11679284.5
TABLE OF CONTENTS
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| Page No. | |
PURCHASE AND SALE | 4 | ||
| 1.1 | Property | 4 |
| 1.2 | No Warranty | 4 |
2. | PURCHASE PRICE | 6 | |
3. | PAYMENT OF PURCHASE PRICE | 6 | |
| 3.1 | Deposit | 6 |
| 3.2 | Remainder of Purchase Price | 7 |
| 3.3 | Buyer Default; Liquidated Damages | 7 |
| 3.4 | Seller Default; Specific Performance | 8 |
4. | ESCROW INSTRUCTIONS | 9 | |
| 4.1 | Opening of Escrow | 9 |
| 4.2 | Conditions to Close | 9 |
| 4.3 | Recordation and Transfer | 10 |
5. | CLOSING | 10 | |
| 5.1 | Generally | 10 |
| 5.2 | Extension Option | 10 |
| 5.3 | Existing Loan | 11 |
6. | BUYER’S REVIEW | 11 | |
| 6.1 | Delivery of Documents | 11 |
| 6.2 | Access | 12 |
| 6.3 | Title and Survey | 12 |
| 6.4 | Buyer’s Due Diligence | 14 |
| 6.5 | Buyer’s Termination Right | 15 |
| 6.6 | Contracts | 15 |
7. | REPRESENTATIONS AND WARRANTIES | 15 | |
| 7.1 | Seller’s Representations and Warranties | 15 |
| 7.2 | Buyer’s Representations and Warranties | 19 |
| 7.3 | Release | 19 |
8. | COVENANTS | 19 | |
| 8.1 | Seller | 20 |
| 8.2 | Buyer | 22 |
9. | ADJUSTMENTS AND PRORATIONS | 23 | |
| 9.1 | Generally | 23 |
| 9.2 | Rental Income | 23 |
| 9.3 | Proration Period | 23 |
| 9.4 | Rent Ready | 24 |
10. | CLOSING DOCUMENTS | 24 | |
| 10.1 | Seller’s Deliveries | 24 |
| 10.2 | Buyer’s Deliveries | 24 |
| 10.3 | Other Closing Documents | 24 |
| 10.4 | Closing Documents | 24 |
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11. | COSTS | 25 | |
12. | CASUALTY OR CONDEMNATION | 25 | |
13. | ATTORNEYS’ FEES | 27 | |
14. | ASSIGNMENT | 27 | |
15. | WAIVER | 27 | |
16. | GOVERNING LAW | 28 | |
17. | NOTICES | 28 | |
18. | ENTIRE AGREEMENT | 30 | |
19. | COUNTERPARTS; COPIES | 30 | |
20. | AUTHORITY | 30 | |
21. | RECORD ACCESS AND RETENTION | 31 | |
22. | CONTRACT CONSIDERATION | 31 | |
23. | JURY TRIAL WAIVER | 32 | |
24. | COUNSEL | 32 | |
25. | equal participATiON | 32 | |
26. | CONFIDENTIALITY | 32 |
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Exhibit “A” | Real Property Description |
Exhibit “B” | Personal Property Description |
Exhibit “C” | Due Diligence Documents |
Exhibit “D” | Form of Deed |
Exhibit “E” | Form of General Assignment |
Exhibit “F” | Form of Bill of Sale |
Exhibit “G” | Form of Non-Foreign Certificate |
Exhibit “H” | Form of Tenant Notice |
Schedule 1 | Leases |
Schedule 2 | Contracts |
Schedule 7.1.8 | Litigation Schedule |
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PURCHASE AND SALE AGREEMENT
This PURCHASE AND SALE AGREEMENT AND JOINT ESCROW INSTRUCTIONS (“Agreement”) is made and entered into as of the 7th day of April, 2014, by and between VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership (“Seller”), and STEADFAST ASSET HOLDINGS, INC., a California corporation (“Buyer”), with reference to the following facts:
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth, the parties hereto mutually agree as follows:
1.1.4. All leases and occupancy agreements relating to the Property in effect on the Date of Closing (as hereinafter defined), including all amendments thereto 4 |
(collectively, “Leases”); the Leases in effect on the date of this Agreement are identified on the rent roll attached hereto as Schedule 1 (the “Rent Roll”); |
Included in the Property shall be any and all the foregoing items in which any affiliate of Seller has any right, title or interest, to the extent the same is used solely in connection with the Real Property unless otherwise expressly agreed to by Buyer; it being understood and agreed that Seller shall cause such affiliate to convey the same to Buyer at Closing.
