EXHIBIT 10.20
PURCHASE AND SALE AGREEMENT
by and between
THE GABLES, LLC
("Seller")
and
EDUCATION REALTY OPERATING PARTNERSHIP, LP.
("Purchaser")
THE GABLES - BOWLING GREEN, KY
PURCHASE AND SALE AGREEMENT
THIS PURCHASE AND SALE AGREEMENT ("Contract") is executed by and between:
The Gables, LLC, a Kentucky limited liability company ("Seller") and Education
Realty Operating Partnership. L.P., a Delaware limited partnership
("Purchaser"), as of the 27th day of August, 2004.
ARTICLE 1
Sale and Purchase
Section 1.1 Property. Subject to the terms and provisions hereof, in
consideration of Ten and No/100 Dollars ($10.00) cash in hand paid, the Seller
agrees to sell to the Purchaser, and the Purchaser agrees to purchase from the
Seller the following (collectively, the "Property"):
(a) Real Property. All of Seller's rights, titles and interests in
and to the land situated in Xxxxxx County, Kentucky (the "Land"), more
particularly described in Exhibit "A" attached hereto and made a part
hereof, together with all of Seller's rights, titles and interests in and
to (i) the improvements situated on the Land currently known as "The
Gables" and all other structures, fixtures, buildings, and improvements
situated on the Land (collectively, such buildings, structures, fixtures
and improvements being herein called the "Improvements"), (ii) any and all
rights, titles, powers, privileges, easements, licenses, rights-of-way and
interests appurtenant to the Land and the Improvements, (iii) all rights,
titles, powers, privileges, licenses, easements, rights-of-way and
interests, if any, of Seller, either at law or in equity, in possession or
in expectancy, in and to any real estate lying in the streets, highways,
roads, alleys, rights-of-way or sidewalks, open or proposed, in front of,
above, over, under, through or adjoining the Land and in and to any strips
or gores of real estate adjoining the Land, and (iv) all rights, titles,
power, privileges, interest, licenses, easements and rights-of-way
appurtenant or incident to any of the foregoing (collectively, the Land,
Improvements and interests set forth in (ii) through (iv) above, herein
called the "Real Property");
(b) Personal Property. All of Seller's rights, titles and interests
in and to the furniture, fixtures, inventory, equipment, appliances and
other personal property of whatever kind or character now or hereafter
owned by Seller in whole or in part, and attached to, installed, located
or used in, on or about the Real Property, including but not limited to
all personal property described on the list attached to this contract as
Exhibit "B" attached hereto and made a part hereof.
(c) Miscellaneous Contracts. All of Seller's rights, titles and
interests in and to all agreements, contracts, leases, permits and
licenses, which relate to or affect the Real Property, the Personal
Property or the operation or use thereof (collectively the "Miscellaneous
Contracts"), including, without limitation, any operating agreements,
employment agreements, service and maintenance contracts, equipment
leases, vehicle leases, supply contracts, leases of space for restaurant
or other retail uses, billboard, signage, promotional or other advertising
agreements or leases, food, hotel or operational permits or licenses
affecting or used in connection with the operation of the Property, but
excluding any and all management and/or franchise agreements affecting the
Property.
It is understood and agreed that Seller owns an undivided one-half
(1/2) interest in and to the Property, as a tenant-in-common with
Purchaser.
ARTICLE 2
Consideration for Conveyance
The Purchase Price (herein so called) for the Property is and shall
be the sum of Five Hundred Fifteen Thousand Five Hundred Twenty Four and
No/100 Dollars ($515,524.00), which shall be due and payable all cash at
the Closing (hereinafter defined), plus one-half (1/2) of the principal
balance of the Loan (hereinafter defined) on the Closing Date. In
addition, Purchaser shall assume the unpaid principal balance of that
certain promissory note ("Note") executed by Purchaser and Seller to the
lender named therein ("Lender"), secured by that certain mortgage and
other loan documents of even date with the Note ("Loan Documents")
presently of record and encumbering the Property (collectively, the
"Loan"), plus any and all fees and expenses required for the assumption of
the Loan.
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ARTICLE 3 - Intentionally omitted.
ARTICLE 4 -Intentionally omitted.
ARTICLE 5 - Intentionally omitted.
ARTICLE 6
Closing
The Closing is expressly conditioned upon, and shall be contemporaneous
with, the closing of Purchaser's contracts with certain other parties commonly
referred to as the "JPI Entities", such contracts dated as of August 6, 2004,
for the sale and purchase of properties located in various states (the "REIT
Properties"), as such contracts may be amended, modified, or restated from time
to time upon agreement of the parties thereto. The Closing shall take place on
or before November 30, 2004, but may be extended for an additional thirty (30)
days upon Purchaser's request for such extension. It is Purchaser's intention to
close the purchase of the Property, as well as the REIT Properties, and place
all of these properties into a real estate investment trust public offering.
