contaminant listed or defined as hazardous
or toxic under any Environmental Laws, in any case at levels or
concentrations requiring monitoring, reporting, remediation or removal in
accordance with Environmental Laws.
(h) FINANCIAL STATUS. Post is solvent, has not made a general
assignment for the benefit of its creditors, and has not admitted in
writing its inability to pay its debts as they become due, nor has Post
filed, nor does it contemplate the filing of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or any
other proceeding for the relief of debtors in general, nor has any such
proceeding been instituted by or against Post, nor is any such proceeding
to Post's knowledge threatened or contemplated. The conveyance of the
Property will not render Post insolvent.
(i) CONTRACTORS AND SUPPLIERS. All contractors, subcontractors,
suppliers, architects, engineers, and others who have performed services,
labor, or supplied material at the instance of Post in connection with
Post's acquisition, development, ownership operation, maintenance, repair
or management of the Property will have been paid in full as of the
Closing Date (or to the extent not so paid as of the Closing Date, Post
will have made adequate provision for payment for such services, labor or
materials).
(j) PERMITS AND LEGAL COMPLIANCE. To Post's knowledge, Post has
not received written notice that Post does not have all licenses, permits
and certificates required for the use and operation of the Property,
including, without limitation, all certificates of occupancy required for
the occupancy of the Property, where the failure to have such license,
permit or certificate would have a Material Adverse Effect. To Post's
knowledge, Post has not received written notice of an intention of any
governmental authority to revoke any of such licenses, permits or
certificates. To Post's knowledge, Post has not received written notice
from any governmental authority or adjoining property owner that the
Property is in violation of any zoning, building, fire, health,
environmental or other law, statute, ordinance, regulation or order of any
governmental or public authority applicable to the Property or any private
covenants or restrictions encumbering the Property that remains uncured
and that, if not cured, would have a Material Adverse Effect.
(k) SERVICE CONTRACTS. To Post's knowledge, there are no
management, service, supply, equipment rental and similar agreements to
which Post is a party affecting the Property other than those set forth in
Schedules 6.1(k)-1 through 6.1(k)-7. Those service contracts which have
been or will be delivered by Post to Jupiter are true, correct and
complete in all material respects and include any material amendments or
modifications thereto. To Post's knowledge, Post is not in default with
respect to its obligations or liabilities under any of the service
contracts where the failure to cure such default would have a Material
Adverse Effect.
36
(l) EMPLOYEES. Post has no employees which Jupiter shall be
obligated to employ following the Closing.
(m) CHANGES TO TITLE. Post has no knowledge of any material and
adverse changes to the state of title to the Property (including matters
of survey which would affect title) since the effective dates of the Title
Commitments and Surveys, respectively, other than as set forth in Schedule
6.1(m), attached hereto.
(n) BOND MATTERS. In connection with the Bonds which relate to the
Bond Projects, Post represents and warrants the following:
(i) Post has not received any notice that there exists
an uncured "Default" or "Event of Default" under any of the
Portfolio Financing documents which relate to the Bond Projects (the
"SUBJECT FINANCING DOCUMENTS") to which Post is a party and has no
knowledge of any fact or circumstance that, with or without notice
or the passage of time, or both, constitutes or would constitute a
"Default" or "Event of Default" in any material respect by Post
under any of the Subject Financing Documents to which Post is a
party.
(ii) To Post's knowledge and since the date of issuance
of the applicable outstanding Bonds for each Bond Project (each, an
"ISSUE DATE"), Post has not taken any action which has caused or
will cause such Bonds to become subject to federal income taxation
pursuant to the provisions of Paragraph 103(b) of the Internal
Revenue Code of 1986, as amended (the "CODE") or the Internal
Revenue Code of 1954, as amended (the "1954 CODE"), if applicable;
(iii) The current outstanding balance of principal and
interest under the Bonds with respect to the Bond Projects is ONE
HUNDRED NINETEEN MILLION EIGHTY-FIVE THOUSAND AND NO/100 DOLLARS
($119,085,000.00) in principal amount plus accrued (but not
delinquent) interest as of the date hereof. There are no amounts
currently due or owing under the Xxxxxx Xxx Financing.
(iv) To Post's knowledge, at all times since the
applicable Issue Date and based on information provided to Post by
tenants, 20% or more of the residential units in each Bond Project
have been occupied by individuals whose income is 80% or less of
area median gross income as required under Section 103 of the 1954
Code.
(v) To Post's knowledge, Post has not received any
notice or communication from the Internal Revenue Service with
respect to the Bonds for any Bond Project and has no knowledge of
the receipt by any other person of any such notice or communication.
(vi) Post has no knowledge of any fact or circumstance
which has occurred since the applicable Issue Date or currently
exist which, by itself or with the passage of time, or both,
adversely affects the exclusion of interest on the
37
respective Bonds for any Bond Project from gross income for federal
income tax purposes.
(o) SECTION 1250 PROPERTY. Post has no "section 1250 property"
that is subject to any depreciation recapture under section 1250 of the
Code.
(p) TAX ALLOCATIONS ON UNITS. Jupiter shall receive no allocation
of income with respect to the Preferred Units except with respect to the
preference accruing on the Preferred Units, if any, during such period of
time as Jupiter holds such Preferred Units, and then only to the extent of
the preference accruing during such period of time.
6.2 KNOWLEDGE OF POST DEFINED. References to the "KNOWLEDGE" of Post shall
refer only to the actual knowledge, without investigation or inquiry, on the
Effective Date of the Designated Representatives (as hereinafter defined) of
Post, and shall not be construed, by imputation or otherwise, to refer to the
knowledge of any property manager or broker, or to any other officer, agent,
manager, representative or employee of Post or any affiliate of Post, or to
impose upon such Designated Representatives any duty to investigate the matter
to which such actual knowledge, or the absence thereof, pertains. As used
herein, the term "DESIGNATED REPRESENTATIVES" shall refer to the following
persons: (i) Xxxxxx X. Xxxxxxxx, Executive Vice President and Chief Investment
Officer, (ii) Xxxxxxx X. Xxxxxx, Director of Asset Management and Dispositions,
and (iii) with respect to the specified Project only, each of the following Area
Vice Presidents and Property Managers:
PROJECT AREA VICE PRESIDENT PROPERTY MANAGER
Post Canyon(R) Apartments Xxxxx Xxxx Xxxxxx Xxxxx
Post Chase(R) Apartments Xxxxx Xxxxxx Xxxx Xxxxxxxx
Post Corners(R) Apartments Xxxxx Xxxxxx Xxxxxxx Xxxx
Post Court(R) Apartments Xxxxx Xxxxxx Xxxxxxx Xxxxxxxxxx
Post Lane(R) Apartments Xxxxxx Xxxxxx Xxx Xxxxx
Post Mill(R) Apartments Xxxxxx Xxxxxx Xxxxxxxx Xxxxxxx
Post Lake(R) Apartments Xxxxx Xxxxxx Xxxxxx Xxxxxxx
In addition, Xxxxxx Xxxxxxx, Vice President of Accounting, shall be a
"Designated Representative" solely for the purposes of the representation set
forth in Section 6.1(n). In no event shall Jupiter have any personal claim
against the above-named individuals as a result of the reference thereto in this
Section 6.2, and Jupiter waives all such claims which Jupiter now has or may
later acquire against them in connection with the transactions contemplated in
this Agreement.
6.3 SURVIVAL OF POST'S REPRESENTATIONS AND WARRANTIES. The representations
and warranties of Post set forth in Section 6.1 , as updated by Post's Closing
Certificate, shall survive Closing for a period of one year after Closing. No
claim for a breach of any representation or warranty of Post shall be actionable
or payable (a) if the breach in question results from or is based on a
condition, state of facts or other matter which was actually known to Jupiter
prior to
38
Closing and Jupiter proceeds to Closing, (b) unless the valid claims for all
such breaches collectively aggregate FIFTY THOUSAND AND NO/100 DOLLARS
($50,000.00) or more, in which event the full amount of such valid claims shall
be actionable, up to but not exceeding the amount of the Cap (as defined below),
and (c) unless written notice containing a description of the specific nature of
such breach shall have been given by Jupiter to Post prior to the expiration of
such one year period and an action shall have been commenced by Jupiter against
Post within one (1) year and sixty (60) days after Closing. Post shall not be
liable to Jupiter to the extent Jupiter's claim is satisfied from any insurance
policy, service contract or Lease. As used herein, the term "CAP" means a total
aggregate of THREE MILLION AND NO/100 DOLLARS ($3,000,000.00). In no event shall
Post's aggregate liability to Jupiter for any and all breaches of any
representation or warranty of Post in this Agreement or Post's Closing
Certificate exceed the amount of the Cap, and Jupiter hereby waives and
disclaims any right to damages or compensation for any and all such breaches in
excess of the Cap. Notwithstanding the foregoing, the Cap shall not apply to any
claim by Jupiter for a breach of the representations and warranties made by Post
under Section 6.1((o) ["Section 1250 Property"] or Section 6.1(p) ["Tax
Allocations on Units"], nor shall any damages paid by Post in respect of a
breach of Section 6.1(o) or 6.1(p) be applied to the Cap.
6.4 COVENANTS OF POST. Post hereby covenants with Jupiter, from the
Effective Date until the Closing or earlier termination of this Agreement, as
follows:
(a) OPERATION OF PROPERTY. Post shall operate and maintain the
Property in a manner generally consistent with the manner in which Post
has operated and maintained the Property prior to the date hereof.
(b) EXECUTION OF NEW LEASES AND RENEWALS. Post shall use
reasonable efforts to negotiate new leases for unrented apartment units in
the Improvements and/or Lease renewals for rented apartment units in the
Improvements and shall maintain an advertising and marketing program for
apartment units in the Improvements consistent with Post's past practices
at the Property. Unless Jupiter agrees otherwise in writing, any new
leases for such apartment units entered into by Post after the Effective
Date until the Closing or earlier termination of this Agreement shall be
on Post's standard apartment lease form for the Property, and shall be for
terms of no less than six (6) months and no more than fifteen (15) months.