Seller hereby confirms to Buyer that no vehicles are included in the Personal Property, and that no material Personal Property or Contracts are held in the name of Seller’s property manager or any affiliate of Seller except as specifically noted on Exhibit “B” or Schedule 2, as applicable.
REPRESENTATION OR WARRANTY REGARDING THE ACCURACY OF SUCH INFORMATION. WITHOUT IN ANY MANNER LIMITING THE GENERALITY OF THE FOREGOING, BUYER ACKNOWLEDGES THAT, EXCEPT FOR THE REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF SELLER EXPRESSLY SET FORTH IN THIS AGREEMENT AND IN THE DEED AND OTHER DOCUMENTS DELIVERED AT CLOSING, THE PROPERTY, THE LEASES AND THE CONTRACTS WILL BE PURCHASED BY BUYER IN AN “AS IS” AND “WHERE IS” CONDITION AND WITH ALL EXISTING DEFECTS (PATENT AND LATENT) AND NOT IN RELIANCE ON ANY AGREEMENT, UNDERSTANDING, CONDITION, WARRANTY (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) OR REPRESENTATION MADE BY SELLER OR ANY AGENT, EMPLOYEE, MEMBER, OFFICER OR PRINCIPAL OF SELLER OR ANY OTHER PARTY (EXCEPT FOR REPRESENTATIONS EXPRESSLY PROVIDED IN THIS AGREEMENT AND IN THE DEED AND OTHER DOCUMENTS DELIVERED AT CLOSING) AS TO THE FINANCIAL OR PHYSICAL (INCLUDING, WITHOUT LIMITATION, ENVIRONMENTAL) CONDITION OF THE PROPERTY OR THE AREAS SURROUNDING THE PROPERTY, OR AS TO ANY OTHER MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, AS TO ANY PERMITTED USE THEREOF, THE ZONING CLASSIFICATION THEREOF OR COMPLIANCE THEREOF WITH FEDERAL, STATE OR LOCAL LAWS, AS TO THE INCOME OR EXPENSE IN CONNECTION THEREWITH, OR AS TO ANY OTHER MATTER IN CONNECTION THEREWITH. BUYER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED ELSEWHERE IN THIS AGREEMENT OR IN THE DEED OR IN THE OTHER DOCUMENTS DELIVERED AT CLOSING, NEITHER SELLER, NOR ANY AGENT, MEMBER, OFFICER, EMPLOYEE OR PRINCIPAL OF SELLER NOR ANY OTHER PARTY ACTING ON BEHALF OF SELLER (INCLUDING PROPERTY MANAGER AND ITS EMPLOYEES) HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY SUCH AGREEMENT, CONDITION, REPRESENTATION OR WARRANTY EITHER EXPRESSED OR IMPLIED. |
The total purchase price (“Purchase Price”) to be paid by Buyer to Seller for the Property shall be FOURTEEN MILLION TWO HUNDRED THOUSAND AND 00/100 DOLLARS ($14,200,000.00), payable all in cash.