Seller understands and agrees that Purchaser's obligations hereunder are
expressly contingent and conditioned upon the successful closing and completion
of the purchase of the REIT Properties and said public offering. Time is not of
the essence where the Closing Date is concerned.
ARTICLE 7
Damage, Destruction or Condemnation Prior to Closing
Section 7.1 Damage or Destruction. If, at any time after the date hereof
and on or before the Closing Date, all or any portion of the Property is
damaged, destroyed or rendered inoperative by fire, flood, natural elements or
other causes beyond Seller's control (collectively, the "Damage"), then the
following shall apply:
(a) If the Damage is not Material (as hereinafter defined),
Purchaser shall proceed to close and purchase Seller's interest in the
Property for the full purchase price; and Seller shall assign all rights
to insurance proceeds as a result of the Damage to Purchaser.
(b) If the Damage is Material, then Purchaser may elect either (a)
to terminate this Agreement by written notice to Seller given at least ten
(10) days prior to the Closing, whereupon neither party hereto shall have
any further rights against or obligations to the other under this
Agreement; or (b) proceed to Closing without any deduction from the
Purchase Price to Seller, in which event Seller may assign all of Seller's
right to receive insurance proceeds for the Damage to Purchaser.
(c) If Purchaser elects to close the purchase of the Property in its
condition (with respect to the Damage covered by insurance) on the Closing
Date with an assignment of the insurance proceeds from Seller, Seller
shall permit Purchaser to conduct any remaining settlement or other
negotiations with the insurer as to the amount of proceeds payable on
account of the Damage.
(d) For the purposes of this Section 7.1, Damage shall be deemed to
be "Material" if the cost of repairing such Damage equals or exceeds Two
Hundred Fifty Thousand and No/100 Dollars ($250,000.00).
Section 7.2 Condemnation. If, prior to the Closing Date, all or any
portion of the Property is taken by, or made subject to, condemnation, eminent
domain or other governmental acquisition proceedings and as a result cannot be
operated in the same manner it was previously operated in with the same number
of housing units, or in the event of any change in the zoning designation of the
Land to the effect that the Property could not be operated in the same manner it
was previously operated in with the same number of housing units without a
variance, then Purchaser, at its sole option, may elect either:
(a) to terminate this Contract by written notice to Seller given at
or prior to the Closing, whereupon neither party hereto shall have any
further rights against or obligations to the other under this Contract; or
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(b) to agree to close and deduct from the Purchase Price an amount
equal to any sum previously paid to Seller for such governmental
acquisition, in which event Seller shall assign, transfer and set over to
Purchaser all of Seller's right, title and interest in and to any awards
which may in the future be made on account of such governmental
acquisition.
ARTICLE 8
Representations and Warranties of Seller
Section 8.1 Representation and Warranties. Seller represents and warrants
to the Purchaser that, as of the date hereof and on the Closing Date:
(a) Title. Seller has good, marketable and indefeasible title in and
to an undivided one-half (1/2) interest in and to the Property, subject
only to such conditions, liens and encumbrances of which Purchaser is
aware or is a co-obligor with Seller (the "Permitted Exceptions"); and
will convey such title to Purchaser on the Closing Date free and clear of,
or insured against, all options, rights, covenants, easements, liens and
other rights in favor of third parties except the Permitted Exceptions and
those created or allowed to be created by the managing entity during its
management of the Property. Seller holds none of the Personal Property
under a lease or installment sale contract. Neither Seller nor any of its
affiliates owns any parcel of land which is contiguous with any portion of
the Property. The Property is not subject to any outstanding agreements of
sale or any options, liens, or other rights of third parties granted or
allowed by Seller to acquire any interest therein claiming by, through or
under Seller only, except as described in this Contract.
(b) Organization. Seller is duly organized, validly existing and in
good standing under the laws of the state of its organization, and is duly
qualified to transact business in the state in which the Property is
situated.
(c) Authority. Seller has all requisite power and authority, has
taken all actions required by its organizational documents and applicable
law, and has obtained all necessary consents, to execute and deliver this
Contract and to consummate the transactions contemplated in this Contract.
(d) Loan Documents. Copies of the Note and Loan Documents, including
all assignments, amendments and other modifications, have been provided to
Purchaser. Seller is not in default under the Note and/or the Loan
Documents. The parties acknowledge that Lender's consent and a
modification of the Loan will be necessary for the transaction
contemplated hereby. Purchaser's obligations hereunder are expressly
contingent and conditioned upon Lender consenting to Purchaser's
assumption of the Loan on such terms as are acceptable to Purchaser.
(e) Proceedings. To the best of Seller's knowledge, there are no
attachments, executions, assignments for the benefit of creditors, or
voluntary or involuntary bankruptcy proceedings, or under any debtor
relief laws, contemplated by or pending or threatened against Seller or
the Property.
