PURCHASE AND SALE AGREEMENT
(Cozumel Apartments)
This PURCHASE AND SALE AGREEMENT ("Agreement") is entered into
as of the ________ day of June, 1996.
1. Parties. The parties to this Agreement are as follows:
Xxxxxx Residential Properties, Inc., a Maryland corporation,
maintaining its principal office at One Lincoln Center, 0000 XXX
Xxxxxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000.
Cozumel Associates, Ltd. a Florida limited partnership,
maintaining offices at 0000 Xxxx Xxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000, Attention: Xxx XxXxxxx
2. Definitions. As used in this Agreement, the following
terms shall have the meanings hereinafter set forth in this
Paragraph:
(a) Agencies: All governmental agencies having jurisdiction
over the construction, zoning and operation of the Property.
(b) Applicable Environmental Laws: Any and all applicable
laws pertaining to health or the environment, including, without
limitation, the Superfund Reauthorization and Amendments Act of
1986 ("XXXX"), the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980 ("CERCLA"), and the
Resource Conservation and Recovery Act of 1976 ("RCRA"), as well as
any and all other laws, ordinances, rules and/or regulations
created or imposed by any governmental authority having
jurisdiction with respect to the Property, whether local, state or
federal, pertaining to environmental regulation, contamination,
clean-up or disclosure, as now existing and/or as hereafter
amended.
(c) Appurtenant Interests: All of the Seller's interest in
and to the appurtenances to the Land and in and to all streets,
alley and other public ways adjacent thereto.
(d) Closing: The consummation of the transfer of title to
the Property as contemplated hereunder and payment of the
consideration thereof in the manner provided at Paragraph 8 hereof.
(e) Current Rent Roll: The current schedule attached hereto
as Exhibit G, dated not more than thirty (30) days prior to the
Effective Date, setting forth, as of the date thereof, the Tenant
Leases.
(f) Xxxxxxx Money Deposit: An amount equal to $100,000.00 in
cash, to be delivered by Purchaser to the Escrow Agent within two
(2) business days following the Effective Date, together with all
earnings (if any) thereon.
(g) Effective Date: The date upon which this Agreement,
executed by both Purchaser and Seller, shall have been delivered to
Title Insurer together with the Xxxxxxx Money Deposit.
(h) Escrow Agent: The law firm of Xxxxxx & Xxxxx, LLP, 00
Xxxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000.
(i) Excluded Personal Property: The tangible personal
property listed at Exhibit F hereto.
(j) Feasibility Period: Purchaser shall have thirty (30) days
from the execution of this Agreement and the receipt by Purchaser
of (a) the most current survey of the Property in Seller's
possession, (b) a current title commitment on the Property issued
by the Title Company with respect to the Property and (c) a copy of
all documents of record affecting the Property or any portion
thereof as shown in the Commitment (the "Feasibility Period").
(k) Hazardous Materials: Any toxic materials, hazardous
waste or hazardous substance as these terms are defined in the
Applicable Environmental Laws.
(l) Improvements: All of the buildings, fixtures and
improvements located on the Land, together with all mechanical
systems, fixtures and equipment, electrical systems, fixtures and
equipment, plumbing fixtures, systems and equipment, heating
fixtures, systems and equipment and air conditioning fixtures,
systems and equipment installed in, belonging to or constructed as
components of the Improvements.
(m) Included Personal Property: All tangible personal
property listed at Exhibit E hereto, together with, for each
apartment unit comprising the Improvements, whether or not thus
listed, all existing (or replacements thereof as required under the
terms of this Agreement) carpeting, window coverings, ranges,
ovens, dishwashers, ceiling fan(s), bookshelves, range hoods,
refrigerators, heating units, air conditioning units, sinks and
garbage disposals, and washers and dryers, the same to be in the
same condition at Closing as existed at the expiration of the
Feasibility Period, normal wear and tear excepted or as otherwise
provided under the terms of this Agreement, and all other
furniture, fixtures, equipment, machinery, supplies and other
tangible personal property and all leases of tangible personal
property located on the Land and Improvements and belonging to
Seller and used in the normal operation and maintenance of the Land
and Improvements.
(n) Land: The land more particularly described at Exhibit A.
(o) Material Damage: Damage to the Property of a nature such
that the cost of restoring the Improvements located on Property to
its condition prior to the fire or other casualty, as mutually
agreed by Seller and Purchaser or as otherwise determined in
accordance with this Agreement, (but in full compliance with all
then applicable building, health, zoning, and similar laws,
ordinances, and regulations) will exceed an amount equal to two
percent (2%) of the Purchase Price, whether or not such damage is
covered by insurance.
(p) Owner Policy: An Owner Policy of Title Insurance issued
by the Title Insurer in the standard form promulgated by the
Florida Department of Insurance, as modified pursuant to Paragraph
6(d) hereof.
(q) Permitted Title Exceptions: The six items listed below
together with any other items to which Purchaser does not object
within the time period provided in Paragraph 6(c) hereof or which
Purchaser approves as otherwise provided in this Agreement.
1. Real estate taxes for the year 1996 and subsequent
years which are not yet due and payable.
2. Easement made by and between Xxxxxxxx Partnership
and Jacksonville Electric Authority dated March 25,
1986 and recorded June 10, 1986 in Official Records
Volume 6142, Page 1276, Public Records of Xxxxx
County, Florida.
3. Declaration of Easement made by Xxxxxxxx
Partnership, a Texas general partnership, dated
October 23, 1986 and recorded October 24, 1986 in
Official Records Volume 6216, Page 490,. and re-recorded
on October 28, 1986 in Official Records
Volume 6244, Page 435; as partially released by
Termination and Release of Irrigation Easement made
by Resolution Trust Corporation, as Receiver for
Sunbelt Federal Savings, F.S.B. and Secret Hills
Joint Venture, a Florida general partnership, dated
May 29, 1992 and recorded June 10, 1992 in Official
Records Volume 7350, Page 2059, all of the Public
Records of Xxxxx County, Florida.
4. Developer Agreement made by and between Lone Star
Partnership and Southern States Utilities, Inc.
recorded January 2, 1986 in Official Records Volume
6065, Page 682, Public Records of Xxxxx County,
Florida.
5. Existing unrecorded leases and all rights
thereunder of the lessees and of any person
claiming by, through or under the leases.
6. Survey prepared by Xxxxxxx Xxxxxxx & Associates,
Inc., dated March 10, 1987 and revised February 24,
1994 under Order No. 2-87-53 which reveals the
following:
a. Catch basin encroaching into adjacent property
along the eastern boundary of lands described
in Exhibit "A".
b. Concrete spillway encroaching into adjacent
property along the westerly boundary of lands
described in Exhibit "A".
(r) Plans and Specifications: The plans and specifications,
if any, with respect to the Property.
(s) Property: The parcel of real property to be purchased
and sold pursuant to this Agreement and comprised of the Land,
Improvements, Included Personal Property, Appurtenant Interests,
Tenant Leases and all other property described in Paragraph 4
hereof.
(t) Proration Date: 12:00 a.m., Central Daylight Time, on the
date preceding Closing or such other date as shall be specified in
Paragraph 9 hereof.
(u) Purchase Price: The total consideration to be paid by
Purchaser for the Property as set forth in Paragraph 5 hereof.
(v) Purchaser: Xxxxxx Residential Properties, Inc., a
Maryland corporation, together with any designee thereof described
in Paragraph 21 hereof.
(w) Rent Roll: Collectively, the Current Rent Roll and the
Revised Rent Roll, or either of them as of the context may
required.
(x) Revised Rent Roll: A revision of the Current Rent Roll
dated not earlier than five (5) days prior to Closing.
(y) Seller: Cozumel Associates, Ltd., a Florida limited
partnership.
(z) Service Contracts: All service or maintenance contracts
relating to the Property as described at Exhibit K hereto.
(aa) Street Rents: The rents for space in the Property being
offered to the public as of the date of this Agreement.
(bb) Survey: With respect to the Property, an on-the-ground
survey of the Land and Improvements prepared by a qualified,
registered public surveyor selected by Purchaser, satisfactory to
the Title Insurer (i) containing a field note description of the
Land which (A) establishes a beginning point by reference to a
permanent monument, (B) states the distances, bearing and angles of
all sides or boundaries of the Land, (C) if appropriate, states the
length of arc, central angle and radius of circle for arc, central
angle and radius of circle for arc and chord distance and bearing
of all curving sides or boundaries of the Land, (D) establishes a
single perimeter description, and (E) references all abutting or
encroaching streets, roadways and fence lines, including a
statement of width, (ii) noting, by plat, the size and location of
all Improvements and other physical conditions affecting the
Property, (iii) noting, by plat, the size and location of all
abutting or encroaching streets, roadways and fence lines, (iv)
noting, by plat, the size and location of all encroachments or
protrusions, (v) noting, by plat, the size, location and recording
data of all easements, ditches, rights-of-way, setback lines, curb
cuts and similar matters, (vi) locating any portion of the Land or
Improvements determined to be flood prone or within the 100-year
flood plain under the Flood Disaster Protection Act of 1973 or
otherwise determined to be flood prone or within the flood plain by
the Federal Emergency Management Agency, the United States Army
Corps of Engineers, a xxxx xx xxxxxxxxxx xx xxx Xxxxxx Xxxxxx, the
engineer preparing the Survey, or any other state or federal
agency, (vii) certifying the number of acres of land in the Land,
both as to total acreage and as to net acreage, (viii) certified by
the surveyor as conforming to the current Florida Surveyor's
Association Standards and Specifications for a Category 1A
Condition II, (ix) being dated or recertified as of a date not
earlier than the Effective Date, and (x) containing a certificate
substantially in the form attached hereto as Exhibit C.