In all cases, Post shall retain the discretion to set rent rates,
concessions and other terms of occupancy, provided Post shall only enter
into new leases or renewals in the ordinary course of business taking into
account Post's then-current good faith evaluation of market conditions,
provided such rent rates, concessions and other terms of occupancy are
consistent with the leasing guidelines for each Project set forth in
Schedules 6.4(b)-1 through 6.4(b)-7, attached hereto, and with the
requirements of any applicable land use restriction agreement relating to
the Bonds. Each such new lease or renewal entered into by Post shall
constitute a "LEASE" for purposes of this Agreement. At Jupiter's request,
Post agrees to arrange a weekly telephone call with representatives of
Jupiter to discuss the status of leasing activity at the Property. In
addition, Post agrees to provide Jupiter, during the term of this
Agreement, (i) on a weekly basis for each Project, copies of updated rent
rolls, weekly collection reports, lease renewals and Leases for new
residents actually taking occupancy, and (ii) on a
39
monthly basis for each Project, copies of operating statements. Such
materials shall be provided by Post to Jupiter for informational purposes
and shall be in the form produced by Post for internal accounting and
management purposes; Post shall not be required to certify such materials.
(c) MAINTENANCE OF INSURANCE. Post shall keep the Improvements
insured against loss or damage (including rental loss) by fire and all
risks covered by the Post's insurance that is currently in force, provided
that Post may make adjustments in Post's insurance coverage for the
Property which are consistent with Post's general insurance program for
Post's other apartment properties as in effect from time to time.
(d) ENFORCEMENT OF EXISTING LEASES. Post shall perform the
landlord's material obligations to the tenants under the Leases and
enforce the material obligations of the tenants under the Leases, in each
case in accordance with the current management standards of Post for its
apartment properties.
(e) PREPARATION OF VACANT UNITS FOR LEASE. Post shall place
apartment units that are now vacant or that become vacant into rent-ready
condition on or before the Closing Date in accordance with Post's current
management standards for its apartment properties as though no conveyance
of the Property were contemplated or, at Post's option, provide Jupiter a
credit at Closing for the apartment units (a) that are not in rent-ready
condition on the Closing Date, and (b) for which Jupiter has provided
written notice detailing its objections concerning the rent-ready
condition thereof at least seven (7) days prior to Closing, such credit to
be equal to the cost of placing those apartment units in rent-ready
condition in accordance with Post's current management standards;
provided, however, that with respect to apartment units vacated during the
seven (7) day period ending on the Closing Date, Post shall have no
obligation either to put such units into rent-ready condition or to give
Jupiter a credit for the cost of doing so.
(f) PROVIDE COPIES OF NOTICES. Post shall furnish Jupiter with a
copy of all written notices received by Post from any governmental
authority of any violation of any law, statute, ordinance, regulation or
order of any governmental or public authority relating to the Property
within five (5) business days following Post's receipt thereof, but, if
received by such date, in no event later than two (2) business days prior
to the Closing Date.
(g) REMOVAL AND REPLACEMENT OF TANGIBLE PERSONAL PROPERTY. Post
shall not remove any Tangible Personal Property except as may be required
for necessary repair or replacement (which repair and replacement shall be
of equal quality and quantity as existed as of the time of the removal),
or otherwise in accordance with current inventory and management standards
of Post for its apartment properties.
(h) EXECUTION OF NEW CONTRACTS. Post shall not, without Jupiter's
prior written consent in each instance (which consent shall not be
unreasonably withheld or delayed during the Inspection Period but which
thereafter may be withheld in Jupiter's sole discretion), materially amend
or terminate any of the Designated Service Contracts,
40
or enter into any contract or agreement that will be an obligation
affecting the Property or binding on Jupiter after the Closing, except
that (i) Post may enter into, amend or enforce (including enforcement by
termination) service contracts in the ordinary course of business as
reasonably necessary for the continued operation and maintenance of the
Property, provided any new service contracts are terminable without cause
or penalty on thirty (30) days notice, and (ii) Post may conduct leasing
activity as provided in Section 6.4 (b) hereof. Each such new service
contract entered into by Post shall constitute a "SERVICE CONTRACT" for
purposes of this Agreement.
(i) MAINTENANCE OF PERMITS. Post shall make commercially
reasonable efforts to maintain in existence all licenses, permits and
approvals that are now in existence with respect to, and are required for,
the ownership, operation or improvement of the Property, and are of a
continuing nature.
6.5 REPRESENTATIONS AND WARRANTIES OF JUPITER. Jupiter hereby makes the
following representations and warranties to Post as of the Effective Date:
(a) ORGANIZATION AND AUTHORITY. Jupiter has been duly organized
and is validly existing as a corporation under the laws of the State of
Illinois. Jupiter has the full right and authority to enter into this
Agreement and to acquire the Property pursuant hereto and to consummate or
cause to be consummated the transactions contemplated herein. The person
signing this Agreement on behalf of Jupiter is authorized to do so.
Neither the execution and delivery of this Agreement nor any other
documents executed and delivered, or to be executed and delivered, by
Jupiter in connection with the transactions described herein, will violate
any provision of Jupiter's organizational documents or of any agreements,
regulations, or laws to or by which Jupiter is bound. This Agreement has
been duly authorized, executed and delivered by Jupiter, is a valid and
binding obligation of Jupiter and is enforceable against Jupiter in
accordance with its terms subject to (i) applicable bankruptcy,
insolvency, reorganization, moratorium, and other laws affecting the
rights of creditors generally; and (ii) the exercise of judicial
discretion in accordance with general principles of equity.
(b) CONSENTS. Jupiter has obtained all consents and permissions
(if any) related to the transactions herein contemplated and required
under any covenant, agreement, encumbrance, law or regulation by which
Jupiter is bound.
(c) PENDING ACTIONS. To Jupiter's knowledge, there is no action,
suit, arbitration, administrative or judicial administrative proceeding,
or unsatisfied order or judgment pending or threatened against Jupiter or
the transaction contemplated by this Agreement, which, if adversely
determined, could individually or in the aggregate have a material adverse
effect on Jupiter's ability to consummate the transaction contemplated
herein.
(d) FINANCIAL STATUS. Jupiter has adequate financial resources
available to it to acquire the Property and assume the Assumed Project
Financing and Other Assumed Financing in the manner contemplated in this
Agreement. Jupiter is solvent, has not
41
made a general assignment for the benefit of its creditors, and has not
admitted in writing its inability to pay its debts as they become due, nor
has Jupiter filed, nor does it contemplate the filing of, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or any
other proceeding for the relief of debtors in general, nor has any such
proceeding been instituted by or against Jupiter, nor is any such
proceeding to Jupiter's knowledge threatened or contemplated. The
acquisition of the Property and assumption of the Assumed Project
Financing and Other Assumed Financing in the manner contemplated in this
Agreement will not render Jupiter insolvent.
(e) ERISA. Jupiter is not (i) an "employee benefit plan" within
the meaning of Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA"), (ii) a "governmental plan" under Section
3(32) of ERISA, (iii) any plan described in Section 4975 of the Internal
Revenue Code, or (iv) an entity whose underlying assets include "plan
assets" by reason of the application of the ERISA "plan assets" regulation
(29 C.F.R. 2510.3-101).
(f) PATRIOT ACT AND RELATED MATTERS. Jupiter hereby represents,
warrants, covenants and agrees, as of the date hereof and as of the
Closing Date, as follows:
(i) Jupiter is familiar with the source of funds for the
Property Value of the Property and represents that all such funds
are and will be derived from legitimate business activities within
the United States of America and/or from loans from a banking or
financial institution chartered or organized within the United
States of America. Jupiter covenants and agrees to provide to Post
any and all documents, certifications or other evidence, as may be
requested from time to time by Post in its sole discretion,
confirming the source of funds for the Property Value (and that such
funds derived from legitimate business activities). Jupiter's
representation in this clause (i) excludes the Assumed Project
Financing and the Other Assumed Debt, except to the extent that
Jupiter elects to use a credit enhancer other than Xxxxxx Mae with
respect to the Assumed Project Financing.
(ii) Jupiter has been in compliance for the last five years
and will continue to be in compliance through the Closing Date with
(a) the PATRIOT Act, Pub. L. No. 107-56, the Bank Secrecy Act, 31
U.S.C. Section 5311 et seq., the Money Laundering Control Act of
1986, and laws relating to the prevention and detection of money
laundering in 18 U.S.C. Sections 1956 and 1957; (b) the Export
Administration Act (50 U.S.C. Sections 2401-2420), the International
Emergency Economic Powers Act (50 U.S.C. Section 1701, et seq.), the
Arms Export Control Act (22 U.S.C. Sections 2778-2994), the Trading
With The Enemy Act (50 U.S.C. app. Sections 1-44), and 13 U.S.C.
Chapter 9; (c) the Foreign Asset Control Regulations contained in 31
C.F.R., Subtitle B, Chapter V; and (d) any other civil or criminal
federal or state laws, regulations, or orders of similar import.
(iii) None of the Jupiter Parties (as defined below) is now or
shall be at any time until the Closing Date be a person who has been
listed on (i) the Specially Designated Nationals and Blocked Persons
List contained in Appendix
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A to 31 C.F.R., Subtitle B, Part V; (ii) the Denied Persons List,
the Entity List, and the Unverified Parties List maintained by the
United States Department of Commerce; (iii) the List of Terrorists
and List of Debarred Parties maintained by the United States
Department of State; and (iv) any other similar list maintained by
any federal or state agency or pursuant to any Executive Order of
the President of the United States of America. "JUPITER PARTIES"
means, collectively, (a) Jupiter, (b) its officers, directors,
managers, agents, and employees, (c) its shareholders, members,
partners, and other investors, or any other person that owns or
controls Jupiter, and (d) any entity on whose behalf Jupiter
expressly acts.
6.6 SURVIVAL OF JUPITER'S REPRESENTATIONS AND WARRANTIES. The
representations and warranties of Jupiter set forth in Section 6.5 shall survive
Closing for a period of one year after Closing.