(f) Litigation. To the best of Seller's knowledge, Seller is not now
a party to any litigation, arbitration or administrative proceeding (i)
with any person or entity having or claiming any interest in the Property,
or (ii) affecting or questioning Seller's title to the Property or
Seller's ability to perform its obligations under this Contract. Seller
knows of no pending or threatened litigation, arbitration or
administrative proceeding affecting or questioning Seller's title to, or
use of, the Property or any part thereof, or Seller's ability to perform
its obligations under this Contract.
(g) Non-Foreign Status. The Seller is not a foreign person within
the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986
("IRC"), i.e., the Seller is not a nonresident alien, foreign corporation,
foreign partnership, foreign trust or foreign estate (as those terms are
defined in the IRC and Income Tax Regulations).
(h) Other Rights. Except as Seller has otherwise disclosed to
Purchaser, or except where Purchaser is also a party, Seller has no
knowledge of any agreements or leases with respect to all or any part of
the Property and no agreements which give any right to purchase the
Property or any part thereof.
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(i) Miscellaneous Contracts. To the best of Seller's knowledge, all
of the Miscellaneous Contracts are in full force and effect, and neither
Seller nor any other party thereto is in default of its obligations under
such Miscellaneous Contracts. To the best of Seller's knowledge, neither
Seller nor any person authorized to act on its behalf is a party to any
written, oral or implied contract, agreement, lease or other commitment
affecting or relating to the Property, including, without limitation,
agreements for the purchase of goods or the rendition of services, except
for the Miscellaneous Contracts and the Permitted Exceptions.
(j) Administrative Notices. Seller has not received notice of, and
has no other knowledge or information of, any pending or contemplated
change in any regulation, code, ordinance or law, or private restriction
applicable to the Property, or any pending or threatened judicial or
administrative action, or any action pending or threatened by adjacent
land owners or other persons, or of any natural or artificial condition
upon or affecting the Property, or any part thereof, any of which would
result in any material change in the condition of the Property, or any
part thereof, or would in any way limit or impede the operation of the
Property.
(k) Licenses. To the best of Seller's knowledge, all licenses,
certificates and permits that are required to own, operate, use and
maintain the Property have been obtained.
(l) Claims. To the best of Seller's knowledge, there is no claim
against any portion of the Property for or on account of work done,
materials furnished or utilities supplied to the Property.
(m) Assessments. To the best of Seller's knowledge, there are no
unpaid assessments for public improvements against the Property. To the
best of Seller's knowledge, sewer, water, gas and electric lines adequate
to service the Property are located on, or adjacent to the Property, and
there are no unpaid assessments or charges for the installation of such
utilities or for making connection thereto that have not been fully paid.
(n) Condemnation. Seller has no knowledge of any condemnation,
eminent domain or similar proceedings having been instituted or threatened
against the Property.
(o) To the best of Seller's knowledge, there are no judgments,
liens, actions, suits or proceedings pending or threatened against Seller.
(p) Seller has not received any written notice from any Federal,
State, County or local authority advising Seller of the violation of any
Federal, State, County or local law or ordinance.
(q) To the best of Seller's knowledge, all taxes required to be paid
by Seller which if unpaid could constitute or result in a lien upon the
Property, have been paid as of the Effective date of this Contract, and
will be paid as of the date of Closing; all tax returns or reports
required to be filed by Seller with any and all taxing agencies have been
filed, which, if not filed, could constitute or result in a lien upon the
Property as of the Effective Date of this Contract and will be filed as of
the date of Closing.
(r) Seller and Purchaser acknowledge that the Property has been
managed by Purchaser's affiliate for the duration of the co-tenancy of the
Property by Seller and Purchaser. The managing entity has conducted or
caused to be conducted all ordinary management activities in the day to
day business of the Property, and has knowledge of the Property therefrom.
Section 8.2 Representations and Warranties of Purchaser. Purchaser represents
and warrants to Seller that, as of the date hereof and on the Closing Date:
(a) Purchaser is a limited partnership validly existing and in good
standing under the laws of the state of Delaware and is, to the extent
necessary, qualified to do business in the state where the Real Property
is located;
(b) Purchaser has the authority to execute this Contract and to
perform its obligations under this Contract. The person(s) executing this
Contract on behalf of Purchaser is (are) authorized to do so.