(cc) Tenant Leases: The lease agreements relating to the
Land and Improvements and existing at Closing.
(dd) Title Commitment: A Commitment for Title Insurance
issued by the Title Insurer in the standard form promulgated by the
Florida Department of Insurance.
(ee) Title Insurer: Chicago Title Insurance Company, acting
through its agent, Xxxxxx & Xxxxx, L.L.P., 00 Xxxxx Xxxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxxxx 00000, or other title insurance
company acceptable to Purchaser in its sole discretion.
3. Agreement of Purchase and Sale. For good and valuable
consideration paid to Seller by Purchaser on the Effective Date,
the receipt and sufficiency of which hereby is acknowledged and
which sum is non-refundable to Purchaser and in no event shall be
applied against the Purchase Price and for the Purchase Price set
forth at Xxxxxxxxx 0, Xxxxxxxxx hereby agrees to purchase, and
Seller hereby agrees to sell, the Property.
4. Property to be Sold. The Property to be purchased
hereunder by Purchaser shall be comprised of (i) the Land, (ii) the
Improvements, (iii) all Included Personal Property, but not the
Excluded Personal Property, (iv) the Appurtenant Interests, (v) the
Tenant Leases, and (vi) all of Seller's right, title and interest,
if any, in and to (A) warranties covering the Included Personal
Property and the Improvements, (B) the trademarks or tradenames
used by Seller in connection with the Property, including, but not
limited to, "Cozumel Apartments", (C) the Service Contracts (and
any deposits thereunder) (to the extent assignable and not
terminated as provided elsewhere in this Agreement), (D) all
licenses, permits, approvals and other intangible property rights
relating to the Property and (E) all utility, security and other
deposits.
5. Purchase Price. Subject to any adjustments provided
elsewhere in this Agreement, the Purchase Price shall be SEVEN
MILLION ONE HUNDRED THOUSAND AND NO/100 DOLLARS ($7,100,000.00)
payable as follows:
(a) Xxxxxxx Money Deposit. $100,000.00, payable by delivery
of the Xxxxxxx Money Deposit to the Escrow Agent in accordance with
this Agreement; and
(b) Cash at Closing. $7,000,000.00, payable in cash or other
immediately available funds at Closing.
6. Evidence of Title.
(a) Title Commitment. Within ten (10) days from and after the
Effective Date, Seller, at Seller's sole expense, shall order and
deliver, or cause to be delivered, to Purchaser or Purchaser's
attorney, a current Title Commitment from the Title Insurer
covering the Property, in the amount of the Purchase Price covering
the Land and Improvements located on the Property. The Title
Commitment shall be issued as of or subsequent to the Effective
Date and shall include good, legible copies of all documents
constituting exceptions to the Seller's title as reflected in the
Title Commitment. The Title Commitment shall reflect good and
indefeasible fee simple title vested in the Seller.
(b) Survey. Purchaser, at Purchaser's sole expense, shall
order a Survey of the Land and Improvements. The Survey shall be
sufficient to permit the Title Insurer to modify the standard
printed exception in the Owner Policy pertaining to discrepancies,
conflicts, shortages in area or boundary lines, encroachments,
overlapping of improvements or similar matters, as provided below,
and shall otherwise comply with the terms hereof. Purchaser shall
furnish a copy of the Survey to Seller and Seller's counsel.
(c) Review. Purchaser shall have through and including the
expiration of the Feasibility Period in which to review the Title
Commitment, Survey and exception documents and to deliver to Seller
in writing such objections as Purchaser may have to anything
contained or set forth therein. Any items to which Purchaser does
not object to prior to the expiration of the Feasibility Period
shall be Permitted Title Exceptions. Seller may, at its sole
discretion, elect to attempt to cure any of Purchaser's title and
survey objections. If Seller so elects, Seller shall so notify
Purchaser in writing and shall have a period of fifteen (15) days
from and after receipt of Purchaser's written objections within
which to attempt to cure same. In the event that Seller fails or
refuses to cure such objections within such fifteen (15) day
period, Purchaser shall have the right to terminate this Agreement
and receive an immediate return of the Xxxxxxx Money Deposit or
proceed to Closing subject to such objections which shall be deemed
waived and shall become Permitted Title Exceptions.
(d) Owner Policy. At Closing, the special warranty deed to
the Land and Improvements referred to in Subparagraph 8(b)(i)
hereof shall be recorded, and Seller shall furnish or cause to be
furnished to Purchaser, at Seller's sole expense, the Owner Policy
covering the Property, together with such endorsements as Purchaser
may reasonably require, to the extent authorized by Florida law,
insuring good and marketable fee simple title to be vested in
Purchaser and insuring Purchaser's title to the Property in an
amount equal to the Purchase Price for the Property, subject only
to the Permitted Title Exceptions and the standard printed
exceptions, except that:
(i) the exception relating to restrictions against the
Property shall be endorsed by the Title Insurer to read "None
of record" except for such restrictions as may be included in
the Permitted Title Exceptions;
(ii) the exception relating to discrepancies, conflicts,
shortages in area, boundaries, encroachments, or overlaps
shall be modified, at Seller's sole cost and expense, by
deleting such exception and referencing only specific survey
exceptions; and
(iii) the exception relating to ad valorem taxes
shall except only to taxes owing for the current year of
Closing and subsequent years and subsequent assessments for
prior years due to change in land usage or ownership, not yet
due and payable.
(e) Remedies of Purchaser. If Seller is unable to furnish
Purchaser the Title Commitment pursuant to Subparagraph 6(a) or the
Owner Policy in the manner provided at Subparagraph 6(d), then, at
Purchaser's sole discretion, Purchaser may terminate this Agreement
and receive an immediate return of the Xxxxxxx Money Deposit, and
the parties shall have no further obligation to each other, except
as is expressly provided herein.
(f) Uniform Commercial Code Search. Seller also shall
deliver at Closing, at Seller's cost and expense, Uniform Commercial
Code financing statement searches covering Seller and any general
partner of Seller for the state constituting the situs of the
Property and the county in which the Property is located showing
that all of the Included Personal Property is free and clear of all
liens and encumbrances other than the Permitted Title Exceptions
and also shall deliver copies of receipts showing payment of all
taxes levied and payable on the Property.
7. Covenants, Representations and Warranties of Seller.
Seller and Purchaser agree that, except as expressly provided
herein, the Property is being conveyed to Purchaser in an "AS IS"
condition, without representation or warranty by Seller.
Notwithstanding the foregoing, as an inducement to Purchaser to
enter into and perform this Agreement, Seller represents and
warrants to, and covenants with, Purchaser, as of the date of this
Agreement and thereafter in accordance with Paragraph 7(v), as
follows:
(a) Legal and Beneficial Title. Seller is the sole entity
holding good and indefeasible fee simple title to the Property,
free and clear of all liens and encumbrances except as set forth in
the Title Commitment.
(b) Due Authorization and Execution and Validity, Binding
Effect and Enforceability. This Agreement has been duly authorized
and executed by Seller and is a valid and binding obligation of,
and is enforceable, in accordance with its terms, against Seller.
The documents delivered to Purchaser at Closing will be duly
authorized and executed by Seller and will be a valid and binding
obligation of, and will be enforceable in accordance with their
terms against, Seller.
(c) Rent Roll. Attached hereto as Exhibit G is the Current
Rent Roll. Not earlier than five (5) days prior to Closing, Seller
shall deliver a Revised Rent Roll to Purchaser, certified by Seller
in writing as true and correct. The Revised Rent Roll shall set
forth the following:
(i) the name of each tenant;
(ii) the lease commencement and expiration dates; the
nature of any renewal options;
(iii) the amount of any security deposits;
(iv) a list of vacant apartment units;
(v) the size and type of each vacant unit; and
(vi) the amount and description of any concessions and
any rights of first refusal.
(d) Representations as to Rent Roll. To Seller's knowledge
and except as expressly set forth in the Rent Roll:
(i) All of the information contained on the Rent Roll is
true, correct and complete as of its date, in all material
respects.
(ii) No rent under any Tenant Lease has been, or prior to
Closing will be, prepaid for a period in excess of thirty (30)
days.
(iv) No tenant has any right of first refusal or option
with respect to the leasing of any portion of the Property.
(v) No one, including any tenant, has any option or
right of first refusal to purchase the Property or any part
thereof.
(vi) There are no oral agreements with anyone, including
tenants, with respect to the Property or any portion thereof,
except as set forth in a Rent Roll or at Exhibit K.
(vii) All of the present Tenant Leases for rental
space in the Improvements are in writing, on a standard form
(which form is attached hereto as Exhibit N) and are (A) in
full force and effect, (B) valid and binding agreements of,
and fully enforceable in accordance with their terms against,
the tenants, and (C) duly executed by all parties.
