Exhibit 10.22
ASSIGNMENT AND ASSUMPTION OF
REAL ESTATE SALE AGREEMENT
This Assignment and Assumption of Agreement of Purchase and Sale
("Assignment") is entered into as of the 21st day of May, 2003, by and between
BCMR JACKSONVILLE, LLC, a Delaware limited liability company ("Assignor"), with
offices at c/o Boston Capital Corporation, One Boston Place, 000 Xxxxxxxxxx
Xxxxxx, Xxxxxx, XX 00000 and BC-BAINBRIDGE SPICEWOOD LLC, with offices at c/o
The Bainbridge Companies, 00000 Xxxx Xxxxxx Xxxx Xxxxxxxxx, Xxxxx 0000,
Xxxxxxxxxx, XX 00000 ("Assignee").
WHEREAS, Assignor is Purchaser under that certain Real Estate Sale
Agreement dated April 2, 2003 by and between ERP Operating Limited Partnership
as seller and Bainbridge Communities Acquisition Corporation II as purchaser, as
amended by Amendment to Sales Contract dated May 2, 2003, as assigned to
Assignor by that certain Assignment of Sales Contract by and between Bainbridge
Communities Acquisition Corporation II and Assignor (as so amended and assigned,
the "Agreement") for the purchase of certain real property and the improvements
thereon known as Spicewood Springs Apartments, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxxx,
Xxxxxxx; and
WHEREAS, Assignor desires to assign its interest as Purchaser under the
Agreement to BC-Bainbridge LLC, a Delaware limited liability company (the
"Venture") as part of Assignor's "Initial Capital Contribution" to the Venture
as described in Section 3.1 of the Limited Liability Company Agreement of the
Venture; and
WHEREAS, the Venture has directed Assignor to instead assign its rights as
Purchaser under the Agreement to Assignee, a wholly owned subsidiary of the
Venture, and Assignee desires to accept such assignment.
NOW, THEREFORE, for valuable consideration, the parties hereto, each
intending to be legally bound and to bind their respective successors and
assigns, hereby covenant and agree as follows:
1. Assignor hereby assigns, transfers and sets over unto Assignee all of
Assignor's interests and rights as Purchaser in, to and under the Agreement.
2. Assignee hereby accepts all of Assignor's liabilities, obligations, rights
and interests as Purchaser under the Agreement.
3. This Assignment may be executed in multiple counterparts, each of which
shall be an original and all of which counterparts taken together shall
constitute one and the same agreement.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment as
of the date first above written.
ASSIGNOR
BCMR JACKSONVILLE, LLC, a Delaware
limited liability company
By: Boston Capital Real Estate Investment
Trust, Inc., a Maryland corporation, its
sole member
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx, its President
ASSIGNEE
BC-BAINBRIDGE SPICEWOOD LLC, a
Delaware limited liability company
By: BC-Bainbridge LLC, a Delaware limited
liability company, its sole member
By: Bainbridge Jacksonville LLC, a
Florida limited liability company,
its manager
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------
Xxxxxxx X. Xxxxxxxxx,
Manager
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ASSIGNMENT OF SALES CONTRACT
THIS ASSIGNMENT ("Assignment"), dated and effective as of May 5, 2003 (the
"Assignment Effective Date"), by and among BAINBRIDGE COMMUNITIES ACQUISITION
CORPORATION II, a Florida corporation ("ASSIGNOR") and BCMR JACKSONVILLE, LLC
("ASSIGNEE").
WITNESSETH:
WHEREAS, Assignor is the Purchaser under that certain Real Estate Sales
Agreement dated April 2, 2003, as amended by Amendment to Sales Contract dated
as of the date hereof (as amended, the "SALES CONTRACT") to purchase the
property known as "Spicewood Springs Apartments" located at 000 Xxxxxxxx Xxxx,
Xxxxxxxxxxxx, Xxxxxxx (the "PROPERTY"). Capitalized terms used herein and not
otherwise defined shall have the meaning ascribed to them in the Sales Contract;
WHEREAS, pursuant to the terms of the Sales Contract, Assignor has
deposited with Escrow Agent Initial Xxxxxxx Money in the amount of $50,000;
WHEREAS, Assignor and Assignee or their respective affiliates are
contemplating forming a joint venture to acquire the Property;
WHEREAS, Assignor desires to transfer, assign and set over to Assignee and
Assignee desires to accept from Assignor, subject to the express retention by
Assignor of certain duties and obligations under the Sales Contract, all of
Assignor's right, title and interest in, to and under the Sales Contract; and
WHEREAS, on the date hereof, Assignee funded by wire transfer (i) $50,000
to counsel for Assignor pursuant to the wire instructions on EXHIBIT A to be
used to reimburse Assignor for the Initial Xxxxxxx Money; and (ii) $200,000 to
the Escrow Agent to fund the Additional Xxxxxxx Money.
NOW, THEREFORE, in consideration of the above recitals and other good and
valuable consideration, the receipt and sufficiency of which is hereby expressly
acknowledged by Assignor, the parties agree as follows:
1. ASSIGNMENT OF SALES CONTRACT. Assignor hereby transfers, assigns and sets
over unto Assignee any and all of Assignor's right, title and interest in,
to and under the Sales Contract, including all of Assignor's right, title
and interest in and to the Xxxxxxx Money. Except as expressly excluded
herein, Assignee, for itself and its successors and assigns, does hereby
expressly accept and assume and agree to perform and observe all of the
terms, covenants and agreements contained in the Sales Contract.
2. EXCLUSIONS FROM ASSIGNMENT OF SALES CONTRACT. Assignor and Assignee
expressly agree that neither this Assignment nor any action by Assignee
shall constitute an assumption by Assignee of any obligations of Assignor
under the Sales Contract related to the indemnity
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provisions of Purchaser for the benefit of Seller for any actions of
Purchaser that occurred prior to the Assignment Effective Date (the
"Exclusions").
3. REPRESENTATION AND WARRANTIES OF ASSIGNOR. Assignor represents and warrants
that (i) Assignor has the authority to execute, deliver and perform its
representations and warranties pursuant to this Assignment; (ii) Assignor
has not encumbered or assigned the Sales Contract in whole or in part and
agrees to execute and deliver such additional documents as may be required
to effectuate this Assignment; (iii) there are no amendments or
modifications to the Sales Contract, and true, correct and complete copies
of the Sales Contract are being delivered to Assignee simultaneously with
the execution of this Assignment; and (iv) to Assignor's knowledge no
dispute, right of set-off, claim, counterclaim or defense exists with
respect to any provision of the Sales Contract.
4. INDEMNITY BY ASSIGNOR. Assignor hereby agrees to and shall indemnify,
defend and hold Assignee harmless from any and all obligations, claims,
losses, damages, liabilities and expenses (including, without limitation,
reasonable attorneys' and accountants' fees and disbursements) arising out
of contractual obligations, acts or omissions of Assignor that occurred or
accrued in connection with the performance of the rights and duties of
Assignor under the Sales Contract related to the period (a) prior to the
Assignment Effective Date hereof for all matters under the Sales Contract
which are being assigned to Assignee pursuant to this Assignment, and (b)
through the date of final completion of any right, duty or obligation
retained by Assignor pertaining to the Exclusions.
5. NOTICES. All notices hereunder shall be delivered in accordance with
Section 14.7 of the Purchase Agreement, and if to Assignee:
BCMR Special, Inc.
x/x Xxxxxx Xxxxxxx Xxxxxxxxxxx
Xxx Xxxxxx Xxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxx
with a copy to:
Xxxxxxx Procter LLP
Exchange Place
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, P.C.
6. BINDING EFFECT. This Assignment shall be binding upon and shall inure to
the benefit of Assignor, Assignee and their respective successors and
assigns.
7. GOVERNING LAW. This Assignment and the rights and obligations of the
parties will be subject to and construed and enforced under the laws of
State of Florida.
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8. COUNTERPARTS. This Assignment may be executed in counterpart originals and
all of such counterpart originals shall constitute one and the same
instrument; provided, however, this Assignment shall not be binding and in
full force and effect until each and every party hereto has executed this
Assignment in one or more of such counterparts.
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IN WITNESS WHEREOF, the undersigned have executed this Assignment as of
the date and year first above written.
ASSIGNOR:
BAINBRIDGE COMMUNITIES ACQUISITION
CORPORATION II, a Florida corporation
By: /s/ Xxxxxx Xxxx
-------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
ASSIGNEE:
BCMR JACKSONVILLE, LLC, a Delaware
limited liability company
By: Boston Capital Real Estate Investment
Trust Inc., a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------
Xxxxxxx X. Xxxxxxxxx
President
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EXHIBIT A
WIRING INSTRUCTIONS
FOR
BROAD AND XXXXXX
0000 XXXXXX XXXX, XXXXX 000
XXXX XXXXX, XX 00000
(000) 000-0000
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AMENDMENT TO SALES CONTRACT
THIS AMENDMENT TO SALES CONTRACT (this "Amendment"), is dated as of this
2nd day of May, 2003 (the "Amendment Effective Date"), by and between ERP
OPERATING LIMITED PARTNERSHIP, an Illinois limited partnership ("Seller"),
BAINBRIDGE COMMUNITIES ACQUISITION CORPORATION II, a Florida corporation
("Bainbridge") and BCMR JACKSONVILLE, LLC, a Delaware limited liability company
("Purchaser").
RECITALS
WHEREAS, Seller and Bainbridge have entered into that certain Real Estate
Sale Agreement dated April 2, 2003 (the "Sales Contract") for the purchase and
sale of the property known as "Spicewood Springs Apartments" located at 000
Xxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx. Capitalized terms used herein without
definition shall have the meaning ascribed to them in the Sales Contract.
WHEREAS, Bainbridge and Purchaser desire to enter into that certain
Assignment of Sales Contract (the "Assignment"), whereby Bainbridge will assign
its rights under the Sales Contract to Purchaser.
