PROPERTY PURCHASE AGREEMENT
(Lakes Edge Apartments Project)
TABLE OF CONTENTS
ARTICLE I. AGREEMENT FOR PURCHASE AND SALE - DESCRIPTION
OF THE PROPERTY
ARTICLE II. PURCHASE PRICE AND PROPERTY XXXXXXX MONEY
2.1. The Purchase Price
2.2. The Xxxxxxx Money
ARTICLE III. PHYSICAL CONDITION OF PROPERTY
3.1. Property Conveyed "AS IS."
3.2. Access to Property; Tests
ARTICLE IV. REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of Seller
4.2. Representations and Warranties of Purchaser
ARTICLE V. INTERIM COVENANTS OF SELLER
5.1. Ordinary Course of Business
5.2. Additional Agreements
5.3. Cooperation; Necessary Approvals
ARTICLE VI. INTERIM COVENANTS OF PURCHASER
6.1. The Necessary Approvals
6.2. Notification Obligations
ARTICLE VII. PERMITTED ENCUMBRANCES TO TITLE
ARTICLE VIII. CONDITION OF TITLE AND TITLE INSURANCE
8.1. Title Commitment; Objections
8.2. Exclusive Remedy of Purchaser
ARTICLE IX. CLOSING
9.1. The Closing Date
9.2. The Closing Statement
9.3. Closing Costs
ARTICLE X. DOCUMENTS TO BE DELIVERED AT CLOSING
10.1. Obligations of Seller
10.2. Obligations of Purchaser
ARTICLE XI. CONDITIONS TO CLOSING
11.1. Conditions to the Obligations of Seller and
Purchaser
11.2. Conditions to the Obligations of Seller
11.3. Conditions to the Obligations of Purchaser
ARTICLE XII. APPORTIONMENTS AND ADJUSTMENTS
12.1. The Adjustment Date
12.2. Adjustments and Apportionments
12.3. Certain Credits to Purchaser
12.4. Certain Tax Prorations
12.5. Insurance; Utilities
12.6. Survivability
ARTICLE XIII. REMEDIES
13.1. Seller's Remedies
13.2. Purchaser's Remedies
13.3. Attorneys' Fees
ARTICLE XIV. INDEMNIFICATION OBLIGATIONS
14.1. Indemnification by Seller
14.2. Indemnification by Purchaser
14.3. General Indemnification Provisions
ARTICLE XV. DAMAGE, DESTRUCTION OR CONDEMNATION
15.1. Maintenance of Insurance
15.2. Events of Casualty and Condemnation
15.3. Insubstantial Damages
15.4. Certain Definitions
15.5. Survivability
ARTICLE XVI. BROKER
16.1. Representations of Purchaser
16.2. Representations of Seller
16.3. Survivability
ARTICLE XVII. NOTICES
ARTICLE XVIII. NO ASSIGNMENT
ARTICLE XIX. INSPECTION
ARTICLE XX. MISCELLANEOUS
20.1. Binding Effect
20.2. Business Days
20.3 Counterparts:
20.4. Section Headings
20.5. Severability
20.6. Entire Agreement
20.7. Waivers
20.8. Governing Law
20.9. No Third Party Beneficiaries
20.10. No Affiliate Liability
20.11. Waiver of Jury Trial
20.12. Press Releases
20.13 Statutory Disclosures Regarding the Property
EXHIBIT A PROPERTY LEGAL DESCRIPTION
EXHIBIT B PERSONAL PROPERTY INVENTORY AS OF SEPTEMBER 1998
EXHIBIT C SPECIAL WARRANTY DEED
EXHIBIT D ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS,WARRANTIES
AND LEASES
EXHIBIT E XXXX OF SALE
EXHIBIT F TENANT NOTIFICATION LETTER
EXHIBIT G DUE DILIGENCE DOCUMENTS
EXHIBIT H OUTSTANDING LITIGATION
PROPERTY PURCHASE AGREEMENT
(Lakes Edge Apartments Project)
THIS PROPERTY PURCHASE AGREEMENT (this "Agreement"), dated as of March
24, 1999 (the "Effective Date"), by and between LAKES EDGE PARTNERS, L.P., a
Delaware limited partnership ("Seller"), and LAKES EDGE-HOMES HOLDINGS, INC., a
Florida corporation ("Purchaser").
RECITALS:
A. Seller is the owner of certain property commonly known as Lakes Edge
Apartments, an apartment project located in Miami-Dade County, Florida.
B. TEWB Real Estate L.P., a Delaware limited partnership ("TEWB"), is
the owner of those certain Multifamily Mortgage Revenue Bonds 1985 Series 12
(Xxxxxx Apartments Project) (the "Bonds") which were issued by the Housing
Finance Authority of Dade County, Florida (the "Issuer"), such Bonds in the
outstanding principal sum of $14,850,000.
C. LEHH, Inc., a Florida corporation ("LEHH"), has agreed with TEWB to
enter into, simultaneously with the execution of this Agreement, that certain
Bond Purchase Agreement of even date herewith by and between LEHH and TEWB (the
"Bond Purchase Agreement") pursuant to the terms of which TEWB shall sell and
convey to LEHH the Bonds, together with all of TEWB's rights pursuant to the
Bond Documents (as defined in the Bond Purchase Agreement). Unless otherwise
deemed herein, capitalized terms used herein shall have the meanings ascribed to
them in the Bond Purchase Agreement.
ARTICLE I.
AGREEMENT FOR PURCHASE AND SALE - DESCRIPTION OF THE PROPERTY
1.1. Seller hereby agrees to sell and cause to be conveyed to
Purchaser, and Purchaser hereby agrees to purchase, the following property
(collectively, the "Property"):
(a) The Real Property. The parcel of real property located in
Miami-Dade County, Florida, and legally described on Exhibit A hereto (the
"Land"), together with all right, title and interest, if any, in and to the
streets and roads abutting such property to the center lines thereof, any strips
and gores within or adjoining such property, the air space and right to use the
air space above such property, all rights of ingress and egress by motor
vehicles to parking facilities on or within such property, all alley, drainage,
mineral, water, oil and gas rights, and the tenements, hereditaments, easements,
rights-of-way and appurtenances belonging or in anywise appertaining thereto;
(b) Improvements and the Personal Property. All buildings,
improvements, fixtures (the "Improvements") and all articles of personal
property (the "Personal Property") attached or appurtenant to or used in
connection with the Property (and, in the case of Personal Property, which is
owned by Seller and located at the Property), which articles of personal
property are listed on Exhibit attached hereto, free from all liens and
encumbrances except those permitted by this Agreement;
(c) The Intangible Property. All intangible property and
rights now or on the Closing Date (as hereinafter defined) owned or held by
Seller in connection with the Land, the Improvements and the Personal Property
or the use thereof, or any business or businesses conducted thereon, building
and trade names (including all of Seller's interest in the name "Lakes Edge
Apartments"), business licenses, warranties (including those relating to
construction or fabrication), utility contracts, telephone exchange numbers,
advertising materials, plans and specifications, engineering plans and studies,
soil reports, governmental approvals and development rights related to the Land
and the Improvements or any part thereof and any credits, reimbursements or
other amounts payable to the owner of any portion of the Land, the Improvements
and the Personal Property (the "Intangible Property");
(d) Leases. All leases (the "Leases") of space in the Land or
Improvements, concession leases, and all tenant security deposits held by Seller
on the Closing Date;
(e) Service Contracts. To the extent assignable without the
consent of third parties, the Service Contracts (as hereinafter defined); and
(f) Funds Held by Bonds Trustee. All funds, accounts,
deposits, escrows and other amounts held by First Union National Bank of Florida
(the "Trustee") in its capacity as Trustee with respect to the Bonds.
ARTICLE II.
PURCHASE PRICE AND PROPERTY XXXXXXX MONEY
2.1. The Purchase Price. The purchase price for the Property hereunder
(the "Purchase Price") shall be comprised of (i) cash consideration in the
amount of One and No/100 Dollars ($1.00) (the "Cash Consideration"); and (ii)
the assumption by Purchaser at the Closing of all of the outstanding principal
and accrued interest arising under the terms of the mortgage securing the Bonds
(the "Assumed Obligations") pursuant to the terms of an Assumption Agreement in
form and substance satisfactory to the Issuer (the "Assumption Agreement"). The
Cash Consideration shall be subject to certain adjustments and prorations as
hereinafter provided, and shall be payable by Purchaser to Seller in immediately
available funds by wire transfer no later than 2:00 p.m. Eastern Time on the
Closing Date.
2.2. The Xxxxxxx Money.
(a) Purchaser shall deposit, within two (2) business days
following the Effective Date, with Ticor Title Insurance Company, 0000 Xxxxxxx
Xxxxx, Xxxxxxx Xxxxx, Xxxxxxx 00000, Attn: Commercial Escrow Department,
Facsimile: 954/971-2050 (the "Title Company") the amount of Five Thousand and
No/100 Dollars ($5,000.00) (the "Property Xxxxxxx Money"), in good funds on or
before 5:00 p.m. Eastern Time on such day. The Property Xxxxxxx Money shall also
include any payment by Purchaser pursuant to Section 9.1(a) below of the sum of
Fifty Thousand and No/100 Dollars ($50,000.00) as consideration for the
Extension Period. The Property Xxxxxxx Money described herein is in addition to
the "Xxxx Xxxxxxx Money" described in the Bond Purchase Agreement. In any
instance in which the Title Company is authorized to deliver the Property
Xxxxxxx Money to Seller pursuant to the terms of this Agreement, such Property
Xxxxxxx Money shall be disbursed pursuant to written instructions executed by
Seller, and in the absence thereof may be interplead by the Title Company. In
any instance in which the Title Company is authorized to return the Property
Xxxxxxx Money to Purchaser pursuant to the terms of this Agreement, the Title
Company shall not return the Property Xxxxxxx Money to Purchaser unless LEHH has
also qualified for return of the Xxxx Xxxxxxx Money under the Bond Purchase
Agreement; provided, however, the Property Xxxxxxx Money shall be returned to
Purchaser upon the delivery of a Termination Notice by Purchaser to the Title
Company and Seller at any time prior to the expiration of the Inspection Period.
The Title Company shall deposit the Property Xxxxxxx Money into an
interest-bearing money market account or other investment instrument or account
constituting immediately available funds designated by Purchaser which in any
case is maintained by Nations Bank or such other federally insured bank or
savings and loan as Purchaser shall select. All interest accrued on the Property
Xxxxxxx Money shall inure to the benefit of Purchaser unless Purchaser defaults
in its obligations hereunder. If the Property Xxxxxxx Money is not deposited
within the required time period hereunder, Seller may terminate this Agreement
by delivering written notice to Purchaser and the Title Company. Upon said
termination, the Title Company shall immediately destroy all executed originals
of this Agreement in its possession. Thereafter, neither party shall have any
further rights or obligations hereunder except for the obligations set forth in
Article XIX and Sections 2.2(b), 3.2, and 13.3 hereof (the "Surviving Duties").
(b) Except as otherwise provided below, in the event of a
termination of this Agreement by either Seller or Purchaser, the Title Company
is authorized to deliver the Property Xxxxxxx Money (together with all interest
earned thereon) to the party hereto entitled to same pursuant to the terms
hereof on or before the third (3rd) business day following receipt of written
notice of such termination by the Title Company and non-terminating party from
the terminating party, unless either party hereto notifies the Title Company
that it disputes the right of the other party to receive the Property Xxxxxxx
Money; provided, however, Seller shall not dispute the right of Purchaser to
receive a return of the Property Xxxxxxx Money at any time prior to the
expiration of the Inspection Period. In the event there is a dispute, the Title
Company shall interplead the Property Xxxxxxx Money into a court of competent
jurisdiction. All reasonable attorneys' fees and costs and the Title Company's
reasonable costs and expenses incurred in connection with such interpleader
shall be assessed against the party that is not awarded the Property Xxxxxxx
Money, or if the Property Xxxxxxx Money is distributed in part to both parties
by agreement or by order of a court of competent jurisdiction, then in the
inverse proportion of such distribution. Notwithstanding the foregoing, in the
event this Agreement is terminated and Purchaser is entitled to receive the
Property Xxxxxxx Money, the Title Company is not authorized to deliver the
Property Xxxxxxx Money to Purchaser unless and until Seller notifies the Title
Company in writing that it has received satisfactory evidence that all Bond
Party Costs have been paid; provided, however, if this Agreement is terminated
as a result of a default by Seller, then the payment of all Bond Party Costs
shall be the responsibility of Seller. Seller shall notify the Title Company
that all Bond Party Costs have been paid within three (3) business days after
Seller verifies that such payment has been made.