(viii) The Tenant Leases will not be amended in any
way after the date hereof, other than in the ordinary course
of business, without the prior, written consent of Purchaser,
which consent shall not be unreasonably withheld. Purchaser,
unless it otherwise shall advise Seller in writing within five
(5) days following Seller's request for such consent, shall be
deemed to have consented to any such amendment.
(ix) There are no uncured defaults on the part of any
party to any of the Tenant Leases, and Seller is in material
compliance with all of lessor's obligations thereunder.
(x) None of the rentals due or to become due under the
Tenant Leases will be assigned, encumbered, or subject to any
liens at the Closing other than the Permitted Title
Exceptions.
(xi) Except as set forth at Exhibit G, at the time of
Closing, all tenants will be paying charges for electricity
consumed in their space, including heating and air
conditioning, on an individually metered basis.
(e) Street Rents. The Street Rents are as set out on Exhibit
"H" attached hereto:
(f) Operating Statements. Attached at Exhibit I is the most
recent monthly statement of income and expense in connection with
the operation and maintenance of the Property. Such statements are
unaudited and were prepared on an accrual basis of accounting by an
accountant employed by Seller. There have been no material adverse
changes in the gross income from the Property from that set forth
in the most recent operating statement at Exhibit I to the
Effective Date. Seller agrees to make available to Purchaser or its
representatives, at Seller's office (or to provide Purchaser with
photocopies thereof upon request), all existing supporting
documentation for such statements in Seller's possession or control.
(g) Financial Statements. Seller has previously provided to
Purchaser such information as is available and required by
Purchaser's accountants to perform (at Purchaser's expense) a
complete audit of the Property for the twelve (12) month year ended
December 31, 1995, as well as information from January 1, 1996 to
the current date. Additionally, at least thirty (30) days prior to
Closing, Seller shall provide Purchaser with the then existing most
current audited financial statements of the Property.
(h) Compliance with Applicable Regulations.
(i) To Seller's knowledge, there exist no commitments or
agreements between Seller and any of the Agencies affecting
the Property which have not been fully disclosed to Purchaser
in writing.
(ii) To Seller's knowledge, Seller has received no
notices and is unaware of any facts or conditions which, with
notice or lapse of time, would constitute uncured violations
at the Property of zoning, building, fire, rent control,
tenant security or other deposits or any other applicable
statute, ordinance or regulation, relating to the Property,
its construction or any occupancy thereof, nor, to Seller's
knowledge, are there presently pending or threatened against
Seller or against the Property any judgments relating to any
of the above matters, any judicial proceedings or
administrative actions or any state of facts which, to
Seller's knowledge, with notice or lapse of time, could
reasonably be expected to give rise to any such proceedings or
actions.
(iii) To Seller's knowledge, the Property and Seller
are not currently subject to (A) any existing, pending or
threatened investigation or inquiry by any governmental
authority or (B) any remedial obligations, under any
Applicable Environmental Laws; and Seller has not obtained and
is not required to obtain, and Seller has no knowledge of any
reason Purchaser will be required to obtain, any permits,
licenses, or similar authorizations to occupy, renovate,
operate or use any portion of the Property by reason of any
Applicable Environmental Laws.
(iv) To Seller's knowledge, no Hazardous Materials are
located on the Property. To Seller's knowledge, the Property
does not contain any underground tanks for the storage or
disposal of Hazardous Materials. Further, to Seller's
knowledge, (A) the Property during Seller's ownership has not
been used for the storage, manufacture or disposal of
Hazardous Materials, and (B) no written complaint, order,
citation or notice with regard to air emissions, water
discharges, noise emissions and Hazardous Materials, if any,
or any other Applicable Environmental Laws from any person,
government or entity has been issued to and received by
Seller.
(v) If, prior to Closing, (A) Seller has received any
written notices from any of the Agencies, or (B) any legal
action has been instituted and served upon Seller relating to
violations at the Property of zoning, building, fire, rental
controls or Applicable Environmental Laws or (C) any written
notice or advice from any current insurer of the Property or
any part thereof, requesting any improvements alterations,
additions, corrections or other work in, on or about the
Improvements, whether related to the Property or to the
activities of any occupant thereof is received by Seller, the
parties shall agree in writing on an amount to be delivered to
the Title Insurer or such other party agreed upon by Seller
and Purchaser in escrow for the cost of curing or eliminating
any such items and the amount as so determined shall be
withheld from the proceeds of sale and shall be paid over to
Seller upon completion by Seller of such items. If the
parties shall fail to agree on the cost of curing or
eliminating said items prior to Closing, either party shall
have the right to terminate this Agreement by giving written
notice thereof to the other not later than the date of Closing
and, in such event, Purchaser shall have the right to the
return of the Xxxxxxx Money Deposit, and neither party shall
have any future obligations to the other, except for
Purchaser's surviving indemnity relating to inspections. The
foregoing provision to the contrary notwithstanding, if the
notice is received or the action served within fifteen (15)
days of the Closing, Seller may elect, in its sole and
absolute discretion, to extend the Closing for a period not to
exceed thirty (30) days in order to attempt to cure or
eliminate any such matter.
(i) Liens on Property. To Seller's knowledge, no action has
been taken with respect to work performed or delivery of material
which would give rise to a lien on the Property for which adequate
provision for payment has not been made. To Seller's knowledge, at
Closing, there will be no claim in favor of any person or entity
which is or could become a lien on the Land, the Improvements, or
the Included Personal Property, arising out of the furnishing of
labor or materials to the Property for which adequate provision for
payment has not been made; there will be no unpaid assessments
against the Property, except for property taxes assessed but not
due and payable at the time of Closing; and there will be no claim
in favor of any person or entity (including the present management)
for any unpaid commissions or fees for leasing of the Property. In
the event of any such claims at Closing, Seller, at its option and
in lieu of the foregoing, either may (i) establish with the Title
Insurer an escrow of funds in an amount and upon conditions
reasonably acceptable to Seller and Purchaser, or (ii) provide a
bond in favor of Purchaser or the Title Insurer in such amount,
upon such conditions and for such purposes as may be satisfactory
to Purchaser, Seller and the Title Insurer in either case for the
purpose of providing for such claims and/or inducing the Title
Insurer to insure Purchaser's title to the Property free and clear
of such claims.
(j) Insurance. To Seller's knowledge, the insurance policies
listed and described at Exhibit J are presently in force, and all
such policies or their equivalent will be maintained in force until
Closing. Seller will not renew, amend, or reduce the coverage
under, or cancel, any existing policy or procure any new policy
without Purchaser's prior, written consent, which shall not be
unreasonably withheld or delayed. Purchaser, at Closing, shall
obtain its own insurance coverage. Seller has received no written
notices from any insurer of the Property or any part thereof
requesting any improvements, alterations, additions, correction or
other work in, on or about the Improvements, whether related to the
Property or to the operation of any occupant thereof, which have
not been cured or satisfied.
(k) Pending or Threatened Litigation. To Seller's knowledge,
there are no lawsuits or legal proceedings threatened, instituted,
or served upon Seller regarding ownership, construction, use or
possession of the Property or any portion thereof. Notwithstanding
the foregoing, Purchaser hereby acknowledges and agrees that Seller
has disclosed the litigation regarding corrosive pipes and existing
damage to the Property related thereto styled X. Xxxxxx XxXxxxxx &
Cambridge Cozumel, Inc., General Partners for Cozumel Associates,
Ltd., a Florida limited partnership, v. Southern States Utiltities
Co., Case No. CI 93-5014, Orange County, Florida ("Pipes
Litigation"). Purchaser and Seller hereby agree that Seller shall
retain and shall not assign its rights pursuant to, in connection
with or related to the Pipes Litigation and shall retain all
proceeds of any judgment relating thereto. Seller further shall
pay the costs of pursuit of the Pipes Litigation (including
attorneys' fees and expenses). There shall be no adjustment to the
Purchase Price relating to the Pipes Litigation.
(l) Inspection of Plans and Specifications, Reports and Books
and Records. The Plans and Specifications, all reports (including
but not limited to soil tests and construction inspection reports),
the books and records and all Tenant Leases and other documents
related thereto regarding the construction, management and
operation of the Property in Seller's possession or control that are
not otherwise provided to Purchaser hereunder shall be open to
inspection by Purchaser or Purchaser's agents during regular
business hours from and after the Effective Date, and Seller shall
reasonably cooperate with Purchaser or its agents with respect to
the inspection of the Plans and Specifications, all reports, the
books and records, the Tenant Leases, the Property or the
construction, management and operation thereof. Such cooperation
shall not be deemed to include incurring any cost or expense.
(m) Maintenance of Property Until Closing. Until Closing,
the Property will be managed, operated and maintained, in the
ordinary course of business and materially the same manner in which
the Property is currently being managed, operated and maintained,
and Seller will not remove any fixtures, furnishings, equipment or
personalty subject to this Agreement, except for repair or
replacement.
(n) Service Contracts.
(i) All Service Contracts are listed in Exhibit K.