6.7 COVENANTS OF JUPITER.
(a) Jupiter hereby covenants with Post that Jupiter shall upon
Post's request furnish to Post copies of any reports received by Jupiter
in connection with any inspection of the Property for the presence of
Hazardous Materials (as defined in Section 6.1 (g) hereof), Mold or any
Mold Condition (as defined below). Jupiter hereby assumes full
responsibility for such inspections. EXCEPT FOR CLAIMS BASED ON A BREACH
BY POST OF THE REPRESENTATIONS AND WARRANTIES CONTAINED IN SECTION 6.1
(G), AND EXCEPT AS PROVIDED IN SECTION 10.3, JUPITER IRREVOCABLY WAIVES
ANY CLAIM AGAINST POST ARISING FROM THE PRESENCE OF HAZARDOUS MATERIALS OR
MOLD OR ANY MOLD CONDITION ON THE PROPERTY OR THE BREACH OF ENVIRONMENTAL
LAWS WITH RESPECT TO THE PROPERTY. Jupiter shall also upon Post's request
furnish to Post copies of any other reports received by Jupiter relating
to any other inspections of the Property conducted on Jupiter's behalf, if
any. "MOLD" means mold, mildew, fungus or other potentially dangerous
organisms. "MOLD CONDITION" means the presence or suspected presence of
Mold or any condition(s) that reasonably can be expected to give rise to
or indicate the presence of Mold, including observed or suspected
instances of water damage or intrusion, the presence of wet or damp wood,
cellulose wallboard, floor coverings or other materials, inappropriate
climate control, discoloration of walls, ceilings or floors, complaints of
respiratory ailment or eye irritation by residents, employees or any other
occupants or invitees in the Property, or any notice from a governmental
agency of complaints regarding the indoor air quality at the Property.
Notwithstanding the foregoing, Jupiter shall have no obligation to deliver
copies of any reports to Post under this Section 6.7(a) unless Jupiter and
Post reach a mutually satisfactory agreement as to the sharing of the
costs of such reports.
(b) "DESIGNATED SERVICE CONTRACTS" means (i) those certain service
contracts which are assignable in accordance with their terms which
Jupiter identifies by written notice delivered to Post on or before the
Inspection Date as the service contracts Jupiter elects Post to assign at
Closing, (ii) those assignable service contracts regarding which
43
Jupiter has failed to deliver such written notice on or before the
Inspection Date, and (iii) those service contracts (the "MUST TAKE SERVICE
CONTRACTS") which are assignable in accordance with their terms and which
may not be terminated without cause or penalty, with thirty (30) days (or
less) written notice. Jupiter hereby covenants with Post that on or before
the Inspection Date, Jupiter shall deliver written notice to Post
instructing which of the assignable service contracts Jupiter desires for
Post to assign to Jupiter and which it does not. If Jupiter fails to
timely deliver such notice, Jupiter shall be deemed to have chosen to have
all assignable service contracts assigned to Jupiter, and all such service
contracts shall be deemed part of the "Designated Service Contracts." At
Closing, Post will cause the service contracts which Jupiter has elected
not to have assigned to Jupiter (other than the Must Take Service
Contracts), by operation of the aforesaid notice on or before the
Inspection Date, to be terminated at Post's expense, such termination to
be effective within the time period provide for in the applicable service
contract (or if no such time period is provided, as promptly as
practicable after the Closing Date). The provisions of this Section 6.7
(b) shall survive Closing.
ARTICLE 7
DEFAULT
7.1 DEFAULT BY JUPITER. If the conveyance of the Property as contemplated
hereunder is not consummated due to Jupiter's default hereunder, then Post shall
be entitled, as its sole and exclusive remedy for such default, to terminate
this Agreement and receive the Option Money as liquidated damages for the breach
of this Agreement and not as a penalty, it being agreed between the parties
hereto that the actual damages to Post in the event of such breach are
impractical to ascertain and the amount of the Option Money is a reasonable
estimate thereof, Post hereby expressly waiving and relinquishing any and all
other remedies at law or in equity. Post's right to receive the Option Money is
intended not as a penalty, but as full liquidated damages. The right to receive
the Option Money as full liquidated damages is Post's sole and exclusive remedy
in the event of default hereunder by Jupiter, and Post hereby waives and
releases any right to (and hereby covenants that it shall not) xxx Jupiter: (a)
for specific performance of this Agreement, or (b) to recover any damages of any
nature or description other than or in excess of the Option Money. Jupiter
hereby waives and releases any right to (and hereby covenants that it shall not)
xxx Post or seek or claim a refund of the Option Money (or any part thereof) on
the grounds it is unreasonable in amount and exceeds Post's actual damages or
that its retention by Post constitutes a penalty and not agreed upon and
reasonable liquidated damages. This Section 7.1 is subject to Section 7.4 .
7.2 DEFAULT BY POST. If the conveyance of the Property as contemplated
hereunder is not consummated due to Post's default hereunder, then Jupiter shall
be entitled, as its sole remedy for such default, either (a) to receive the
return of the Option Money, which return shall operate to terminate this
Agreement and release Post from any and all liability hereunder, or (b) to
enforce specific performance of Post's obligation to execute and deliver the
documents required to convey the Property to Jupiter and otherwise take such
actions as are required by this Agreement to allow Jupiter to acquire the
Property in accordance with this Agreement, it being
44
understood and agreed that the remedy of specific performance shall not be
available to enforce any other obligation of Post hereunder. Jupiter expressly
waives its rights to seek damages in the event of Post's default hereunder;
provided, however, that if Post's default constitutes a Willful Post Default (as
hereinafter defined) and Jupiter makes the election described in clause (a)
above, then Jupiter shall also be entitled to receive liquidated damages from
Post in an amount equal to Liquidated Damages Amount. In no event shall Post be
liable for consequential, speculative, remote or punitive damages, or any
damages other than Liquidated Damages Amount. Jupiter shall be deemed to have
elected to terminate this Agreement and receive back the Option Money if Jupiter
fails to file suit for specific performance against Post in a court having
jurisdiction in the county and state in which the Property is located, on or
before sixty (60) days following the date upon which Closing was to have
occurred. "LIQUIDATED DAMAGES AMOUNT" means ONE MILLION AND NO/100 DOLLARS
($1,000,000.00) in the aggregate, provided that if Jupiter has paid a
commercially reasonable non-refundable loan commitment fee to Xxxxxx Xxx or
other third party lender in connection with the Property, the Liquidated Damages
Amount shall be increased on a dollar-for-dollar basis by the amount of such
non-refundable loan commitment fee which is in fact not refunded to Jupiter, not
to exceed an aggregate Liquidated Damages Amount of TWO MILLION EIGHT HUNDRED
THOUSAND AND NO/100 DOLLARS ($2,800,000.00). "WILLFUL POST DEFAULT" means an
intentional and deliberate act of Post taken on or after the Effective Date in
breach of this Agreement that is intended to result in, and does result in,
Jupiter's inability or commercially reasonable unwillingness to consummate the
transaction contemplated in this Agreement for a reason other than Jupiter's
default or the failure of any condition to Closing to be satisfied. This Section
7.2 is subject to Section 7.4 .
7.3 NOTICE OF DEFAULT; OPPORTUNITY TO CURE. Neither Post nor Jupiter shall
be deemed to be in default hereunder until and unless such party has been given
written notice of its failure to comply with the terms hereof and thereafter
does not cure such failure within five (5) business days after receipt of such
notice; provided, however, that this Section 7.3 (i) shall not be applicable to
Jupiter's failure to deliver the Option Money or any portion thereof on the date
required hereunder or to a party's failure to make any deliveries required of
such party on the Closing Date and, accordingly, (ii) shall not have the effect
of extending the Closing Date or the due date of any Option Money deposit
hereunder.
7.4 RECOVERABLE DAMAGES. Notwithstanding Sections 7.1 and 7.2 hereof, in
no event shall the provisions of Sections 7.1 and 7.2 limit (i) either Jupiter's
or Post's obligation to indemnify the other party, or the damages recoverable by
the indemnified party against the indemnifying party due to, a party's express
obligation to indemnify the other party in accordance with the Access Agreement
or Section 4.1, 5.8, or 9.2 of this Agreement, or (ii) either party's obligation
to pay costs, fees or expenses under Section 5.5 hereof, or the damages
recoverable by either party against the other party due to a party's failure to
pay such costs. In addition, if this Agreement terminates for any reason, and
Jupiter or any party related to or affiliated with Jupiter asserts any claim or
right to the Property that would otherwise delay or prevent Post from having
clear, indefeasible, and marketable title to the Property, then Post shall have
all rights and remedies available at law or in equity with respect to such
assertion by Jupiter and any loss, damage or other consequence suffered by Post
as a result of such assertion.
45
ARTICLE 8
RISK OF LOSS
8.1 MINOR DAMAGE. In the event of "damage" to the Property or any portion
thereof which is not "major" (as such terms are hereinafter defined), this
Agreement shall remain in full force and effect provided Post, at Post's option,
either (i) performs any necessary repairs at Post's expense, (ii) (in the event
of an insured loss) assigns to Jupiter all of Post's right, title and interest
to any claims and proceeds Post may have with respect to any casualty insurance
policies or condemnation awards relating to the premises in question and (if
applicable) provides Jupiter a credit against the Property Value in an amount
equal to the deductible amount or self-insured retention under such casualty
insurance or (iii) (in the event of an uninsured loss) provides Jupiter a credit
against the Property Value in an amount equal to the amount of the loss, as
determined by a contractor selected by Post and reasonably approved by Jupiter.
In the event that Post elects to perform repairs upon the Property, Post shall
use reasonable efforts to complete such repairs promptly, and the date of
Closing shall be extended a reasonable time in order to allow for the completion
of such repairs, not to exceed ninety (90) days from scheduled date of Closing
as provided herein (the "Repair Deadline"). In the event that Post makes the
election to perform the necessary repairs at Post's expense pursuant to clause
(i), and Post does not complete such repairs by the Repair Deadline, then
Jupiter shall have the right, at Jupiter's election, either (i) to terminate
this Agreement by written notice given to Post on the Repair Deadline, whereupon
Escrow Agent shall refund the Option Money to Jupiter and the parties shall have
not further rights, duties or obligations hereunder, other than those which are
expressly provided herein to survive a termination of this Agreement, or (ii) to
proceed to close and receive a credit at Closing equal to the cost to complete
such repairs as determined by the parties, acting reasonably, with the
assistance of a contractor selected Post and reasonably approved by Jupiter (in
which case Post shall retain all applicable insurance claims). Upon Closing,
full risk of loss with respect to the Property shall pass to Jupiter.