(c) Upon the conclusion of the Inspection Period without the
timely delivery of a Termination Notice by Purchaser to Seller, the Property
Xxxxxxx Money (and all interest earned thereon) shall be deemed to be fully
earned by Seller and shall be expressly nonrefundable to Purchaser, unless
Seller subsequently defaults under this Agreement or TEWB defaults under the
Bond Purchase Agreement. All interest earned on the Property Xxxxxxx Money shall
be reported to the Internal Revenue Service as income of the party receiving the
Property Xxxxxxx Money. Purchaser and Seller shall promptly execute all forms
reasonably requested by the Title Company in connection with any reporting to
the Internal Revenue Service.
ARTICLE III.
PHYSICAL (CONDITION OF PROPERTY
3.1. Property Conveyed "AS IS." AS A MATERIAL INDUCEMENT TO SELLER'S
WILLINGNESS TO ENTER INTO THIS AGREEMENT, PURCHASER HEREBY EXPRESSLY
ACKNOWLEDGES ITS UNDERSTANDING AND AGREEMENT THAT, EXCEPT AS OTHERWISE EXPRESSLY
SET FORTH IN SECTION 4.1 HEREOF, SELLER IS NOT MAKING AND SPECIFICALLY DISCLAIMS
ANY WARRANTIES OR REPRESENTATIONS OF ANY KIND OR CHARACTER, EXPRESS OR IMPLIED,
WITH RESPECT TO THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OR
REPRESENTATIONS AS TO MATTERS OF TITLE (OTHER THAN SELLER'S WARRANTY OF TITLE
SET FORTH IN THE DEED TO BE DELIVERED AT CLOSING), ZONING, TAX CONSEQUENCES,
PHYSICAL OR ENVIRONMENTAL CONDITIONS, AVAILABILITY OF ACCESS, INGRESS OR EGRESS,
OPERATING HISTORY OR PROJECTIONS, VALUATION, GOVERNMENTAL APPROVALS,
GOVERNMENTAL REGULATIONS OR ANY OTHER MATTER OR THING RELATING TO OR AFFECTING
THE PROPERTY, INCLUDING, WITHOUT LIMITATION, (I) THE VALUE, CONDITION,
MERCHANTABILITY, MARKETABILITY, PROFITABILITY, SUITABILITY OR FITNESS FOR A
PARTICULAR USE OR PURPOSE OF THE PROPERTY, (II) THE MANNER OR QUALITY OF THE
CONSTRUCTION OR MATERIALS INCORPORATED INTO THE PROPERTY, (III) THE MANNER,
QUALITY, STATE OF REPAIR OR LACK OF REPAIR OF THE PROPERTY, AND (IV) THE
SUITABILITY OR USEFULNESS OF THE BONDS AS FINANCING FOR THE PROPERTY OR THE
ABILITY OF PURCHASER TO HAVE THE BONDS REFUNDED, REISSUED OR RESOLD. PURCHASER
HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY
REPRESENTATION OR WARRANTY OF SELLER OR ANY AGENT OF SELLER EXCEPT FOR THOSE
EXPRESSLY MADE IN THIS AGREEMENT. PURCHASER EXPRESSLY WARRANTS THAT IT IS A
SOPHISTICATED PURCHASER OF REAL ESTATE AND THAT IT IS RELYING SOLELY ON ITS OWN
EXPERTISE AND THAT OF PURCHASER'S CONSULTANTS IN PURCHASING THE PROPERTY.
PURCHASER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY AS
PURCHASER DEEMS NECESSARY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITIONS OF THE PROPERTY, AND SHALL RELY UPON SAME. UPON
CLOSING, PURCHASER SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT
NOT LIMITED TO, ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN
REVEALED BY PURCHASER'S INSPECTIONS, TESTS AND INVESTIGATIONS. PURCHASER
ACKNOWLEDGES AND AGREES THAT UPON CLOSING, SELLER SHALL SELL AND CONVEY TO
PURCHASER AND PURCHASER SHALL ACCEPT THE PROPERTY "AS IS, WHERE IS," WITH ALL
FAULTS EXCEPT FOR ANY REPRESENTATIONS, WARRANTIES AND OTHER MATTERS THAT
SPECIFICALLY SURVIVE CLOSING UNDER THIS AGREEMENT AND SELLER'S WARRANTIES AND
REPRESENTATIONS UNDER THE DEED AND OTHER CLOSING DOCUMENTS. PURCHASER FURTHER
ACKNOWLEDGES AND AGREES THAT THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR
REPRESENTATIONS COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER, ANY AGENT OF
SELLER OR ANY THIRD PARTY. THE TERMS AND CONDITIONS OF THIS SECTION 3.1 SHALL
EXPRESSLY SURVIVE THE CLOSING AND SHALL NOT MERGE WITH THE PROVISIONS OF ANY
CLOSING DOCUMENTS. SELLER IS NOT LIABLE OR BOUND IN ANY MANNER BY ANY ORAL OR
WRITTEN STATEMENTS, REPRESENTATIONS, OR INFORMATION PERTAINING TO THE PROPERTY
FURNISHED BY ANY REAL ESTATE BROKER, AGENT, EMPLOYEE, OR SERVANT OR OTHER
PERSON, UNLESS THE SAME ARE SPECIFICALLY SET FORTH OR REFERRED TO HEREIN.
3.2. Access to Property: Tests. So long as this Agreement remains in
effect, Purchaser and the Permitted Outside Parties shall have the right and
permission to enter upon the Property at all reasonable times, at Purchaser's
expense, to make such investigations, studies and tests which Purchaser deems
necessary or advisable, in its reasonable discretion (collectively, the
"Tests"); all Tests shall be conducted at the sole cost and expense of
Purchaser. Purchaser shall also have the right to review and copy all Leases,
financial records and any other information pertaining to the operation of the
Property in the possession of Seller or its agents, representatives or
contractors during the term of this Agreement. Purchaser shall restore the
Property to its condition existing immediately prior to Purchaser's inspection
thereof, and Purchaser shall be liable for all damage or injury to any person or
property resulting from, relating to or arising out of any such inspection,
whether occasioned by the acts of Purchaser or any of its employees, agents,
representatives or contractors, and Purchaser shall indemnify and hold harmless
Seller and its agents, employees, officers, directors, affiliates and asset
managers from any liability resulting therefrom. This indemnification by
Purchaser shall survive the Closing or the termination of this Agreement, as
applicable. Seller shall make available to Purchaser all of the books and
records, documents and other information pertaining to the Property or the
operation thereof in the possession of Seller and shall reasonably cooperate
with Purchaser in its investigation of the Property.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
4.1. Representations and Warranties of Seller. Seller hereby represents
and warrants to Purchaser as follows:
(a) Formation' Authority and Enforceability. Seller is a
limited partnership duly organized and validly existing under the laws of the
State of Delaware and has full power and authority to enter into this Agreement
and to consummate all of the transactions contemplated hereby, without the
consent of any third party or court, and the persons executing this Agreement
and all other documents required to consummate the transactions contemplated
hereby on behalf of Seller are duly authorized to execute this Agreement and
such other documents on behalf of Seller, and are authorized to bind Seller.
(b) United States Person. Seller is a "United States person", as defined by
Internal Revenue Code Section 1445 and -------------------- Section 7701.
(c) No Conflict. Subject to obtaining the required consents,
if any, of the Bond Parties to the sale or transfer of Seller's right, title and
interest in and to the Property, the execution of this Agreement by Seller does
not, and the performance by Seller of the transactions contemplated by this
Agreement will not, violate or constitute a breach of Seller's partnership
agreement or, to Seller's Knowledge, any contract, permit, license, order or
decree to which Seller is a party or by which Seller or its assets are bound.
(d) No Violation: No Legal Proceedings. To Seller's Knowledge,
from the time when Seller acquired its right, title and interest in and to the
Property, Seller has not received any written notice to the effect that the
Property and the operation thereof are in violation of any applicable federal or
state law, or any ordinance, order or regulation of any governmental or
quasi-governmental agency having jurisdiction over the Property. Except as
disclosed in Exhibit H. to Seller's Knowledge, no litigation or similar
proceedings of any type (including condemnation or similar proceedings) have
been instituted or are pending or contemplated against the Property or any part
thereof, nor has Seller received written notice threatening any such litigation
or similar proceedings.
(e) The Due Diligence Documents. As limited by Article XIX,
except as otherwise disclosed to Purchaser in writing, the Due Diligence
Documents delivered to Purchaser are, to Seller's Knowledge, true, accurate and
complete copies of the Due Diligence Documents. Seller has received no written
notice with respect to (i) the Property's failure to comply with applicable
zoning and use requirements and restrictions, (ii) the lack of the availability
of water, storm sewer, sanitary sewer, gas, electric, telephone and drainage
facilities required by law for the operation of the Property, or (iii) the lack
of availability of vehicular and pedestrian ingress and egress to the Land.
(f) No Grant of Rights. Seller has not granted any person or
entity a right or option to acquire all or any portion of the Property, other
than Purchaser pursuant to this Agreement.
(g) No Claims. Seller has not received written notice of any
claim by any party which asserts any interest in the Property, except for claims
by parties disclosed in the Title Commitment.
(h) Insurance. Seller has not received written notice from any
insurance company providing insurance against loss or damage to the Property of
an intent to cancel or not renew such insurance as a result of defects or
deficiencies in the Property.
(i) Restrictive Covenants. Seller has not received any written
notice of any violations by Seller, or by any other person or entity, of any
restrictive covenants or other matters affecting the Property.
(j) General Environmental Matters. Except as disclosed in the
Due Diligence Documents, any environmental reports, the Survey (as defined
herein) and the Title Commitment (as defined herein), and in accordance with
Article XIX hereof, Seller has not received any written notice of any of the
following: (i) any prior owner's or prior or current occupant's generation,
treatment, storage or disposal of Hazardous Materials (as defined below) in,
under or upon the Land or the Improvements or use of any Hazardous Materials in
or on the Property, or any portion thereof, in violation of any Environmental
Laws (as defined below); (ii) the existence of any Hazardous Materials in, under
or upon the Land, the Improvements or any portion thereof in violation of any
Environmental Laws; (iii) the use and operation of the Property in violation of
any Environmental Laws; (iv) the use of the Land or the Improvements as a
sanitary landfill or dump; (v) any underground storage tank or tanks on or under
the Land or the Improvements; or (vi) the presence of Hazardous Materials or
underground storage tanks in, under or upon any parcel of property adjacent to
the Land. For the purposes of this Agreement, the term "Environmental Laws"
shall mean any federal, state or local statute, ordinance, or regulation
pertaining to health, industrial hygiene, or the environment, including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, 42 U.S.C. Section 9601, et seq. ("CERCLA");
the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901, et
seq. ("RCRA"); and all rules adopted and guidelines promulgated pursuant to the
foregoing, and the term "Hazardous Materials" shall include: (A) those
substances included within the definitions of "hazardous substances", "hazardous
materials", "toxic substances", or "solid waste" in CERCLA, RCRA, and the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq., and in
the regulations promulgated pursuant thereto; (b) those substances listed in the
United States Department of Transportation Table (49 CFR 172.101 and amendments
thereto) or by the United States Environmental Protection Agency as hazardous
substances (40 CFR Part 302 and amendments thereto); and (C) all other
substances, materials and wastes that are, or that become, regulated under, or
that are classified as hazardous or toxic under, any Environmental Law.