Seller will not enter into any other service, operating or
management contracts relative to the Property that cannot be
canceled on thirty (30) days' notice and at no cost or
expense, nor will Seller make, or agree to, prior to Closing,
any material change or modification to the contracts set forth
in Exhibit K without the prior, written consent of Purchaser
which shall not be unreasonably withheld. The agreement
concerning the management of the Property currently in effect
set forth at Exhibit K shall be terminated effective on the
date of Closing. After the expiration of the Feasibility
Period, provided Purchaser has not terminated this Agreement,
Seller shall, upon written notice from Purchaser, send
termination notices with respect to such cancelable Service
Contracts specified by Purchaser.
(ii) Seller has no employees in connection with the
Property. Any persons who work at the Property (other than
pursuant to Service Contracts) are employees of the Seller's
property manager pursuant to a property management agreement
which shall be terminated at Closing. Seller agrees that
benefits or compensation accrued prior to Closing, and due or
claimed to be due either before or after Closing, to employees
or former employees of the property manager shall constitute
obligations of the property manager only, and Seller agrees to
indemnify and hold Purchaser harmless from all such
obligations and claims.
(o) Restrictions on Additional Indebtedness. Seller will not
borrow any money or do, or fail to do, any other act or thing which
would cause the Land, the Improvements or any Included Personal
Property to become pledged or otherwise utilized as collateral or
in any way stand as security for any indebtedness or obligation,
other than as presently existing or in the ordinary course of
business.
(p) Closing Not Constituting Breach. The consummation of the
transaction contemplated herein will not result in the breach of
any provision in any lease or other agreement affecting the
Property.
(q) Access to Property. Seller has received no written
notices of the existence of any fact or condition which would
result in the termination or restriction of the current access from
the Property to any presently existing highways and roadways
adjoining the Property or to any sewer or other utility serving the
Property.
(r) Improvements and Amenities.
(i) Description of Improvements and Amenities. A
description of the improvements and amenities of each Property
is more particularly set forth at Schedule V attached hereto
and incorporated herein by reference for all purposes, which
is materially correct.
(ii) Utilities. Utility systems for the transmission of
gas, telephone, electricity, storm and sanitary services, and
water are available at the property lines of the Property.
(s) Seller's Non-foreign Status. Seller is not a "foreign
person" within the meaning of Sections 1445 and 7701 of the
Internal Revenue Code of 1954, as amended; that is, Seller is not
a non-resident alien, foreign corporation, foreign partnership,
foreign trust, or foreign estate (as those terms are defined in the
Internal Revenue Code of 1986, as now existing or hereafter
amended).
(t) Taxes and Assessments. All ad valorem taxes and personal
property taxes which are due and payable, together with all special
assessments for improvements to the Property have been paid in
full.
(u) Exhibits. To Seller's knowledge, all exhibits attached
hereto are true and correct in all material respects.
(v) Seller's Affidavit at Closing. The representations,
warranties and covenants of the Seller contained in this Agreement
or in any document delivered to Purchaser pursuant to the terms of
this Agreement (whether in this Paragraph 7 or elsewhere) (i) shall
be true and correct in all material respects and not in default at
the time of Closing, just as though they were made at such time,
and Seller shall deliver to Purchaser, at Closing, an Affidavit to
that effect, and (ii) in the event of a breach of such
representations, warranties or covenants prior to or at Closing,
Purchaser shall have the right to make a claim hereunder against
Seller for a period of one (1) year following the Closing.
7A. Covenants, Representations and Warranties of Purchaser.
As an inducement to Seller to enter into and perform this
Agreement, Purchaser makes the following covenants, representations
and warranties which covenants, representations and warranties
shall be true and correct in all material respects on the date
hereof and on the Closing Date, and shall be a condition precedent
to Seller's obligation to close the transaction contemplated
herein:
(a) Organization and Authority. Purchaser is a corporation
duly organized, validly existing and in good standing under the
laws of Maryland, and has all requisite power, authority and
capacity to execute and enter into this Agreement; and the
transactions contemplated herein by Purchaser have been duly
authorized and approved by all requisite corporate actions, and
this Agreement has been duly executed and delivered on behalf of
Purchaser by its duly authorized officers and constitutes the
legal, valid and binding obligations of Purchaser. Purchaser has
no knowledge of any item or provision of this Agreement which is
unenforceable.
(b) No Conflict; Required Filings and Consents.
(i) The execution and delivery of this Agreement by
Purchaser does not and the transactions contemplated by this
Agreement will not (A) conflict with, or result in any
violation or breach of any provision of Purchaser's Charter or
Bylaws, (B) result in any violation or breach of, or
constitute (with or without notice or lapse of time, or both)
a default (or give rise to a right of termination,
cancellation or acceleration of any obligation or loss of any
benefit) under any note, bond, mortgage, indenture, lease,
contract or other agreement, instrument or obligation to which
Purchaser is a party or by which Purchaser or any of its
properties or assets are bound, or (C) conflict or violate any
permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable
to Purchaser or any of its properties or assets, except in the
case of (B) and (C) for any such violations, breaches,
defaults, terminations, cancellations, accelerations or
conflicts which would not, in the aggregate, have or result in
a material adverse effect on Purchaser or impair the ability
of Purchaser to consummate the transactions contemplated by
this Agreement.
(ii) No consent, approval, order or authorization of, or
registration, declaration or filing with, any governmental
entity, is required with respect to Purchaser in connection
with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby.
8. Closing and Conditions to Closing.
(a) The Closing Generally. The Closing shall occur at 10:00
a.m. on or before, but no later than, the fifteenth (15th) day
following the expiration of the Feasibility Period and the
satisfaction of the conditions set forth in subparagraph 8(c). The
Closing will be held at the offices of the Title Insurer, or at
such other time and place as to which the parties hereafter may
agree upon in writing. At Closing, the Purchase Price shall be
delivered to Seller in the manner provided at Paragraph 5, together
with the documents to be delivered by Purchaser to Seller
hereunder, and possession of, and title to, the Property shall be
delivered and conveyed to Purchaser by Seller in the manner
provided herein, together with all other documents to be delivered
by Seller to Purchaser hereunder.
(b) Documents Delivered By Seller at Closing. With respect
to the Property, at the Closing, Seller, at its sole cost and
expense, shall deliver, or shall cause to be delivered, to
Purchaser the documents described below:
(i) Special Warranty Deed. A special warranty deed,
duly executed and acknowledged, conveying to Purchaser good
and indefeasible fee simple title to the Land and Improvements
free and clear of all liens and encumbrances, except the
Permitted Title Exceptions, in the form attached at Exhibit M.
(ii) Xxxx of Sale and Assignment. A xxxx of sale, duly
executed and acknowledged, with special warranties of title,
subject only to the Permitted Title Exceptions, conveying to
Purchaser (A) the Included Personal Property, (B) Seller's
interest in and to all assignable Service Contracts which were
not terminated as herein provided, together with copies of the
originals of each of said contracts, if in Seller's
possession, (C) all existing warranties, if any, on the
Improvements and/or the Included Personal Property, including,
but not limited to, roofs, foundations, plumbing, heating, air
conditioning, and electrical, if any, (D) Seller's right,
title and interest, if any, in and to the trademarks or
tradenames used by Seller in connection with the Property
including, but not limited to, "Cozumel Apartments" and (E)
Seller's right, title and interest, if any, in any and all
licenses, permits, approvals and other intangible property or
rights relating to the Property, together with appropriate
endorsements or such other instruments as may be necessary to
transfer title to Seller's interest in the Improvements and
Included Personal Property in the form attached at Exhibit M.
Any and all sales tax due with respect to the Included
Personal Property arising solely as a result of the sale of
the Included Personal Property to Purchaser shall be paid by
Purchaser.
(iii) Assignment of Tenant Leases. A transfer and
assignment of the Tenant Leases (the "Assignment of Tenant
Leases"), together with all rents, other income and deposits
paid or payable thereunder, subject to the Permitted Title
Exceptions in the form attached as Exhibit M, together with
delivery of all Tenant Leases and information pertinent
thereto.
(iv) Affidavit of Seller. An affidavit of Seller in the
form attached as Exhibit M, pursuant to Subparagraph 7(v) to
the effect that the representations and warranties of Seller
pursuant to Paragraph 7 continue to be true and correct in all
material respects and that all of Seller's covenants (not
otherwise waived by Purchaser) have been performed as of the
date of Closing.
(v) Owner Policy. Seller, at its sole cost and expense,
also shall deliver or cause to be delivered, as soon as
possible following the Closing, the Owner Policy.
(c) Conditions Precedent to Purchaser's Obligations.
Purchaser shall not be obligated to consummate the transfer of
title to the Property hereunder unless and until:
(i) Closing Documents. Seller has delivered (A) to the
Title Insurer, an executed Closing Statement (in form and
substance reasonably acceptable to Seller and Purchaser), the
closing documents attached at Exhibit M and any other
documents reasonably required by the Title Insurer in order to
insure Purchaser's good and indefeasible fee simple title to
the Property free and clear of all liens and encumbrances,
except the Permitted Title Exceptions, and (B) to Purchaser
all other instruments and documents required by the terms of
this Agreement.