WHEREAS, Purchaser has requested Seller's consent to the Assignment, and
Seller desires to consent to the Assignment.
WHEREAS, Seller and Purchaser further desire to amend certain terms of the
Sales Contract.
AGREEMENTS
NOW THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, Sellers and Purchaser hereby agree as follows:
1. RECITALS. The foregoing Recitals are true and correct and are
incorporated into this Amendment by this reference.
2. ADDITIONAL XXXXXXX MONEY. The second sentence of Section 2.1.1 of
the Sales Contract is hereby deleted and replaced with the following language:
If Purchaser does not terminate this Agreement pursuant to and in
accordance with Section 8 below, Purchaser shall, on or before 5
p.m. on May 5, 2003, deposit with Escrowee additional xxxxxxx money
(the "Additional Xxxxxxx Money") in the sum of Two Hundred Thousand
and 00/100 Dollars ($200,000.00).
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3. TITLE. Seller acknowledges that Seller holds title to the Real
Property by virtue of a merger and that record title to the Property is
currently vested in Merry Land & Investment Company, Inc. Accordingly, Seller
agrees that, on or before the Closing Date, it will satisfy all requirements of
the Title Insurer in order to evidence that Seller holds title to the Real
Property, including without limitation, recording a certificate of merger and
paying all recording and transfer taxes and fees associated therewith, if any.
4. EXHIBIT A. Exhibit A to the Sales Contract is hereby deleted and
replaced with EXHIBIT A to this Amendment. Seller agrees to cooperate with
Purchaser, Title Insurer, and Purchaser's surveyors to develop a single metes
and bounds legal description for the Property to be used in the deed to be
delivered by Seller at Closing.
5. EXTENSION OF TITLE REVIEW PERIOD. Notwithstanding any provision to
the contrary in Section 3.3 of the Sales Contract, the Title Review Period is
hereby extended until 5 p.m. Eastern Daylight Time on May 12, 2003. Seller
agrees that it will use its best efforts to cause the Title Commitment and
legible copies of all documents and plans listed as exceptions on the Title
Commitment (the "Title Materials") to be delivered to Purchaser on or before 5
p.m. on May 5, 2003, and in the event that Purchaser does not receive the Title
Materials by such time, the Title Review Period shall be extended until 5 p.m.
on the date which is five (5) business days after Purchaser's receipt of the
Title Materials.
6. CLOSING. The first sentence of Section 4.1 of the Sales Contract is
hereby deleted and replaced with the following language:
The "Closing" of the transaction contemplated by this Agreement
(that is, the payment of the Purchase Price, the transfer of title
to the Property, and the satisfaction of all other terms and
conditions of this Agreement) shall occur on the day that is fifteen
(15) days after the expiration of the Title Review Period, at the
Chicago office of the Title Insurer, or at such other time and place
as Seller and Purchaser shall agree in writing.
The following language is hereby added at the end of Section 4.1:
Purchaser shall have the one-time right, on or before the Closing
Date, to extend the Closing Date for a period of fifteen (15) days
by (i) giving written notice thereof to Seller, and (ii) depositing
with Escrowee additional xxxxxxx money in the sum of Fifty Thousand
Dollars ($50,000.00), which shall then be included within the
definition of "Xxxxxxx Money" for all purposes of this Agreement.
7. CONSENT OF SELLER'S GENERAL PARTNER. Seller represents and warrants
to Purchaser that it has obtained the consent of its general partner as
described in Section 8.2 of the Sales Contract. Accordingly, Section 8.2 is
hereby deleted.
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8. ASSIGNMENT. Section 14.3 is hereby amended by adding the following
at the end thereof:
Notwithstanding the foregoing, Seller hereby consents to the
assignment of this Agreement to BCMR Jacksonville LLC as well as any
further assignments of this Agreement to Boston Capital Companion
Limited Partnership, Boston Capital Real Estate Investment Trust,
Inc., BC-Bainbridge LLC (collectively, "Boston Capital"),
Bainbridge, or any entity in which Boston Capital or Bainbridge has
an ownership interest. Upon any assignment as permitted hereunder,
the assignee ("Assignee") shall deliver to Seller a copy of the
assignment document. From and after receipt of such assignment
document, Seller agrees (a) to deliver any notices in connection
with the Agreement to the Assignee as well as to Bainbridge, and (b)
in the event that Assignee and Bainbridge deliver conflicting
instructions to Seller, Seller shall comply with the instructions or
directions delivered by Assignee.
9. NEW LEASES. Section 13.2 of the Sales Contract is hereby deleted in
its entirety and replaced with the following:
Without notice to and the prior written consent of Purchaser, Seller
shall not terminate, modify, extend, amend or renew any Lease or
enter into any new Lease except in accordance with its customary
business practices; provided however, any concessions being given at
the Property shall not be materially different than those generally
offered by Seller as of the date hereof, but in no event shall
Seller be prohibited from offering concessions required to be
competitive in the Jacksonville market.
10. CONFIDENTIALITY. Section 14.9 of the Sales Contract is hereby
amended by adding the following sentence at the end thereof:
Notwithstanding the foregoing, Purchaser shall have the right to
disclose any of the information described in this paragraph to its
investors, lenders, and their respective attorneys and consultants.
11. OTHER DILIGENCE. Sellers agree to deliver a legible, true, correct
and complete copy of the Military Rental Agreement currently in effect for the
Property, together with all exhibits, schedules and amendments to date to
Purchaser on or before May 9, 2003.
12. PLANS AND SPECIFICATIONS. Section 1 of the Sales Contract is hereby
amended by adding to the definition of Property all plans and specifications for
the Property which are currently in Seller's possession.
13. EFFECT ON THE AGREEMENT. All terms and conditions of the Sales
Contract shall remain in full force and effect as written except as expressly
modified by this Amendment.
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14. COUNTERPARTS AND EFFECTIVENESS. This Amendment may be executed in
several counterparts. All such counterparts shall constitute the same Amendment.
This Amendment is entered into and is effective as of the Amendment Effective
Date.
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IN WITNESS WHEREOF, each of the parties hereto has executed this Amendment
effective as of the Amendment Effective Date.
SELLER:
ERP OPERATING LIMITED PARTNERSHIP, an
Illinois limited partnership
By: Equity Residential, a Maryland real estate
investment trust, its general partner
By: /s/ [ILLEGIBLE]
------------------------------
Name: [ILLEGIBLE]
Title: EVP
BAINBRIDGE:
BAINBRIDGE COMMUNITIES ACQUISITION
CORPORATION II, a Florida corporation
By: /s/ Xxxxxx Xxxx
--------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
PURCHASER:
BCMR JACKSONVILLE, LLC, a Delaware limited
liability company
By: Boston Capital Real Estate Investment
Trust Inc., a Maryland corporation
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxxxxx
President
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EXHIBIT A
Legal Description
0
XXXXXXXXX XXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXXXXXX
REAL ESTATE SALE AGREEMENT
THIS REAL ESTATE SALE AGREEMENT (this "Agreement") is made as of the 2nd
day of April, 2003, by and between ERP OPERATING LIMITED PARTNERSHIP, an
Illinois limited partnership ("Seller"), with an office at c/o Equity
Residential, Xxx Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, and
BAINBRIDGE COMMUNITIES ACQUISITION CORPORATION II, a Florida corporation
("Purchaser"), with an office at 00000 X Xxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxx,
Xxxxxxx 00000.
RECITALS
A. Seller is the owner of a certain parcel of real estate (the
"Real Property") in the City of Jacksonville, County of Xxxxx, State of Florida,
which parcel is more particularly described in attached EXHIBIT A, and upon
which is located a multi-family residential apartment community commonly known
as "Spicewood Springs Apartments".
B. Seller desires to sell to Purchaser, and Purchaser desires to
purchase from Seller, the Property (as such term is hereinafter defined), each
in accordance with and subject to the terms and conditions set forth in this
Agreement.
THEREFORE, in consideration of the above Recitals, the mutual covenants and
agreements herein set forth and the benefits to be derived therefrom, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Purchaser and Seller agree as follows:
1. PURCHASE AND SALE.
Subject to and in accordance with the terms and conditions set forth
in this Agreement, Purchaser shall purchase from Seller and Seller shall sell to
Purchaser the Real Property, together with: (i) all buildings and improvements
owned by Seller and any and all of Seller's rights, easements, licenses and
privileges presently thereon or appertaining thereto; (ii) Seller's right, title
and interest in and to the leases (the "Leases") affecting the Property or any
part thereof, other than any Former Tenant Lease Files (as defined in Section
14.11 below); (iii) all furniture, furnishings, fixtures, equipment, (excluding
computer hardware and software), tools and other tangible property (excluding
the EQR legal manual and any marketing information containing a logo)
(collectively, the "Personal Property") owned by Seller, located on the Real
Property and used solely in connection therewith, a list of which is attached
hereto as EXHIBIT B; and (iv) all right, title and interest of Seller under any
and all of the union, maintenance, service, advertising and other like contracts
and agreements with respect to the ownership and operation of the Property
(collectively, the "Service Contracts"), a list of which is attached hereto AS
EXHIBIT C; all to the extent applicable to the period from and after the Closing
(as such term is hereinafter defined); (items (i) through (iv) above, together
with the Real Property, are collectively referred to in this Agreement as the
"Property"). All of the foregoing expressly excludes all property owned by
tenants or other users or occupants of the Property.