(k) No Hazardous Materials. Except as disclosed in the Due
Diligence Documents, any environmental reports, the Survey and the Title
Commitment, and in accordance with Article XIX hereof, to Seller's Knowledge,
during Seller's ownership of the Land, Seller has not used, generated, treated,
stored or disposed of any Hazardous Materials in, under or upon the Land or the
Improvements (above or below ground), or any portion thereof, in violation of
any Environmental Laws.
(l) No Wetland. Except as disclosed in the Due Diligence
Documents, any environmental reports, the Survey and the Title Commitment and in
accordance with Article XIX hereof, Seller has not received any written notice
that any portion of the Land is a wetland designated by the United States Army
Corps of Engineers or other federal, state or local body or agency having
jurisdiction over the Property or any portion thereof.
(m) Lease Prepayments. Rents under the Leases relating to the Property have
not been prepaid by more than thirty-one ----------------- (31) days.
As used herein, "Seller's Knowledge" or words to that effect means
matters which are in fact actually known to W. Xxxxxx Xxxxxx, a manager of the
general partner of the general partner of Seller, or to Xxxxxx X. Xxxxxx, an
advisor to the Seller, and does not mean constructive knowledge. Seller hereby
represents that W. Xxxxxx Xxxxxx and Xxxxxx X. Xxxxxx are the persons with
primary responsibility for the Property during the term of its ownership by
Seller and are the persons who would as a matter of course be made aware of any
such matters. As used herein, "Seller has not received any written notice" or
words to that effect means neither W. Xxxxxx Xxxxxx nor Xxxxxx X. Xxxxxx has
received any such written notice, and does not mean constructive notice. Xxxxxx
X. Xxxxxx shall have made reasonable inquiry of the management company having
responsibility for the Property, as to the matters set forth in the warranties
and representations contained herein. With respect to such inquiry, information
need not have been delivered or given in writing. Furthermore, each
representation and warranty made in this Section 4.1 or elsewhere in this
Agreement by Seller shall be deemed modified, to the extent required to make
such representation or warranty materially true and correct, as a result of any
and all documents (including, without limitation, the Due Diligence Documents
and those documents which describe the transactions contemplated by the Bond
Purchase Agreement), materials, reports, studies or other information received
by Purchaser or LEHH from Seller, TEWB, or from any third party, or discovered
by Purchaser or LEHH as a result of Purchaser's or LEHH's own investigation,
tests, inspections, studies or analysis of the Property during the Inspection
Period, as if such representation or warranty were originally made to reflect
such matters. Notwithstanding the foregoing, each representation and warranty of
Seller contained herein or elsewhere in this Agreement shall expire, and be
deemed null and void as if the same had never been given or made, unless and to
the extent Purchaser delivers notice of its intent to file a claim and
thereafter files a claim in respect of such representations and warranties
within six (6) months after the Closing Date. If, at any time prior to Closing,
Seller learns or has reason to believe that any of the aforesaid representations
and warranties is no longer true or valid and will not be true and valid on the
Closing Date, Seller shall notify Purchaser in writing and therein specify the
factors rendering or likely to render such representations or warranties untrue
or invalid. If, at any time prior to Closing, Purchaser learns or has reason to
believe that any of the aforesaid representations and warranties is no longer
true or valid, Purchaser shall notify Seller in writing and therein specify the
factors rendering or likely to render such representations or warranties untrue
or invalid. Within five (5) days of receiving such notice or of learning that
any such representation or warranty is no longer true or valid, Purchaser shall
exercise the option to either (i) waive such invalidity and proceed to Closing;
or (ii) terminate this Agreement and receive the Property Xxxxxxx Money
(together with all interest earned thereon) and thereafter neither party shall
have any further rights or obligations hereunder, except the Surviving Duties.
4.2. Representations and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller as follows:
(a) Formation and Authority. Purchaser is a Florida
corporation, duly organized, validly existing and in good standing under the
laws of the state of its formation and duly authorized and qualified to perform
all obligations imposed upon it under this Agreement. Purchaser has full power
and authority to execute and deliver, and to perform all of its obligations
under, this Agreement and nothing prohibits or restricts the right or ability of
Purchaser to close the transactions contemplated hereunder or to carry out the
terms hereof.
(b) Due Execution and Enforceability. This Agreement and all
agreements, instruments and documents herein provided to be executed or to be
caused to be executed by Purchaser are duly authorized, executed and delivered
by Purchaser and constitute the legal, valid and binding obligations of
Purchaser, enforceable against Purchaser in accordance with their terms,
covenants and conditions.
(c) Sophisticated Investor. Purchaser is a sophisticated and
knowledgeable real estate investor that has ready access to any legal and
financial advice which may be necessary to meet its obligations hereunder, and
its decision to purchase the Property is based upon its own independent expert
evaluations of the Property, the Due Diligence Documents, the Survey, the Title
Commitment and any and all other materials deemed relevant by Purchaser and its
agents. Purchaser has not relied in entering into this Agreement upon any oral
or written information from Seller or any of its employees, affiliates, agents
or representatives, except as expressly set forth in Section 4.1 hereof.
Purchaser further acknowledges that no employee or representative of Seller has
been authorized to make, and that Purchaser has not relied upon, any statements
or representations of Seller or any of its employees, affiliates, agents or
representatives, except as expressly set forth in this Agreement.
ARTICLE V.
INTERIM COVENANTS OF SELLER
Until the Closing Date or the earlier termination of this Agreement:
5.1. Ordinary Course of Business. Seller shall conduct, operate,
manage, lease and maintain the Property in the same manner as prior hereto
pursuant to its ordinary course of business.
5.2. Additional Agreements. Seller shall not enter into any additional
business agreements or other contracts or arrangements affecting the Property
without the prior written consent of Purchaser, which consent shall not be
unreasonably withheld, unless such business agreements or other contracts can be
terminated on not more than 30 days notice without penalty.
5.3. Cooperation; Necessary Approvals. Seller agrees (a) to cooperate
reasonably with Purchaser in obtaining any approvals from the Issuer or the
Trustee (the "Necessary Approvals") in connection with (i) the execution and
delivery of this Agreement and the transfer of the Property to Purchaser; and
(ii) any efforts made by LEHH to purchase the Assets pursuant to the Bond
Purchase Agreement and (b) to execute any documents reasonably required to
accomplish the foregoing; provided, however, that Seller shall not be required
to spend any funds in connection with its agreements under this Section 5.3 nor
shall Seller be obligated to execute any indemnity, guaranty or any other
agreement which imposes covenants on Seller that survive Closing.
ARTICLE VI.
INTERIM COVENANTS OF PURCHASER
6.1. The Necessary Approvals. Purchaser hereby expressly covenants and agrees to
use its diligent good faith efforts to secure the Necessary Approvals.
6.2. Notification Obligations. Purchaser hereby further expressly covenants and
agrees to promptly notify each of Seller and TEWB of any action required by
either Seller or TEWB in order to secure the Necessary Approvals.
ARTICLE VII.
PERMITTED ENCUMBRANCES TO TITLE
Purchaser agrees to accept title to the Property subject to the
following encumbrances (collectively, the "Permitted Encumbrances"): (a) the
rights and interests of parties claiming under the Leases, as long as none of
such Leases contains an option to purchase the Property by the lessee or a
provision permitting renewal of the Lease for a term greater than one year; (b)
any easement, right of way, encroachment, conflict, discrepancy, overlapping of
improvements, protrusion, lien, encumbrance, restriction, condition, covenant,
exception or other matter with respect to the Property that is reflected or
addressed on the Survey (as defined in Section 8.1 below) or the Title
Commitment (as defined in Section 8.1 below) to which the Purchaser fails to
timely object pursuant to Section 8.1 of this Agreement; (c) all liens securing
payment of all ad valorem, intangible and other real and personal property
taxes, special and general assessments, school taxes and water and sewer charges
against any of the Property for the tax year in which the Closing Date occurs
and subsequent years, not yet due and payable (subject to proration at Closing
pursuant to Section 12.2 below); and (d) any Objections (as defined in Section
8.1 below) that remain uncured, for whatever reason, at the earlier to occur of
(i) Closing hereunder or (ii) five (5) business days after Seller notifies
Purchaser that Seller is unwilling or unable to cure the Objections to the
reasonable satisfaction of Purchaser, except for those Objections that Seller is
required to cure pursuant to Section 8.1 below.
ARTICLE VIII.
CONDITION OF TITLE AND TITLE INSURANCE
8.1. Title Commitment: Objections. Seller shall obtain from the Title
Company a current title insurance commitment for the Property (the "Title
Commitment") together with legible copies of any restrictive covenants,
easements, and other items listed as title exceptions therein to issue an ALTA
Form B Owner's Policy of Title Insurance (the "Title Policy") for the Property.
Within five (5) business days after the Effective Date, Seller shall provide to
Purchaser, to the extent same are in Seller's possession, copies of the
following: (a) any title commitments or title policies concerning the Property,
including the Title Commitment, (b) a current survey of the Property showing all
Improvements thereon (the "Survey") and (c) a current rent roll reflecting all
Leases that affect the Property. Within fifteen (15) business days after the
receipt of items (a) through (c) referred to in the immediately preceding
sentence (the "Title Review Period"), Purchaser shall give written notice (the
"Objection Notice") to Seller of any item affecting the title or the Survey to
which Purchaser objects (the "Objections") separately specifying and setting
forth each such Objection, and Seller shall notify Purchaser within five (5)
business days after its receipt of Purchaser's written notice of Seller's intent
to not cure one or more of the Objections ("Seller's Notice"). Seller shall then
cure on or before Closing all Objections except those set forth in Seller's
Notice. Seller shall pay or bond over any mechanic's liens, real estate and
personal property taxes and unpaid bills with respect to the Property incurred
or arising with respect to periods prior to Closing. If Purchaser gives Seller
an Objection Notice within the Title Review Period, then all matters disclosed
in the Title Commitment which are not objected to in such Objection Notice shall
be deemed to be Permitted Encumbrances. If Purchaser fails to give Seller an
Objection Notice within the period set forth above, then all matters disclosed
in the Title Commitment shall be deemed to be Permitted Encumbrances. Purchaser
may issue an Objection Notice with respect to any new matters first reflected in
any update of the Title Commitment or Survey, so long as it is given within five
(5) business days of receipt of such update. If Purchaser has any Objections
which Seller has not elected to cure, then Purchaser shall have the right to
notify Seller prior to the later of (i) the expiration of the Title Review
Period or (ii) three (3) business days after receipt of Seller's Notice that
Purchaser has elected to receive a return of the Property Xxxxxxx Money
(together with all interest accrued thereon) in accordance with Section 2.2
hereof, and, following Purchaser's receipt thereof, this Agreement shall
terminate and neither party shall have any further obligations to the other
party hereunder, except the Surviving Duties.
8.2. Exclusive Remedy of Purchaser. Except as set forth in Section 8.1
above, Seller shall not be required to expend any money or bring any action or
proceeding or undertake any efforts to cure any Objections in order to deliver
the Property or title to the Property as required by this Agreement, other than
to remove (or provide title insurance coverage against) all monetary
encumbrances other than the Assumed Obligations. Should Seller give Purchaser
notice (the "Response Notice") that Seller is unable to convey the Property or
title to the Property as required by this Agreement, Purchaser may, as its sole
and exclusive remedy, elect by written notice given to Seller within five (5)
days after the Response Notice is given, either (a) to accept such title as
Seller is able to convey without any reduction or abatement of the Purchase
Price, or (b) to terminate this Agreement, in which event the Property Xxxxxxx
Money (together with all interest accrued thereon) shall be returned to
Purchaser in accordance with Section 2.2 hereof. If Purchaser fails to notify
Seller of its election to terminate this Agreement within such five (5) day
period, Purchaser shall be deemed to have waived any Objections (except any such
monetary obligations) and to have elected to proceed to the Closing of the
transactions contemplated by this Agreement.
ARTICLE IX.