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(c) There are no attachments, executions, assignments for the
benefit of creditors or voluntary or involuntary proceeding in bankruptcy
or under other debtor relief laws contemplated by, pending or threatened
against Purchaser; and
(d) "AS IS". THE PARTIES ACKNOWLEDGE AND AGREE THAT PURCHASER HAS
HAD, OR WILL HAVE PRIOR TO CLOSING, AMPLE OPPORTUNITY DILIGENTLY TO
EXAMINE AND INVESTIGATE TO PURCHASER'S FULL SATISFACTION THE PHYSICAL AND
REGULATORY (INCLUDING ENVIRONMENTAL, ZONING, HEALTH AND SAFETY) CONDITION
AND STATUS OF THE PROPERTY AND ITS EXISTENCE. THE PROPERTY IS BEING
TRANSFERRED "AS IS", "WHERE IS", "WITH FAULTS", AND WITHOUT ANY
REPRESENTATION OR WARRANTY BEING GIVEN BY SELLER, EXCEPT AS EXPRESSLY AND
SPECIFICALLY SET FORTH HEREIN, EXCEPT THAT SELLER REPRESENTS AND WARRANTS
THAT THE IMPROVEMENTS SHALL BE IN THE SAME WORKING ORDER, ORDINARY WEAR
AND TEAR EXCEPTED, AT THE TIME OF CLOSING AS THE SAME WERE ON THE DATE
HEREOF. EXCEPT AS SO SET FORTH, SELLER DISCLAIMS AND THE PARTIES AGREE
THAT SELLER IS NOT BOUND BY NOR LIABLE FOR ANY AND ALL WARRANTIES,
GUARANTIES, STATEMENTS, REPRESENTATIONS OR INFORMATION PERTAINING TO THE
PROPERTY, WHETHER EXPRESS OR IMPLIED.
ARTICLE 9
Operations Pending Closing
Section 9.1 Seller's Obligations. From the date hereof through the Closing Date;
(a) Renewals. Seller will not enter into any renewal, extension,
modification or replacement of any existing Miscellaneous Contract or
enter into any new employment, maintenance, service, supply or other
agreement relating to the Property without the express written permission
of Purchaser; provided that such permission shall not be required if such
Miscellaneous Contract may be terminated by Purchaser without penalty or
charge after not more than thirty (30) days notice.
(b) Other Agreements. Seller shall not enter into or record any
easement, covenant, license, permit, agreement or other instrument against
the Property or any portion thereof except as may be required to enable
Seller to perform its obligations under this Contract or to operate in the
ordinary course of business (i.e. postage meters, copiers, fax machine,
maintenance, etc.); provided the same may be terminated upon thirty (30)
days notice without penalty.
ARTICLE 10
Conditions to Obligations
Section 10.1 Conditions to Purchaser's Obligations. Purchaser's
obligations to consummate the acquisition of the Property pursuant to the terms
of this Contract are subject to and conditioned upon the following:
(a) Each of the representations and warranties made by Seller herein
shall be true and complete on the Closing Date as if made on and as of
such date.
(b) Seller shall have performed all obligations which it is required
to perform on or before the Closing Date pursuant to the provisions of
this Contract.
(c) The closings of the contracts for the sale and purchase of the
REIT Properties as described in Section 6.2 have occurred
contemporaneously with the Closing of this Contract.
Section 10.2 Conditions to Seller's Obligations. Seller's obligations to
consummate the sale of the Property pursuant to the terms of this Contract are
subject to and conditioned upon the following:
(a) Purchaser shall have performed all obligations, which it is
required to perform on or before the Closing Date pursuant to provisions
of this Contract;
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(b) Purchaser shall assume and become obligated for, and Seller
shall not be obligated for, and shall be released from, the unpaid
principal balance of the Note, the Mortgage and the Loan Documents, as
well as any carve out obligations in connection therewith from and after
the Closing Date. Upon assumption of the Loan the Seller will receive a
credit at closing for one-half (1/2) of any and all escrow accounts.
(c) Purchaser shall assume all Miscellaneous Contracts that are by
their terms assumable or assignable.
(d) Seller shall have obtained a release of liability under the Loan
from Lender such that the Seller has no further liability under the
existing Loan Documents.
Section 10.3 Failure to Satisfy. If a condition to a party's obligations
under this Contract is not either satisfied or waived by such party in writing,
then such party may, in addition to any other remedies which such party may have
with respect thereto, terminate this Contract by written notice given to the
other on or before the Closing Date, and either party shall be entitled to all
remedies available in the Commonwealth of Kentucky, including without limitation
injunction, specific performance and damages.
Section 10.4 Mutual Indemnities. Purchaser agrees to indemnify and hold
Seller harmless from all liability arising under the Loan Documents from and
after the Closing Date for any matters occurring after the Closing Date arising
from Purchaser's actions or those of its agents. Seller agrees to indemnify and
hold Purchaser harmless from all liability arising under the Loan Documents
prior to the Closing Date arising from Seller's action or those of its agents.
ARTICLE 11
Closing
Section 11.1 Closing Date. The closing hereunder ("Closing") shall take
place on or before November 30, 2004, unless extended by Purchaser for up to
thirty (30) days as heretofore provided, and at such time and place as the
parties shall mutually agree, but shall be contemporaneous with the closing of
the sale and purchase contracts of the REIT Properties as described in Section
6.2
Section 11.2 Conditions to Closing. (a) If on the Closing Date all
conditions to closing set forth in Section 10.1 hereof have not been satisfied;
then Purchaser may, at its sole option (i) waive any defect or requirement and
close the transaction contemplated for herein; (ii) extend (without prejudice to
any of Purchaser's other rights hereunder) the Closing for such reasonable time
(not to exceed fifteen (15) days) as may be required for Seller to cure any of
the foregoing matters, such postponed date shall then become the Closing Date;
or (iii) Purchaser may terminate this Contract, and avail itself of any and all
remedies available in the Commonwealth of Kentucky, including, without
limitation, specific performance and damages.