8.2 MAJOR DAMAGE. In the event of a major damage, Jupiter may terminate
this Agreement by written notice to Post, in which event the Option Money shall
be returned to Jupiter in accordance with Section 1.4 , whereupon Escrow Agent
shall refund the Option Money to Jupiter and the parties shall have no further
rights, duties or obligations hereunder, other than those which are expressly
provided herein to survive a termination of this Agreement. If Jupiter does not
elect to terminate this Agreement within thirty (30) days after Post sends
Jupiter written notice of the occurrence of major loss or damage, then Jupiter
shall be deemed to have elected to proceed with Closing, in which event Post
shall assign to Jupiter at Closing all of Post's right, title and interest to
any claims and proceeds Post may have with respect to any casualty insurance
policies or condemnation awards relating to the premises in question and provide
a credit at Closing equal to the deductible amount under such casualty insurance
policies (it being understood that Post shall not have the obligation to fund
any uninsured loss, as opposed to the deductible amount with respect to an
insured loss). Upon Closing, full risk of loss with respect to the Property
shall pass to Jupiter.
46
8.3 DEFINITION OF MAJOR DAMAGE. For purposes of Sections 8.1 and 8.2:
(a) "DAMAGE" means (i) physical damage to or destruction of all or
part of the Real Property by reason of fire, earthquake, flood or other
casualty occurring after the Effective Date or (ii) the physical taking of
all or part of the Real Property by condemnation or by conveyance in lieu
of condemnation occurring after the Effective Date; and
(b) "MAJOR" damage refers to the following: (i) damage such that
the cost of repairing or restoring the premises in question to a condition
substantially similar to that of the premises in question prior to the
event of damage would in the opinion of a contractor selected by Post and
reasonably approved by Jupiter, be equal to or greater than (A) insured
loss or losses of either ONE MILLION AND NO/100 DOLLARS ($1,000,000.00)
for any one Project or FIVE MILLION AND NO/100 DOLLARS ($5,000,000.00) in
the aggregate for all Projects, and (B) uninsured loss or losses of either
FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($500,000.00) for any one Project
or TWO MILLION FIVE HUNDRED THOUSAND AND NO/100 DOLLARS ($2,500,000.00) in
the aggregate for all Projects, and (ii) any damage due to a condemnation
or conveyance in lieu of condemnation which permanently and materially
impairs the current use or value of the Property or access to the Property
from public roads or the number or utility of parking spaces. If Jupiter
does not give notice to Post of Jupiter's reasons for disapproving an
architect within five (5) business days after receipt of notice of the
proposed contractor, then Jupiter shall be deemed to have approved the
contractor selected by Post.
ARTICLE 9
COMMISSIONS
9.1 BROKER'S COMMISSION.
(a) The parties acknowledge that Bond Project Broker has been
retained by and represents Post as broker in connection with the
conveyance of the Bond Projects (but not the Post Lane(R) Apartments) by
Post to Jupiter, and is to be compensated for its services by Post. Post
agrees that Post shall pay to Bond Project Broker upon, but only upon,
final consummation of the transaction contemplated herein with respect to
the Bond Projects, a real estate brokerage commission pursuant to a
separate written agreement between Post and Bond Project Broker. Bond
Project Broker has executed this Agreement for the purpose of
acknowledging and agreeing that no real estate commission or other fee or
compensation shall be earned by it or due it if the transaction
contemplated herein does not close as a result of Post's default,
Jupiter's default or otherwise. At Closing, Bond Project Broker shall
execute and deliver to Post and Jupiter a release of any lien or claim of
lien of Bond Project Broker with respect to the Property and shall execute
and deliver to Jupiter and Post a general release of any claims arising
out of the transaction contemplated in this Agreement.
47
(b) The parties acknowledge that Post Lane Broker has been
retained by and represents Post as broker in connection with the
conveyance of Post Lane(R) Apartments (but not any of the Bond Projects)
by Post to Jupiter, and is to be compensated for its services by Post.
Post agrees that Post shall pay to Post Lane Broker upon, but only upon,
final consummation of the transaction contemplated herein with respect to
Post Lane(R) Apartments, a real estate brokerage commission pursuant to a
separate written agreement between Post and Post Lane Broker. Post Lane
Broker has executed this Agreement for the purpose of acknowledging and
agreeing that no real estate commission or other fee or compensation shall
be earned by it or due it if the transaction contemplated herein does not
close as a result of Post's default, Jupiter's default or otherwise. At
Closing, Post Lane Broker shall execute and deliver to Post and Jupiter a
release of any lien or claim of lien of Post Lane Broker with respect to
the Property and shall execute and deliver to Jupiter and Post a general
release of any claims arising out of the transaction contemplated in this
Agreement.
9.2 BROKERAGE REPRESENTATIONS AND INDEMNITIES.
(a) Jupiter and Post each hereby represents and warrants to the
other that it has not disclosed this Agreement or the subject matter
hereof to, and has not otherwise dealt with, any real estate broker, agent
or salesman (other than Brokers) so as to create any legal right or claim
in any such broker, agent or salesman (other than Brokers) for a real
estate commission or similar fee or compensation with respect to the
negotiation and/or consummation of this Agreement or the conveyance of the
Property by Post to Jupiter. Except as provided in Section 9.1 with
respect to Brokers, Jupiter and Post shall indemnify, hold harmless and
defend each other from and against any and all claims and demands for a
real estate brokerage commission or similar fee or compensation arising
out of any claimed dealings with the indemnifying party and relating to
this Agreement or the acquisition and conveyance of the Property
(including reasonable attorneys' fees and expenses and court costs
incurred in defending any such claim or in enforcing this indemnity).
(b) Bond Project Broker hereby represents and warrants to Post and
Jupiter that it has not disclosed this Agreement or the subject matter
hereof to, and has not otherwise dealt with, any real estate broker, agent
or salesman so as to create any legal right or claim in any such broker,
agent or salesman for a real estate commission or similar fee or
compensation with respect to the negotiation and/or consummation of this
Agreement or the conveyance of the Property by Post to Jupiter. Further,
Bond Project Broker shall indemnify, hold harmless and defend each of Post
and Jupiter from and against any and all claims and demands for a real
estate brokerage commission or similar fee or compensation arising out of
any claimed dealings with Bond Project Broker and relating to this
Agreement or the acquisition and conveyance of the Property (including
reasonable attorneys' fees and expenses and court costs incurred in
defending any such claim or in enforcing this indemnity).
(c) Post Lane Broker hereby represents and warrants to Post and
Jupiter that it has not disclosed this Agreement or the subject matter
hereof to, and has not otherwise
48
dealt with, any real estate broker, agent or salesman so as to create any
legal right or claim in any such broker, agent or salesman for a real
estate commission or similar fee or compensation with respect to the
negotiation and/or consummation of this Agreement or the conveyance of the
Property by Post to Jupiter. Further, Post Lane Broker shall indemnify,
hold harmless and defend each of Post and Jupiter from and against any and
all claims and demands for a real estate brokerage commission or similar
fee or compensation arising out of any claimed dealings with broker and
relating to this Agreement or the acquisition and conveyance of the
Property (including reasonable attorneys' fees and expenses and court
costs incurred in defending any such claim or in enforcing this
indemnity).
9.3 EXECUTION BY BROKERS. Each of the Brokers has executed this Agreement
solely for the purpose of acknowledging and agreeing to the provisions of this
ARTICLE 9. Neither Bond Project Broker's nor Post Lane Broker's consent to any
modification or amendment of any provision of this Agreement other than this
ARTICLE 9 shall be required. Without limitation on the foregoing, each of the
Brokers acknowledges and agrees that neither Broker may enforce any provision of
this Agreement except for Section 9.1; that the Brokers are not necessary
parties in any litigation or other proceeding involving this Agreement not
relating directly to the payment of commissions under Section 9.1; that this
Agreement may be terminated for any reason or no reason without consent of the
Brokers and without any obligation to the Brokers that copies of any notices
given by Post or Jupiter to the other need not be sent to either of the Brokers;
and that consent of the Brokers is not required for any matter under this
Agreement except as expressly provided in this Section 9.3.
9.4 SURVIVAL. This ARTICLE 9 shall survive the rescission, cancellation,
termination or consummation of this Agreement.
ARTICLE 10
DISCLAIMERS AND WAIVERS
10.1 NO RELIANCE ON DOCUMENTS. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND
WARRANTIES SET FORTH IN SECTION 6.1 HEREOF, POST MAKES NO REPRESENTATION OR
WARRANTY AS TO THE TRUTH, ACCURACY OR COMPLETENESS OF ANY MATERIALS, DATA OR
INFORMATION DELIVERED BY POST TO JUPITER IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED HEREBY. JUPITER ACKNOWLEDGES AND AGREES THAT ALL MATERIALS, DATA
AND INFORMATION DELIVERED BY POST TO JUPITER IN CONNECTION WITH THE TRANSACTION
CONTEMPLATED HEREBY ARE PROVIDED TO JUPITER AS A CONVENIENCE ONLY AND THAT ANY
RELIANCE ON OR USE OF SUCH MATERIALS, DATA OR INFORMATION BY JUPITER SHALL BE AT
THE SOLE RISK OF JUPITER, EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN. WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING, JUPITER ACKNOWLEDGES AND AGREES THAT
(A) ANY ENVIRONMENTAL OR OTHER REPORT WITH RESPECT TO THE PROPERTY WHICH IS
DELIVERED BY POST TO JUPITER SHALL BE
49
FOR GENERAL INFORMATIONAL PURPOSES ONLY, (B) JUPITER SHALL NOT HAVE ANY RIGHT TO
RELY ON ANY SUCH REPORT DELIVERED BY POST TO JUPITER, BUT RATHER WILL RELY ON
ITS OWN INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AND ANY REPORTS
COMMISSIONED BY JUPITER WITH RESPECT THERETO, AND (C) NEITHER POST, ANY
AFFILIATE OF POST NOR THE PERSON OR ENTITY WHICH PREPARED ANY SUCH REPORT
DELIVERED BY POST TO JUPITER SHALL HAVE ANY LIABILITY TO JUPITER FOR ANY
INACCURACY IN OR OMISSION FROM ANY SUCH REPORT.