2. PURCHASE PRICE.
The total consideration to be paid by Purchaser to Seller for the
Property is Twenty-Eight Million and 00/100 Dollars ($28,000,000.00) (the
"Purchase Price"). The Purchase Price shall be paid as follows:
2.1 XXXXXXX MONEY.
2.1.1 Seller, Purchaser and a duly authorized
representative of the Chicago Office of Chicago Title Insurance Company
("Escrowee") shall concurrently herewith execute Xxxxxxx Money Escrow
Instructions, in the form attached hereto as EXHIBIT D, pursuant to which
Purchaser shall deliver to Escrowee initial xxxxxxx money (the "Initial Xxxxxxx
Money") in the sum of Fifty Thousand and 00/100 Dollars ($50,000.00). If
Purchaser does not terminate this Agreement pursuant to and in accordance with
Section 8 below, Purchaser shall, on or before the thirtieth (30th) day after
the date of this Agreement, deposit with the Escrowee additional xxxxxxx money
(the "Additional Xxxxxxx Money") in the sum of Two Hundred Thousand and 00/100
Dollars ($200,000.00). The Initial Xxxxxxx Money
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and, if deposited or required to be deposited with the Escrowee, the Additional
Xxxxxxx Money, together with any interest earned thereon net of investment
costs, are referred to in this Agreement as the "Xxxxxxx Money". The Xxxxxxx
Money shall be invested as Seller and Purchaser so direct. Any and all interest
earned on the Xxxxxxx Money shall be reported to Purchaser's federal tax
identification number.
2.1.2 If the transaction closes in accordance with the
terms of this Agreement, at Closing, the Xxxxxxx Money shall be delivered by
Escrowee to Seller as part payment of the Purchase Price. If the transaction
fails to close due to a default on the part of Purchaser, Seller shall have the
remedy provided for in Section 7.2 below. If the transaction fails to close due
to a default on the part of Seller, Purchaser shall have the remedy options
provided for in Section 7.1 below.
2.2 CASH AT CLOSING. At Closing, Purchaser shall pay to
Seller, with current, federal funds wire transferred to an account designated by
Seller in writing, an amount equal to the Purchase Price, minus the sum of the
Xxxxxxx Money which Seller shall receive at Closing from the Escrowee, and plus
or minus, as the case may require, the closing prorations and adjustments to be
made pursuant to Section 4.4 below.
3. EVIDENCE OF TITLE.
3.1 TITLE INSURANCE. Seller shall, within fifteen (15) days after
the date of this Agreement, deliver to Purchaser a current commitment for an
ALTA Owner's Title Insurance Policy (the "Title Commitment"), in the amount of
the Purchase Price, issued by the Chicago Office of Chicago Title Insurance
Company (the "Title Insurer"). Seller shall cause the Title Insurer to agree to
issue to the Purchaser as soon as practicable after Closing, an updated ALTA
Standard Coverage Owner's Policy of Title Insurance for the Real Property and
Improvements (the "Owner's Policy"), dated as of the Closing Date (as
hereinafter defined), in the amount of the Purchase Price, and insuring good and
indefeasible fee simple title to the Real Property and Improvements to be in
Purchaser. Purchaser may request that the Title Company issue, but Seller shall
have no obligation to pay for or to cause the Title Company to issue, other
available endorsements to the Owner's Policy. Upon issuance, the Owner's Policy
will except from coverage only the non-deleted general exceptions and Permitted
Exceptions (as defined in Section 3.3 below). Except as permitted under this
Agreement, no additional encumbrances may be created on the Property by Seller
after the date of this Agreement without the prior consent of Purchaser, which
consent may not be unreasonably withheld, conditioned, or delayed.
3.2 SURVEY. Within five (5) days of the date of this Agreement,
Seller shall deliver to Purchaser one copy of the most recent existing plat of
survey (if any) of the Real Property (the "Existing Survey") in Seller's
possession and control. Purchaser may obtain, at Purchaser's sole option,
election and expense, and deliver to Seller, and the Title Insurer, on or before
the date that is ten (10) days prior to the last day of the Review Period (as
hereinafter defined) an updated or new as-built survey of the Real Property (the
"Updated Survey") prepared by the surveyor who provided the Existing Survey or
another surveyor selected by Purchaser.
3.3 TITLE REVIEW. Purchaser shall have ten (10) days after its
receipt of the last of the Title Commitment and the copies of each title
exception document, but in no event later than the expiration of the Review
Period (the "Title Review Period"), to give Seller a detailed notice objecting
to any exception or condition contained in the Title Commitment or shown on the
Updated Survey, if any. If Purchaser does not give notice of any objections to
Seller within the Title Review Period, Purchaser shall be deemed to have
approved the title as shown in the Title Commitment, the title exceptions, and
all matters shown on the Updated Survey. If Purchaser provides timely
objections, Seller shall have five (5) days after receipt of Purchaser's notice
(the "Title Cure Period") in which to cure or attempt to cure Purchaser's
objections; provided, however that Seller shall not have any obligation to cure
any of Purchaser's objections. Seller may bond around any mechanics' or
materialmen's lien(s) and abstract(s) of judgment to the Title Company's
reasonable satisfaction. If Purchaser provides timely objections and all of
Purchaser's objections are not cured within the Title Cure Period for any
reason, then, within five (5) days after the last day of the Title Cure Period,
Purchaser shall, as its sole and exclusive remedy, waiving all other remedies,
either: (a) terminate this Agreement by giving a termination notice to Seller,
at which time Escrowee shall return the Xxxxxxx Money to Purchaser and the
parties shall have no further rights, liabilities, or obligations under this
Agreement (other than those that expressly survive termination); or (b) waive
the uncured objections by proceeding to Closing and thereby be deemed to have
approved the Purchaser's title as shown in the Title
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Commitment, the title exception documents, and the Updated Survey, if any. If
Seller does not timely receive notice of Purchaser's election to terminate under
this Section 3.3, Purchaser will be deemed to have waived the uncured objections
and to approve the Partnership's title as shown in the Commitment, the title
exception documents, and the Updated Survey. All exceptions shown on the
Existing Survey, the Title Commitment, the title exception documents, or the
Updated Survey that are not cured within the Title Cure Period shall be the
"Permitted Exceptions".
4. CLOSING.
4.1 CLOSING DATE. The "Closing" of the transaction
contemplated by this Agreement (that is, the payment of the Purchase Price, the
transfer of title to the Property, and the satisfaction of all other terms and
conditions of this Agreement) shall occur at 11:00 a.m. on the fifteenth (15th)
day after the expiration of the Review Period (as defined in Section 8.1.1
below), at the Chicago office of the Title Insurer, or at such other time and
place as Seller and Purchaser shall agree in writing. The "Closing Date" shall
be the date of Closing. If the date for Closing above provided for falls on a
Saturday, Sunday or legal holiday, then the Closing Date shall be the next
business day.
4.2 SELLER'S CLOSING DELIVERIES. At Closing, Seller shall
execute and deliver to Purchaser the following:
4.2.1 a "special" Warranty Deed, subject to the
Permitted Exceptions in the form attached hereto as EXHIBIT E and
acceptable to the Title Insurer;
4.2.2 a Xxxx of Sale in the form attached hereto
as EXHIBIT F;
4.2.3 a letter advising tenants under the Leases
of the change in ownership of the Property in the form attached
hereto as EXHIBIT G;
4.2.4 an Assignment and Assumption of Leases,
Security Deposits and Service Contracts in the form attached
hereto as EXHIBIT H;
4.2.5 an affidavit stating, under penalty of
perjury, Seller's U.S. taxpayer identification number and that
Seller is not a foreign person within the meaning of Section 1445 of
the Internal Revenue Code;
4.2.6 such evidence of Seller's power and
authority as the Title Insurer may reasonably require;
4.2.7 a closing statement ("Closing Statement")
setting forth the prorations and adjustments to the Purchase Price
as required by Section 4.4 below; and
4.2.8 an update of the Rent Roll (hereinafter
defined) in the form of the Rent Roll attached hereto as EXHIBIT J,
dated no earlier than two (2) business days prior to the Closing
Date, certified by Seller to be to Seller's knowledge, true and
complete in all material respects, and subject to the limitations on
survival and liability provided in Section 10 and Section 12 below.
4.3 PURCHASER'S CLOSING DELIVERIES. At Closing,
Purchaser shall execute and deliver to Seller the following:
4.3.1 the funds required pursuant to Section 2.2
above;
4.3.2 a counterpart original of the Closing
Statement referenced in 4.2.7 above;
4.3.3 counterpart originals of the Assignment and
Assumption of Leases, Security Deposits and Service Contracts
referenced in Section 4.2.4 above); and
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4.3.4 such evidence of Purchaser's power and
authority as the Title Insurer may reasonably require.
4.4 CLOSING PRORATIONS AND ADJUSTMENTS. Seller shall prepare
the Closing Statement of the prorations and adjustments required by this
Agreement and submit it to Purchaser at least one (1) business day prior to the
Closing Date. The following items are to be prorated, adjusted or credited (as
appropriate) as of the close of business on the Closing Date, it being
understood that for purposes of prorations and adjustments, Seller shall be
deemed the owner of the Property on such day and Purchaser shall be deemed the
owner of the Property as of the day after the Closing Date:
4.4.1 real estate and personal property taxes and
assessments (on the basis of the most recent ascertainable tax xxxx if the
current xxxx is not then available, and in any case, calculated taking into
account the 4% discount available for payment of real estate taxes prior to
December; provided, however, in the event the Closing takes place after the
period of time for the 4% discount has expired, the discount shall be applied
only in the event Seller took advantage of such discount when it paid the real
estate taxes);
4.4.2 the rent payable by tenants under the Leases;
provided, however, that rent and all other sums which are due and payable to
Seller by any tenant but uncollected as of the Closing shall not be adjusted,
but Purchaser shall cause the rent and other sums for the period prior to
Closing to be remitted to Seller if, as and when collected. At Closing, Seller
shall deliver to Purchaser a schedule of all such past due but uncollected rent
and other sums owed by tenants. Purchaser shall include the amount of such rent
and other sums in the first bills thereafter submitted to the tenants in
question after the Closing, and shall continue to do so for nine (9) months
thereafter. Purchaser shall promptly remit to Seller any such rent or other sums
paid by scheduled tenants;
4.4.3 the amount of unapplied security deposits held by
Seller under the Leases;
4.4.4 water, electric, telephone and all other utility and
fuel charges, fuel on hand (at cost plus sales tax); provided, however, that any
deposits with utility companies shall remain the property of the Seller and
shall not be prorated or credited (to the extent possible, utility prorations
will be handled by meter readings on the day immediately preceding the Closing
Date);
4.4.5 amounts due and prepayments under the Service
Contracts;
4.4.6 assignable license and permit fees; and
4.4.7 other similar items of income and expenses of
operation.