(b) If on the Closing Date all conditions to closing set forth in
Section 10.2 hereof have not been satisfied, then Seller may, at its sole
option, (i) waive any defect or requirement and close the transaction
contemplated herein; (ii) extend (without prejudice to any of Seller's other
rights hereunder) the Closing for such reasonable time (not to exceed fifteen
(15) days as may be required for Purchaser to cure any of the foregoing matters,
and such postponed date shall then become the Closing Date; or (iii) Seller may
terminate this Contract, and avail itself of any and all remedies available in
the Commonwealth of Kentucky, including, without limitation, specific
performance and damages.
Section 11.3 Seller's Obligations. At the Closing, Seller shall deliver or
cause to be delivered to Purchaser, at Seller's sole cost and expense, each of
the following items:
(a) Deed. A general warranty deed conveying good, indefeasible fee
simple title in and to Seller's undivided interest in the Real Property
and the Improvements to Purchaser, subject only to the Permitted
Exceptions, together with Seller's Affidavit of Title.
(b) Xxxx of Sale. A Blanket Conveyance, Xxxx of Sale and Assignment
("Xxxx of Sale") duly executed and acknowledged by Seller, conveying to
Purchaser Seller's undivided interest in the Personal Property, subject to
the Permitted Exceptions, assigning all Seller's rights under the
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Miscellaneous Contracts and assigning all assignable warranties,
guaranties, and bonds applicable to the Property, or any part thereof.
(c) Authority. Such evidence or documents as may be reasonably
required by the Purchaser or the title company evidencing the status and
capacity of Seller and the authority of the person or persons who are
executing the various documents on behalf of the Seller in connection with
the sale of the Property.
(d) Non-Foreign Status Certificate. A Certification in a form to be
provided or approved by the Purchaser, signed by the Seller under
penalties of perjury, containing the following:
(i) The Seller's U.S. Taxpayer Identification Number
00-0000000;
(ii) The home address of the Seller (or the business address
of the Seller if the Seller is not an individual); and
(iii) A statement that the Seller is not a foreign person
within the meaning of Sections 1445 and 7701 of the IRC (i.e.,
the Seller is not a nonresident alien, foreign corporation,
foreign partnership, foreign trust or foreign estate (as those
terms are defined in the IRC and Income Tax Regulations)).
(e) Affidavit of Creditors. If required by any title company issuing
a policy of title insurance to Purchaser, an affidavit of creditors of
Seller with regard to the assets being sold hereunder.
(f) Additional Documents. All additional documents and instruments
as in the opinion of Purchaser's counsel and Seller's counsel as are
necessary or desirable for the proper consummation of this transaction.
Section 11.4 Purchaser's Obligations. At the Closing, Purchaser shall
deliver to Seller the following items:
(a) Purchase Price. The Purchase Price (which includes both the cash
sum set forth above, as well as the aforesaid Loan assumption), as reduced
by the normal debits for prorated items or other items to be paid by
Seller hereunder in immediately available funds;
(b) Loan Assumption. Such documents necessary to assume the Loan and
Loan Documents, in a form acceptable to Purchaser;
(c) Authority. Such evidence or documents as may reasonably be
required by the Seller or the Title Company evidencing the status and
capacity of Purchaser and the authority of the person or persons who are
executing the various documents on behalf of the Purchaser in connection
with the sale of the Property.
Section 11.5 Adjustments and Prorations. At Closing, the following items
shall be adjusted or prorated between Seller and Purchaser:
(a) Revenues. Current revenues including, but not limited to, room
and function deposits and food and beverage revenues generated by the
Property ("Revenues"), shall be prorated as follows:
(i) Revenues attributable to room use or functions having
occurred prior to 6:00 a.m. on the Closing Date shall belong
to and be retained by Seller.
(ii) Revenues attributable to room use or functions occurring
at or after 6:00 a.m. on the Closing Date and any subsequent
date shall belong to and be paid to Purchaser
(iii) Revenues representing advance payments or deposits which
are allocable in part to the period prior to and in part to
the period following 6:00 a.m. on the Closing Date shall be
prorated between the parties on per diem basis or on such
other equitable basis as agreed by the parties.
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To the extent Revenues are in the possession of Purchaser which are owing to
Seller, then one-half (1/2) of the same should be credited to Seller at the
Closing.