(ii) No Uncured Breach. There has been no uncured breach
by Seller of any of the agreements, representations,
warranties or covenants contained herein, except as may
otherwise expressly provided in this Agreement.
(iii) Title Vested in Seller. Good and indefeasible
title to the Property has been shown to be vested in Seller
subject only to the Permitted Exceptions.
(iv) Delivery of Reports and Books and Records. Pursuant
to the terms of Schedule I attached hereto, Seller shall have
delivered to Purchaser all reports and books and records
concerning the management and operation of the Property
through the date of Closing required to be delivered pursuant
to this Agreement.
(v) Waiver by Purchaser. Purchaser, at any time at or
prior to Closing, may waive any one or more of the preceding
requirements by written notice to Seller to that effect.
(d) Closing Costs. The costs for obtaining and delivering to
Purchaser the Title Commitment and all other documents required
herein to be provided to Purchaser by Seller, the premiums for the
Owner Policy in accordance with paragraph 6(d), all applicable
documentary stamp taxes incurred as a result of recording the
special warranty deed described in Subparagraph 8(b)(i) hereof,
except as otherwise provided herein, the recording costs for the
special warranty deed described in Subparagraph 8(b)(i) hereof and
the recording costs for any other of the Closing documents
necessary to convey good and indefeasible fee simple title to the
Property to Purchaser in accordance with this Agreement, except as
otherwise provided herein, any and all prepayment penalties or
premiums with respect to existing debts secured by the Property
which will not constitute Permitted Exceptions and the commission
due to Broker described in subparagraph 12(a) herein and the costs
of obtaining any estoppel letters shall be borne by Seller. The
escrow fees, if any, charged by the Title Company shall be borne
equally by Purchaser and Seller. Purchaser and Seller each shall
pay their respective attorneys' fees and expenses. The costs for
obtaining the Survey shall be borne by Purchaser. All other costs
and expenses in connection with the transaction contemplated by
this Agreement, unless otherwise expressly set forth herein to the
contrary, shall be borne by Seller and Purchaser in the manner in
which such costs and expenses customarily are allocated between the
parties at closings of real property similar to the situs of the
Property, respectively.
8A. Deliveries by Purchaser at Closing. With respect to the
Property, at the Closing, Purchaser, at its sole cost and expense,
shall deliver, or shall cause to be delivered, to Seller, the items
described below:
(a) The cash portion of the Purchase Price in accordance with
Paragraph 5 hereof;
(b) A Closing Statement in form and substance reasonably
acceptable to Seller and Purchaser;
(c) The Assignment of Tenant Leases;
(d) Such documents as may be reasonably required by the Title
Insurer to be executed and delivered by Purchaser, including
without limitation, a Mechanic's Lien Affidavit and Indemnity, Tax
Agreement and Utility Agreement;
(e) Such documents as may be reasonably required by Seller
pursuant to which Purchaser acknowledges receipt of such documents,
items and property as may be delivered to and received by Purchaser
at the Property, including books and records, contracts, plans and
specifications, licenses and permits, keys, and the like; and
(f) Other documents and instruments which Seller may
reasonably request or to which Seller may be reasonably entitled
under any of the other provisions of this Agreement.
9. Prorations and Adjustments.
(a) Items Prorated. All prorations and adjustments shall be
made and determined as of the Proration Date as follows:
(i) Rents. Collected rents shall be prorated. Seller
shall not receive any proration credit for rents accrued and
delinquent for months prior to the Proration Date, and all
rentals received after such date shall be applied, first, to
current and, then, delinquent obligations, the latter of which
shall be paid to Seller; provided, however, nothing herein
shall operate to require Purchaser to institute a lawsuit to
recover such amounts. Seller shall not be charged for
uncollected rent for the month within which the Proration Date
shall occur, it being the intent of the parties to prorate
only the rents that have been collected at such date. Any
delinquent rents for periods prior to the Proration Date and
a prorated portion of rents for the month uncollected as of
the Proration Date which are collected by Purchaser and which
are not necessary to bring a tenant current as described above
shall be forwarded to Seller.
(ii) Prepaid Rents and Security and Other Deposits.
Prepaid rents and security and other tenant deposits
(including but not limited to pet deposits and key deposits),
if any, under assigned leases shall be paid to Purchaser by
Seller (or credited against the Purchase Price) at Closing.
Purchaser shall assume full liability therefor and shall
indemnify and hold Seller harmless with respect to all such
deposits.
(iii) Service Contracts. Prepaid or unpaid amounts
under those Service Contracts listed in Exhibit K, which shall
be assigned to and assumed by Purchaser at Closing shall be
prorated. Notwithstanding the foregoing, Purchaser shall
receive no credit or proration for initial payments and
incentive compensation paid on long-term contracts including
but not limited to laundry contracts and leases.
(iv) Property Taxes. Taxes assessed upon the Property
for calendar year 1996 shall be prorated based on the
assumption that the actual taxes for the entire calendar year
1996 will be the same as calendar year 1995, which amount
Seller and Purchaser agree is a reasonable estimate of 1996
taxes. Taxes prorated at Closing shall be re-prorated between
the parties promptly upon the receipt of the 1996 real estate
tax xxxx and proper adjustments promptly paid.
(v) Utilities. Utility charges shall not be prorated
but, rather, instructions shall be given to the utility
companies by Seller (with a duplicate copy of such instruction
being provided concurrently to Purchaser) to read the meters
on the date of Closing and to issue separate statements
thereafter. If applicable, utility deposits will be credited
to Seller and assigned to Purchaser at Closing. In the event
that any provider of utilities shall refuse to issue separate
statements in the manner aforesaid, applicable utility charges
shall be adjusted to the effect that Seller shall pay utility
charges to the Proration Date and Purchaser shall pay utility
charges thereafter.
(vi) Other Adjustments. Such other items as are adjusted
pursuant to custom in the state constituting the situs of the
Property and on similar real estate transactions.
(vii) Delivery by Seller of Documents and Supplies.
Seller, at Closing, shall assign and deliver to Purchaser all
original leases, deposits, supplies, contracts, and other
items as to which proration is to be made. Seller also shall
deliver to Purchaser all Plans and Specifications, if any,
relating to the Property and all such other documents, books,
records, and keys in Seller's possession which relate to the
operation, maintenance or management of the Property. Seller
also shall deliver to Purchaser its current supply, if any, of
printed leasing brochures, floor plans and other advertising
literature with respect to the Property.
10. Material Damage.
(a) Procedure. If, prior to Closing, a Property shall be
destroyed or sustain Material Damage as a result of fire or other
casualty, then, at Purchaser's option exercised in the manner
provided hereunder, the following shall occur with respect to the
Property:
(i) This Agreement shall become null and void and the
Xxxxxxx Money Deposit shall be returned to Purchaser, provided
that Purchaser gives notice of such election at or prior to
Closing, but in any event within ten (10) days following
receipt by Purchaser of notice of the occurrence of any such
event; or
(ii) If all other conditions precedent to Purchaser's
obligation to close have been satisfied, the purchase and sale
transaction shall close with a reduction in the cash portion
of the purchase price equal to the amount of the applicable
insurance deductible, and concurrently with such closing,
Seller and any other named insured shall assign to Purchaser,
in form reasonably satisfactory to Purchaser, all claims
arising under any policy of insurance covering such casualty,
and Seller shall have no further liability to Purchaser with
respect to such damage.
(iii) If the parties shall fail to agree on the
amount of the cost of such restoration, such cost of
restoration shall be determined by the following process:
Seller and Purchaser together shall select three (3) reputable
independent third party contractors to submit estimates for
the cost of repair of the damage and shall accept the average
of all of the estimates as the amount of the damage for
purposes of this paragraph.
(b) Damage Other Than Material Damage. In the event of any
damage to a Property other than Material Damage, the purchase and
sale transaction shall close in accordance with and subject to the
conditions of Subparagraph 10(a)(ii). If the Property is
uninsured, the cash portion of the Purchase Price shall be reduced
by the cost to restore determined in the manner provided above.
11. Condemnation. If, prior to Closing, any governmental or
similar authority shall institute eminent domain or similar
proceeding or take any steps preliminary thereto (including the
giving of any direct or indirect notice of intent to institute any
such proceeding) that, if successful, would materially, adversely
affect the value of the Property or materially interfere with the
use thereof, Purchaser shall be entitled to terminate this
Agreement upon written notice to Seller prior to Closing and to a
return of the Xxxxxxx Money Deposit. As used in this paragraph,
the term "materially" shall mean condemnation proceeds in excess of
an amount equal to two percent (2%) of the Purchase Price.
12. Brokerage and Consultants.
(a) Representation of Seller. Seller represents and warrants
that, except for Xxxxxx X. Xxxxx of CB Commercial Real Estate
Group, Inc. ("CB") and Xxxx X. Xxxxxxx ("Xxxxxxx"; CB and Xxxxxxx
are hereafter collectively referred to herein as Broker"), it has
neither employed, retained nor consulted any broker, consultant,
agent or finder in carrying on the negotiations relative to this
Agreement or the purchase and sale referred to herein, and Seller
shall indemnify and hold Purchaser harmless from and against any
and all claims, demands, causes of action, debts, liabilities,
judgments and damages (including costs and reasonable attorney's
fees) which may be asserted or recovered against it on account of
any brokerage fee, consulting fee, commission or other compensation
arising by reason of the breach of this representation and
warranty. Seller further represents and warrants that, except for
the sum of $90,0000 to be paid to CB and an amount to be paid to
Xxxxxxx under a separate commission agreement between Seller and
Xxxxxxx, no amount shall be paid by Seller to any party as a fee or
a commission, or any amount of a similar nature, whatever
designated, as a result of the purchase and sale referred to
herein. Seller acknowledges that in no event shall Purchaser be
responsible for any amounts to be paid to Broker.