Except with respect to general real estate and personal property taxes
(which shall be reprorated upon the issuance of the actual bills, if necessary),
any proration which must be estimated at Closing shall be reprorated and finally
adjusted as soon as practicable after the Closing Date; otherwise, subject to
the provisions of Section 4.4.2 above, all prorations shall be final. In
addition, notwithstanding anything to the contrary contained in this Section 4,
Seller reserves the right (i) to meet with governmental officials and to contest
any reassessment governing or affecting Seller's obligations under Section 4.4.1
above and (ii) to contest any assessment of the Property or any portion thereof
and to attempt to obtain a refund for any taxes previously paid. Seller shall
retain all rights with respect to any refund of taxes applicable to any period
prior to the Closing Date.
4.5 TRANSACTION COSTS.
Seller shall pay for any base premium due in connection with the Owner's
Policy (the "Base Premium") which shall be net of any reissue discount which may
be available from the Title Insurer in connection with the delivery of an
existing owner's policy of title insurance, one-half (1/2) of any transfer taxes
and documentary stamps related to the transfer of the Property (but not any
mortgage stamps related to Purchaser's loan) and one-half (1/2) of Escrowee's
standard escrow fees. All other closing and transaction costs (including,
without limitation, title insurance premiums or other title costs in excess of
the Base Premium including premiums for any loan policy or endorsements thereto
required by Purchaser's lender, recording charges, any costs relating to the
Updated Survey, any and all transfer taxes and documentary stamps, one-half
(1/2) of any transfer taxes and documentary stamps related to the transfer of
the Property
4
(and all mortgage stamps related to Purchaser's loan) and one-half (1/2) of
Escrowee's standard escrow fees) shall be paid by Purchaser, whether or not the
Closing occurs. Seller and Purchaser shall, however, be responsible for the fees
of their respective attorneys and the payment of any brokerage commissions due
any broker hired by Seller or Purchaser, respectively, to represent it in
connection with this transaction.
4.6 POSSESSION.
Upon Closing, Seller shall deliver to Purchaser possession of
the Property, subject to such matters as are permitted by or pursuant to this
Agreement.
5. CASUALTY LOSS AND CONDEMNATION. Prior to Closing, the risk of loss
shall remain with Seller. If, prior to Closing, the Property or any part thereof
shall be condemned, or destroyed or damaged by fire or other casualty, Seller
shall promptly so notify Purchaser. If the Property or any part thereof shall be
condemned such that damages are in excess of $500,000 (as determined by Seller
in good faith) or if the Property or any part thereof shall be destroyed or
damaged by fire or other casualty the repair of which would cost in excess of
$500,000 (as determined by Seller in good faith), then, at the option of
Purchaser, which option shall be exercisable, if at all, by written notice
thereof to Seller within ten (10) business days after Purchaser receives written
notice of such fire, earthquake or other casualty or condemnation and Seller's
good faith determination of resulting damages, this Agreement may be terminated.
If Purchaser elects to terminate this Agreement, the Xxxxxxx Money shall be
returned to Purchaser by Escrowee, in which event this Agreement shall, without
further action of the parties, become null and void and neither party shall have
any rights or obligations under this Agreement. In the event that Purchaser does
not exercise the option to terminate the Agreement set forth above, or if the
condemnation or casualty is below the $500,000 threshold described above, then
the Closing shall take place on the Closing Date and Purchaser shall be entitled
to receive the condemnation proceeds in the event of a condemnation, or in the
event of a casualty, a credit against the Purchase Price payable at Closing in
the total amount of the estimated proceeds to Seller under any applicable hazard
or other insurance policy or policies in effect with respect to the Property,
(including, without limitation, a credit for the estimated amount of lost rental
income subsequent to the Closing Date, if any,) all as determined by the
applicable insurance representatives, PLUS the amount of any applicable
deductibles MINUS any sums expended by Seller in repairs or restoration;
provided, however that in no event shall the total credit to Purchaser exceed
the amount of the loss. In addition, in the event of the foregoing, Purchaser
shall deliver to Seller at Closing a release in form reasonably satisfactory to
Seller whereby Purchaser releases Seller from all ongoing liability and/or
claims in connection with such condemnation or casualty.
Notwithstanding anything to the contrary contained in this Section 5,
in the event any condemnation below the $500,000 threshold described above
either (i) prohibits, as a matter of applicable law, the rebuilding or repair of
the Property as it currently exists or (ii) prevents access to the Property from
a publicly dedicated street, then Purchaser may elect to terminate this
Agreement by written notice thereof to Seller within ten (10) business days of
such determination, and upon the exercise of such option by Purchaser, this
Agreement shall become null and void, the Xxxxxxx Money shall be returned to
Purchaser and neither party shall have any further liability or obligations
hereunder, except those that expressly survive termination.
6. BROKERAGE.
Seller agrees to pay upon Closing (but not otherwise) a brokerage
commission due to Xxxx Xxxxxxx of Xxxxxxx Investment Group pursuant to a
separate agreement for services rendered in connection with the sale and
purchase of the Property. Seller and Purchaser shall each indemnify and hold the
other harmless from and against any and all claims of all other brokers and
finders claiming by, through or under the indemnifying party and in any way
related to the sale and purchase of the Property, this Agreement or otherwise,
including, without limitation, attorneys' fees and expenses incurred by the
indemnified party in connection with such claim. This Section 6 shall survive
the termination of this Agreement.
7. DEFAULT AND REMEDIES.
7.1 PURCHASER'S PRE-CLOSING REMEDIES. Notwithstanding anything
to the contrary contained in this Agreement, if Seller fails to perform in
accordance with the terms of this Agreement at or prior to Closing, then, as
Purchaser's sole and exclusive remedy hereunder and at Purchaser's option,
either (i) the Xxxxxxx Money shall be returned
5
to Purchaser, in which event this Agreement shall be null and void, and neither
party shall have any rights or obligations under this Agreement except those
which expressly survive termination, and Purchaser may pursue an action for
reimbursement of the reasonable actual expenses (including reasonable attorneys'
fees) incurred by it under the Agreement, such amount to be limited to
$25,000.00, or (ii) upon notice to Seller not more than ten (10) days after
Purchaser becomes aware of which failure, and provided an action is filed within
thirty (30) days thereafter, Purchaser may seek specific performance of this
Agreement, but not damages. Purchaser's failure to seek specific performance as
aforesaid shall constitute its election to proceed under clause (i) above.
7.2 SELLER'S PRE-CLOSING REMEDIES. If Purchaser fails to
perform in accordance with the terms of this Agreement, Seller shall have the
right to terminate this Agreement by delivering written notice to Purchaser
whereupon the Xxxxxxx Money shall be forfeited to Seller as liquidated damages
(which shall be Seller's sole and exclusive remedy against Purchaser), it being
agreed between the parties hereto that the actual damages to Seller in such
event are impractical to ascertain and the amount of the Xxxxxxx Money is a
reasonable estimate thereof and shall be and constitute valid liquidated
damages, at which time this Agreement shall be null and void and neither party
shall have any rights or obligations under this Agreement; provided, however, if
Purchaser is required to but does not deposit with the Escrowee the Additional
Xxxxxxx Money as provided for in Section 2.1.1 above, the sum of $250,000.00
shall nonetheless be recoverable by Seller from Purchaser as Xxxxxxx Money.
7.3 PRE-CLOSING KNOWLEDGE. If at any time after the execution
of this Agreement, either Purchaser or Seller becomes aware of information which
makes a representation and warranty contained in this Agreement to become untrue
in any material respect, said party shall promptly disclose said information in
writing to the other party hereto. Provided, that the party making the
representation has taken no willful act to cause the representation to become
untrue, said party shall not be in default under this Agreement and the sole
remedy of the other party shall be to either (i) terminate this Agreement by
written notice, in which event this Agreement, without further action of the
parties, shall become null and void such that neither party shall have any
further rights or obligations under this Agreement except for those rights and
obligations which by their terms expressly survive any such termination, or (ii)
elect to proceed to Closing, in which case such party shall be deemed to have
waived its rights with respect to any such breach of representation or warranty.
Notwithstanding anything to the contrary set forth in this Agreement, Purchaser
and Seller are prohibited from making any claims against the other party hereto
after the Closing with respect to any breaches of the other party's
representations and warranties contained in this Agreement that the claiming
party has actual knowledge of prior to the Closing.
7.4 POST-CLOSING REMEDIES. From and after the Closing, Seller
and Purchaser shall, subject to the terms and conditions of this Agreement, have
such rights and remedies as are available at law or in equity, except that
neither Seller nor Purchaser shall be entitled to recover from the other
consequential or special damages.
8. CONDITIONS PRECEDENT.
8.1 CONDITION PRECEDENT - PURCHASER.
8.1.1 Purchaser shall have until 5:00 p.m. (Central
Standard Time) on the thirtieth (30th) day after the date of this Agreement
within which to inspect the Property (the "Review Period"). If Purchaser
determines that the Property is unsuitable for its purposes and so notifies
Seller in writing within the Review Period, the Xxxxxxx Money shall be returned
to Purchaser, at which time this Agreement shall be null and void and neither
party shall have any further rights or obligations under this Agreement except
those which expressly survive termination. Purchaser's failure to terminate this
Agreement within the Review Period shall be conclusively deemed a waiver by
Purchaser of the condition contained in this Section 8.
8.1.2 Purchaser's right of inspection pursuant to this
Section 8 shall be subject to the rights of tenants under the Leases and other
occupants and users of the Property. Before entering upon the Property,
Purchaser shall furnish to Seller evidence of general liability insurance
coverage (naming Seller as an additional insured) of not less than $2,000,000.