CLOSING
9.1. The Closing Date. The closing of the transactions contemplated
herein (the "Closing") shall be held in the offices of the Title Company (or
such other location as may be mutually agreed upon by Seller and Purchaser) on
the later to occur of: (i) that date which is fifty (50) calendar days after the
Effective Date; or (ii) the tenth business day following that date upon which
all Necessary Approvals shall have been received (such later date, the "Closing
Date"); provided, however, that in no event shall the Closing occur later than
June 10, 1999 (the "Final Termination Date"). Notwithstanding the foregoing,
Purchaser shall have the right to extend the Closing Date (which includes an
extension of the Final Termination Date) for one additional thirty-two (32) day
period (the "Extension Period") by written notice to Seller not later than ten
(10) days prior to the Closing Date and the payment by Purchaser to Seller of a
nonrefundable extension fee equal to $50,000 (which fee shall be applied at
Closing to the Purchase Price and, if such amount exceeds the Cash
Consideration, the excess shall be applied to the Bond Purchase Price). A
payment hereunder also shall extend the Closing Date under the Bond Purchase
Agreement. TIME IS OF THE ESSENCE IN REGARD TO THE PERFORMANCE BY PURCHASER AND
SELLER OF ALL OF THE PROVISIONS OF THIS AGREEMENT.
9.2. The Closing Statement. Upon Purchaser's delivery of all required
documents and instruments and its payment of the Purchase Price and other
amounts required herein, Purchaser and Seller shall prepare and sign a closing
statement reflecting the adjustments and payments made and agreements in
connection therewith (the "Closing Statement"). Seller shall deliver a copy of
the fully executed Closing Statement and all of the aforesaid documents to the
Title Company which shall close in accordance with any escrow instructions
consistent with this Agreement and mutually agreeable to the parties hereto and
such Closing Statement.
9.3. Closing Costs.
(a) Each of the parties hereto shall be responsible for the
payment of (i) any attorneys' fees incurred by it in connection with the
transactions contemplated by this Agreement; (ii) any other fees of any other
professionals retained by it in connection with the transactions contemplated by
this Agreement; and (iii) fifty percent (50%) of (A) all fees owing to the Title
Company as compensation for the services of the Title Company as escrow agent
for the Property Xxxxxxx Money, and (B) all recording charges and any costs
necessary in order to update the Survey incurred after Seller's delivery of the
Survey pursuant to Section 8.1 above.
(b) Seller shall be solely responsible for those reasonable
costs associated with the issuance of the Owner's Title Policy, including the
Title Policy Premium, and for all transfer charges (including intangible or
documentary stamp taxes).
(c) Except as otherwise expressly set forth in Sections 9.3(a)
and (b) above, Purchaser shall be solely responsible for all costs and fees
incurred in connection with the transactions contemplated by this Agreement,
expressly including, with respect to the Bond Purchase Agreement, any Bond Party
Costs.
ARTICLE X.
DOCUMENTS TO BE DELIVERED AT CLOSING
10.1. Obligations of Seller. At or prior to the Closing, Seller shall
execute and/or deliver the following to Purchaser or the applicable third party:
(a) One Special Warranty Deed (the "Deed") for the Land and
Improvements substantially in the form set forth on Exhibit C attached hereto
and incorporated herein.
(b) An Assignment and Assumption of Service Contracts,
Warranties and Leases ("Assignment") substantially in the form set forth on
Exhibit D attached hereto and incorporated herein and a Xxxx of Sale
substantially in the form set forth on Exhibit E attached hereto, pursuant to
which Seller assigns and conveys to Purchaser (i) all Personal Property; (ii)
all Intangible Property; and (iii) any of the other Property described herein
and not covered in the Deed or any other instrument described in this Section
10.1.
(c) Authority documents of Seller authorizing the execution,
delivery and performance by Seller of this Agreement and each document to be
executed and delivered by Seller in connection with this Agreement and
designating one or more officers to execute documents in Seller's name in
connection herewith, certified as correct and complete by Seller, together with
an incumbency certificate for each person executing documents on behalf of
Seller.
(d) All costs and fees required to be paid by Seller pursuant
to this Agreement.
(e) Such other documents and instruments as may be reasonably
required by this Agreement or by the Title Company in order to consummate the
transactions described in this Agreement and to issue the Title Policy to
Purchaser, including a no-lien affidavit in form reasonably satisfactory to
Title Company and Purchaser.
(f) A non-foreign affidavit of Seller complying with the
requirements of Internal Revenue Code Section 1445(f)(3) and the regulations
promulgated thereunder.
(g) To the extent not previously delivered to Purchaser and
within the possession or control of Seller or its affiliates, originals of all
items constituting the Due Diligence Documents, including originals of all
Leases, all service and equipment leasing contracts relating to the Property
which Purchaser has agreed to assume as of the Closing Date (the "Service
Contracts"), all permits, licenses, approvals, entitlements and other
governmental authorizations (including, without limitation, certificates of
occupancy) required in connection with the ownership, use or maintenance of the
Property (the "Permits"), any lease, rental agreement, loan agreement, mortgage,
easement, covenant, restriction or other agreement or instrument relating to the
Property but excluding the Leases (the "Business Agreements"), and copies of all
tenant correspondence and billing files and records. As used herein, the "Due
Diligence Documents" shall have the meaning set forth in Article XIX hereof.
(h) Contemplated and executed state, county and city transfer
tax declarations and any affidavit of Seller relating thereto and required by
applicable laws.
(i) To the extent within Seller's possession, an assignment to
Purchaser of any Permits issued by the appropriate governmental authorities and
utility companies in connection with the Property.
(j) To the extent assignable, an assignment to Purchaser of
all of Seller's right title and interest in and to any plans, credits,
contracts, warranties and guarantees relating to the Property.
(k) All keys to all locks relating to the Property.
(1) Termination of any property management agreements and/or
leasing agreements pertaining to the Property.
(m) A certified copy of the current rent roll.
(n) A certified list of all current litigation, actions or
other proceedings.
(o) A list of all Service Contracts.
(p) If requested by Purchaser, a notice to the tenants of the
Property notifying the tenants of the sale of the Property and confirming the
information in the Notice to Tenants.
10.2. Obligations of Purchaser. At or prior to the Closing, Purchaser shall
execute and/or deliver the following to Seller or the appropriate third parties:
(a) The Cash Consideration.
(b) The Assumption Agreement.
(c) An executed counterpart of the Assignment.
(d) Authority documents of Purchaser authorizing the
execution, delivery and performance by Purchaser of this Agreement and each
document to be executed and delivered by Purchaser in connection with this
Agreement and designating one or more officers to execute documents in
Purchaser's name in connection herewith, certified as correct and complete by
Purchaser, together with an incumbency certificate for each person executing
documents on behalf of Purchaser.
(e) All costs and fees required to be paid by Purchaser
pursuant to this Agreement.
(f) A duly executed notice to the tenants of the Property
substantially in the form set forth on Exhibit F attached hereto and
incorporated herein (the "Notice to Tenants").
(g) Such other documents and instruments as may be reasonably
required by this Agreement or by the Title Company in order to consummate the
transactions contemplated by this Agreement.
ARTICLE XI.
CONDITIONS TO CLOSING
11.1. Conditions to the Obligations of Seller and Purchaser.
(a) No Injunction Etc. The transactions contemplated by this
Agreement to be effected on the Closing Date shall not have been restrained or
prohibited by any injunction or order or judgment rendered by any court or other
governmental agency of competent jurisdiction and no proceeding shall have been
instituted and be pending in which any creditor of Seller or any other person
seeks to restrain such transaction or otherwise to attach any of the Property.
(b) Mutually Dependent Transactions. Purchaser and Seller
expressly acknowledge and agree that the consummation of the transactions
contemplated by this Agreement is expressly dependent upon the consummation of
the transactions contemplated by the Bond Purchase Agreement. Accordingly, and
notwithstanding any provision of this Agreement to the contrary: (i) it shall be
a condition precedent to Seller's obligation to convey the Property to
Purchaser, that LEHH simultaneously acquire the Assets; (ii) it shall be a
condition precedent to Purchaser's obligation to acquire the Property from
Seller, that TEWB convey to LEHH the Assets; (iii) a default by LEHH under the
Bond Purchase Agreement shall constitute a default by Purchaser hereunder; (iv)
a default by TEWB under the Bond Purchase Agreement shall constitute a default
by Seller hereunder; and (v) if Purchaser or LEHH, as the case may be, shall be
entitled to, and shall elect to, terminate this Agreement or the Bond Purchase
Agreement pursuant to the provisions hereof or thereof, this Agreement or the
Bond Purchase Agreement, as the case may be, shall likewise terminate and the
parties hereto shall have no further rights or obligations hereunder, except the
Surviving Duties.
11.2. Conditions to the Obligations of Seller. In addition to the
conditions provided in other provisions of this Agreement, Seller's obligations
to perform its undertakings provided in Section 10.1 of this Agreement
(including its obligation to sell the Property) are conditioned on the
following:
(a) Performance by Purchaser. The due performance by Purchaser
of each and every undertaking and agreement to be performed by it hereunder in
all material respects (including the delivery to Seller of the items specified
to be delivered by Purchaser in Article X hereof) and the truth of each
representation and warranty made by Purchaser in this Agreement in all material
respects at the time as of which the same is made and as of the Closing Date as
if made on and as of the Closing Date.
(b) No Bankruptcy or Dissolution. At no time on or before the
Closing Date shall any Bankruptcy/Dissolution Event, as hereinafter defined,
have occurred with respect to Purchaser. "Bankruptcy/Dissolution Event" means
the occurrence of any of the following: (i) the commencement of a case under
Title 11 of the U.S. Code, as now constituted or hereafter amended, or under any
other applicable federal or state bankruptcy law or other similar law; (ii) the
appointment of a trustee or receiver of any property interest; (iii) an
assignment for the benefit of creditors; (iv) an attachment, execution or other
judicial seizure of a substantial property interest; (v) the taking of, failure
to take, or submission to any action indicating an inability to meet its
financial obligations as they accrue; or (vi) a dissolution or liquidation,
death or incapacity.
11.3. Conditions to the Obligations of Purchaser. In addition to the
conditions provided elsewhere in this Agreement, Purchaser's obligations to
perform its undertakings provided in Section 10.2 of this Agreement (including
its obligation to purchase the Property) are conditioned on the following:
(a) Necessary Approvals. Purchaser shall have obtained all
Necessary Approvals.
(b) Performance by Seller. The due performance by Seller of
each and every undertaking and agreement to be performed by it hereunder in all
material respects and the truth of each representation and warranty made by
Seller in this Agreement in all material respects at the time as of which the
same is made and as of the Closing Date as if made on and as of the Closing
Date.
(c) No Bankruptcy or Dissolution. That at no time on or before
the Closing Date shall a Bankruptcy/Dissolution Event have occurred with respect
to Seller.
If any of the above conditions is not satisfied, Purchaser may, at its option,
(i) waive such condition and proceed to Closing and accept title to the Property
without any offset or deduction from the Purchase Price or (ii) provide written
notice to Seller of Purchaser's election to receive a return of its Property
Xxxxxxx Money (together with all interest accrued thereon), and upon Purchaser's
receipt of such Property Xxxxxxx Money (together with all interest accrued
thereon), this Agreement shall terminate and the parties hereto shall have no
further rights or obligations hereunder, except the Surviving Duties; provided,
however, if the only condition to Purchaser's obligations not satisfied is the
one specified in Section 11.3(a) above, then Purchaser shall not be entitled to
receive the Property Xxxxxxx Money and the interest accrued thereon.
ARTICLE XII.
APPORTIONMENTS AND ADJUSMENTS
12.1. The Adjustment Date. Seller shall be responsible for and pay all
expenses with respect to the Property accruing up to 11:59 p.m. Eastern Time on
the day prior to the Closing Date (the "Adjustment Date") and shall be entitled
to receive and retain all revenue from the Property accruing through the
Adjustment Date.
12.2. Adjustments and Apportionments. On the Closing Date, the
following adjustments and apportionments shall be made in cash as of the
Adjustment Date:
(a) (i) Rents collected under Leases for the month in which
the Closing Date occurs (the "Closing Month"). Purchaser shall have the right to
collect any delinquent rentals, but shall not have the obligation to do so.