10.2 DISCLAIMERS. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES OF
POST SET FORTH IN SECTION 6.1 HEREOF, JUPITER UNDERSTANDS AND AGREES THAT POST
IS NOT MAKING AND HAS NOT AT ANY TIME MADE ANY WARRANTIES OR REPRESENTATIONS OF
ANY KIND OR CHARACTER, EXPRESSED OR IMPLIED, WITH RESPECT TO THE PROPERTY,
INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OR REPRESENTATIONS AS TO
HABITABILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE (OTHER
THAN POST'S LIMITED OR SPECIAL WARRANTY OF TITLE TO BE SET FORTH IN THE DEED),
ZONING, TAX CONSEQUENCES, LATENT OR PATENT PHYSICAL OR ENVIRONMENTAL CONDITION,
UTILITIES, OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS,
THE COMPLIANCE OF THE PROPERTY WITH GOVERNMENTAL LAWS, THE ABSENCE OR PRESENCE
OF HAZARDOUS MATERIALS OR OTHER TOXIC SUBSTANCES (INCLUDING WITHOUT LIMITATION
MOLD OR ANY MOLD CONDITION), COMPLIANCE WITH ENVIRONMENTAL LAWS, THE TRUTH,
ACCURACY OR COMPLETENESS OF THE PROPERTY DOCUMENTS OR ANY OTHER INFORMATION
PROVIDED BY OR ON BEHALF OF POST TO JUPITER, OR ANY OTHER MATTER OR THING
REGARDING THE PROPERTY. JUPITER ACKNOWLEDGES AND AGREES THAT UPON CLOSING POST
SHALL TRANSFER AND CONVEY TO JUPITER AND JUPITER SHALL ACCEPT THE PROPERTY "AS
IS, WHERE IS, WITH ALL FAULTS", EXCEPT TO THE EXTENT EXPRESSLY PROVIDED
OTHERWISE IN THIS AGREEMENT. JUPITER HAS NOT RELIED AND WILL NOT RELY ON, AND
POST IS NOT LIABLE FOR OR BOUND BY, ANY EXPRESSED OR IMPLIED WARRANTIES,
GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PROPERTY OR RELATING THERETO (INCLUDING SPECIFICALLY, WITHOUT LIMITATION,
PROPERTY INFORMATION PACKAGES DISTRIBUTED WITH RESPECT TO THE PROPERTY) MADE OR
FURNISHED BY POST, THE MANAGER OF THE PROPERTY, OR ANY REAL ESTATE BROKER OR
AGENT REPRESENTING OR PURPORTING TO REPRESENT POST, TO WHOMEVER MADE OR GIVEN,
DIRECTLY OR INDIRECTLY, ORALLY OR IN WRITING, UNLESS SPECIFICALLY SET FORTH IN
THIS AGREEMENT.
JUPITER REPRESENTS TO POST THAT JUPITER HAS CONDUCTED, OR WILL CONDUCT
PRIOR TO CLOSING, SUCH INVESTIGATIONS OF THE PROPERTY, INCLUDING BUT NOT LIMITED
TO, THE PHYSICAL AND ENVIRONMENTAL CONDITIONS THEREOF, AS JUPITER DEEMS
NECESSARY
50
TO SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR
NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS
MATERIALS OR TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY (INCLUDING
WITHOUT LIMITATION ANY MOLD OR MOLD CONDITION), AND WILL RELY SOLELY UPON SAME
AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF POST OR ITS AGENTS OR
EMPLOYEES WITH RESPECT THERETO, OTHER THAN SUCH REPRESENTATIONS, WARRANTIES AND
COVENANTS OF POST AS ARE EXPRESSLY SET FORTH IN THIS AGREEMENT. UPON CLOSING,
JUPITER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED
TO, CONSTRUCTION DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY
NOT HAVE BEEN REVEALED BY JUPITER'S INVESTIGATIONS, AND, SUBJECT TO SECTION
10.3, JUPITER, UPON CLOSING, SHALL BE DEEMED TO HAVE WAIVED, RELINQUISHED AND
RELEASED POST (AND POST'S AND ITS PARTNERS' RESPECTIVE OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL CLAIMS,
DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT OR UNDER ANY
ENVIRONMENTAL LAW), LOSSES, DAMAGES, LIABILITIES (WHETHER BASED ON STRICT
LIABILITY OR OTHERWISE), LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES
(INCLUDING ATTORNEYS' FEES AND COURT COSTS) OF ANY AND EVERY KIND OR CHARACTER,
KNOWN OR UNKNOWN, WHICH JUPITER MIGHT HAVE ASSERTED OR ALLEGED AGAINST POST (AND
POST'S AND ITS PARTNERS' RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES
AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT
CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF ANY APPLICABLE LAWS
(INCLUDING, WITHOUT LIMITATION, ANY ENVIRONMENTAL LAWS) AND ANY AND ALL OTHER
ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES OR MATTERS REGARDING THE PROPERTY. THE
FOREGOING SHALL NOT BE INTERPRETED TO WAIVE ANY CLAIM OF JUPITER WITH RESPECT TO
ANY BREACH BY POST OF ANY EXPRESS REPRESENTATIONS AND WARRANTIES MADE BY POST IN
SECTION 6.1 THAT EXPRESSLY SURVIVE CLOSING PURSUANT TO SECTION 6.3 .
SUBJECT TO SECTION 10.3, JUPITER AGREES THAT SHOULD ANY INVESTIGATION,
CLEANUP, REMEDIATION OR REMOVAL OF HAZARDOUS SUBSTANCES OR OTHER ENVIRONMENTAL
CONDITIONS (INCLUDING WITHOUT LIMITATION ANY MOLD OR MOLD CONDITION) ON OR
RELATED TO THE PROPERTY BE REQUIRED AFTER THE DATE OF CLOSING, POST SHALL HAVE
NO LIABILITY TO JUPITER TO PERFORM OR PAY FOR SUCH INVESTIGATION, CLEAN-UP,
REMOVAL OR REMEDIATION, AND JUPITER EXPRESSLY WAIVES AND RELEASES ANY CLAIM TO
THE CONTRARY. THE FOREGOING SHALL NOT BE INTERPRETED TO WAIVE ANY CLAIM OF
JUPITER WITH RESPECT TO ANY BREACH BY POST OF ANY EXPRESS REPRESENTATIONS AND
WARRANTIES MADE BY POST IN SECTION 6.1 THAT EXPRESSLY SURVIVE CLOSING PURSUANT
TO SECTION 6.3 .
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JUPITER REPRESENTS AND WARRANTS THAT THE TERMS OF THE RELEASE CONTAINED
HEREIN AND ITS CONSEQUENCES HAVE BEEN COMPLETELY READ AND UNDERSTOOD BY JUPITER,
AND JUPITER HAS HAD THE OPPORTUNITY TO CONSULT WITH, AND HAS CONSULTED WITH,
LEGAL COUNSEL OF JUPITER'S CHOICE WITH REGARD TO THE TERMS OF THIS RELEASE.
JUPITER ACKNOWLEDGES AND WARRANTS THAT JUPITER'S EXECUTION OF THIS RELEASE IS
FREE AND VOLUNTARY.
10.3 RESERVATION OF JUPITER'S RIGHT OF CONTRIBUTION UNDER ENVIRONMENTAL
LAWS. Notwithstanding Sections 6.7(a) and 10.2 or anything else in the
Agreement, Jupiter does not waive, release, relinquish or disclaim, and Jupiter
expressly reserves for itself and its permitted assigns, such statutory rights
of contribution against Post, if any, as Jupiter may have under applicable
Environmental Laws with respect to breaches of Environmental Laws by Post during
the term of its ownership of each Project.
10.4 EFFECT AND SURVIVAL OF DISCLAIMERS. Post and Jupiter acknowledge that
the provisions of this ARTICLE 10 are an integral part of the transactions
contemplated in this Agreement and a material inducement to Post to enter into
this Agreement and that Post would not enter into this Agreement but for the
provisions of this ARTICLE 10. Post and Jupiter agree that the provisions of
this ARTICLE 10 shall survive Closing or any termination of this Agreement.
ARTICLE 11
ESCROW AGENT
11.1 INVESTMENT OF OPTION MONEY. If and to the extent the Option Money is
in the form of cash, Escrow Agent shall invest the Option Money pursuant to
Jupiter's reasonable directions in an interest bearing account at a commercial
bank whose deposits are insured by the Federal Deposit Insurance Corporation.
Escrow Agent shall notify Post, no later than one (1) business day after Escrow
Agent's receipt thereof, that Escrow Agent has received the Option Money (which
shall be, if and to the extent in cash, in immediately available funds), and is
holding the same in accordance with the terms of this Agreement. However, Escrow
Agent shall invest the Option Money (if and to the extent in cash) only in such
accounts as will allow Escrow Agent to disburse the Option Money upon no more
than one (1) business day's notice.
11.2 PAYMENT AT CLOSING. If the Closing takes place under this Agreement,
Escrow Agent shall deliver the Option Money to, or upon the instructions of,
Jupiter on the Closing Date, subject to Section 5.4(c).
11.3 PAYMENT ON DEMAND. Upon receipt of any written certification from
Post or Jupiter claiming the Option Money pursuant to the provisions of this
Agreement (other than pursuant to a termination of this Agreement by Jupiter
pursuant to Section 4.2 prior to the end of the Inspection Period), Escrow Agent
shall promptly forward a copy thereof to the other such party (i.e., Jupiter or
Post, whichever did not claim the Option Money pursuant to such notice) and,
unless such other party within ten (10) days thereafter notifies Escrow Agent of
any
52
objection to such requested disbursement of the Option Money, Escrow Agent shall
disburse the Option Money to the party demanding the same and shall thereupon be
released and discharged from any further duty or obligation hereunder; provided,
however, that if all or any portion of the Option Money is in the form of a
letter of credit, and the Option Money is to be disbursed to Post, then Escrow
Agent shall first draw upon the letter of credit in the full amount thereof as
provided in Section 1.7 before disbursing the Option Money such that Post shall
receive the cash amount of the Option Money as opposed to the letter of credit.