No inspection shall be undertaken without reasonable prior notice to Seller.
Seller shall have the right to be present at any or all inspections. Neither
Purchaser nor its agents or representatives shall contact any tenants without
the prior consent of Seller. No inspection shall involve the taking of samples
or other physically invasive procedures without the prior written consent of
Seller, such consent not to be unreasonably withheld. Notwithstanding anything
to the contrary contained in this Agreement, Purchaser shall indemnify, defend
(with counsel acceptable to
6
Seller) and hold Seller and its employees and agents, and each of them, harmless
from and against any and all losses, claims, damages and liabilities (including,
without limitation, attorneys' fees incurred in connection therewith) arising
out of or resulting from Purchaser's exercise of its rights under this
Agreement, including, without limitation, its right of inspection as provided
for in this Section 8. The indemnification obligation of Purchaser in this
Section 8.1.2 shall survive termination of this Agreement.
8.1.3 At Closing, all management contracts relating to the
Property shall be terminated.
8.2 CONDITION PRECEDENT - SELLER. It shall be a condition
precedent of Seller's obligation to close the purchase and sale transaction
contemplated by this Agreement that it receives approval from the Board of
Trustees of Equity Residential, the general partner of the Seller, on or before
the end of the Review Period to complete the transaction described herein on the
terms and conditions set forth in this Agreement.
9. SECTION 1031 EXCHANGE.
Seller may structure the disposition of the Property as a like-kind
exchange under Internal Revenue Code Section 1031 at Seller's sole cost and
expense. Purchaser shall reasonably cooperate therein, provided that Purchaser
shall incur no material costs, expenses or liabilities in connection with
Seller's exchange. Seller shall indemnify, defend and hold Purchaser harmless
therefrom and Purchaser shall not be required to take title to or contract for
purchase of any other property. If Seller uses a qualified intermediary to
effectuate the exchange, any assignment of the rights or obligations of Seller
hereunder shall not relieve, release or absolve Seller of its obligations to
Purchaser.
10. REPRESENTATIONS AND WARRANTIES.
10.1 SELLER'S REPRESENTATIONS AND WARRANTIES. Seller represents
and warranties to Purchaser on the date of this Agreement as follows:
10.1.1 Seller is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State of Illinois.
10.1.2 Seller has full power, right and authority to enter
into and perform its obligations under this Agreement. The execution, delivery
and performance of this Agreement by Seller have been duly and properly
authorized by proper corporate action in accordance with applicable law and with
the Partnership Agreement of Seller.
10.1.3 To the Seller's knowledge, except as set forth on
EXHIBIT J, attached hereto Seller has received no written notice of any pending
litigation with respect to Seller or the Property which would affect the
Property after Closing.
10.1.4 To Seller's knowledge, other than with respect to
matters set forth on EXHIBIT K, it has not received from any governmental
authority written notice of any violation of any building, fire or health code
or any other statute applicable to the Property; provided, however, Seller makes
no representation or warranty with respect to the Property's compliance with the
Americans with Disabilities Act.
10.1.5 To Seller's knowledge, EXHIBIT C attached hereto
lists all of the Service Contracts affecting the Property and the vendor under
each Service Contract.
10.1.6 To Seller's knowledge, EXHIBIT I attached hereto
describes, in all material respects, the following information concerning the
Leases affecting the Property as of the date hereof: (a) unit number, (b) name
of tenant, (c) rental rate, (d) expiration date of the Lease, (e) amount of
security deposit, and (f) move-in date. Seller makes no representation with
respect to any rental rate or other information provided in EXHIBIT I that is
not described in the preceding sentence.
7
10.2 SELLER'S KNOWLEDGE. When used in this Agreement, the term "to
Seller's knowledge" shall mean shall mean and be limited to the actual (and not
imputed, implied or constructive) current knowledge of Xxxx Xxxxxxxxxxxx, Senior
Vice President of Equity Residential and Xxx Xxxxxxx, Regional Vice President of
Equity Residential. Notwithstanding anything to the contrary set forth in this
Agreement, none of the foregoing individuals shall have any personal liability
or liability whatsoever with respect to any matters set forth in this Agreement
or any of Seller's representations and/or warranties herein being or becoming
untrue, inaccurate or incomplete.
10.3 SURVIVAL. The representations and warranties set forth in
this Section 10 shall, shall be deemed to be remade as of Closing and shall
survive the Closing and the delivery of the Deed for a period of one hundred
eighty (180) days from the Closing Date. Notice of any claim as to a breach of
any representation or warranties must be made to Seller prior to the expiration
of such one hundred eighty (180) day period or it shall be deemed a waiver of
the right to assert such claim.
11. AS-IS.
11.1 AS-IS CONDITION. ACKNOWLEDGING THE PRIOR USE OF THE PROPERTY
AND PURCHASER'S OPPORTUNITY TO INSPECT THE PROPERTY, PURCHASER AGREES TO TAKE
THE PROPERTY "AS IS", "WHERE IS", WITH ALL FAULTS AND CONDITIONS THEREON. ANY
INFORMATION, REPORTS, STATEMENTS, DOCUMENTS OR RECORDS ("DISCLOSURES") PROVIDED
OR MADE TO PURCHASER OR ITS CONSTITUENTS BY SELLER, ITS AGENTS OR EMPLOYEES
CONCERNING THE CONDITION (INCLUDING, BUT NOT LIMITED TO, THE ENVIRONMENTAL
CONDITION) OF THE PROPERTY SHALL NOT BE REPRESENTATIONS OR WARRANTIES, UNLESS
SPECIFICALLY SET FORTH IN THIS AGREEMENT. PURCHASER SHALL NOT RELY ON SUCH
DISCLOSURES, BUT RATHER, PURCHASER SHALL RELY ONLY ON ITS OWN INSPECTION OF THE
PROPERTY. PURCHASER ACKNOWLEDGES THAT THE PURCHASE PRICE REFLECTS AND TAKES INTO
ACCOUNT THAT THE PROPERTY IS BEING SOLD "AS IS".
11.2 NO ADDITIONAL REPRESENTATIONS. PURCHASER ACKNOWLEDGES AND
AGREES THAT EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 10 OF THIS AGREEMENT
SELLER HAS NOT MADE, DOES NOT MAKE AND SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS, AGREEMENTS OR GUARANTIES OF
ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN,
PAST, PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE
NATURE, QUALITY OR CONDITION OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL AND GEOLOGY, (B) THE INCOME TO BE DERIVED FROM THE PROPERTY, (C) THE
SUITABILITY OF THE PROPERTY FOR ANY AND ALL ACTIVITIES AND USES WHICH PURCHASER
MAY CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION
WITH ANY LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE GOVERNMENTAL
AUTHORITY OR BODY, (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE PROPERTY, OR (F) ANY OTHER MATTER WITH RESPECT TO THE
PROPERTY, AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS REGARDING TERMITES OR
WASTES, AS DEFINED BY THE U.S. ENVIRONMENTAL PROTECTION AGENCY REGULATIONS AT 40
C.F.R., OR ANY HAZARDOUS SUBSTANCE, AS DEFINED BY THE COMPREHENSIVE
ENVIRONMENTAL RESPONSE COMPENSATION AND LIABILITY ACT OF 1980 ("CERCLA"), AS
AMENDED, AND REGULATIONS PROMULGATED THEREUNDER. PURCHASER, ITS SUCCESSORS AND
ASSIGNS, HEREBY WAIVE, RELEASE AND AGREE NOT TO MAKE ANY CLAIM OR BRING ANY COST
RECOVERY ACTION OR CLAIM FOR CONTRIBUTION OR OTHER ACTION OR CLAIM AGAINST
SELLER OR ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, ATTORNEYS, OR
ASSIGNS (COLLECTIVELY, "SELLER AND ITS AFFILIATES") BASED ON (A) ANY FEDERAL,
STATE, OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY LAW OR REGULATION, INCLUDING
CERCLA OR ANY STATE EQUIVALENT, OR ANY SIMILAR LAW NOW EXISTING OR HEREAFTER
ENACTED, (B) ANY DISCHARGE, DISPOSAL, RELEASE, OR ESCAPE OF ANY CHEMICAL, OR ANY
MATERIAL WHATSOEVER, ON, AT, TO, OR FROM THE PROPERTY; OR
8
(C) ANY ENVIRONMENTAL CONDITIONS WHATSOEVER ON, UNDER, OR IN THE VICINITY OF THE
PROPERTY.
11.3 PURCHASER'S DUE DILIGENCE. PURCHASER REPRESENTS TO SELLER
THAT PURCHASER HAS CONDUCTED, OR WILL CONDUCT PRIOR TO CLOSING, SUCH
INVESTIGATIONS OF THE PROPERTY, INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND
ENVIRONMENTAL CONDITIONS THEREOF, AS PURCHASER DEEMS NECESSARY OR DESIRABLE TO
SATISFY ITSELF AS TO THE CONDITION OF THE PROPERTY AND THE EXISTENCE OR
NONEXISTENCE OR CURATIVE ACTION TO BE TAKEN WITH RESPECT TO ANY HAZARDOUS OR
TOXIC SUBSTANCES ON OR DISCHARGED FROM THE PROPERTY, AND WILL RELY SOLELY UPON
SAME AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER OR ITS
AGENTS OR EMPLOYEES WITH RESPECT THERETO. UPON CLOSING, PURCHASER SHALL ASSUME
THE RISK THAT ADVERSE MATTERS, INCLUDING BUT NOT LIMITED TO, CONSTRUCTION
DEFECTS AND ADVERSE PHYSICAL AND ENVIRONMENTAL CONDITIONS, MAY NOT HAVE BEEN
REVEALED BY PURCHASER'S INVESTIGATIONS, AND PURCHASER, UPON CLOSING, SHALL BE
DEEMED TO HAVE WAIVED, RELINQUISHED AND RELEASED SELLER (AND SELLER'S OFFICERS,
DIRECTORS, SHAREHOLDERS, EMPLOYEES AND AGENTS) FROM AND AGAINST ANY AND ALL
CLAIMS, DEMANDS, CAUSES OF ACTION (INCLUDING CAUSES OF ACTION IN TORT), LOSSES,
DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES)
OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, WHICH PURCHASER MIGHT HAVE
ASSERTED OR ALLEGED AGAINST SELLER (AND SELLER'S OFFICERS, DIRECTORS,
SHAREHOLDERS, EMPLOYEES AND AGENTS) AT ANY TIME BY REASON OF OR ARISING OUT OF
ANY LATENT OR PATENT CONSTRUCTION DEFECTS OR PHYSICAL CONDITIONS, VIOLATIONS OF
ANY APPLICABLE LAWS AND ANY AND ALL OTHER ACTS, OMISSIONS, EVENTS, CIRCUMSTANCES
OR MATTERS REGARDING THE PROPERTY.