Delinquent rentals under any existing Leases collected by Purchaser, net of the
costs of collection (including attorneys' fees), shall be applied first against
any amount currently due and owing under such Leases and then to amounts most
recently overdue ("Rent Arrearages"). If, as and when Purchaser collects
payments from a tenant on account of Rent Arrearages attributable to the period
Seller owned the Property, Purchaser shall hold such funds for Seller and shall
pay an amount equal to such Rent Arrearages collected to Seller within ten (10)
days after Purchaser or its agent receives each such payment.
(ii) On that date which is six (6) months after the
Closing, Purchaser shall deliver to Seller a collection
report showing the sum, if any, paid by each tenant at the Property and the
unpaid balance owed by such tenant pursuant to its Lease through such date.
Seller shall have the right to review and audit Purchaser's records with respect
to the Rent Arrearages payable to or collected by Purchaser.
(b) Real estate taxes, ad valorem taxes, school taxes,
assessments and personal property, intangible and use taxes, if any, based on
100% of the 1999 taxes due or, if the actual amount is not known, the most
recent ascertainable taxes for the Property (the "Taxes") for the year of
Closing.
(c) Charges under the Service Contracts (provided that same
were delivered to Purchaser during the Inspection Period) affecting the Property
on the Closing Date (except those required to be terminated on or before Closing
pursuant to the terms of this Agreement) and utility charges and deposits
relating to the Property.
(d) Income from users of vending machines, laundry services,
utilities, tenant services, and from any other operations of the Property, if
any.
(e) Any and all prepaid expenses of Seller relating to the
Property.
(f) Seller agrees to make vacant units at the Property rent
ready at Seller's cost and expense prior to Closing in accordance with Seller's
prior practices; provided that Seller shall have no obligation to make units
rent ready that become vacant not more than one week prior to the Closing Date.
12.3. Certain Credits to Purchaser. At the Closing, Purchaser will
receive a credit against the Cash Consideration in an amount equal to any
prepaid rentals and other charges for more than the Closing Month, if any, and
all unapplied security deposits (and interest thereon as required by law)
payable to tenants under Leases in effect on the Closing Date against
Purchaser's receipt and indemnification therefor. Upon making such credit,
Purchaser shall be fully responsible for the same as if a cash amount equal to
such security deposits were actually delivered to Purchaser. Prior to the
Closing, Seller reserves the right to apply all security deposits as provided
under the respective Leases.
12.4. Certain Tax Prorations. The prorations and payments shall be made
on the basis of a written statement approved by Purchaser and Seller. In the
event any prorations or apportionments made under this Article XII shall prove
to be incorrect for any reason, then any party shall be entitled to an
adjustment to correct the same. Any item which cannot be finally prorated
because of the unavailability of information shall be tentatively prorated on
the basis of the best data then available and reprorated when the correct data
is available. As soon as the amount of Taxes on the Property for the year of
Closing is known, Seller and Purchaser will readjust the amount of Taxes to be
paid by each party with the result that Seller shall pay for those Taxes
applicable to the Property prior to the Closing Date and Purchaser shall pay for
those Taxes applicable to the Property on and after the Closing Date. All
special taxes or assessments attributable to any period(s) prior to the Closing
Date shall be paid by Seller and Purchaser shall be liable for the payment of
any special taxes or assessments attributable to any period on and after the
Closing Date. Notwithstanding the foregoing, any reproration shall be made, if
at all, within ninety (90) days after the Closing Date (except with respect to
taxes and assessments, in which case such reproration shall be made within
thirty (30) days after the data necessary to perform such reproration is
available).
12.5. Insurance: Utilities. Seller and Purchaser agree that (a) none of
the insurance policies relating to the Property will be assigned to Purchaser
(and Seller shall pay any cancellation fees resulting from the termination of
such policies) and Purchaser shall be responsible for arranging for its own
insurance as of the Closing Date; (b) utilities, including telephone,
electricity, water and gas, shall be read on the Closing Date to the extent
reasonably feasible; and (c) Seller shall terminate its management contract and
any agreements for the leasing of the units in the Property on the Closing Date.
Accordingly, there will be no prorations for insurance, utilities or payroll.
Notwithstanding the foregoing, in the event a meter reading is unavailable for
any particular utility, such utility shall be prorated on the basis of the last
xxxx, with a reconciliation to actual billed amounts within fifteen (15) days of
receipt of the actual bills by Purchaser.
12.6. Survivability The provisions of this Article XII shall survive
the Closing.
ARTICLE XIII.
REMEDIES
13.1. Seller's Remedies. If Purchaser or LEHH, as the case may be,
fails to purchase (i) the Property pursuant to this Agreement, or (ii) the
Assets pursuant to the Bond Purchase Agreement because of Purchaser's or LEHH's
failure to perform its obligations hereunder or thereunder (all conditions to
Purchaser's or LEHH's obligations having been satisfied or waived by Purchaser
or LEHH) or there is a breach of any of Purchaser's or LEHH's representations
and warranties herein or therein which prohibits Purchaser's or LEHH's
performance hereunder or thereunder and Seller is not in default under this
Agreement and TEWB is not in default under the Bond Purchase Agreement and
Purchaser or LEHH, as the case may be, fails to cure (or, with respect to a
representation or warranty, fails to commence and effect a cure by the later of
Closing or ten (10) days after written notice thereof from Seller or TEWB) any
such breach or failure within ten (10) days after written notice thereof from
Seller to Purchaser or from TEWB to LEHH, as applicable, specifying such breach
or failure, then as Seller's sole and exclusive remedy hereunder, Seller shall
have the right to terminate this Agreement by giving Purchaser and the Title
Company written notice thereof and Seller shall be entitled to receive, as its
sole remedy, the Property Xxxxxxx Money (together with all interest accrued
thereon) as liquidated damages (Seller and Purchaser hereby acknowledging that
the amount of damages resulting from a breach of this Agreement by Purchaser
would be difficult or impossible to accurately ascertain and that the sum
represented by the Property Xxxxxxx Money (together with all interest accrued
thereon) is a reasonable estimate of the total net detriment that Seller would
suffer) and upon Seller's receipt of the Property Xxxxxxx Money (together with
all interest accrued thereon), this Agreement shall terminate, no party to this
Agreement shall have any further claim, agreement, or obligation to any other
party to this Agreement, except the Surviving Duties, and any lien of Purchaser
against the Property shall automatically cease, terminate and be released.
13.2. Purchaser's Remedies.
(a) If the sale contemplated by this Agreement is not
consummated because of Seller's failure to perform its obligations hereunder or
there is a breach of any of Seller's representations and warranties herein and
Purchaser and LEHH are not in default under this Agreement and the Bond Purchase
Agreement, respectively, and Seller fails to cure (or, with respect to a
representation or warranty, fails to commence and effect a cure by the later of
Closing or ten (10) days after written notice thereof from Purchaser) any such
breach or failure within ten (10) days after written notice thereof from
Purchaser to Seller specifying such breach or failure, Purchaser shall be
entitled, as its exclusive remedies, to elect either (i) to terminate this
Agreement and have the Property Xxxxxxx Money (together with all interest
accrued thereon) returned to it or (ii) subject to the provisions of Section
13.2(b) below, to enforce specific performance of Seller's obligations under
this Agreement; provided, however, if specific performance is not available to
Purchaser as a remedy owing to Seller's having conveyed all or a portion of the
Property to another party or some other voluntary act of Seller, then Purchaser,
as its sole remedy, shall be entitled to be reimbursed by Seller for its
reasonable out-of-pocket expenses (including attorneys' fees) in an amount not
to exceed $100,000 and to liquidated damages in the amount of $250,000. In no
event shall Purchaser be entitled to any indirect, consequential or punitive
damages as a remedy hereunder.
(b) In no event shall Purchaser be entitled to enforce
specific performance of Seller's obligations under this Agreement unless
Purchaser notifies Seller of its intention to seek such specific performance
within ten (10) days following the Closing Date.
13.3. Attorneys' Fees. In the event any party hereto is required to
employ an attorney because any litigation or arbitration arises out of this
Agreement between the parties hereto, the nonprevailing party shall pay the
prevailing party, as determined by the court or arbitrator, all reasonable
out-of-pocket costs incurred by the prevailing party (including, without
limitation, reasonable attorneys' fees and expenses) in connection with such
litigation or arbitration.
ARTICLE XIV.
INDEMNIFICATION OBLIGATIONS
Upon the Closing, the parties shall have the following respective
indemnification obligations:
14.1. Indemnification by Seller. Seller shall protect, defend,
indemnify and hold Purchaser harmless from and against any Claim resulting from
an action brought by a third party against Purchaser which results from the
occurrence of any act, omission or event on or relating to the Property prior to
the Closing Date (other than acts or omissions of Purchaser or its agents).
"Claim" means any obligation, liability, claim (including, without limitation,
any claim for damage to property or injury to or death of any persons), lien or
encumbrance, loss, damage, cost or expense (including, without limitation, any
judgment, award, settlement, reasonable attorneys' fees and other costs and
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim (including, without limitation, appellate
proceedings), and any collection costs or enforcement costs).
14.2. Indemnification by Purchaser. In addition to Purchaser's
indemnification of Seller contained in Section 3.2 above and in Article XIX
below, Purchaser shall protect, defend, indemnify and hold Seller harmless from
and against any Claim resulting from an action brought by a third party against
Seller which results from the occurrence of any act, omission or event on or
relating to the Property on or after the Closing Date (other than acts or
omissions of Seller or its agents).
14.3. General Indemnification Provisions. The indemnification obligations
under this Agreement shall be subject to the following provisions:
(a) The party seeking indemnification ("Indemnitee") shall
notify the other party ("Indemnitor") of any Claim against Indemnitee within
fifteen (15) days after it has notice of such Claim, but failure to notify
Indemnitor shall in no case prejudice the rights of Indemnitee under this
Agreement unless Indemnitor shall be prejudiced by such failure and then only to
the extent of such prejudice. Should Indemnitor fail to discharge or undertake
to defend Indemnitee against such Claim (with counsel reasonably approved by
Indemnitee) within twenty (20) days after Indemnitee gives Indemnitor written
notice of the same, then Indemnitee may settle such Claim and Indemnitor's
liability to Indemnitee shall be conclusively established by such settlement,
the amount of such liability to include both the settlement consideration and
the reasonable costs and expenses, including reasonable attorneys' fees,
incurred by Indemnitee in effecting such settlement. Indemnitee shall have the
right to employ its own counsel in any such case, but the fees and expenses of
such counsel shall be at the expense of Indemnitee unless: (i) the employment of
such counsel shall have been authorized in writing by Indemnitor in connection
with the defense of such action, (ii) Indemnitor shall not have employed counsel
to direct the defense of such action, or (iii) Indemnitee shall have reasonably
concluded that there may be defenses available to it which are different from or
additional to those available to Indemnitor and in fact asserts such defenses
(in which case Indemnitor shall not have the right to direct the defense of such
action or to otherwise direct Indemnitee), in any of which events such fees and
expenses shall be borne by Indemnitor.
(b) The indemnification rights under this Agreement shall also
extend to any present or future advisor, trustee, director, officer, partner,
member, employee, beneficiary, shareholder, participant or agent of or in
Indemnitee or any entity now or hereafter having a direct or indirect ownership
interest in Indemnitee.
ARTICLE XV.
DAMAGE DESTRUCTION OR CONDEMNATION
15.1. Maintenance of Insurance. Seller agrees to maintain its present
policies of insurance covering the Property in full force and effect from the
date of this Agreement through and including the Closing Date.