(b) Representation of Purchaser. Purchaser represents and
warrants that it has neither employed, retained, nor consulted any
broker, consultant, agent or finder in carrying on the negotiations
relative to this Agreement or the purchase and sale referred to
herein, and Purchaser shall indemnify and hold Seller harmless from
and against any and all claims, demands, actions, causes of action,
debts, liabilities, judgments and damages (including costs and
reasonable attorney's fees) which may be asserted or recovered
against it on account of any brokerage fee, consulting fee,
commission or other compensation arising by reason of the breach of
this representation and warranty. Purchaser further represents and
warrants that no amount shall be paid by any Purchaser to any party
as a fee or a commission, or any amount of a similar nature,
whatever designated, as a result of the purchase and sale referred
to herein.
(c) Advice as to Title. Purchaser acknowledges that, at the
time of execution of this Agreement, Seller has advised Purchaser
by this writing that Purchaser should have the abstract covering
the Property examined by an attorney of Purchaser's own selection
or that Purchaser should be furnished with or should obtain a
policy of title insurance.
13. Indemnification.
(a) Indemnification of Purchaser. Seller hereby agrees to
indemnify, defend and hold harmless Purchaser and any other holder
of record title to the Property pursuant to Paragraph 21, their
officers, directors, general partners, agents and employees and
their respective heirs, executors, administrators, successors and
assigns, from and against any and all liability arising out of the
ownership or operation of the Property prior to Closing, including,
but not limited to, any and all claims, liabilities, damages,
penalties and losses, costs or expenses (including court costs and
reasonable attorney's fees) incurred, resulting from or in any way
arising out of any act or omission of Seller, its agents and
employees, in respect of the operation of the Property prior to
Closing, and any injury to persons or damage to property happening
or occurring in, on or about the Property prior to Closing. Seller
further agrees, upon notice and request from Purchaser, to contest
any such demand, claim, suit or action against which Seller has
hereinabove agreed to indemnify and hold Purchaser harmless, and to
defend any action that may be brought in connection with any such
demand, claim, suit or action or with respect to which Seller has
hereinabove agreed to indemnify and hold Purchaser harmless and to
bear all costs and expenses of such contest and defense, provided,
however, that Seller shall have no obligation hereunder to
indemnify or hold Purchaser harmless from and against any claim,
liability, damage, penalty or loss, cost or expense incurred by
Purchaser incident to, resulting from or in any way arising out of
any act or omission of Purchaser, its agent or employees, it being
understood and agreed, however, that the employees engaged in the
operation of the Property prior to Closing are and shall be
construed to be, for purposes of this provision, the employees of
Seller and the acts and omissions of said employees shall in no way
be attributable to Purchaser for the purposes of this provision.
(b) Indemnification of Seller. Subject to Subparagraph
13(a), Purchaser agrees to indemnify, defend and hold Seller, its
officers, directors, general partners, agents and employees and
their respective heirs, executors, administrators, successors and
assigns, harmless from and against any claim, liability, damage,
penalty, loss, cost or expense (including court costs and
reasonable attorney's fees) incurred by Seller incident to,
resulting from or in any way arising out of any act or omission of
Purchaser, its agents or employees, after Closing, or arising out
of, or in any way connected with, Purchaser's inspections of the
Property pursuant to this Agreement or the operation of the
Property from and after Closing and any injury to Persons or damage
to property happening on the Property after Closing; and Purchaser
further agrees, upon notice, and request from Seller, to contest
any such demand, claim, suit, or action against which Purchaser has
hereinabove agreed to indemnify and hold Seller harmless, and to
defend any action that may be brought in connection with any such
demand, claim, suit or action or with respect to which Purchaser
has hereinabove agreed to indemnify and hold the Seller harmless
and to bear all costs and expenses of such contest and defense,
provided, however, that Purchaser shall have no obligation
hereunder to indemnify or hold Seller harmless from and against any
claim, liability, damage, penalty or loss, cost or expense incurred
by Seller incident to, resulting from or in any way arising out of
any act or omission of Seller, its agents or employees, it being
understood and agreed, however, that the employees engaged in the
operation of the Property after the Closing are and shall be
construed to be, for purposes of this provision, the employees of
Purchaser and the acts and omissions of said employees shall in no
way be attributable to Seller for the purposes of this provision.
(c) Indemnification Procedure. To the extent of any claims
against Seller or Purchaser predicated upon facts which could
reasonably be interpreted as giving rise to potential liability of
Seller or Purchaser under this Paragraph 13, the party against whom
such claim is asserted shall promptly give notice thereof to the
other party hereto. Thereupon, such other party shall have the
option of retaining counsel of its choice to defend both it and the
remaining party in respect of such claim and to control, in a
manner reasonable in light of applicable circumstances, the course
and ultimate disposition of such claim. In the event that a party
to this Agreement shall elect to exercise the option provided in
the preceding sentence, the party electing such option, by reason
thereof, shall be deemed to have agreed to pay all reasonable costs
and expenses of defending against such claim and any liability of
the party against whom such claim was asserted on account thereof.
Without regard to whether any party hereto shall exercise such
option, Seller and Purchaser and their counsel shall consult with
one another concerning such claim and with due regard to both the
mutual and the independent interests of Seller and Purchaser
therein.
14. Notice to Tenants. On the date of Closing or at any time
thereafter, upon request by Purchaser, Seller agrees to give
notice, said notice to be in compliance with local law and in form
reasonably approved by Purchaser, to each of the tenants of space
located on the Property that Seller has sold and conveyed the
Property to Purchaser and that all future rental payments due under
the terms of the Tenant Leases are to be paid as directed by
Purchaser. On the date of Closing or at any time thereafter, upon
request of Seller, Purchaser agrees to give notice to all tenants
that their security deposit (if any) has been paid over to the
Purchaser, and Purchaser has assumed the liability therefor.
15. Payments.
(a) General. All payments to be made under this Agreement
shall be made by the wire transfer of immediately available funds
pursuant to written wiring instructions from the parties and shall
be deemed paid when written confirmation of receipt has been issued
by the receiving bank and not before.
(b) Deposits to Account of Title Insurer. Unless and until
the Title Insurer shall advise Purchaser and Seller to the contrary
in writing, it is represented and acknowledged that deposits to the
account of Title Insurer made hereunder by Seller and/or Purchaser
shall be made as follows:
Account Owner: Xxxxxx & Xxxxx, LLP
Account Name: Escrow Account
Account Number: 20 9000 1500 478
Depository: First Union National Bank of Florida
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
ABA Routing No.: 000000000
Telephone Advice: Xxxxxxx Xxxxxxx - 423-3200
16. Default and Remedies.
(a) Remedies of Seller. In the event that all conditions to
Purchaser's obligation to close have been satisfied and Purchaser
fails to close its purchase of the Property hereunder, the Xxxxxxx
Money Deposit shall be paid to Seller and retained by it as
liquidated damages as Seller's sole and exclusive remedy hereunder.
The parties acknowledge that Seller's damages occasioned by
Purchaser's default hereunder would be difficult to ascertain, but
agree that the amount of the Xxxxxxx Money Deposit represents a
reasonable estimate of Seller's damages.
(b) Remedies of Purchaser. In the event that all conditions
to Seller's obligation to close have been satisfied and Seller fails
to close the sale of the Property in accordance with its
obligations under the terms and conditions specified hereunder,
Purchaser, at its sole discretion, either may (i) specifically
enforce this Agreement and the sale and purchase provided for
herein according to its terms by suit filed within ninety (90)
days, or (ii) terminate this Agreement, whereupon the Xxxxxxx Money
Deposit shall be returned in full to Purchaser.
(c) Rightful Termination by Purchaser. In the event that the
conditions precedent to Purchaser's obligation to close are not
satisfied and Purchaser terminates this Agreement pursuant to the
terms hereof, the Xxxxxxx Money Deposit shall be returned in full
to Purchaser as its sole remedy, and the parties shall have no
further liability to one another, except as may otherwise be
expressly provided hereunder.
(d) Attorneys' Fees. In the event of any arbitration or other
legal or equitable proceeding for enforcement of any of the terms
or conditions of this Agreement, or any alleged disputes, breaches,
defaults or misrepresentations in connection with any provision of
this Agreement, the prevailing party in such proceeding, or the
nondismissing party where the dismissal occurs other than by reason
of a settlement, shall be entitled to recover its reasonable costs
and expenses, including, without limitation, reasonable attorneys'
fees and costs paid or incurred in good faith at the arbitration,
pre-trial, trial and appellate levels, and in enforcing any award
or judgment granted pursuant thereto. Any award, judgment or order
entered in any such proceeding shall contain a specific provision
providing for the recovery of attorneys' fees and costs incurred in
enforcing such award or judgment, including, without limitation,
(a) postaward or postjudgment motions, (b) contempt proceedings,
(c) garnishment, levy, and debtor and third party examinations, (d)
discovery and (e) bankruptcy litigation. The "prevailing party,"
for purposes of this Agreement, shall be deemed to be that party
which obtains substantially the result sought, whether by
dismissal, award or judgment.