11.4 EXCULPATION OF ESCROW AGENT. It is agreed that the duties of Escrow
Agent are herein specifically provided and are purely ministerial in nature, and
that Escrow Agent shall incur no liability whatsoever except for its willful
misconduct or negligence, so long as Escrow Agent is acting in good faith. Post
and Jupiter do each hereby release Escrow Agent from any liability for any error
of judgment or for any act done or omitted to be done by Escrow Agent in the
good faith performance of its duties hereunder and do each hereby indemnify
Escrow Agent against, and agree to hold, save, and defend Escrow Agent harmless
from, any costs, liabilities, and expenses incurred by Escrow Agent in serving
as Escrow Agent hereunder and in faithfully discharging its duties and
obligations hereunder.
11.5 STAKEHOLDER. Escrow Agent is acting as a stakeholder only with
respect to the Option Money. If there is any dispute as to whether Escrow Agent
is obligated to deliver the Option Money or as to whom the Option Money is to be
delivered, Escrow Agent may refuse to make any delivery and may continue to hold
the Option Money until receipt by Escrow Agent of an authorization in writing,
signed by Post and Jupiter, directing the disposition of the Option Money, or,
in the absence of such written authorization, until final determination of the
rights of the parties in an appropriate judicial proceeding, provided, however,
that if all or any portion of the Option Money is in the form of a letter of
credit, then in such event Escrow Agent shall (and in such event Escrow Agent is
irrevocably and unconditionally authorized, instructed and directed to) draw
upon any letter of credit in full immediately upon receipt of any Draw Notice
(as defined in Section 1.7). If such written authorization is not given, or a
proceeding for such determination is not begun, within thirty (30) days of
notice to Escrow Agent of such dispute, Escrow Agent may bring an appropriate
action or proceeding for leave to deposit the Option Money in a court of
competent jurisdiction pending such determination. Escrow Agent shall be
reimbursed for all costs and expenses of such action or proceeding, including,
without limitation, reasonable attorneys' fees and disbursements, by the party
determined not to be entitled to the Option Money. Upon making delivery of the
Option Money in any of the manners herein provided, Escrow Agent shall have no
further liability or obligation hereunder. If all or any portion of the Option
Money is in the form of a letter of credit, then Escrow Agent shall draw upon
such letter of credit in full, and any deposit with or delivery to any court
shall be in cash in the full amount of the Option Money.
11.6 INTEREST. All interest and other income earned on the Option Money
deposited with Escrow Agent hereunder shall be reported for income tax purposes
as earnings of Jupiter. Jupiter's taxpayer identification number is 000000000.
53
11.7 EXECUTION BY ESCROW AGENT. Escrow Agent has executed this Agreement
solely for the purpose of acknowledging and agreeing to the provisions of this
ARTICLE 11. Escrow Agent's consent to any modification or amendment of this
Agreement other than this ARTICLE 11 shall not be required.
ARTICLE 12
MISCELLANEOUS
12.1 CONFIDENTIALITY. Jupiter and its representatives shall hold in
strictest confidence all data and information in accordance with the Access
Agreement. This Section 12.1 and the confidentiality provisions of the Access
Agreement shall survive any termination of this Agreement and shall survive the
Closing in accordance with their respective terms.
12.2 PUBLIC DISCLOSURE. Prior to Closing, any press release or similar
public announcement with respect to the transactions contemplated herein or any
matters set forth in this Agreement will be made only in the form approved by
Jupiter and Post. Notwithstanding anything to the contrary in this Agreement or
the Access Agreement, each of Post and Jupiter shall have the right to make all
disclosures with regard to the transactions contemplated in this Agreement as
are required under applicable law and regulation, including, without limitation,
all applicable laws and regulations relating to securities, securities exchanges
and the issuers of securities. Unless required under applicable law and
regulation, including without limitation, all applicable securities laws and
regulations relating to securities, security exchanges and the issuers of
securities, or as required by sound investor relations or in connection with the
consent solicitation the limited partners with respect to the Partnership
Amendment, Post shall not issue any press release or similar public announcement
identifying the allocation of the Property Value among the Projects.
12.3 ASSIGNMENT. Subject to Section 5.8, Jupiter may not assign its rights
under this Agreement without first obtaining Post's written approval, which
approval may be given or withheld in Post's sole discretion, provided, however,
Jupiter may assign this Agreement at or prior to Closing to a Permitted
Affiliate without Post's consent, provided that Jupiter notifies Post of such
assignment upon its occurrence. For purposes hereof, the term "PERMITTED
AFFILIATE" means an entity that controls, is controlled by, or is under common
control with Jupiter and is solvent at the time of assignment and thereafter
through the time of Closing, is not rendered insolvent by such assignment or the
consummation of this Agreement, has sufficient assets to consummate the
transaction contemplated herein, and enters into an assumption agreement, naming
Post as an express third-party beneficiary, in a form approved by Post and
pursuant to which the assignee assumes all obligations and liabilities of
Jupiter under this Agreement, whether accruing before or after the date of such
assignment. No transfer or assignment by Jupiter shall release or relieve
Jupiter of its obligations hereunder.
12.4 NOTICES. Any notice, request or other communication (a "NOTICE")
required or permitted to be given hereunder shall be in writing and shall be
delivered by hand or overnight courier (such as United Parcel Service or Federal
Express), sent by facsimile (provided a copy of
54
such notice is deposited with an overnight courier for next business day
delivery) or mailed by United States registered or certified mail, return
receipt requested, postage prepaid and addressed to each party at its address as
set forth below. Any such notice shall be considered given on the date of such
hand or courier delivery, confirmed facsimile transmission (provided such
facsimile notice is received by 5:00 P.M. local time by the addressee and a copy
of such notice is deposited with an overnight courier for next business day
delivery), deposit with such overnight courier for next business day delivery,
or deposit in the United States mail, but the time period (if any is provided
herein) in which to respond to such notice shall commence on the date of hand or
overnight courier delivery or on the date received following deposit in the
United States mail as provided above. Rejection or other refusal to accept or
inability to deliver because of changed address of which no notice was given
shall be deemed to be receipt of the notice. By giving at least five (5) days'
prior written notice thereof, any party may from time to time and at any time
change its mailing address hereunder. Any notice of any party may be given by
such party's counsel.
In no event shall this Agreement be altered, amended or modified by
electronic mail or electronic record. The parties acknowledge and agree that
this Agreement shall not be executed, entered into, altered, amended or modified
by electronic means. Without limiting the generality of the foregoing, the
parties hereby agree that the transactions contemplated by this Agreement shall
not be conducted by electronic means.
The parties' respective addresses for notice purposes are as follows.
Telephone and telecopy numbers are given for convenience of reference only.
Notice by telephone or telecopy shall not be effective.
If to Post: Post Apartment Homes, L.P.
One Riverside
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxx X. Xxxxx
Telephone No. 404/000-0000
Telecopy No. 404/504-9388
and
Post Apartment Homes, L.P.
One Riverside
0000 Xxxxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xx. Xxxxxx X. Xxxxxxxx
Telephone No. 404/000-0000
Telecopy No. 404/504-9388
55
with a copy to: King & Spalding LLP
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, XX 00000-0000
Attention: Xxx X. Xxxxxx
Telephone No. 404/000-0000
Telecopy No. 404/572-5148
If to Jupiter: JRC Acquisition Corporation
c/o Jupiter Realty Corporation
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Chairman and CEO
Telephone: 000-000-0000
Telecopier: 000-000-0000
with a copy to: JRC Acquisition Corporation
c/o Jupiter Realty Corporation
00 Xxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: X. Xxxxxxxxx, Executive Vice President
Telephone: 000-000-0000/1256
Telecopier: 000-000-0000
and with a copy to: Xxxxx Xxxx LLP
Suite 2100
Peachtree Center South Tower
000 Xxxxxxxxx Xxxxxx, X.X.
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxx X. Xxx, Esq.
Telephone: 000-000-0000
Telecopier: 000-000-0000
If to Escrow Agent: Fidelity National Title Insurance Company of
New York
0000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxx Xxxxxx
Telephone: 770/000-0000
Telecopier: 770/850-8222
56
If to Bond Project
Broker: The Apartment Group, LLC
3300 One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: X. Xxxxxxxxxxx Spain
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to Post Lane Broker: Apartment Realty Advisors, Inc.
0000 Xxxxxxxxx Xxxxx, X.X.
Xxxxxxxx 000, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
12.5 MODIFICATIONS. This Agreement cannot be changed orally, and no
agreement shall be effective to waive, change, modify or discharge it in whole
or in part unless such agreement is in writing and is signed by the parties
against whom enforcement of any waiver, change, modification or discharge is
sought.
12.6 CALCULATION OF TIME PERIODS. Unless otherwise specified, in computing
any period of time described in this Agreement, the day of the act or event
after which the designated period of time begins to run is not to be included
and the last day of the period so computed is to be included, unless such last
day is a Saturday, Sunday or legal holiday under the laws of the State in which
the Property is located, in which event the period shall run until the end of
the next day which is neither a Saturday, Sunday or legal holiday. The final day
of any such period shall be deemed to end at 5:00 p.m., Atlanta, Georgia local
time.
12.7 SUCCESSORS AND ASSIGNS. Subject to Section 12.3 hereof, the terms and
provisions of this Agreement are to apply to and bind the permitted successors
and assigns of the parties hereto.
12.8 ENTIRE AGREEMENT. This Agreement, including the Schedules, and the
Access Agreement contain the entire agreement between the parties pertaining to
the subject matter hereof and fully supersede all prior written or oral
agreements and understandings between the parties pertaining to such subject
matter.
12.9 FURTHER ASSURANCES. Each party agrees that it will without further
consideration execute and deliver such other documents and take such other
action, whether prior or subsequent to Closing, as may be reasonably requested
by the other party to consummate more effectively the purposes or subject matter
of this Agreement. Without limiting the generality of the foregoing, Jupiter
shall, if requested by Post, execute acknowledgments of receipt with respect to
any materials delivered by Post to Jupiter with respect to the Property. The
provisions of this Section 12.9 shall survive Closing.
57
12.10 COUNTERPARTS. This Agreement may be executed in counterparts, and
all such executed counterparts shall constitute the same agreement. It shall be
necessary to account for only one such counterpart in proving this Agreement.
12.11 SEVERABILITY. If any provision of this Agreement is determined by a
court of competent jurisdiction to be invalid or unenforceable, the remainder of
this Agreement shall nonetheless remain in full force and effect.