15.2. Events of Casualty and Condemnation.
(a) Prior to Closing, risk of loss with regard to the Property
shall be borne by Seller. If, on or before the Closing Date, either (i) all or a
substantial part of the Property is damaged or destroyed by fire or the elements
or by any other cause other than by condemnation or other power of eminent
domain (a "Casualty Event"), or (ii) all or a substantial part of the Property
is taken by condemnation or other power of eminent domain (a "Condemnation
Event"), Purchaser may, subject to the provisions of Section 15.2(b) below, by
written notice given to Seller within ten (10) days after Purchaser shall have
received written notice from Seller of any such Casualty Event or any such
Condemnation Event (but in no event after the Closing Date), elect to either (A)
terminate this Agreement or (B) proceed to Closing and (i) in the case of a
Casualty Event, Seller shall credit the Cash Consideration with an amount equal
to (x) any sums of money collected by Seller under its policies of insurance or
renewals thereof insuring against the loss in question (after deducting any
costs that Seller shall have paid for repairs or restoration of the damage) plus
(y) the amount of any deductible applicable to such insurance, and Seller shall
assign, transfer and set over to Purchaser all of Seller's right, title and
interest in and to said policies with respect to the Property and any further
sums payable under said policies, or (ii) in the case of a Condemnation Event,
Seller shall assign, transfer and set over to Purchaser all of Seller's right,
title and interest in and to any awards that may be made for any taking. If
Purchaser elects to terminate this Agreement, Purchaser shall notify Seller of
such election in writing; the Property Xxxxxxx Money, together with any interest
accrued thereon, shall be returned to Purchaser and, upon Purchaser's receipt
thereof, this Agreement shall terminate and be of no further force and effect,
except for the Surviving Duties.
(b) Purchaser and Seller hereby expressly agree that,
notwithstanding any other provision of this Agreement to the contrary, in the
event of a Casualty Event or a Condemnation Event which results in a payment or
an award of $14,025,000 or more, Seller shall have the absolute right, in the
exercise of its sole discretion, to terminate this Agreement, upon which
termination Purchaser's sole remedy shall be to receive payment from Seller for
its reasonable out-of-pocket expenses and to have the Property Xxxxxxx Money
(together with all interest accrued thereon) returned to it.
15.3. Insubstantial Damages. If, on or before the Closing Date, an
Insubstantial Part, as hereinafter defined, of the Property is subject to a
Casualty Event or Condemnation Event, then Purchaser shall not have the right to
terminate this Agreement based upon such damage, destruction or taking, and on
the Closing Date:
(a) Seller shall credit the Cash Consideration with an amount
equal to (i) any sums of money collected by Seller under its policies of
insurance or renewals thereof insuring against the loss in question (after
deducting any costs that Seller shall have paid for repairs or restoration of
the damage) plus (ii) the amount of any deductible applicable to such insurance,
and Seller shall assign, transfer and set over to Purchaser all of Seller's
right, title and interest in and to said policies with respect to the Property
and any further sums payable under said policies, and
(b) Seller shall assign, transfer and set over to Purchaser
all of Seller's right, title and interest in and to any awards that may be made
for any taking by virtue of a Condemnation Event.
15.4. Certain Definitions. For the purposes of this Article, an
"Insubstantial Part" of the Property shall mean, with respect to (a) a Casualty
Event, a portion of the Property having a value of $500,000 or less or which
would require expenditures of $500,000 or less for repair or restoration, or (b)
a Condemnation Event, an offer or award of $500,000 or less from the authorities
having jurisdiction over any such Condemnation Event, or a taking which would
not materially impair access (ingress or egress) to the Land.
15.5. Survivability. The provisions of this Article XV shall survive the
Closing.
ARTICLE VXI.
BROKER
16.1. Representations of Purchaser. Purchaser represents and warrants
to Seller that, other than Atlantic Realty Partners ("ARP") (who will be paid by
Seller and/or TEWB when and if the transactions contemplated by' this Agreement
and by the Bond Purchase Agreement are consummated), neither Purchaser nor any
entity related to Purchaser has dealt with any broker or other person or entity
(other than ARP) who would be entitled to a commission or other brokerage fee
from Seller in connection with the transactions described in this Agreement.
Purchaser agrees to indemnify, defend and hold Seller harmless of and from any
loss, cost, damage or expense (including reasonable attorneys' fees and court
costs) arising out of any inaccuracy in the representation or warranty made by
Purchaser in the preceding sentence.
16.2. Representations of Seller. Seller represents and warrants to
Purchaser that, other than TEWB neither Seller nor any entity related to Seller
has dealt with any broker or other person or entity (other than ARP) who would
be entitled to a commission or other brokerage fee in connection with the
transactions contemplated by this Agreement. Seller agrees to pay the commission
of ARP pursuant to the terms of a separate agreement upon the Closing hereunder.
Seller agrees to indemnify, defend and hold Purchaser harmless of and from any
loss, cost, damage or expense (including reasonable attorneys' fees and court
costs) arising out of any inaccuracy in the representation or warranty made by
Seller in the preceding sentence.
16.3. Survivability. Notwithstanding any other provision of this
Agreement to the contrary, the provisions of this Article XVI shall survive the
Closing and any prior termination of this Agreement for any reason whatsoever.
ARTICLE XVII.
NOTICES
Any notice given or required to be given pursuant to any provision of this
Agreement shall be in writing and shall either be personally delivered or sent
by a reputable commercial courier service guaranteeing overnight delivery or
sent by telecopy, and shall be deemed to have been given upon receipt (or
refusal of delivery), in any case addressed as follows:
Purchaser: Lakes Edge-Homes Holdings, Inc.
000-0 X. 000xx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxx XxxXxxxxxx
Fax: 718/601 -3420
with a copy to: Xxxxxx Xxxxx & Xxxxxxx, P.A.
000 X.X. 0xx Xxxxxx, Xxxxx 0000
Xxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxxx, Esq.
Fax: 305/000-0000
Seller: Lakes Edge Partners, L.P.
0000 00xx Xxxxxx, X.X., Xxxxx 000
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxx Xxxxxx
Fax: 202/000-0000
with a copy to: Xxxxxxx Xxxxxxxxxx, Esq.
Xxxxx Xxxxxxx & Xxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000-0000
Fax: 214/000-0000
Either party may, by giving notice to the other in the manner set forth
above, change the address to which notices shall be sent to it, provided that
any such change of address shall be effective three (3) days after it is given.
The attorney for either party to this Agreement may give notices on behalf of
his client with the same force and effect as if such notice were given directly
by such party.
ARTICLE XVIII.
NO ASSIGNMENT
This Agreement, and the terms, covenants, and conditions herein
contained, shall inure to the benefit of and be binding upon the personal
representatives, successors, and assigns of each of the parties hereto.
Purchaser may assign its rights under this Agreement upon the following
conditions: (i) the assignee of Purchaser shall be an affiliate of Purchaser,
(ii) all of the Property Xxxxxxx Money shall have been delivered in accordance
with Section 2.2 hereof, (iii) Purchaser shall remain primarily liable for the
performance of Purchaser's obligations hereunder and (iv) a copy of the fully
executed written assignment and assumption agreement shall be delivered to
Seller and to TEWB at least ten (10) days prior to Closing.
ARTICLE XIX.
INSPECTION PERIOD
Within three (3) business days after the Effective Date, Seller shall
make available to Purchaser all information relating to the Property set forth
on Exhibit G hereto (the "Due Diligence Documents") and any other information in
Seller's possession reasonably requested by Purchaser. Purchaser shall have the
right to conduct its physical inspection (the "Inspection") of the Property
commencing with the Effective Date and extending through and including April 27,
1999 (the "Inspection Period"), which Inspection shall be at the sole cost and
expense of Purchaser. Purchaser hereby expressly indemnifies and holds harmless
Seller against all costs, losses or claims arising out of or relating in any way
to the conduct of the Tests by Purchaser or by the Permitted Outside Parties.
Seller shall assist with such Inspection, but shall not be obligated to incur
any cost or expense or to furnish any information other than at the place where
such information is currently maintained. All information received by Purchaser
relating to the Property, Seller or its affiliates shall be kept in strict
confidence and used solely for the purpose of determining the advisability of
proceeding with the transactions contemplated by this Agreement. Purchaser shall
have the right to terminate this Agreement during the Inspection Period if
Purchaser, in its sole discretion, deems the Property or any aspect thereof, to
be unsatisfactory; provided, however, that Purchaser may only exercise such
right by giving Seller written notice of such termination (the "Termination
Notice") on or before 5:00 p.m. on April 27, 1999. If Purchaser exercises such
right of termination, then the Property Xxxxxxx Money, together with any
interest accrued thereon, shall be refunded to Purchaser pursuant to the terms
of Section 2.2 hereof. If Purchaser does not give Seller the Termination Notice
on or before the last day of the Inspection Period, Purchaser shall be deemed to
have irrevocably and absolutely waived its right to terminate this Agreement
pursuant to the provisions of this Article and to have agreed to purchase on the
Closing Date the Property in its "AS IS" condition (as such term is used in
Section 3.1 hereof) on the last day of the Inspection Period, except as provided
otherwise in this Agreement and in the Closing Documents. As used in this
Agreement, "Permitted Outside Parties" shall mean Purchaser's consultants,
agents, attorneys, appraisers, engineers, architects, construction contractors,
accountants, lenders, potential credit enhancers or investors.
ARTICLE XX.
MISCELLANEOUS
20.1. Binding Effect. This Agreement is binding upon and shall inure to
the benefit of the parties hereto, their respective successors, legal
representatives and permitted assigns.
20.2. Business Days. Whenever under the terms and provisions of this
Agreement the time for performance falls upon a Saturday, Sunday or legal
holiday, the applicable date or period shall be extended to the first business
day following such Saturday, Sunday or legal holiday.
20.3. Counterparts. This Agreement may be executed in one or more
counterparts, all of which when taken together shall constitute one and the same
agreement, and shall become effective when one or more counterparts have been
executed by each of the parties hereto and delivered to each of the other
parties hereto. A facsimile copy of a signature shall have the same effect as an
original signature, provided that the original signature is timely delivered to
the party or parties to whom it is intended to be delivered.
20.4. Section Headings. The captions at the beginning of the several
paragraphs, Sections and Articles are for convenience in locating the text, but
are not part of the text. Unless otherwise specifically set forth in this
Agreement to the contrary, all references to Exhibits contained in this
Agreement refer to the Exhibits which are attached to this Agreement, all of
which Exhibits are incorporated in and made a part of this Agreement by
reference. Unless otherwise specifically set forth in this Agreement to the
contrary, all references to Articles, Sections, paragraphs and clauses refer to
portions of this Agreement.
20.5. Severability. If any term or provision of this Agreement shall be
held to be illegal, invalid, unenforceable or inoperative as a matter of law,
the remaining terms and provisions of this Agreement shall not be affected
thereby, but each such remaining term and provision shall be valid and shall
remain in full force and effect.
20.6. Entire Agreement. This Agreement and the other writings referred
to in, or delivered pursuant to, this Agreement, embody the entire understanding
and contract between the parties hereto with respect to the subject matter
hereof and supersede any and all prior agreements and understandings between the
parties hereto, whether written or oral, formal or informal, with respect to the
subject matter of this Agreement. This Agreement has been entered into after
full investigation by each party and its professional advisors, and neither
party is relying upon any statement, representation or warranty made by or on
behalf of the other which is not expressly set forth in this Agreement.
20.7. Waivers. No extensions, changes, waivers, modifications or
amendments to or of this Agreement, of any kind whatsoever, shall be made or
claimed by Seller or Purchaser, and no notices of any extension, change, waiver,
modification or amendment made or claimed by Seller or Purchaser shall have any
force or effect whatsoever, unless the same is contained in a writing and is
fully executed by the party against whom such matter is asserted.
20.8. Governing Law. This Agreement shall be governed and interpreted
in accordance with the laws of the State of Florida, without regard to the
choice of law or conflicts of laws rules thereof.
20.9. No Third Party Beneficiaries. Purchaser and Seller agree that,
except as otherwise expressly provided herein, this Agreement has been entered
into solely for the benefit of Purchaser and Seller and no other person or
entity, it being the intention of Purchaser and Seller that no person or entity
not a party to this Agreement shall have any right or standing to (a) bring any
action against Purchaser or Seller based on this Agreement, or (b) assume that
any provision of this Agreement will be enforced or remain unmodified or
unwaived, or (c) assert that it or he is or should be or was intended to be a
beneficiary of any provision of this Agreement.