(b) Accounts Receivable. Purchaser shall purchase from Seller, in
cash at Closing, accounts receivable from tenants or registered guests who
have not checked out and/or who are occupying rooms at 11:59 PM on the day
preceding Closing. Such rents or accounts receivable shall be defined as
the "tray ledger". All other rents or accounts receivable originating
prior to the Closing Date shall be distributed in the same manner
distributed prior to Closing. One half (1/2) of all amounts collected or
received after Closing in payment of any particular rent or receivable
accrued prior to the Closing Date, other than the tray ledger, shall be
remitted by Purchaser to Seller on a weekly basis, in the same form as
received. Seller shall have the right, at its expense, to audit
Purchaser's handling of such accounts during normal business hours at the
Property. Purchaser will cooperate with Seller with regard to collection
of Seller's share of all rents or receivables, but Purchaser will have not
liability with regard to failure to collect such receivables. If the
aforesaid audit reveals Purchaser has misstated the accounts by 3% or
more, Purchaser shall reimburse Seller for all reasonable expenses
incurred by Seller in connection with said audit within ten (10) days of
Seller's request therefore.
(c) Cash on Hand. Purchaser shall pay Seller at the Closing an
amount equal to one-half (1/2) of all cash on hand as of the Closing and,
in consideration of such payment, Purchaser shall receive such cash on
hand at Closing.
(d) Taxes. Ad valorem taxes and personal property taxes (if any) for
the Property for the current calendar year shall be prorated to date of
Closing, and the Seller shall credit to the Purchaser at Closing, the
Seller's pro-rata portion of such taxes. The Seller's pro rata portion of
such taxes shall be based upon taxes actually assessed for the current
calendar year. If, for any reason, ad valorem taxes and personal property
taxes (if any) for the current calendar year have not been assessed on the
Property, such prorating shall be estimated based upon ad valorem taxes
and personal property taxes (if any) for the immediately preceding
calendar year, and adjusted when actual amounts are available.
(e) Expenses. All other income and ordinary operating expenses for
or pertaining to the Property, including, but not limited to, public
utility charges, maintenance, service charges, housekeeping expenses and
all other normal operating charges of the Property shall be prorated at
the Closing effective as of 6:00 a.m. on the Closing Date. All utility
meters shall be read on the Closing Date and Seller shall pay to Purchaser
an amount equal to one-half (1/2) of all utility charges incurred or
accrued up to the reading of such utility meters. In the event the meter
readings are not available at Closing, utility costs will be prorated
based on the best information available.
(f) Reproration. In the event any adjustments pursuant to this
Section 11.5 are, subsequent to Closing, found to be erroneous, then
either party hereto who is entitled to additional monies shall invoice the
other party for such additional amounts as may be owing, accompanied by
copies of all paid statements, and such amount shall be paid within ten
(10) days from receipt of the invoice. The obligations of Seller and
Purchaser under this Paragraph 11.5 shall survive the Closing hereof for a
period of ninety (90) days.
Section 11.6 Possession. Possession of Seller's interest in the Property
shall be delivered to Purchaser by Seller at the Closing, subject only to such
rights of others as have been expressly disclosed herein.
Section 11.7 Closing Costs. Seller shall pay its proportionate share of
the prorations set forth in Section 11.5. Purchaser shall pay its proportionate
share of the prorations set forth in Section 11.5, all realty, transfer, sales,
deed or documentary taxes, any loan assumption or termination fees and
associated costs and expenses required for the assumption of the Loan. Each
party hereto represents that it has not used the services of a real estate
broker in this transaction and each agrees to indemnify the other for any claims
against the other by any broker claiming through the indemnifying party. In
addition to Seller paying its proportionate share of any prorations pursuant to
Section 11.5, Seller will also pay for deed preparation and the title
commitment, provided, however, Seller may use the services of Reynolds,
Johnston, Xxxxxx, Xxxxxx and Pepper, LLP, for title examination and title
insurance commitment. Each party shall pay its own attorney
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fees. Purchaser shall pay for all the normal closing costs.
Section 11.8 Seller's Indemnity. The Seller agrees to indemnify and hold
the Purchaser harmless of and from any and all liabilities, claims, demands and
expenses, of any kind or nature (except those items which by this Contract
specifically become the obligation of the Purchaser) arising or accruing prior
to the date of Closing and which are in any way related to Seller's ownership,
maintenance or operation of the Property, and all expenses related thereto,
including, without limitation, court costs and attorneys' fees.
Section 11.9 Purchaser's Indemnity. The Purchaser agrees to indemnify and
hold the Seller harmless of and from any and all liabilities, claims, demands
and expenses, of any kind or nature (except those items which by this Contract
specifically remain the obligation of the Seller) arising or accruing subsequent
to the date of Closing and which are in any way related to Purchaser's
ownership, maintenance or operation of the Property, and all expenses related
thereto, including, without limitation, court costs and attorneys' fees.
Section 11.10 Notice of Claim. In the event either party hereto receives
notice of a claim or demand, which results or may result in indemnification
pursuant to Section 11.8 or 11.9, such party shall immediately give notice
thereof to the other party to this contract. The party receiving such notice
shall immediately take such measures as may be reasonably required to properly
and effectively defend such claim, and may defend same with counsel of his own
choosing. In the event the party receiving such notice fails to properly and
effectively defend such claim, and in the event such party is liable therefor,
then the party so giving such notice may defend such claim at the expense of the
party receiving such notice.