THE PROVISIONS OF THIS SECTION 11 SHALL SURVIVE THE CLOSING OR ANY
TERMINATION OF THIS AGREEMENT.
12. LIMITATION OF LIABILITY.
12.1 LIMITATION OF LIABILITY. Notwithstanding anything to the
contrary contained herein, if the Closing shall have occurred (and Purchaser
shall not have waived, relinquished or released any applicable rights in further
limitation), the aggregate liability of Seller arising pursuant to or in
connection with the representations, warranties, indemnifications, covenants or
other obligations (whether express or implied) of Seller under this Agreement
(or any document executed or delivered in connection herewith) shall not exceed
$250,000.
12.2 NO PERSONAL LIABILITY OF SELLER'S DIRECTORS AND EMPLOYEES. No
constituent partner in or agent of Seller, nor any advisor, trustee, director,
officer, employee, beneficiary, shareholder, participant, representative or
agent of any corporation or trust that is or becomes a constituent partner in
Seller (including, but not limited to, Equity Residential) shall have any
personal liability, directly or indirectly, under or in connection with this
Agreement or any agreement made or entered into under or pursuant to 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 for the payment of any claim or
for any performance, and Purchaser, on behalf of itself and its successors and
assigns, hereby waives any and all such personal liability. Notwithstanding
anything to the contrary contained in this Agreement, neither the negative
capital account of any constituent partner in Seller (or in any other
constituent partner of Seller), nor any obligation of any constituent partner in
Seller (or in any other constituent partner of Seller) to restore a negative
capital account or to contribute capital to Seller (or to any other constituent
partner of Seller), shall at any time be deemed to be the property or an asset
of Seller or any such other constituent partner (and neither Purchaser nor any
of its successors or assigns shall have any right to collect, enforce or proceed
against or with respect to any such negative capital account of partner's
obligations to restore or contribute). The provisions of this Section 12.2 shall
survive the Closing or any termination of this Agreement.
9
13. OPERATION OF THE PROPERTY
From and after the date hereof until the Closing Date or earlier
termination of this Agreement:
13.1 ORDINARY COURSE OF BUSINESS. Seller shall operate the
Property in its ordinary course of business and shall not sell, further pledge,
or otherwise transfer or dispose of all or any part of any Property (except for
such items of Personal Property as become obsolete or are disposed of in the
ordinary course), subject to the provisions of Section 5 above.
13.2 NEW LEASES. Seller shall keep, observe, and perform its
obligations as landlord under the Leases, and not enter into, or alter, amend or
otherwise modify or supplement any existing Lease to provide for a term in
excess of one (1) year, without the prior written consent of Purchaser.
13.3 SERVICE CONTRACTS. Seller shall not enter into any new
written service contract with respect to the Property that will not be
cancelable by Purchaser without penalty upon no greater than thirty (30) days
notice, without the prior written consent of Purchaser.
13.4 PROPERTY INSURANCE. Seller shall maintain in full force and
effect property insurance on the Property.
14. MISCELLANEOUS.
14.1 INDEMNIFICATION CLAIMS. The indemnifications contained in
this Agreement shall be subject to the following provisions: the indemnitee
shall notify indemnitor of any such claim against indemnitee within thirty (30)
days after it has written 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 liability within fifteen (15) business days after the
indemnitee gives the indemnitor written notice of the same, then indemnitee may
settle such liability, 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 attorneys' fees, incurred by indemnitee in effecting such settlement.
The obligations set forth in this Section 14.1 shall survive the Closing or
earlier termination of this Agreement.
14.2 ENTIRE AGREEMENT. All understandings and agreements
heretofore had between Seller and Purchaser with respect to the Property are
merged in this Agreement, which alone fully and completely expresses the
agreement of the parties.
14.3 ASSIGNMENT. Neither this Agreement nor any interest hereunder
shall be assigned or transferred by Purchaser; provided, however, that Purchaser
may make a one-time assignment of this Agreement to any entity in which Xxxxxxx
Xxxxxxxxx or Xxxxxx Xxxxx have a material ownership or control position. Subject
to the foregoing, this Agreement shall inure to the benefit of and shall be
binding upon Seller and Purchaser and their respective successors and assigns.
14.4 NO MODIFICATION. This Agreement shall not be modified or
amended except in a written document signed by Seller and Purchaser.
14.5 TIME OF THE ESSENCE. Time is of the essence of this
Agreement.
14.6 GOVERNING LAW. This Agreement shall be governed and
interpreted in accordance with the laws of the State in which the Property is
located.
14.7 NOTICE. All notices, requests, demands or other
communications required or permitted under this Agreement shall be in writing
and delivered personally, by certified mail, return receipt requested, postage
prepaid, by overnight courier (such as Federal Express), or by facsimile
transmission with a copy to follow by certified mail, return receipt requested,
postage paid or by overnight courier, addressed as follows:
10
1. If to Seller:
c/o Equity Residential
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 312.454.1962
Attention: Xxxxx Xxxxxxx
With a copy to:
Equity Residential
Two Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 312.454.0039
Attention: Xxxxxxx X Xxxxx
And a copy to:
Law Offices of Xxxxxx X. Xxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000.000.0000
Facsimile : 312.236.2699
Attention: Xxxxxx X Xxxxxx
2. If to Purchaser:
Bainbridge Companies
00000 X. Xxxxxx Xxxx Xxxxxxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 561.793.6820
Attention: Xxxxxx Xxxxx
And a copy to:
Broad and Xxxxxxx
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 561.218.8954
Attention: Xxxxxxx X. Xxxxxx
All notices given in accordance with the terms hereof shall be deemed received
on the next business day if sent by overnight courier, on the same day if sent
by facsimile before 5 P.M. (Central Standard Time) on a business day, on the
third (3rd) business day following deposit with the United States Mail as a
registered or certified matter with postage prepaid, or when delivered
personally or otherwise received. Either party hereto may change the address for
receiving notices, requests, demands or other communication by notice sent in
accordance with the terms of this Section 14.7.
11
14.8 WAIVER OF TRIAL BY JURY. In any lawsuit or other proceeding
initiated by Purchaser under or with respect to this Agreement, Purchaser waives
any right it may have to trial by jury. In addition, Purchaser waives any right
to seek rescission of the transaction provided for in this Agreement.
14.9 CONFIDENTIALITY. Except as may be required by law, without
the prior written consent of Seller, and unless the Closing occurs, Purchaser
shall not disclose to any third party the existence of this Agreement or any
term or condition thereof or the results of any inspections or studies
undertaken in connection herewith. Purchaser agrees to keep confidential and not
to use, other than in connection with its determination whether to proceed with
the purchase of the Property in accordance with Section 8 hereof, any of the
documents, material or information regarding the Property supplied to Purchaser
by Seller or by any third party at the request of Seller, including, without
limitation any environmental site assessment reports furnished to Purchaser,
except Purchaser may share such documents, material and information with
Purchaser's consultants on a "need to know" basis, unless Purchaser is compelled
to disclose such documents, material or information by law or by subpoena.
Purchaser agrees to indemnify and hold harmless Seller from and against any and
all losses, damages, claims and liabilities of any kind (including, without
limitation, reasonable attorneys' fees) arising out of Purchaser's breach of
this Section 14.9. In the event that the Closing does not occur in accordance
with the terms of this Agreement, Purchaser shall promptly return to Seller all
of the documents, materials and information regarding the Property supplied to
Purchaser by Seller or at the request of Seller. The provisions of this Section
14.9 shall survive the termination of this Agreement.
14.10 ASSIGNMENT OF INTEREST IN REPORTS AND STUDIES. If for any
reason Purchaser does not consummate the Closing, then Purchaser shall, upon
Seller's request, assign and transfer to Seller all of its right, title and
interest in and to any and all studies, reports, surveys and other information,
data and/or documents relating to the Property or any part thereof prepared by
or at the request of Purchaser, its employees and agents, and shall deliver to
Seller copies of all of the foregoing.
14.11 FORMER TENANT LEASE FILES. Notwithstanding anything to the
contrary set forth in this Agreement, any and all files at the Property that
relate to tenants who have vacated their units at the Property and with whom
there exists a dispute or a set of facts that could lead to a dispute between
Seller and such tenant regarding the payment of sums due and owing to Seller
(collectively, "Former Tenant Lease Files"), together with any and all rights,
causes of action and/or claims relating thereto shall not be transferred or
assigned to Purchaser at Closing but shall remain the property of Seller. Any
and all such Former Tenant Lease Files shall be removed from the Property by
Seller on or before the Closing Date.
14.12 NO MEMORANDUM OF AGREEMENT. This Agreement or any notice or
memorandum hereof shall not be recorded in any public record. A violation of
this prohibition shall constitute a material breach by Purchaser, entitling
Seller to terminate this Agreement.
14.13 PREVAILING PARTY ATTORNEY FEES. If either Seller or Purchaser
files suit to enforce the obligations of the other party under this Agreement,
the prevailing party shall be entitled to recover the reasonable fees and
expenses of its attorneys.