20.10. No Affiliate Liability.
(a) No present or future partner, member, director, officer,
shareholder, employee, advisor, affiliate or agent of or in Purchaser or any
affiliate of Purchaser shall have any personal liability, directly or
indirectly, under or in connection with this Agreement or any agreement made or
entered into under or in connection with the provisions of this Agreement, or
any amendment or amendments to any of the foregoing made at any time or times,
heretofore or hereafter, and Seller and its successors and assigns and, without
limitation, all other persons and entities, shall look solely to Purchaser's
assets for the payment of any Claim or for any performance, and Seller hereby
waives any and all such personal liability. The limitations of liability
contained in this paragraph are in addition to, and not in limitation of, any
limitation on liability applicable to Purchaser provided elsewhere in this
Agreement or by law or by any other contract, agreement or instrument.
(b) No present or future partner, member, director, officer,
shareholder, employee, advisor, affiliate or agent of or in Seller or any
affiliate of Seller shall have any personal liability, directly or indirectly,
under or in connection with this Agreement or any agreement made or entered into
under or in connection with the provisions of this Agreement, or any amendment
or amendments to any of the foregoing made at any time or times, heretofore or
hereafter, and Purchaser and its successors and assigns and, without limitation,
all other persons and entities, shall look solely to Seller's assets (including
the proceeds of the sale of the Property) for the payment of any Claim or for
any performance, and Purchaser hereby waives any and all such personal
liability. The limitations of liability contained in this paragraph are in
addition to, and not in limitation of, any limitation on liability applicable to
Seller provided elsewhere in this Agreement or by law or by any other contract,
agreement or instrument.
20.11. Waiver of Jury Trial. To the extent permitted by applicable law,
the parties hereto hereby irrevocably waive their respective rights to a jury
trial of any claim or cause of action based upon or arising out of this
Agreement. This waiver shall apply to any subsequent amendments, renewals,
supplements or modifications to this Agreement. In the event of litigation, this
Agreement may be filed as a written consent to a trial by the court.
20.12. Press Releases. Any press release issued with respect to the
transactions contemplated by this Agreement shall be subject to the prior
approval of Purchaser and Seller.
20.13. Statutory Disclosures Regarding the Property.
(a) Radon Gas Disclosure. In accordance with the requirements
of Section 404.056(8), Florida Statutes, the following notice is hereby given:
RADON GAS: Radon is a naturally occurring radioactive gas
that, when it is 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 the local County Public Health Center.
(b) Energy-Efficiencv Rating Disclosure. In accordance with
the provisions of Section 553.996, Florida Statutes, Purchaser is advised that
Purchaser may have the energy-efficiency rating of the Property determined, and
that such rating shall be provided upon written request of Purchaser made at the
time of, or prior to, Purchaser's execution of this Agreement. Purchaser
acknowledges that, with the execution of this Agreement, Seller has provided to
Purchaser a copy of an information brochure regarding energy-efficiency rating
prepared by the Florida Department of Community Affairs.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their duly authorized officers or agents as of the date first above written.
Seller: LAKES EDGE PARTNERS L.P.,
a Delaware limited partnership
By: Lakes Edge, L.P.,
a Delaware limited partnership
By: Lakes Edge, L.L.C.,
a Delaware limited liability company
By: -------------------------------
W. Xxxxxx Xxxxxx, Manager
Purchaser: LAKES EDGE-HOMES HOLDINGS, INC.,
a Florida corporation
By: ________________________________
Name:Xxxxxx X. XxxXxxxxxx
Title: President
JONDER BY TITLE COMPANY
Ticor Title Insurance Company, referred to in this Agreement as the "Title
Company," hereby acknowledges that it received this Agreement executed by Seller
and Purchaser on the day of March, 1999, and accepts the obligations of the
Title Company as set forth herein. It further acknowledges that it received the
Property Xxxxxxx Money on the day of March, 1999. The Title Company hereby
agrees to hold and distribute the Property Xxxxxxx Money in accordance with the
terms and provisions of this Agreement.
TICOR TITLE INSURANCE COMPANY
By:
Name:
Title:
Address: Attn: Commercial Escrow Department
0000 Xxxxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxx 00000
Facsimile: 954/971-2050
EXHIBIT A
TO PROPERTY PURCHASE AGREEMENT
PROPERTY LEGAL DESCRIPTION
All that tract or parcel of land located in Miami-Dade County, Florida and being
more particularly described as follows:
A portion of section 00, Xxxxxxxx 00 Xxxxx, Xxxxx 41 East, Dade County Florida
according to the Plat of XXXXXX'x SURVEY of the East one half of Township 51
South, Range 41 East, recorded in Plat Book 1 at Page 118, all of Lots 1 and 2
Block 5 and all of Xxx 0 Xxxxx 0 xx xxx Xxxx XXXXX TURF SECTION "A" as recorded
in Plat Book 96 at Page 46 both of the Public Records of Dade County, Florida,
being more particularly described as follows:
Commence at the Northeast corner of said Section 35; thence run
S01(degree)31'40"E along the East Line of said section 35 and the East boundary
line of said MIAMI TURF SECTION "A" Plat for a distance of 1113.30 feet to a
point on the Southerly Right-of-Way of Xxxxxxxxx 000xx Xxxxxx; thence
S87(degree)26'23"W along said Right-of-Way Line a distance of 930.15 feet;
thence NO1 (degree) 31'40"W along the Westerly Right-of-Way Line of Xxxxxxxxx
0xx Xxxxx a distance of 10.00 feet to the POINT OF BEGINNING; thence continue
N01(degree)31'40"W along the last mentioned Right-of-Way for a distance of
471.34 feet to a point of curvature of a circular curve concave to the
Southwest, having for its elements a radius of 335.00 feet and a central angle
of 89(degree)42'52"; thence Northerly, Northwesterly and Westerly along the arc
of said curve for a distance of 524.55 feet to a point of tangency; thence
S88(degree)45'28"W for a distance of 157.46 feet to a point of curvature of a
circular curve concave to the South having for its elements a radius of 1040.27
feet and a central angle of 08(degree)46'08"; thence Westerly along the arc of
said curve for a distance of 159.21 feet to a point; thence N01(degree)31'40"W
for a distance of 80.82 feet to a point of intersection with a curve concave to
the South having for its elements a radius of 1120.27 feet and a central angle
of 08(degree)09'33"; said point bears N09(degree)24'05"W radially from the
center of said curve; thence Easterly along the arc of said curve, and along the
Northerly Right-of-Way Line of X.X. 000xx Xxxxxx for a distance of 159.53 feet
to a Point of tangency; thence N88(degree)45'28"E along the North Right-of-Way
Line of X.X. 000xx Xxxxxx for a distance of 157.46 feet to a point of curvature
of a curve concave to the Southwest having for its elements a radius of 415.00
feet and a central angle of 37(degree)00'31"; thence southeasterly along the arc
of said curve and the North Right-of-Way line of N.W. 000xx Xxxxxx for a
distance of 268.06 feet to a point of reverse curvature of a curve concave to
the North having for its elements a radius of 25.00 feet and a central angle of
66(degree)44'25;"; thence Northerly along the arc of said curve and along the
North Right-of-Way Line of X.X. 000xx Xxxxxx for a distance of 29.12 feet to a
point; thence N01(degree)14'32"W for a distance of 225.44 feet to a point of
intersection with the South Right-of-Way Line of X.X. 000xx Xxxxxx (S.R. 856);
thence S88(degree)45'48"W along the South Right-of-Way Line of X.X. 000xx Xxxxxx
(S.R. 856) for a distance of 811.82 feet to a point; thence S01(degree)31'40"E
for a distance of 112.17 feet to a point of curvature of a circular curve
concave to the Northwest having for its elements a radius of 120.14 feet and a
central angle of 25(degree)52'12"; thence Southwesterly along the arc of said
curve for a distance of 54.25 feet to a point of intersection with a circular
curve concave to the North, said point bears S01(degree)59'56"W from the center
of the next described curve; thence run Westerly through a central angle of
07(degree)52'26" and a radius of 1001.74 feet for an arc distance of 137.66 feet
to a point; thence run S09(degree)52'22"W for a distance of 80.00 feet to a
point of intersection with a circular curve concave to the North, said point
bears S09(degree)52'22"W from the center of the next described curve; thence run
Easterly through a central angle of 04(degree)41'30" and a radius of 1081.74
feet for an arc distance of 88.58 feet to a point; thence S43(degree)13'50"W for
a distance of 85.78 feet to a point; thence S43(degree)15'00"W for a distance of
213.61 feet to a point; thence S36(degree)46'00"E for a distance of 978.40 feet
to a point; thence S62(degree)05'58"E, radial to the next described curve, for
80.0Q feet to a point on a circular curve concave to the Southeast, having for
its elements a radius of 510.00 feet and central angle of 59(degree)32'21:":
thence Northeasterly along the arc of said curve for a distance of 529.97 feet
to a point of tangency; thence N87(degree)26'23"E for a distance of 85.25 feet
to the POINT OF BEGINNING lying and being in Miami-Dade County, Florida.
EXHIBIT A
PROPERTY LEGAL DESCRIPTION - Page 2
EXHIBIT B
TO PROPERTY PURCHASE AGREEMENT
PERSONAL PROPERTY INVENTORY AS OF SEPTEMBER 1998
ITEM QUANTITY
INTERIORS:
Full size washers 40
Full size dryers 40
Washer/dryer stackable sets 360
Refrigerators 400
Ranges 400
Dishwashers 400
MAINTENANCE/EXTERIOR:
Property Truck 1
Golf carts 4
Motorola Two-way Radios 6
Pressure Washer 1
Key cutting machine 1
Grounds blower 1
Wet/Dry Vacuum 1
Freon Recovery Unit 1
Freon Recovery Tank 35 lb. 1
Freon Recovery Tank 50 lb. 1
Air Vacuum Pump 1
Electronic Charging Scale 1
A/C Pump 1
Pelouze Scale 1
OFFICE/CLUBHOUSE:
Computers (includes printers) 2
Telecommunication System 1
Fax machine 1
Typewriter 2
Office desks 4
Desk chairs 4
Credenza 1
File cabinet 2
Couch 1
Chairs 12
Pedestal table 1
Coffee table 2
Sofa table 1
Pictures 4
Weight machines 3
Meeting chairs 8
Pool tables 2
Pool table chairs 8
Pool lounges 14
MODEL FURNITURE:
Dining room table 1
Dining chairs 4
Living room table 4
Living room chairs 4
Floor lamp 1
Sofa 2
Living room chair 1
Bookshelf/hutch 1
Table lamps 4
Trunk 1
Dresser 1
Bed end tables 2
Double bed w/coverings 1
Pictures 10
Together with all other attached equipment, fixtures, floor and wall coverings,
and items of personal property now located on the Property and owned by Seller.
EXHIBIT C
TO PROPERTY PURCHASE AGREEMENT
SPECIAL WARRANTY DEED
Prepared BY
Xxxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx Xxxxxxx & Xxxx LLP
0000 Xxxx Xxxxxx, Xxxxx
0000
Xxxxxx, Xxxxx 00000-0000
When Recorded Return To:
==========================
==========================
SPECIAL WARRANTY DEED
STATE OF FLORIDA
COUNTY OF MIAMI - DADE
THIS INDENTURE, made as of ----------------- 1999, between Lakes Edge
Partners, L.P., a Delaware limited partnership, whose mailing address is
-------------------, (herein the "Grantor"), and ---------------------, a
------------------------------- whose mailing address is
------------------------------------------------ and whose taxpayer
identification number is ------------------------------- (herein the "Grantee").
WITNESSETH:
That the Grantor, for and in consideration of the sum of $10.00, and other
valuable consideration to it in hand paid by the Grantee, the receipt whereof is
hereby acknowledged, hereby grants, bargains and sells to the Grantee, its
successors and assigns forever, the following described land, situate, lying and
being in the County of Miami- Dade, State of Florida:
See Exhibit A attached hereto and made a part hereof,
[The property appraiser's parcel identification
number for such land is RE No.--------------------
Together with all improvements and fixtures thereon and all the tenements,
hereditaments, easements and appurtenances thereto belonging or in anywise
appertaining. This conveyance is made subject to the matters set forth on
Exhibit B attached hereto and made a part hereof for all purposes.
TO HAVE AND TO HOLD, the same in fee simple forever.