12.12 APPLICABLE LAW. This Agreement is performable in the state in which
the Property is located and shall in all respects be governed by, and construed
in accordance with, the substantive federal laws of the United States and the
laws of such state. Post and Jupiter hereby irrevocably submit to the
jurisdiction of any state or federal court sitting in the state and judicial
district in which the Property is located in any action or proceeding arising
out of or relating to this Agreement and hereby irrevocably agree that all
claims in respect of such action or proceeding shall be heard and determined in
a state or federal court sitting in the state and judicial district in which the
Property is located. Jupiter and Post agree that the provisions of this Section
12.12 shall survive the Closing of the transaction contemplated by this
Agreement.
12.13 NO THIRD PARTY BENEFICIARY. The provisions of this Agreement and of
the documents to be executed and delivered at Closing are and will be for the
benefit of Post and Jupiter only and are not for the benefit of any third party,
and accordingly, no third party shall have the right to enforce the provisions
of this Agreement or of the documents to be executed and delivered at Closing.
12.14 EMPLOYEES. Prior to the day after the Inspection Date, Jupiter
agrees, at any time Post so requests, to discontinue offering employment to or
soliciting the employment of any employees of Post who are employed at the
Property. Post shall be solely responsible for the salaries and benefits, if
any, payable to Post's employees at the Property for the period through the
Closing, in accordance with and subject to the terms and conditions of such
employment, even if such employees are employed by or on behalf of Jupiter
following the Closing. With respect to any employees employed by or on behalf of
Jupiter following the Closing, Jupiter shall be solely responsible for all
salaries and benefits, if any, payable to such employees for the period from and
after the Closing in accordance with and subject to the terms and conditions of
such employment, even if such employees were employed by Post prior to the
Closing. Neither Jupiter nor Post shall have any obligation for salaries,
benefits or other employment obligations to any such employee with respect to
the period such employee is or was employed by the other party. This Section
12.14 shall survive the Closing.
12.15 POST'S ACCESS TO RECORDS AFTER CLOSING. Jupiter shall cooperate with
Post (at no cost to Jupiter) for a period of six (6) years after Closing in case
of Post's need in response to any legal requirement, tax audit, tax return
preparation or litigation threatened or brought against Post, by allowing Post
and its agents or representatives access, upon reasonable advance notice (which
notice shall identify the nature of the information sought by Post), at all
reasonable times to examine and make copies of any and all instruments, files
and records which predate the Closing; provided, however, that nothing contained
in this Section shall require Jupiter to retain any files or records for any
particular period of time. This Section 12.15 shall survive Closing.
58
12.16 CAPTIONS. The section headings appearing in this Agreement are for
convenience of reference only and are not intended, to any extent and for any
purpose, to limit or define the text of any section or any subsection hereof.
12.17 CONSTRUCTION. The parties acknowledge that the parties and their
counsel have reviewed and revised this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be resolved against the
drafting party shall not be employed in the interpretation of this Agreement or
any Schedules or amendments hereto.
12.18 TERMINATION OF AGREEMENT. It is understood and agreed that if either
Jupiter or Post terminates this Agreement pursuant to a right of termination
granted hereunder, such termination shall operate to relieve Post and Jupiter
from all obligations under this Agreement, except for such obligations as are
specifically stated herein to survive the termination of this Agreement.
12.19 SURVIVAL. The provisions of the following Sections of this Agreement
shall survive Closing and shall not be merged into the execution and delivery of
the Deed: 1.5: 4.1(b) with respect to Jupiter's indemnity obligations under the
Access Agreement); 4.1(c); 5.2(c); 5.2(q); 5.4: 5.5; 6.1; 6.2; 6.3; 6.5; 6.6;
6.7; Article 9; Article 10; 12.1; 12.9; 12.12; 12.14; 12.15; and 12.24; those
additional provisions of Article 12 which govern the administration,
interpretation or enforcement of this Agreement; and any other provisions
contained herein that by their terms survive the Closing (the "OBLIGATIONS
SURVIVING CLOSING"). Except for the Obligations Surviving Closing, all
representations, warranties, covenants and agreements contained in this
Agreement shall be merged into the instruments and documents executed and
delivered at Closing. The Obligations Surviving Closing shall survive the
Closing; provided, however, that the representations and warranties of Post
contained in Section 6.1, as updated by Post's Closing Certificate, and the
representations and warranties of Jupiter contained in Section 6.5, shall
survive for the period, and are subject to the terms, set forth in Sections 6.3
and 6.6 respectively.
12.20 TIME OF ESSENCE. Time is of the essence with respect to this
Agreement.
12.21 COVENANT NOT TO RECORD. Jupiter shall not record this Agreement or
any memorandum or other evidence thereof. Any such recording shall constitute a
material default hereunder on the part of Jupiter. However, if Jupiter
institutes an action for specific performance against Post pursuant to Section
7.2, then Jupiter shall have the right to file a lis pendens to the extent
necessary to preserve Jupiter's rights in connection with such action (without
limitation, however, on Post rights under Section 7.4).
12.22 LIMITATION OF POST'S LIABILITY. Jupiter shall have no recourse
against any of the past, present or future, direct or indirect, shareholders,
partners, members, managers, principals, directors, officers, agents,
incorporators, affiliates or representatives of Post or its general partner or
of any of the assets or property of any of the foregoing for the payment or
collection of any amount, judgment, judicial process, arbitral award, fee or
cost or for any other obligation or claim arising out of or based upon this
Agreement and requiring the payment of money by Post. This Section 12.22 shall
survive the Closing.
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12.23 RADON GAS. Radon is a naturally occurring radioactive gas that, when
it has accumulated in a building in sufficient quantities, may present health
risks to persons who are exposed to it over time. Levels of radon that exceed
federal and state guidelines have been found in buildings in Georgia and
Florida. Additional information regarding radon and radon testing may be
obtained from your county health department.
12.24 INDEMNIFICATION FOR REDEMPTION DISPUTES. Post shall indemnify, hold
harmless and defend Jupiter from and against any and all claims, demands, causes
of action, liabilities, losses, costs, damages and expenses (including
reasonable attorneys' fees and expenses and court costs incurred in defending
any such claim or in enforcing this indemnity) that may be asserted against
Jupiter by a Redemption Claimant in connection with any Redemption Dispute.
"REDEMPTION DISPUTE" means any litigation or other proceeding instituted before
or after Closing by any Redemption Claimant against Post or Jupiter in which
such Redemption Claimant, for any reason other than a default by Jupiter under
this Agreement, seeks to restrain, materially and adversely alter, set aside or
invalidate Jupiter's acquisition of the Property, or Post's transfer of the
Property to Jupiter, because of the proposed redemption of the Preferred Units
as contemplated by this Agreement (as opposed to a purchase and sale of the
Property pursuant to the Cash Option and the associated assumption of the
Assumed Project Financing). "REDEMPTION CLAIMANT" means any third party
claimant, including but not limited to the Unitholder, any other limited partner
of Post or any shareholder of Post Properties, Inc., but excluding any direct or
indirect partner, shareholder or other owner of an equity interest in Jupiter,
any officer, manager, employee or agent of Jupiter or any such partner,
shareholder or other owner, and any other party controlled by or under common
control with Jupiter or in which Jupiter holds an equity interest. This Section
12.24 shall survive Closing or any termination of this Agreement; provided,
however, that the provisions of this Section 12.24 shall not apply if Jupiter
has directly or indirectly solicited or encouraged any such Redemption Dispute.
The provisions of this Section 12.24 are intended to protect Jupiter solely from
the peculiarities associated with the redemption of the Preferred Units, and are
not intended to and shall not be interpreted to, indemnify Jupiter from those
risks inherent in the underlying acquisition of the Properties and the
corresponding assumption of Assumed Project Financing. This Section 12.24 shall
survive closing or termination of this Agreement for a period of four (4) years
but shall cease to have any force or effect thereafter except with respect to
claims asserted by Jupiter against Post in writing prior to such date.