14.14 COUNTERPART SIGNATURES. This Agreement may be signed in any
number of counterparts each of which shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
14.15 DESIGNATION OF ESCROWEE AS REPORTING PERSON. Seller and
Purchaser hereby designate Escrowee to act as and perform the duties and
obligations of the "reporting person" with respect to the transaction
contemplated by this Agreement for purposes of 26 C.F.R. Section 1.6045-4(e)(5)
relating to the requirements for information reporting on real estate
transaction closed on or after January 1, 1991. In this regard, Seller and
Purchaser each agree to execute at Closing, and to cause the Escrowee to execute
at Closing, a Designation Agreement, designating Escrowee as the reporting
person with respect to the transaction contemplated by this Agreement.
14.15 RADON GAS. Pursuant to Section 404.05618, Florida Statues
(1988), the following notification regarding radon gas is hereby made, and all
parties executing this Agreement acknowledge receipt of this notification:
12
RADON GAS: "RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS
THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT
QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE
EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL
AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY
BE OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT".
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
ERP OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Equity Residential, a Maryland real
estate investment trust,
its general partner
By: /s/ Xxxxxxx L Duck
-------------------------------------
Xxxxxxx L Duck, First Vice President
PURCHASER:
BAINBRIDGE COMMUNITIES ACQUISITION CORPORATION
II, a Florida corporation
By:
----------------------------------------------
Name:
--------------------------------------------
Title:
-------------------------------------------
EXHIBITS
A - Legal Description
B - List of Personal Property
C - List of Service Contracts
X - Xxxxxxx Money Escrow Instructions
E - Special Warranty Deed
F - Xxxx of Sale
G - Notice to Tenants
H - Assignment and Assumption of Leases, Security Deposits
and Service Contracts
I - Rent Roll
J - Pending Litigation
K - Notice of Code Violations
13
RADON GAS: "RADON IS A NATURALLY OCCURRING RADIOACTIVE GAS
THAT, WHEN IT HAS ACCUMULATED IN A BUILDING IN SUFFICIENT
QUANTITIES, MAY PRESENT HEALTH RISKS TO PERSONS WHO ARE
EXPOSED TO IT OVER TIME. LEVELS OF RADON THAT EXCEED FEDERAL
AND STATE GUIDELINES HAVE BEEN FOUND IN BUILDINGS IN FLORIDA.
ADDITIONAL INFORMATION REGARDING RADON AND RADON TESTING MAY
BE OBTAINED FROM YOUR COUNTY PUBLIC HEALTH UNIT".
IN WITNESS WHEREOF, Seller and Purchaser have executed and delivered this
Agreement as of the date first above written.
SELLER:
ERP OPERATING LIMITED PARTNERSHIP,
an Illinois limited partnership
By: Equity Residential, a Maryland real
estate investment trust,
its general partner
By:
------------------------------------------
Xxxx Xxxxxxxxxxxx, Senior Vice President
PURCHASER:
BAINBRIDGE COMMUNITIES ACQUISITION CORPORATION
II, a Florida corporation
By: /s/ Xxxxxx Xxxx
-------------------------
Name: Xxxxxx Xxxx
------------------------
Title: Vice President
-----------------------
EXHIBITS
A - Legal Description
B - List of Personal Property
C - List of Service Contracts
X - Xxxxxxx Money Escrow Instructions
E - Special Warranty Deed
F - Xxxx of Sale
G - Notice to Tenants
H - Assignment and Assumption of Leases, Security Deposits
and Service Contracts
I - Rent Roll
J - Pending Litigation
K - Notice of Code Violations
14
EXHIBIT A
SPICEWOOD SPRINGS APARTMENTS
JACKSONVILLE, FLORIDA
LEGAL DESCRIPTION
00
XXXXXXX X
XXXXXXXXX XXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXXXXXX
LIST OF PERSONAL PROPERTY
00
XXXXXXX X
XXXXXXXXX XXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXXXXXX
LIST OF SERVICE CONTRACTS
00
XXXXXXX X
XXXXXXXXX XXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXXXXXX
XXXXXXX MONEY ESCROW INSTRUCTIONS
Escrow Officer:
-----------------------------
Escrow No.:
---------------------------------
Phone No.:
----------------------------------
Facsimile No.:
------------------------------
Date: April ________, 2003
TO:
-----------------------------------
-----------------------------------
-----------------------------------
Attn:
-----------------------------
The amount of Fifty Thousand and 00/100 Dollars ($50,000.00) (the "Escrow
Deposit") is deposited with the Chicago office of Chicago Title Insurance
Company in escrow by BAINBRIDGE COMMUNITIES ACQUISITION CORPORATION II, a
Florida corporation, the "Purchaser" under that certain Agreement for Purchase
of Real Estate and Related Property (the "Agreement"), dated March ____, 2003,
with ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited partnership, as the
"Seller".
As escrowee, you are hereby directed to hold, deal with and dispose of the
Escrow Deposit in accordance with the following terms and conditions:
1. You are to hold the Escrow Deposit until: (a) you are in receipt of a
joint order by the undersigned Seller and Purchaser as to the disposition
of the Escrow Deposit; or (b) you are in receipt of a written demand (the
"Demand") from either Seller or Purchaser for the payment of the Escrow
Deposit or any portion thereof. If you receive a Demand from Purchaser on
or before the expiration of the Review Period, as such term is defined in
the Agreement (as the same may be amended), then you shall immediately
comply with the Demand without the necessity of giving notice to Seller and
notwithstanding any contrary instruction you may receive from Seller. Upon
receipt of any Demand (other than a Demand from Purchaser on or before the
expiration of the Review Period as provided above), you are directed to so
notify the other party, enclosing a copy of the Demand. If within five (5)
days after the non-demanding party has received or is deemed to have
received your notice of your receipt of the Demand, you have not received
from the non-demanding party its notice of objection to the Demand, then
you are to disburse the Escrow Deposit as requested by the Demand. If
within said five-day period you receive from the non-demanding party its
notice of objection to the Demand, then you are to continue to hold the
Escrow Deposit until you are in receipt of a joint order as aforesaid, but
after sixty (60) days you may deposit the Escrow Deposit with a Court of
competent jurisdiction.
2. Notwithstanding the foregoing, as escrowee, you are hereby expressly
authorized to regard and to comply with and obey any and all orders,
judgments or decrees entered or issued by any Court, and in case you obey
or comply with any such order, judgment or decree of any Court, you shall
not be liable to either of the parties hereto or any other person or entity
by reason of such compliance, notwithstanding any such order, judgment or
decree be entered without jurisdiction or be subsequently reversed,
modified, annulled, set aside or vacated. In case of any suit or proceeding
regarding these Escrow Instructions, to which you are or may at any time be
a party, the undersigned Seller and Purchaser agree that the non-prevailing
party shall pay to you upon demand all reasonable costs and expenses
incurred by you in connection herewith.
17
3. Any escrow fee to be charged by you is to be borne equally by the
undersigned Seller and Purchaser.
4. As escrowee, you shall invest the Escrow Deposit in an interest-bearing
savings or money market account or short term U.S. Treasury Bills or
similar cash equivalent securities, as the undersigned Purchaser may
direct. Any interest earned on the Escrow Deposit, after you deduct your
customary investment charges, shall become and be deemed to be a part of
the Escrow Deposit.
5. All notices or other communications hereunder shall be in writing and shall
be personally delivered or sent by overnight courier (such as Federal
Express), by facsimile transmission or by first class United States Mail,
postage prepaid, registered or certified (return receipt requested) to the
respective addresses for the Seller, Purchaser and escrowee as herein
provided. A notice is given on the date it is personally delivered, sent by
overnight courier or facsimile transmission, or deposited with the United
States Mail for delivery as aforesaid. A notice is received on the date it
is personally delivered, the day after sent if sent by overnight courier or
facsimile transmission or, if sent by mail as aforesaid, on the date noted
on the return receipt.
6. Purchaser and Seller may act hereunder either directly or through their
respective attorneys:
The Seller's attorney is:
Law Offices of Xxxxxx X. Xxxxxx
000 Xxxx Xxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Telephone: 000.000.0000
Facsimile : 312.236.2699
Attn: Xxxxxx X. Xxxxxx
The Purchaser's attorney is:
Broad and Xxxxxxx
0000 Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, Xxxxxxx 00000
Telephone: 000.000.0000
Facsimile: 561.218.8954
Attention: Xxxxxxx X. Xxxxxx
7. This Escrow Agreement is being entered into to implement the Agreement and
shall not (nor be deemed to) amend, modify or supersede the Agreement or
act as a waiver of any rights, obligations or remedies set forth therein;
provided, however, that you may rely solely upon these Escrow Instructions.
8. In case of any suit or proceeding at law or in equity regarding the Xxxxxxx
Money or these Escrow Instructions, the non-prevailing party shall pay the
prevailing party all costs and expenses (including, but not limited to,
attorney's fees) incurred by the prevailing party, and if such prevailing
party shall recover judgment in any such suit or preceding, such costs and
expenses (including but not limited to attorneys' fees) shall be included
in and as a part of such judgment.
9. This Escrow Agreement may be signed in any number of counterparts each of
which shall be deemed to be an original and all of which taken together
shall constitute one and the same instrument.
18
Agreed and Acknowledged this _____ day of April, 2003.
PURCHASER: SELLER:
BAINBRIDGE COMMUNITIES ACQUISITION ERP OPERATING LIMITED PARTNERSHIP,
CORPORATION II, a Florida corporation an Illinois limited partnership
By: Equity Residential, a Maryland
real estate investment trust,
its general partner
By:
---------------------------------
Name:
-------------------------------
Title: By:
------------------------------ ----------------------------
Xxxx Xxxxxxxxxxxx, Senior VP
Address: Address:
Bainbridge Companies c/o Equity Residential
00000 X Xxxxxx Xxxx Xxxxxxxxx Two North Riverside Plaza, Suite 400
Wellington , Florida 33414 Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxx Attn: Xxxxx Xxxxxxx
Phone: 000.000.0000 Phone: 000.000.0000
Agreed and Acknowledged this ______ day of March, 2003.