The Grantor does hereby warrant and will defend the title to said land
against the lawful claims of all persons whomsoever claiming by, through or
under Grantor, but against none other.
IN WITNESS WHEREOF, Grantor has executed this Deed
----------------------, 1999, to be effective as of this _____ day of
---------------------, 1999.
GRANTOR: LAKES EDGE PARTNERS, L.P.,
a Delaware limited partnership
By: ---------------------------------
Name: ---------------------------------
Title: ---------------------------------
Signed, Sealed and Delivered in the presence of:
--------------------------------
Print Name:
--------------------------------
Print Name:
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
This instrument was acknowledged before me this ----------------------day
of ---------------------------------, 1999, by
---------------------------------, ---------------------------------of
---------------------------------, a ---------------------------------on behalf
of said corporation. He is personally known to me or has produced a drivers
license as identification.
(SEAL)
Notary Public in and for
the State of ---------------------------------
----------------------------------
Print name of notary
My Commission Expires:---------------------------------
EXHIBIT D
TO PROPERTY PURCHASE AGREEMENT
ASSIGNMENT AND ASSUMPTION OF
SERVICE CONTRACTS, WARRANTIES AND LEASES
STATE OF FLORIDA
COUNTY OF MIAMI - DADE
Lakes Edge Partners, L.P., a Delaware limited partnership ("Grantor"), for and
in consideration of the sum of Ten and No/100 Dollars ($10.00) and other good
and valuable consideration to it in hand paid by , a
("Grantee"), the receipt and sufficiency of which are hereby acknowledged, has
Granted, Sold, Assigned, Transferred, Conveyed, and Delivered and does by these
presents Grant, Sell, Assign, Transfer, Convey and Deliver unto Grantee, all of
Grantor's rights, titles, and interests in and to the following described
properties located in, affixed to, and/or arising or used in connection with the
improved property with parking and other amenities (the "Property") situated on
the land in the County of Miami - Dade, State of Florida, more particularly
described on Exhibit A attached hereto and made a part hereof for all purposes
(the "Land," which together with the Property is sometimes hereinafter called
the "Property"):
(a) Any leases for space in the Property (the "Leases"), together with
security and other deposits owned or held by Grantor pursuant to the Leases,
which Leases and security deposits are described on Exhibit B attached hereto;
(b) The assignable service, or maintenance contracts relating to the
ownership and operation of the Property (the "Service Contracts") attached
hereto as Exhibit C; and
(c) Any assignable warranties and guaranties relating to the Property
or any portion thereof (collectively, the "Warranties"); and
Grantor and Grantee hereby covenant and agree as follows:
(i) Grantee accepts the aforesaid assignment and Grantee
assumes and agrees to be bound by and timely perform, observe, discharge, and
otherwise comply with each and every one of the agreements, duties, obligations,
covenants and undertakings upon the lessor's part to be kept and performed under
the Leases and any obligations of Grantor under the Service Contracts arising
after the date hereof
(ii) Grantee hereby indemnifies and agrees to hold harmless
Grantor from and against any and all liabilities, claims, demands, obligations,
assessments, losses, costs, damages, and expenses of any nature whatsoever
(including, without limited the generality of the foregoing, reasonable
attorneys' fees and court costs) which Grantor may incur, sustain, or suffer, or
which may be asserted or assessed against Grantor on or after the date hereof,
arising out of, pertaining to or in any way connected with the obligations,
duties, and liabilities under the Leases and the Service Contracts, or any of
them, arising from and after the date hereof.
(iii) Grantor hereby indemnifies and agrees to hold harmless
Grantee from and against any and all liabilities, claims, demands, obligations,
assessments, losses, costs, damages, and expenses of any nature whatsoever
(including, without limited the generality of the foregoing, reasonable
attorneys' fees and court costs) which Grantee may incur, sustain, or suffer, or
which may be asserted or assessed against Grantee on or after the date hereof,
arising out of, pertaining to or in any way connected with the obligations,
duties, and liabilities under the Leases and the Service Contracts, or any of
them, arising before the date hereof.
(iv) The burden of the indemnity made in paragraph (ii) hereof
shall not be assigned. Except as aforesaid, this Agreement shall bind and inure
to the benefit of the parties and their respective successors, legal
representatives and assigns.
(v) Neither this Agreement nor any term, provision, or
condition hereof may be changed, amended or modified, and no obligation, duty or
liability or any party hereby may be released, discharged or waived, except in a
writing signed by all parties hereto.
IN WITNESS WHEREOF, Grantor and Grantee have executed this Assignment and
Assumption of Service Contracts, Warranties and Leases on
---------------------------------, 1999 to be effective as of
the----------------day of---------------------------------, 1999.
GRANTOR: LAKES EDGE PARTNERS, L.P.,
a Delaware limited partnership
By: ---------------------------------
Name:---------------------------------
Title: ---------------------------------
Signed, Sealed and Delivered in the presence of:
-------------------------------
Print Name: ---------------------------------
-------------------------------
Print Name : ---------------------------------
GRANTEE: HOMES FOR AMERICA HOLDINGS, INC.
a Nevada Corporation
By: ---------------------------------
Name:---------------------------------
Title: ---------------------------------
Signed, Sealed and Delivered in the presence of:
Print Name: ---------------------------------
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
This instrument was acknowledged before me this ----------------------day
of ---------------------------------, 1999, by
---------------------------------, ---------------------------------of
---------------------------------, a ---------------------------------on behalf
of said corporation. He is personally known to me or has produced a drivers
license as identification.
(SEAL)
Notary Public in and for
the State of ---------------------------------
----------------------------------
Print name of notary
My Commission Expires:---------------------------------
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
This instrument was acknowledged before me this ----------------------day
of ---------------------------------, 1999, by
---------------------------------, ---------------------------------of
---------------------------------, a ---------------------------------on behalf
of said corporation. He is personally known to me or has produced a drivers
license as identification.
(SEAL)
Notary Public in and for
the State of ---------------------------------
----------------------------------
Print name of notary
My Commission Expires:---------------------------------
EXHIBIT E
TO PROPERTY PURCHASE AGREEMENT
XXXX OF SALE
The undersigned, Lakes Edge Partners, L.P., a Delaware limited partnership
(the "Seller"), hereby sells, transfers, assigns, conveys and delivers to
-------------------------, a ------------------------- ("Buyer"), all property
described on Schedule 1 attached hereto (the "Assets") in connection with the
property more particularly described on Exhibit "A" attached hereto and
incorporated herein.
TO HAVE AND TO HOLD all of the Assets hereby sold, transferred,
conveyed and delivered unto Buyer, its successors and assigns, to its and their
own use and behalf forever.
Seller warrants to Buyer that Seller owns all of said Assets; that no
other party has any rights or claim to the Assets; that the Assets are
unencumbered and free from liens; and that Seller will defend the title to the
Assets against the claims and demands of all persons whomsoever.
This Xxxx of Sale and the covenants and agreements herein contained
shall inure to the benefit of Buyer, its successors and assigns, and shall be
binding, jointly and severally, upon Seller, and its successors and assigns.
IN WITNESS WHEREOF, Seller has caused this Xxxx of Sale to be executed
as of the ------------- day of -------------------------, 1999.
LAKES EDGE PARTNERS, L.P.,
a Delaware limited partnership
By: Lakes Edge, L.P.
a Delaware limited partnership
By: Lakes Edge, L.L.C.
a Delaware limited liability company
By:-------------------------
W. Xxxxxx Xxxxxx, Manager
STATE OF FLORIDA
COUNTY OF MIAMI-DADE
This instrument was acknowledged before me this ----------------------day
of ---------------------------------, 1999, by
---------------------------------, ---------------------------------of
---------------------------------, a ---------------------------------on behalf
of said corporation. He is personally known to me or has produced a drivers
license as identification.
(SEAL)
Notary Public in and for
the State of ---------------------------------
----------------------------------
Print name of notary
My Commission Expires:---------------------------------
SCHEDULE 1
PERSONAL PROPERTY INVENTORY AS OF SEPTEMBER 1998
ITEM QUANTITY
INTERIORS:
Full size washers 40
Full size dryers 40
Washer/dryer stackable sets 360
Refrigerators 400
Ranges 400
Dishwashers 400
MAINTENANCE/EXTERIOR:
Property Truck 1
Golf carts 4
Motorola Two-way Radios 6
Pressure Washer 1
Key cutting machine 1
Grounds blower 1
Wet/Dry Vacuum 1
Freon Recovery Unit 1
Freon Recovery Tank 35 lb. 1
Freon Recovery Tank 50 lb. 1
Air Vacuum Pump 1
Electronic Charging Scale 1
A/C Pump 1
Pelouze Scale 1
OFFICE/CLUBHOUSE:
Computers (includes printers) 2
Telecommunication System 1
Fax machine 1
Typewriter 2
Office desks 4
Desk chairs 4
Credenza 1
File cabinet 2
Couch 1
Chairs 12
Pedestal table 1
Coffee table 2
Sofa table 1
Pictures 4
Weight machines 3
Meeting chairs 8
Pool tables 2
Pool table chairs 8
Pool lounges 14
MODEL FURNITURE:
Dining room table 1
Dining chairs 4
Living room table 4
Living room chairs 4
Floor lamp 1
Sofa 2
Living room chair 1
Bookshelf/hutch 1
Table lamps 4
Trunk 1
Dresser 1
Bed end tables 2
Double bed w/coverings 1
Pictures 1 0
Together with all other attached equipment, fixtures, floor and wall coverings,
and items of personal property now located on the Property and owned by Seller.
EXHIBIT F
TO PROPERTY PURCHASE AGREEMENT
TENANT NOTIFICATION LETTER
To: Resident of Apartment No. ----------------
From: ----------------
Dear Resident:
This letter shall inform you that the undersigned has purchased the
apartment complex known as Lakes Edge Apartments. Please be notified that the
undersigned has assumed all obligations for your security deposit in accordance
with the terms of your lease.
All obligations to pay rent after the date hereof shall be made to the
purchaser at:
Should you have any questions regarding your security deposits or any
other matter, please stop by our leasing office.
Very truly yours,
By: ----------------
Name: ----------------
Title: ----------------
ACKNOWLEDGED
AND AGREED:
LAKES EDGE PARTNERS, L.P.
a Delaware limited partnership
-------------------------------
Name: -------------------------
Title:-------------------------
EXHIBIT G
TO PROPERTY PURCHASE AGREEMENT
DUE DILIGENCE DOCUMENTS
1. A copy of the existing ALTA title report or title policy currently covering
the Property.
2. A current survey of the Property.
3. If available, the final plans and a complete set of specifications for the
Property.
4. An inventory of the Personal Property.
5. A list of all capital improvements at the Property from January 1, 1996
through January 31, 1999 including replacements of any appliances,
carpeting, driveways, . roofs, mechanical equipment, plumbing and
electrical systems.
6. Certified Rent Roll for most recent month including: apartment number,
unit type, unit status, tenant names, commencement and termination
dates, market rent, lease rent, amount of security and any other
deposits and details of any concessions or specials.
7. All loan and bond documents relating to or evidencing any financing on
the Property and/or other indebtedness to which the Property is
subject.
8. A complete set of all current reports from the Seller's on-site system at the
Property for the prior month.
9. Copies of all Service Contracts.
10. A certificate of insurance which describes all present property, fire,
extended risk, liability and other insurance policies covering the
Property.
11. A list and complete copies. of all current licenses and permits
(specifically including but not limited to the original certificates of
occupancy, or appropriate governmental substitution) issued by a
governmental authority with respect to the operation of the Property.
12. Copies of the last three years tax bills and all current tax bills
including, but not limited to, Property, personal, rental taxes and
special assessments.
13. Unaudited operating statements for the Property for calendar years 1996,
1997 and 1998.
14. A copy of the report with respect to the Property's security deposits trust
account as of February 28, 1999.
15. Copies of the last 12 months of utility bills (gas, electric, water and
sewer).
EXHIBIT H
TO PROPERTY PURCHASE AGREEMENT
OUTSTANDING LITIGATION
1. Xxxxxx Xxxxx v. Lakes Edge Partners, L.P., (child scalded by boiling
water on stove).