ARTICLE 12 - Intentionally omitted.
ARTICLE 13
Remedies of Default
Section 13.1 Termination. If this Contract is terminated by Purchaser
pursuant to any one or more Sections hereof which entitle Purchaser to terminate
this Contract, or if the sale contracted for herein is not consummated due to a
material default on the part of the Seller, then Purchaser shall have all rights
available under this agreement and the State of Kentucky including the right of
specific performance or damages, and Purchaser may seek either.
Section 13.2 Purchaser's Default. In the event all conditions of this
Contract are satisfied and in the event all covenants and agreements to be
performed by Seller prior to Closing are fully performed, and in the event that
performance of this Contract is tendered by the Seller and the sale is not
consummated through default on the part of the Purchaser on the Closing Date,
then Seller shall have all rights and remedies available under this Agreement
and the Commonwealth of Kentucky including the rights of specific performance
and damages, including without limitation attorney fees and costs.
Section 13.3 Seller's Default. In the event that any of the Seller's
representations or warranties contained herein are untrue or if Seller shall
have failed to have performed any of the covenants or agreements contained
herein which are to be performed by Seller for any reason, Purchaser may, at its
option: (a) terminate this Contract by giving written notice of termination to
Seller; (b) seek to enforce specific performance of this Contract and recover
all attorneys fees, court costs and other costs and expenses incurred by
Purchaser in connection with the pursuit of such specific performance action; or
(c) terminate this Contract by giving written notice of termination to Seller
and seek damages for breach of this Contract by Seller.
ARTICLE 14
Miscellaneous
Section 14.1 Notices. All notices, demands, or other communications of any
type (herein collectively referred to as "Notices") given by the Seller to the
Purchaser or by the Purchaser to the Seller, whether required by this Contract
or in any way related to the transaction contracted for herein, shall be void
and of no effect unless given in accordance with the provisions of this Section
14.1. All notices shall be in writing and delivered to the person to whom the
notice is directed, either in person, by telecopy, overnight delivery service
9
or by United States Mail, as a Registered or Certified item, Return Receipt
Requested. Notices delivered personal delivery, telecopy or overnight delivery
shall be effective when received, or delivery is attempted but refused, and
notices delivered by mail shall be effective when deposited in a Post Office or
other depository under the care or custody of the United States Postal Service,
enclosed in a wrapper with proper postage affixed, addressed, if to the
Purchaser, as follows:
Education Realty Operating Partnership, LP
000 Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxx@xxxxx.xxx
With a copy to:
Martin, Tate, Xxxxxx & Xxxxxxx, P. C.
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxx 00000-0000
Attention: Xxx Xxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxx@xxxxx.xxx
E-Mail: xxxxxx@xxxxxxxxxx.xxx
With a copy to:
Xxxxxx, Xxxxxxx & Xxxxxx, LLP
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
E-Mail: xxxxxxxxx@xxxxxx.xxx
and addressed, if to the Seller, as follows:
The Gables, LLC
1337 US 00 Xxxx Xxxxxx
Xxxxxxx Xxxxx, Xxxxxxxx 00000
With copy to:
Xxxxx X. Xxxxxx
Reynolds, Johnston, Xxxxxx, Xxxxxx & Pepper, LLP
000 X. 00xx Xxxxxx
P.O. Box 4000
Bowling Green, Kentucky 42102-4000
Either party hereto may change the address for notice specified above by giving
the other party ten (10) days advance written notice of such change of address.
The attorney for each party to this Contract identified in this Section 14.1 may
give notices on behalf of his or her client with the same force and effect as if
such notice were given directly by such party.
Section 14.2 Timing; Effective Date. For purposes of determining the time
for performance of various obligations under this Contract, the effective date
of this Contract shall be the date the last signature of a party required hereon
is appended hereto ("Effective Date"). If the date for the performance of any
obligation or the
10
expiration of any time period hereunder falls on a Saturday, Sunday or legal
holiday under the laws of the United States and/or the State of Kentucky, such
date shall be extended until the next day which is not a Saturday, Sunday or
legal holiday.
Section 14.3 Survival. Any representation, warranty, covenant or agreement
herein of either party to this Contract, whether to be performed before or after
the time of Closing, shall not be deemed to be merged into or waived by the
instruments of Closing, but shall expressly survive Closing and shall be binding
upon the party obligated thereby as provided for herein. The representations and
warranties contained in Sections 8.1 and 8.2 shall be true and correct on the
date of Closing and shall survive the Closing and continue in full force and
effect for one (1) year following the date of the closing, notwithstanding the
Closing and consummation of the sale contracted for herein, and the obligation
to close this transaction is expressly conditioned upon said representations and
warranties being true and correct on the date of Closing. Any and all claims
based upon or relying on such representations or warranties must be brought
within one (1) year from the date of closing.