17. Notices. All notices and other communications hereunder
shall be effective as to any party only if, concurrent with notice
to such party, notice shall be given to such party's counsel. All
notices shall be in writing and shall be deemed to have been duly
given the date deposited with a commercial air courier service,
telecopy or facsimile, or the United States Postal Service, the
latter being registered or certified mail, return receipt
requested, first class, postage prepaid, notice to be effective on
the date of receipt, as follows:
Notice to Seller:
Cozumel Associates, Ltd.
0000 Xxxx Xxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxx XxXxxxx
Phone:
Fax:
with a copy to:
Cambridge Cozumel, Inc.
0000 Xxxx Xxxxxxxx Xx.
Xxxxxxx, Xxxxxxx 00000
Attention: Xx. Xxx XxXxxxx
Phone:
Fax:
Notice to Seller's Counsel:
Xxxxxx & Xxxxx, LLP
00 Xxxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
Notice to Purchaser:
Xxxxxx Residential Properties, Inc.
One Lincoln Center
0000 XXX Xxxxxxx, Xxxxx 000
Xxxxxx, Xxxxx 00000
Attention: Xx. Xxxxxxxx X. Xxxxxxx
Phone: 214/000-0000
Fax: 214/000-0000
Notice to Purchaser's Counsel:
Xxxxxx Xxxxx Xxxx Xxxx & Xxxxx, P.C.
0000 Xxxxxxxx Xxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxx X. Xxxxxx, Esq.
Phone: 214/000-0000
Fax: 214/000-0000
18. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED,
ENFORCED AND GOVERNED IN ALL RESPECTS BY THE LAWS OF THE STATE OF
FLORIDA WITH VENUE AGREED TO BE IN ORANGE COUNTY, FLORIDA. THE
INITIAL DRAFT OF THIS AGREEMENT WAS PREPARED BY PURCHASER ONLY AS
A MATTER OF CONVENIENCE AND SHALL NOT BE CONSTRUED FOR OR AGAINST
EITHER PARTY ON THAT ACCOUNT.
19. Binding Effect. This Agreement and the exhibits attached
hereto shall be binding upon, and shall inure to the benefit of,
the parties hereto, their successors and permitted assigns, if any.
20. Entire Agreement. This Agreement and the exhibits
attached hereto shall constitute the entire contract between the
parties and supersedes all prior and contemporaneous agreements,
representations and undertakings of the parties regarding the
subject matter of this Agreement. This Agreement may not be
modified except by a writing, one or more counterparts of which is
signed by all parties to this Agreement.
21. Vesting of Title To Property. Seller and Purchaser agree
that title to the Property will be conveyed at Closing to such
other entity as Purchaser may direct by written notice to Seller
not less than fifteen (15) days prior to Closing.
22. Waiver. Except as expressly provided in this Agreement,
no inspection by Purchaser of the Property or of any item delivered
by Seller to Purchaser as provided in this Agreement shall
constitute a waiver of any representation, warranty or covenant
made by Seller hereunder. The waiver by a party hereto of any term,
covenant, agreement or condition herein contained shall not be
deemed to be a waiver of any subsequent breach or failure of
condition as to the same or any other term, covenant, agreement or
condition herein contained, nor shall any custom or practice which
may arise between the parties in the administration of the terms
hereof be construed as a waiver of or in such a manner as to lessen
the rights of any party to insist upon the performance by the other
parties in strict accordance with such terms.
23. Time of the Essence. The time for performance of the
obligations of the parties hereunder is of the essence in this
Agreement.
24. Survival of Agreement. The obligation of any parties to
this Agreement, including any performance specified or anticipated
to occur following the Closing, to that extent shall survive the
Closing for a period of one (1) year following the Closing.
25. Headings. The subject headings of paragraphs and
subparagraphs of this Agreement are included for purposes of
convenience only and shall not affect the construction or
interpretation of any of its provisions.
26. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but
all of which together shall constitute one and the same instrument.
The facsimile signature of either party to this Agreement shall be
deemed an original signature for all purposes.
27. General.
(a) Memorandum of Terms. Neither Seller nor Purchaser shall
record or cause to be recorded in the public records, at any time
prior to Closing this Agreement or any memorandum or other evidence
hereof.
(b) Time for Performance of Certain Obligations. At either
party's option, this Agreement shall be null and void unless one
copy hereof, executed by Purchaser and Seller shall have been
delivered to the Title Insurer within three (3) business days
following the date of execution hereof by Seller.
(c) Limited Liability of Purchaser's Officers. This Agreement
and all documents, agreements, understandings, and arrangements
relating to this transaction have been executed by the undersigned
in his/her capacity as an officer or director of Purchaser which
has been formed as a Maryland corporation pursuant to the Articles
of Incorporation of Purchaser, and not individually, and neither
the directors, officers or stockholders of Purchaser shall be bound
or have any personal liability hereunder or thereunder. Seller
shall look solely to the assets of Purchaser for satisfaction of
any liability of the Purchaser in respect of this Agreement and all
documents, agreements, understandings and arrangements relating to
the transaction contemplated by this Agreement and will not seek
recourse or commence any action against any of the directors,
officers or stockholders of Purchaser or any of their personal
assets for the performance or payment of any obligation hereunder
or thereunder. The foregoing shall also apply to any future
documents, agreements, understandings, arrangements and
transactions between the parties hereto.
(d) Limited Liability of Seller's Officers. This Agreement
and all documents, agreements, understandings, and arrangements
relating to this transaction have been executed by the undersigned
in his/her capacity as an officer or director of Seller, and not
individually, and neither the directors, officers or stockholders
of Seller shall be bound or have any personal liability hereunder
or thereunder. Purchaser shall look solely to the assets of Seller
for satisfaction of any liability of the Seller in respect of this
Agreement and all documents, agreements, understandings and
arrangements relating to the transaction contemplated by this
Agreement and will not seek recourse or commence any action against
any of the directors, officers or stockholders of Seller or any of
their personal assets for the performance or payment of any
obligation hereunder or thereunder. The foregoing shall also apply
to any future documents, agreements, understandings, arrangements
and transactions between the parties hereto.
(e) No Further Agreements. While this Agreement is in full
force and effect, Seller shall not enter into any other agreement
or Letter of Intent to sell the Property.
(f) Confidentiality. The parties hereto hereby agree that
they will maintain the confidentiality of all information and
materials provided to each other in connection herewith and the
terms of the transaction contemplated hereby, the contents of this
Agreement and related documents, if any, except that Purchaser may
disclose material terms which are required to be disclosed by
applicable securities laws or as required by any national
securities exchange on which Purchaser's common stock may be listed
and Purchaser may include a copy of this Agreement and in its
filings with the Securities and Exchange Commission.
28. Date of Performance. In the event the expiration date of
any review period herein specified or the expiration date of any
period of time in which a party hereto is to deliver any item to
any other party hereto should be a legal holiday in the State of
Florida or a Saturday or Sunday, such expiration date shall be
extended to the next business day which is not a legal holiday in
the State of Florida or a Saturday or Sunday, and such next
business day shall be considered such expiration date.
29. Invalid Provisions. If any one or more of the provisions
of this Agreement shall for any reason be held to be invalid,
illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision
hereof, all of which other provisions shall remain in full force
and effect.
30. Inspections. Prior to the expiration of the Feasibility
Period, Purchaser shall have received various reports, satisfactory
to Purchaser in its sole discretion, of inspections of the Property
(including without limitation structural, mechanical,
environmental, cathodic and financial). On or prior to the
Effective Date, Purchaser shall have received the items listed in
Schedule I attached hereto. Seller shall make the Property and all
reports, books and records and agreements relating to the
construction, management and operation of the Property available to
the Purchaser and its agents as provided in Paragraph 7 hereof
throughout the Feasibility Period. If the results of the
inspections are unsatisfactory to Purchaser, or for any reason
whatsoever, in its sole and absolute discretion, Purchaser, at its
election, may terminate this Agreement by giving written notice to
Seller at any time prior to 5:00 P.M., C.D.T., on or before the
last day of the Feasibility Period, whereupon the Title Insurer
immediately shall return the Xxxxxxx Money Deposit to Purchaser,
this Agreement automatically shall terminate, and neither party
shall have any further obligation to the other except the
indemnities contained elsewhere herein. In the absence of such
notice by such date, the inspections shall be deemed to have been
approved by Purchaser. Except as expressly set forth herein,
Seller has not made, does not hereby make, and hereby specifically
disclaims any express or implied representations or warranties
whatsoever with respect to the condition of the Property, including
without limitation any representation or warranty regarding quality
of construction, workmanship, merchantability or fitness for any
particular purpose; and Purchaser acknowledges that Purchaser is
entering into this Agreement without relying upon any such warranty
or representation by Seller, its agents or representatives except
for those representations or warranties expressly set forth herein.