12.25 SCHEDULES. The following schedules or exhibits attached hereto shall
be deemed to be an integral part of this Agreement:
Schedule 1.1(a)-1 Land - Post Canyon(R) Apartments
Schedule 1.1(a)-2 Land - Post Chase(R) Apartments
Schedule 1.1(a)-3 Land - Post Corners(R) Apartments
Schedule 1.1(a)-4 Land - Post Court(R) Apartments
Schedule 1.1(a)-5 Land - Post Lane(R) Apartments
60
Schedule 1.1(a)-6 Land - Post Mill(R) Apartments
Schedule 1.1(a)-7 Land - Post Lake(R) Apartments
Schedule 1.1(d)-1 Inventory of Tangible Personal Property -Post Canyon(R) Apartments
Schedule 1.1(d)-2 Inventory of Tangible Personal Property - Post Chase(R) Apartments
Schedule 1.1(d)-3 Inventory of Tangible Personal Property - Post Corners(R) Apartments
Schedule 1.1(d)-4 Inventory of Tangible Personal Property - Post Court(R) Apartments
Schedule 1.1(d)-5 Inventory of Tangible Personal Property - Post Lane(R) Apartments
Schedule 1.1(d)-6 Inventory of Tangible Personal Property - Post Mill(R) Apartments
Schedule 1.1(d)-7 Inventory of Tangible Personal Property - Post Lake(R) Apartments
Schedule 1.1(e)-1 Rent Roll - Post Canyon(R) Apartments
Schedule 1.1(e)-2 Rent Roll - Post Chase(R) Apartments
Schedule 1.1(e)-3 Rent Roll - Post Corners(R) Apartments
Schedule 1.1(e)-4 Rent Roll - Post Court(R) Apartments
Schedule 1.1(e)-5 Rent Roll - Post Lane(R) Apartments
Schedule 1.1(e)-6 Rent Roll - Post Mill(R) Apartments
Schedule 1.1(e)-7 Rent Roll - Post Lake(R) Apartments
Schedule 1.7 Form of Letter of Credit
Schedule 2.1 Allocation of Property Value Among Projects
Schedule 2.5(d)-1 Portfolio Financing Documents - Post Canyon(R) Apartments
Schedule 2.5(d)-2 Portfolio Financing Documents - Post Chase(R) Apartments
Schedule 2.5(d)-3 Portfolio Financing Documents - Post Corners(R) Apartments
Schedule 2.5(d)-4 Portfolio Financing Documents - Post Court(R) Apartments
Schedule 2.5(d)-5 Portfolio Financing Documents - Post Mill(R) Apartments
61
Schedule 2.5(d)-6 Portfolio Financing Documents - Post Lake(R) Apartments
Schedule 3.1 List of Title Commitments
Schedule 3.2 List of Surveys
Schedule 3.4-1 Certain Permitted Exceptions - Post Canyon(R) Apartments
Schedule 3.4-2 Certain Permitted Exceptions - Post Chase(R) Apartments
Schedule 3.4-3 Certain Permitted Exceptions - Post Corners(R) Apartments
Schedule 3.4-4 Certain Permitted Exceptions - Post Court(R) Apartments
Schedule 3.4-5 Certain Permitted Exceptions - Post Lane(R) Apartments
Schedule 3.4-6 Certain Permitted Exceptions - Post Mill(R) Apartments
Schedule 3.4-7 Certain Permitted Exceptions - Post Lake(R) Apartments
Schedule 5.2(a) Form of Deed
Schedule 5.2(b) Form of Xxxx of Conveyance and Assignment
Schedule 6.1-1 Post's Disclosure Schedule - Post Canyon(R)Apartments
Schedule 6.1-2 Post's Disclosure Schedule - Post Chase(R)Apartments
Schedule 6.1-3 Post's Disclosure Schedule - Post Corners(R)Apartments
Schedule 6.1-4 Post's Disclosure Schedule - Post Court(R)Apartments
Schedule 6.1-5 Post's Disclosure Schedule - Post Lane(R)Apartments
Schedule 6.1-6 Post's Disclosure Schedule - Post Mill(R)Apartments
Schedule 6.1-7 Post's Disclosure Schedule - Post Lake(R)Apartments
Schedule 6.1(g)-1 Environmental Reports - Post Canyon(R) Apartments
Schedule 6.1(g)-2 Environmental Reports - Post Chase(R)Apartments
Schedule 6.1(g)-3 Environmental Reports - Post Corners(R)Apartments
Schedule 6.1(g)-4 Environmental Reports - Post Court(R)Apartments
Schedule 6.1(g)-5 Environmental Reports - Post Lane(R)Apartments
Schedule 6.1(g)-6 Environmental Reports - Post Mill(R)Apartments
62
Schedule 6.1(g)-7 Environmental Reports - Post Lake(R) Apartments
Schedule 6.1(m) Changes to Title
Schedule 6.1(k)-1 Service Contracts - Post Canyon(R) Apartments
Schedule 6.1(k)-2 Service Contracts - Post Chase(R) Apartments
Schedule 6.1(k)-3 Service Contracts - Post Corners(R) Apartments
Schedule 6.1(k)-4 Service Contracts - Post Court(R) Apartments
Schedule 6.1(k)-5 Service Contracts - Post Lane(R) Apartments
Schedule 6.1(k)-6 Service Contracts - Post Mill(R) Apartments
Schedule 6.1(k)-7 Service Contracts - Post Lake(R) Apartments
Schedule 6.4(b)-1 Leasing Guidelines- Post Canyon(R) Apartments
Schedule 6.4(b)-2 Leasing Guidelines- Post Chase(R) Apartments
Schedule 6.4(b)-3 Leasing Guidelines- Post Corners(R) Apartments
Schedule 6.4(b)-4 Leasing Guidelines- Post Court(R) Apartments
Schedule 6.4(b)-5 Leasing Guidelines- Post Lane(R) Apartments
Schedule 6.4(b)-6 Leasing Guidelines- Post Mill(R) Apartments
Schedule 6.4(b)-7 Leasing Guidelines- Post Lake(R) Apartments
63
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement
as of the Effective Date.
POST:
POST APARTMENT HOMES, L.P.,
a Georgia limited partnership
By: Post GP Holdings, Inc.,
a Georgia corporation
Its: Sole General Partner
By: ___________________________
Name: _________________________
Title: ________________________
Date of Execution: February __, 2004
[Signatures continued on the following page.]
THIS IS A SIGNATURE PAGE TO, AND MAY BE ATTACHED TO A MASTER COUNTERPART
OF, THE REDEMPTION AGREEMENT BETWEEN POST APARTMENT HOMES, L.P. AND JRC
ACQUISITION CORPORATION, WITH RESPECT TO POST CANYON(R) APARTMENTS, POST
CHASE(R) APARTMENTS, POST CORNERS(R) APARTMENTS, POST COURT(R) APARTMENTS,
POST LANE(R) APARTMENTS, AND POST MILL(R) APARTMENTS IN METROPOLITAN
ATLANTA, GEORGIA, AND POST LAKE(R) APARTMENTS IN METROPOLITAN ORLANDO,
FLORIDA.
FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK, AS ESCROW AGENT,
AND THE APARTMENT GROUP, LLC AND APARTMENT REALTY ADVISORS, INC., AS
BROKERS, ARE PARTIES TO SUCH REDEMPTION AGREEMENT FOR THE LIMITED PURPOSES
SET FORTH THEREIN.
S-1
JUPITER:
JRC ACQUISITION CORPORATION, a _______
corporation
By: __________________________________
Name: ________________________________
Title: _______________________________
Date of Execution: February __, 2004
[Signatures continued on the following page.]
THIS IS A SIGNATURE PAGE TO, AND MAY BE ATTACHED TO A MASTER COUNTERPART
OF, THE REDEMPTION AGREEMENT BETWEEN POST APARTMENT HOMES, L.P. AND JRC
ACQUISITION CORPORATION, WITH RESPECT TO POST CANYON(R) APARTMENTS, POST
CHASE(R) APARTMENTS, POST CORNERS(R) APARTMENTS, POST COURT(R) APARTMENTS,
POST LANE(R) APARTMENTS, AND POST MILL(R) APARTMENTS IN METROPOLITAN
ATLANTA, GEORGIA, AND POST LAKE(R) APARTMENTS IN METROPOLITAN ORLANDO,
FLORIDA.
FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK, AS ESCROW AGENT,
AND THE APARTMENT GROUP, LLC AND APARTMENT REALTY ADVISORS, INC., AS
BROKERS, ARE PARTIES TO SUCH REDEMPTION AGREEMENT FOR THE LIMITED PURPOSES
SET FORTH THEREIN.
S-2
Escrow Agent has executed and joined in this Agreement for the limited
purposes set forth herein.
ESCROW AGENT:
FIDELITY NATIONAL TITLE INSURANCE COMPANY OF
NEW YORK, a New York corporation
By: ________________________________
Name: ______________________________
Title: _____________________________
Date of Execution: February __, 2004
[Signatures continued on the following page.]
THIS IS A SIGNATURE PAGE TO, AND MAY BE ATTACHED TO A MASTER COUNTERPART
OF, THE REDEMPTION AGREEMENT BETWEEN POST APARTMENT HOMES, L.P. AND JRC
ACQUISITION CORPORATION, WITH RESPECT TO POST CANYON(R) APARTMENTS, POST
CHASE(R) APARTMENTS, POST CORNERS(R) APARTMENTS, POST COURT(R) APARTMENTS,
POST LANE(R) APARTMENTS, AND POST MILL(R) APARTMENTS IN METROPOLITAN
ATLANTA, GEORGIA, AND POST LAKE(R) APARTMENTS IN METROPOLITAN ORLANDO,
FLORIDA.
FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK, AS ESCROW AGENT,
AND THE APARTMENT GROUP, LLC AND APARTMENT REALTY ADVISORS, INC., AS
BROKERS, ARE PARTIES TO SUCH REDEMPTION AGREEMENT FOR THE LIMITED PURPOSES
SET FORTH THEREIN.
S-3
Bond Project Broker has executed and joined in this Agreement for the
limited purposes set forth herein.
BOND PROJECT BROKER:
THE APARTMENT GROUP, LLC,
a ________ limited liability company
By: ________________________________
Name: ______________________________
Title: _____________________________
Date of Execution: February __, 2004
[Signatures continued on the following page.]
THIS IS A SIGNATURE PAGE TO, AND MAY BE ATTACHED TO A MASTER COUNTERPART
OF, THE REDEMPTION AGREEMENT BETWEEN POST APARTMENT HOMES, L.P. AND JRC
ACQUISITION CORPORATION, WITH RESPECT TO POST CANYON(R) APARTMENTS, POST
CHASE(R) APARTMENTS, POST CORNERS(R) APARTMENTS, POST COURT(R) APARTMENTS,
POST LANE(R) APARTMENTS, AND POST MILL(R) APARTMENTS IN METROPOLITAN
ATLANTA, GEORGIA, AND POST LAKE(R) APARTMENTS IN METROPOLITAN ORLANDO,
FLORIDA.
FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK, AS ESCROW AGENT,
AND THE APARTMENT GROUP, LLC AND APARTMENT REALTY ADVISORS, INC., AS
BROKERS, ARE PARTIES TO SUCH REDEMPTION AGREEMENT FOR THE LIMITED PURPOSES
SET FORTH THEREIN.
S-4
Post Lane Broker has executed and joined in this Agreement for the limited
purposes set forth herein.
POST LANE BROKER:
APARTMENT REALTY ADVISORS, INC.,
a ________ corporation
By: ______________________________
Name: ____________________________
Title: ___________________________
Date of Execution: February __, 2004
THIS IS A SIGNATURE PAGE TO, AND MAY BE ATTACHED TO A MASTER COUNTERPART
OF, THE REDEMPTION AGREEMENT BETWEEN POST APARTMENT HOMES, L.P. AND JRC
ACQUISITION CORPORATION, WITH RESPECT TO POST CANYON(R) APARTMENTS, POST
CHASE(R) APARTMENTS, POST CORNERS(R) APARTMENTS, POST COURT(R) APARTMENTS,
POST LANE(R) APARTMENTS, AND POST MILL(R) APARTMENTS IN METROPOLITAN
ATLANTA, GEORGIA, AND POST LAKE(R) APARTMENTS IN METROPOLITAN ORLANDO,
FLORIDA.
FIDELITY NATIONAL TITLE INSURANCE COMPANY OF NEW YORK, AS ESCROW AGENT,
AND THE APARTMENT GROUP, LLC AND APARTMENT REALTY ADVISORS, INC., AS
BROKERS, ARE PARTIES TO SUCH REDEMPTION AGREEMENT FOR THE LIMITED PURPOSES
SET FORTH THEREIN.
S-5