Section 14.4 Construction. This Contract shall be construed and
interpreted in accordance with the laws of the State of Kentucky and the
obligations of the parties hereto are and shall be performable in the County
wherein the Property is located. Where required for proper interpretation, words
in the singular shall include the plural; the masculine gender shall include the
neuter and the feminine, and vice versa. The terms "heirs, executors,
administrators and assigns" shall include "successors, legal representatives and
assigns".
Section 14.5 Amendment. This Contract may not be modified or amended,
except by an agreement in writing signed by the Seller and the Purchaser. The
parties may waive any of the conditions contained herein or any of the
obligations of the other party hereunder, but any such waiver shall be effective
only if in writing and signed by the party waiving such conditions or
obligations.
Section 14.6 Authority. Each person executing this Contract warrants and
represents that he is fully authorized to do so.
Section 14.7 Attorneys' Fees. In the event it becomes necessary for either
party hereto to file a suit to enforce this Contract or any provisions contained
herein, the party prevailing in a final non-appealable judgment in a court of
competent jurisdiction shall be entitled to recover, in addition to all other
remedies or damages, reasonable attorneys fees incurred in such suit.
Section 14.8 Headings. The descriptive headings of the several Articles,
Sections and Paragraphs contained in this Contract are inserted for convenience
only and shall not control or affect the meaning or construction of any of the
provisions hereof.
Section 14.9 Entire Agreement. This Contract, including the Exhibits
hereto, constitutes the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior and contemporaneous agreements
and understandings of the parties in connection therewith. No representation,
warranty, covenant, agreement or condition not expressed in this Contract shall
be binding upon the parties hereto or shall affect or be effective to interpret,
change or restrict the provisions of this Contract.
Section 14.10 Copies and Multiple Counterparts. The parties have executed
numerous copies and/or multiple counterparts of this Contract hereto. Each such
executed copy and/or all counterparts shall have the full force and effect of an
original executed instrument.
Section 14.11 1031 Exchange. Seller may wish to take advantage of the
Internal Revenue Code provisions under Rule 1031 dealing with like kind
exchanges. In such event, Purchaser agrees to cooperate with Seller by executing
such documents as are required in connection therewith by a qualified
intermediary and remitting the proceeds to such intermediary in accordance with
its instructions.
[SIGNATURE PAGE FOLLOWS]
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EXECUTED as of the 27th day of August, 2004 by Purchaser.
Education Realty Operating Partnership, L.P.,
A Delaware limited partnership.
By: Education Realty Trust OP GP, Inc.,
Its General Partner
By: /s/ Xxxx X. Xxxxxx
Title: President
EXECUTED as of the 27th day of August, 2004 by Seller.
The Gables, LLC,
a Kentucky limited liability corporation.
By: /s/ Xxxx Xxxxxxxx
Title: Member
EXHIBIT "A"
LEGAL DESCRIPTION
ALL THAT CERTAIN tract or parcel of land and premises situate, lying and being
in the County of Xxxxxx, City of Bowling Green, State of Kentucky and more
particularly described as follows:
Beginning at an iron pin set in the northwest right-of-way
intersection of Xxxxxxx Street and Xxxxxxxx Avenue; thence with the
right-of-way line of Xxxxxxx Street S 40 deg. 57 min. 40 sec. W
210.23 feet to an iron pin; thence with a curve to the right having
a radius of 507.03 feet, an arc length of 197.47 feet and a chord
bearing and distance of S 52 deg. 07 min. 06 sec. W 196.22 feet to
an iron pin; thence S 63 deg. 16 min. 31 sec. W 202.60 feet to an
iron pin, corner common to Lot 1 of Plat Book 27, Page 151; thence
leaving said right-of-way and with the common line of said Lot 1 N
51 deg. 41 min. 29 sec. W 340.78 feet to an iron pin located in the
southeast right-of-way line of the CSX Railroad; thence leaving said
common line and with the right-of-way line of the CSX Railroad N 37
deg. 41 min. 31 sec. E 562.99 feet to an iron pin located in the
southwest right-of-way of Xxxxxxxx Avenue; thence leaving said
Railroad right-of-way and with the right-of-way line of Xxxxxxxx
Avenue S 54 deg. 10 min 50 sec. E 489.38 feet to the point of
beginning, containing 5.81 acres, and being all of Lots 2 & 3
(collectively now Lot 2) of Xxxxxxxx and Xxxxxxxx Subdivision
Revised as recorded in Plat Book 30, Page 20, at the Xxxxxx County
Clerk's office, Bowling Green, Kentucky.
Being all of the property conveyed to The Gables, LLC, a Kentucky
limited liability company, by Quitclaim Deed dated July 23, 1996,
and of record in Deed Book 729, Page 783, in the Xxxxxx County
Clerk's office.
Tax Parcel No.
Address: 0000 Xxxxxxx Xxxxx, Xxxxxxx Xxxxx, XX 00000
EXHIBIT "B"
PERSONAL PROPERTY
NONE