The Purchase Price shall be paid as follows:
AVAILABLE), THE PORTION OF THE DEPOSIT THEN DEPOSITED WITH ESCROW HOLDER PURSUANT TO THIS AGREEMENT SHALL BE PAID TO SELLER PURSUANT TO THE TERMS OF THIS AGREEMENT UPON TERMINATION OF THIS AGREEMENT AND RETAINED BY SELLER AS LIQUIDATED DAMAGES AND AS SELLER’S SOLE REMEDY AT LAW OR IN EQUITY, AT WHICH TIME THIS AGREEMENT SHALL BE NULL AND VOID AND NEITHER PARTY SHALL HAVE ANY RIGHTS OR OBLIGATIONS UNDER THIS AGREEMENT EXCEPT THOSE THAT EXPRESSLY SURVIVE TERMINATION. SELLER AND BUYER AGREE THAT, UNDER THE CIRCUMSTANCES EXISTING AS OF THE DATE OF THIS AGREEMENT, ACTUAL DAMAGES MAY BE DIFFICULT TO ASCERTAIN AND THE PORTION OF THE DEPOSIT THEN DEPOSITED WITH ESCROW HOLDER PURSUANT TO THIS AGREEMENT IS A REASONABLE ESTIMATE OF THE DAMAGES THAT WILL BE INCURRED BY SELLER IF BUYER MATERIALLY DEFAULTS UNDER OR MATERIALLY BREACHES THIS AGREEMENT AND FAILS TO PURCHASE THE PROPERTY. |
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4.2.5. Seller’s and Buyer’s representations and warranties contained herein shall be true and correct in all material respects as of the date hereof and as of the Closing Date, except for representations and warranties made as of, or limited by, a specific date, which will be true and correct in all material respects as of the specified date or as limited by the specified date. |
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4.3. Recordation and Transfer. Upon satisfaction of the conditions set forth in Section 4.2 above, Escrow Holder shall transfer the Property as follows: |
4.3.2. Cause the Deed (as such term is hereinafter defined) to be recorded with the Register’s Office of Maury County, Tennessee; and |
4.3.3. Deliver to the parties entitled thereto the other Closing Documents (as hereinafter defined). |
5.3. Existing Loan. Buyer acknowledges that the Property is subject to an existing loan (the “Existing Loan”) financed by the United States Department of Housing and Urban Development (“HUD”) and serviced by Greystone Funding Corporation (“Servicer”). Seller’s ability to prepay the Existing Loan is currently subject to the approval of HUD and certain conditions including the obligation to provide not less than thirty (30) days prior written notice of intent to prepay, and requiring that any prepayment be made only as of the last day of a month. 10 |
Buyer agrees to provide Seller with Buyer’s selected Closing Date, pursuant to Section 5.1 above, which date must be not less than forty (40) days following the date of such notice and sent to Seller and its counsel via email not later than 3 p.m. Central time; provided, however that Buyer shall have the right to revoke such notice at any time and for any reason prior to the expiration of the Due Diligence Period. Seller agrees to provide notice to HUD and Servicer of its intent to prepay the loan as of the Closing Date on the same day that Seller receives the notice in the prior sentence from Buyer. If Buyer fails to close on the Closing Date selected by Buyer hereunder and has not revoked its notice as and when permitted above, Seller shall have all its rights and remedies under Section 3.3 hereof. Additionally, if the Closing Date selected by Buyer is not the last day of a month, Buyer shall pay to Seller, in addition to the Purchase Price, all interest accruing on the Existing Loan between the Closing Date and the last day of the month within which Closing occurs, and, if and to the extent specified in writing to Buyer by Seller on or before the date on which Buyer gives to Seller its notice of the Closing Date under this Section 5.3, all amounts required by HUD or Servicer to be paid to accommodate a Closing on such Closing Date including. |
Buyer acknowledges that its right to extend the Closing pursuant to the Extension Option set forth in Section 5.2 hereof is subject to Seller’s ability to extend the prepayment date for the Existing Loan to the Extended Outside Closing Date. Seller will use good faith commercially reasonable efforts to obtain the approval of HUD and/or Servicer to prepay the loan on the Extended Outside Closing Date, but shall have no liability in the event it is unable to do so, in which event, Buyer’s Extension Option shall be inapplicable, and the Closing shall be held on the Closing Date.