Purchaser's failure to terminate this Agreement prior to the
expiration of the Feasibility Period shall conclusively establish
that Purchaser has fully examined and inspected the Property and is
satisfied with the condition thereof. Notwithstanding the
foregoing, Purchaser acknowledges that Seller acquired title to the
Property from the Resolution Trust Corporation, as Receiver for
Sunbelt Federal Savings, FSB, and that Seller does not have in
Seller's possession any soil or substrata reports or studies,
engineering plans and studies, architectural renderings, architect's
certificates, plans and specifications, construction plans and
drawings, floor plans, permits, certificates of occupancy or any
other similar plans, permits, diagrams or studies. Purchaser will
be purchasing the Property in its "AS IS" condition.
34. Notification of Non-Delivery. In the event that either
party hereto shall become aware of the non-delivery of any item or
document required to be delivered under this Agreement, a breach of
a representation, warranty or covenant set forth herein, or other
failure of condition, the party becoming aware of such event shall
give prompt notice to the other party in accordance with Paragraph
17 hereof.
35. Radon Gas Disclosure. As required by Florida Law, the
following notification is provided regarding radon gas:
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 Florida. Additional
information regarding radon and radon testing
may be obtained from your county public health
unit.
36. Energy Efficient Rating Disclosure. In accordance with
Florida Law, the Energy-Efficiency Rating Disclosure is attached
hereto as Exhibit L.
37. Property Exchange. Purchaser hereunder desires to
exchange other property of like kind and qualifying use within the
meaning of section 1031 of the Internal Revenue Code of 1986, as
amended and the regulations promulgated thereunder, for fee title
in the Property which is the subject of this Contract. Purchaser
expressly reserves the right to assign its rights, but not its
obligations, hereunder to a Qualified Intermediary as provided in
Reg. Section 1.103(k)-1(g)(4) on or before Closing. Seller specifically
agrees that Purchaser may assign this Contract as it may deem
necessary or desirable to consummate the exchange and agrees to
cooperate with Purchaser in connection therewith. Such exchange
shall be accomplished without delay, cost or expense to Seller.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be executed on the day and in the year entered below, effective as
above written.
PURCHASER:
XXXXXX RESIDENTIAL PROPERTIES, INC.,
a Maryland corporation
By:______________________________
Xxxxxxxx X. Xxxxxxx
President
Date Executed by Purchaser:_________
SELLER:
COZUMEL ASSOCIATES, LTD.,
a Florida limited partnership
By: Cambridge Cozumel, Inc.
By:_______________________________
Xxx XxXxxxx
Vice President
Date Executed by Seller:__________
The undersigned, constituting the Escrow Agent, hereby agrees
to accept in escrow the moneys provided for in the above Agreement
to be paid into escrow and to hold and apply the same as provided
in said Agreement.
XXXXXX & XXXXX, LLP
By:_____________________________
Name:___________________________
Its: ___________________________
Date executed by Escrow Agent:____________
SCHEDULE I
ITEMS TO BE DELIVERED OR MADE AVAILABLE TO PURCHASER
WITHIN TEN (10) DAYS OF THE EFFECTIVE DATE TO THE EXTENT
SUCH ITEMS ARE IN SELLER'S ACTUAL POSSESSION
1. Seller's most current owner's title insurance policy and a
copy of all title reports and documents in Seller's
possession..
2. A list and a copy of all Service Contracts, all documents
pertaining to any leased Personalty, and all warranties,
guaranties and bonds relating to the Property; or any part
thereof.
3. A complete, itemized and detailed inventory of the Personalty
to be conveyed by Seller to Purchaser at the Closing.
4. A copy of (i) all income and expense statements for the
Property, for the year-to-date and for the most recently
completed prior year (prepared on a monthly basis), and annual
operating statements for the two (2) most recent fiscal years,
certified by Seller or audited (when available) as having been
prepared in accordance with generally accepted accounting
principles (except to the extent prepared on a cash basis),
(ii) operating budgets for the Property for the current
calendar year and the upcoming calendar year, and (iii) a
capital expenditure budget for the Property for the current
calendar year and the upcoming calendar year, and (iv) such
other information as may be required by Purchaser's
accountants to perform a complete audit of the Property for
the twelve (12) month period ended December 31, 1995, and
year-to-date 1996.
5. A copy of all ad valorem and other property tax statements
(including personal property tax statements) relating to the
Property for the current tax year and the immediately
preceding two (2) tax years, including copies of any
assessments or statements for the current or forthcoming year,
including a summary of any contested tax assessments relating
to the property for the preceding two (2) years, and the
results thereof.
6. A copy of (i) a resident rent roll for the Improvements,
showing actual occupancies, rentals, delinquencies, defaults,
security deposits, assigned parking spaces (if any), free
rent, rent concessions, resident incentives, lease terms, unit
numbers, unit types, and unit amenities, (ii) a current
schedule of rental rates for each type of unit within the
Improvements, and (iii) such other pertinent information
regarding the resident leases and rental units as is
reasonably available to Seller, including, without limitation,
a schedule of the appliances and amenities included in each
type of rental unit.
7. A copy of all site plans, surveys, environmental reports or
studies, if any, relating to the Property.
8. A letter from the appropriate city dated no earlier than the
Effective Date stating that the Property complies fully with
all applicable zoning ordinances and the operation of the
improvements as an apartment complex is a permitted use under
such ordinances, together with a copy of such ordinances.
9. A list of all employees currently employed in the operation of
the Property, setting forth his/her name, address, telephone
number, position, salary, benefits, bonuses, leasing
commissions, other incentives, apartment allowance (if
applicable) and tenure with the Property.
10. A schedule outlining, and invoices, contracts and/or work
orders pertaining to any (i) carpet replacement, window
replacement, and appliance replacement over the past two (2)
years relating to the Improvements, (ii) any other capital
expenditures over the past two (2) years at the Property,
showing the nature of the work, expense, date and unit or
common area where the work was done, and (iii) regular
maintenance and repair at the Property over the past twelve
(12) months.
11. A copy of the standard form of resident lease, leasing
application, security and pet deposit documents, rules and
regulations, leasing brochures, occupancy checklist, current
marketing/leasing plans and business plans for the Property,
other standard forms and documents currently used in
connection with the leasing and marketing of the Property, and
a profile of existing resident base, including data on age,
income, sex, household structure, occupation, etc., to the
extent such information is available to Seller.
12. A list of all utility deposits or bonds for the Property and
a copy of all utility bills for the Property for the previous
twelve (12) months, excluding individually metered resident
utility bills; and letter from each of the utility providers
stating that the utilities are available to the Property.
13. A summary of any approvals, requirements or prerequisites (if
any) imposed by any current lender having a security interest
in the Property (or any portion thereof) as a condition to the
execution of this Agreement by Seller or as a condition to the
Closing as contemplated by this Agreement.
14. Copies of and/or access throughout the Feasibility Period to
all resident files.
15. Copies of any pertinent litigation of safety related issues
with respect to the Property.
16. Such other books, records, leasing files, contracts,
agreements and information relating to the Property that are
in Seller's possession or are readily available to Seller and
as may be required by Purchaser's accountants to perform a
complete audit of the Property for the twelve (12) month
period ended December 31, 1995.
17. Copies of all pleadings with regard to the Pipes Litigation.
SCHEDULE II
DESCRIPTION OF IMPROVEMENTS AND AMENITIES
____ dwelling units located in ________ buildings, consisting of
_______ one-bedroom, _________ two-bedroom and ________
three-bedroom units, a clubhouse, laundry facilities, ________
swimming pool(s), ___________ tennis court(s) and
____________________________________.
EXHIBIT A
LEGAL DESCRIPTIONS OF LAND
[TO BE PROVIDED]
EXHIBIT B
[INTENTIONALLY OMITTED]
EXHIBIT C
SURVEYOR'S CERTIFICATE
[TO BE PROVIDED]
EXHIBIT D
[INTENTIONALLY DELETED]
EXHIBIT E
INCLUDED PERSONAL PROPERTY
[TO BE PROVIDED]
EXHIBIT F
EXCLUDED PERSONAL PROPERTY
[TO BE PROVIDED]
EXHIBIT G
RENT ROLL
[TO BE PROVIDED]
EXHIBIT H
STREET RENTS
Unit Type Number Square Feet Monthly Rent
_____________ __________ ___________ $___________
_____________ __________ ___________ $___________
_____________ __________ ___________ $___________
_____________ __________ ___________ $___________
_____________ __________ ___________ $___________
_____________ __________ ___________ $___________
Total __________ ___________ $___________
EXHIBIT I
STATEMENTS OF INCOME AND EXPENSE
[TO BE PROVIDED]
EXHIBIT J
SCHEDULE OF INSURANCE
[TO BE PROVIDED]
EXHIBIT K
SCHEDULE OF SERVICE CONTRACTS
[TO BE PROVIDED]
EXHIBIT L
[INTENTIONALLY DELETED]
EXHIBIT M
CLOSING DOCUMENTS
[TO BE PROVIDED]
EXHIBIT N
STANDARD TENANT LEASE
[TO BE PROVIDED]