CHICAGO TITLE INSURANCE COMPANY
By:
------------------------------------
Title:
00
XXXXXXX X
XXXXXXXXX XXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXXXXXX
[CONFORM TO JURISDICTIONAL REQUIREMENTS]
When Recorded, Mail to:
-------------------
-------------------
-------------------
-------------------
SPECIAL WARRANTY DEED
For the consideration of the sum of Ten Dollars ($10.00) and other valuable
considerations received, ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited
partnership ("Grantor"), does hereby convey to BAINBRIDGE COMMUNITIES
ACQUISITION CORPORATION II, a Florida corporation ("Grantee"), all of Grantor's
right, title and interest in and to the following described real property (the
"Property") situated in Xxxxx County, Florida, together with all improvements
thereon and all of Grantor's interest in any rights and privileges solely
appurtenant thereto:
SEE EXHIBIT A ATTACHED HERETO AND BY THIS REFERENCE MADE A PART
HEREOF.
SUBJECT TO: the permitted exceptions set forth on EXHIBIT B attached hereto
and by this reference made a part hereof.
AND GRANTOR hereby binds itself and its successors to warrant and defend
the title against all of the acts of Grantor and no other, subject to the
matters set forth above.
IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be
executed this ______ day of May, 2003.
GRANTOR:
ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited
partnership, its general partner
By: Equity Residential, a Maryland real estate
investment trust, its general partner
By:
------------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Senior Vice President
20
STATE OF ILLINOIS )
) ss.
COUNTY OF XXXX )
The foregoing instrument was acknowledged before me this ___ day of ______,
200_, by _______________, the of _______________, the general partner of
___________________________________________________________________________
________________, for and on behalf thereof.
--------------------------------------------
Notary Public
(SEAL)
My Commission Expires:
00
XXXXXXX X
XXXXXXXXX XXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXXXXXX
XXXX OF SALE
THIS XXXX OF SALE (this "Xxxx of Sale") is executed as of the __ day of
May, 2003, by ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited partnership
("Seller"), having offices at c/o Equity Residential at Xxx Xxxxx Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000, in favor of BAINBRIDGE COMMUNITIES
ACQUISITION CORPORATION II, a Florida corporation ("Purchaser"), having offices
at 00000 X Xxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
1. REAL PROPERTY. The "Real Property" shall mean the real property
located in the County of Xxxxx, State of Florida, commonly known as "Spicewood
Springs Apartments" and located at 000 Xxxxxxxx Xxxx, Xxxxxxxxxxxx, Xxxxxxx
00000.
2. PERSONAL PROPERTY. The "Personal Property" shall mean those certain
articles of personal property used in connection with the operation of the Real
Property which are described in EXHIBIT A attached to this Xxxx of Sale.
3. SALE. For good and valuable consideration received by Seller, the
receipt and sufficiency of which are hereby acknowledged, Seller hereby sells,
assigns and transfers the Personal Property to Purchaser. Seller covenants and
agrees to warrant and forever defend title to the Personal Property unto
Purchaser against any and all persons lawfully claiming the whole or any part
thereof by, through or under Seller, and none other. Except as set forth in the
immediately preceding sentence, Seller makes no warranties or representations as
to the Personal Property. The Personal Property is transferred "AS IS" and ALL
WARRANTIES OF QUALITY, FITNESS AND MERCHANTABILITY ARE HEREBY EXCLUDED.
IN WITNESS WHEREOF, Seller has executed this Xxxx of Sale as of the day and
year first above written.
SELLER:
ERP OPERATING LIMITED PARTNERSHIP, an Illinois
limited partnership
By: Equity Residential, a Maryland real estate
investment trust, its general partner
By:
--------------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Senior Vice President
22
EXHIBIT G
SPICEWOOD SPRINGS APARTMENTS
JACKSONVILLE, FLORIDA
TENANT NOTICE LETTER
________, 2003
Dear Tenant:
This is to advise you that as of _____, 2003, the Spicewood Springs
Apartment Complex has been sold by ERP Operating Limited Partnership to
Bainbridge Communities Acquisition Corporation II.
All future payments of rent and other charges due under your lease,
including the rent payment due __________, 2003, should be paid to Spicewood
Springs Apartments and delivered to the rental office. Your security deposit, if
any, has also been transferred to Bainbridge Communities Acquisition Corporation
II, and the new owner will be responsible for its return to you pursuant to the
terms of your lease agreement.
Very truly yours,
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
00
XXXXXXX X
XXXXXXXXX XXXXXXX XXXXXXXXXX
XXXXXXXXXXXX, XXXXXXX
ASSIGNMENT AND ASSUMPTION
OF LEASES, SECURITY DEPOSITS AND SERVICE CONTRACTS
THIS ASSIGNMENT AND ASSUMPTION OF LEASES, SECURITY DEPOSITS AND SERVICE
CONTRACTS (this "Assignment") is entered into as of the _______ day of May,
2003, between ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited partnership
("Assignor"), having an office at c/o Equity Residential, Two Xxxxx Xxxxxxxxx
Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxx 00000 and BAINBRIDGE COMMUNITIES ACQUISITION
CORPORATION II, a Florida corporation, ("Assignee") having an office at 00000 X
Xxxxxx Xxxx Xxxxxxxxx, Xxxxxxxxxx, Xxxxxxx 00000.
1. PROPERTY. The "Property" means the real property located in the
City of Jacksonville, County of Xxxxx, State of Florida, commonly known as
"Spicewood Springs Apartments", together with the building, structures and other
improvements located thereon.
2. LEASES. The "Leases" means those leases, tenancies, rental
agreements and occupancy agreements affecting the Property which are described
in EXHIBIT A attached to this Assignment.
3. SECURITY DEPOSITS. "Security Deposits" means those security deposits
held by or for Assignor on account of tenants under the Leases as such deposits
and with respect to which Assignee received a credit at the closing of the
transaction with respect to which this Assignment has been executed and
delivered. The Security Deposits are set forth on attached EXHIBIT A.
4. SERVICE CONTRACTS. "Service Contracts" means those maintenance,
supply and service contracts relating to the Property which are described in
EXHIBIT B attached to this Assignment.
5. ASSIGNMENT; INDEMNIFICATION. For good and valuable consideration
received by Assignor, the receipt and sufficiency of which are hereby
acknowledged, Assignor hereby grants, transfers and assigns to Assignee the
entire right, title and interest of Assignor in and to the Leases, the Security
Deposits and the Service Contracts, but reserving unto Assignor all uncollected
rent attributable to the period prior to the date hereof pursuant to Section
4.4.2 of that certain Real Estate Sale Agreement for the Property by and between
Assignor and Assignee (as may have been amended from time to time, the
"Agreement"). Assignor shall indemnify and hold Assignee harmless from and
against any and all losses, claims, damages and/or liabilities (including,
without limitation, attorneys' fees incurred in connection therewith) arising
out of or resulting from Assignor's interest in the Leases, Security Deposits
and Service Contracts and pertaining to the period prior to Closing.
6. ASSUMPTION; INDEMNIFICATION. Assignee hereby assumes the covenants,
agreements and obligations of Assignor as landlord or lessor under the Leases as
of the date of this Assignment, and Assignee further assumes all liability of
Assignor for the proper refund or return of the Security Deposits if, when and
as required by the Leases. Assignee hereby assumes the covenants, agreements and
obligations of Assignor under the Service Contracts which are applicable to the
period and required to be performed from and after the date of this Assignment,
but not otherwise. Assignee shall indemnify and hold Assignor harmless from and
against any and all losses, claims, damages and/or liabilities (including,
without limitation, attorneys' fees incurred in connection therewith) arising
out of or resulting from Assignee's interest in the Leases, Security Deposits
and Service Contracts and pertaining to the period from and after the Closing.
7. ATTORNEYS' FEES. If either Assignee or Assignor, or their respective
successors or assigns, file suit to enforce the obligations of the other party
under this Assignment, the prevailing party shall be entitled to recover the
reasonable fees and expenses of its attorneys.
24
8. SUCCESSORS AND ASSIGNS. This Assignment shall be binding upon and
inure to the benefit of Assignor and Assignee and their respective successors
and assigns.
9. LIMITED LIABILITY. By accepting this Assignment, Assignee agrees
that it will look only to the proceeds of the Property for the performance or
liability for nonperformance of any and all obligations of Assignor hereunder,
it being expressly understood and agreed that neither Assignor nor any
shareholder, officer or director thereof or any other person or entity shall
have any personal liability or obligation of any kind or nature whatsoever under
this Assignment. This Paragraph 9 is subject to, and not in limitation of, the
limitations on liability provided in Section 12 of the Agreement.
10. COUNTERPARTS. This Assignment may be signed in any number of
counterparts each of which shall be deemed to be an original and all
of which taken together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, Assignor and Assignee have executed and delivered
this Assignment the day and year first above written.
ASSIGNOR:
ERP OPERATING LIMITED PARTNERSHIP, an Illinois limited
partnership
By: Equity Residential, a Maryland real estate
investment trust, its general partner
By:
-------------------------------
Name: Xxxx Xxxxxxxxxxxx
Title: Senior Vice President
ASSIGNEE:
BAINBRIDGE COMMUNITIES ACQUISITION CORPORATION II, a
Florida corporation
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
25
EXHIBIT I
SPICEWOOD SPRINGS APARTMENTS
JACKSONVILLE, FLORIDA
RENT ROLL
26
EXHIBIT J
SPICEWOOD SPRINGS APARTMENTS
JACKSONVILLE, FLORIDA
PENDING LITIGATION
27
EXHIBIT K
SPICEWOOD SPRINGS APARTMENTS
JACKSONVILLE, FLORIDA
NOTICE OF CODE VIOLATIONS
28