review and copying of Seller’s books and records relating to the Property and any of the documents described in Section 6.1 above, and other matters necessary in the discretion of Buyer to evaluate and analyze the feasibility of the Property for Buyer’s intended use thereof (provided that the foregoing shall not expand Seller’s obligations under Section 6.1 above or any other provision of this Agreement). Buyer shall not conduct or authorize any physically intrusive testing of, on, or under the Property without first obtaining Seller’s consent (which may be via electronic mail, but without requirement for concurrent overnight delivery) as to the timing and scope of work to be performed, which consent shall not be unreasonably withheld, conditioned or delayed. Prior to any entry Buyer shall notify (which may be via electronic mail, but without requirement for concurrent overnight delivery) Seller at least 48 hours in advance and Seller shall have the right to have a representative of Seller present during any entry onto the Property by Buyer. Buyer shall not contact any tenant of the Property without the prior written approval of Seller. In the event that Seller does consent to Buyer’s contact with any tenant of the Property, Seller shall have the right to have a representative of Seller present during any such interview. Prior to any entry onto the Property for purposes of inspection or testing (as opposed to solely for review of materials), Buyer shall provide Seller with evidence that Buyer maintains: (a) commercial general liability insurance coverage of not less than One Million Dollars ($1,000,000.00) per occurrence and Two Million Dollars ($2,000,000.00) in the aggregate, (b) commercial automobile insurance coverage of not less than One Million Dollars ($1,000,000.00) per occurrence which shall cover liability arising in connection with any automobile at the Property (including owned, hired and non-owned automobiles), and (c) workers’ compensation insurance as required by statute in the state where the Property is located and employer’s liability insurance of not less than Five Hundred Thousand Dollars ($500,000.00) per accident. With respect to the coverages required by subsections (a) and (b) immediately preceding, Seller and Commonwealth Development Group shall be named as additional insureds. Such insurance coverage shall (i) be issued by an insurance company authorized to issue insurance in the state where the Real Property is located having a rating of at least “AX” by A.M. Best Company, (ii) be primary and any insurance maintained by Seller shall be excess and noncontributory, and (iii) not contain any exclusions for work performed at or on residential properties, or for “insured versus insured” claims as respects any potential claim by Seller against Buyer. The insurance certificate required herein shall also provide that the coverage may not be cancelled, non-renewed or reduced without at least thirty (30) days’ prior written notice to Seller except in the event this Agreement is terminated. |
title department of Escrow Holder to delete the general survey exception from title or to otherwise satisfy Buyer’s objectives. |
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and clear of all matters of public record or other items contained in the Seller Deliveries, and other than the Permitted Exceptions. |
7.1.6. Seller has received no written notice from any third party that the Property or the use and occupancy thereof are not currently in material compliance with all applicable laws, statutes, rules, regulations and ordinances, and all material covenants, conditions and restrictions applicable to the Real Property. Seller has received no written notice, citation or other claim alleging any violation of any such law, statute, rule, regulation, ordinance, covenant, condition or restriction that has not been cured/corrected that has not been included in the Seller Deliveries. |
7.1.7. To Seller’s knowledge and except as set forth in the Seller’s Deliveries, there are no Hazardous Substances (as defined below) present in, on or under the Real Property, and to Seller’s knowledge and except as set forth in the Seller’s Deliveries, there is no present Release or threatened Release of any Hazardous Substances in, on or under the Real Property in violation of Environmental Laws (as defined below). Seller has never used the Real Property or any part thereof, and to Seller’s knowledge has never permitted any person to use the Real Property or any part thereof, for the production, processing, manufacture, generation, treatment, handling, storage or disposal of Hazardous Substances in violation of applicable Environmental Laws. To Seller’s knowledge and except as set forth in the Seller’s Deliveries, no underground storage tanks of any kind are located in the Real Property. Seller shall not be deemed to have breached the foregoing representations and warranties with respect to the safe and lawful use and storage by Seller, any tenant or any other person of quantities of (i) pre-packaged supplies, cleaning materials and petroleum products customarily used in the operation and maintenance of comparable multifamily properties, (ii) cleaning materials, personal grooming items and other items sold in pre-packaged containers for consumer use and used by tenants and occupants of residential dwelling units in the Property, and (iii) petroleum products used in the operation and maintenance of motor vehicles from time to time located on the Property’s parking areas, so long as all of the foregoing are used, stored, handled, transported and disposed of in compliance with Environmental Laws (collectively, "Lawful Substances"). As used in this Agreement, the following definitions shall apply: “Environmental Laws” shall mean all federal, state and local laws, ordinances, rules and regulations now or hereafter in force, as amended from time to time, 16 |
in any way relating to or regulating human health or safety, or industrial hygiene or environmental conditions, or protection of the environment, or pollution or contamination of the air, soil, surface water or groundwater, and includes the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9601, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. § 6901, et seq., the Clean Water Act, 33 U.S.C. § 1251, et seq., and the Hazardous Substance Account Act. “Hazardous Substances” shall mean any substance or material that is described as a toxic or hazardous substance waste or material or a pollutant or contaminant, or words of similar import, in any of the Environmental Laws, and includes, without limitation, asbestos, petroleum (including crude oil or any fraction thereof, natural gas, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel, or any mixture thereof), petroleum products, polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive matter, medical waste, and chemicals which may cause cancer or reproductive toxicity. “Release” shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment, including continuing migration, of Hazardous Substances into or through soil, surface water or groundwater. |
7.1.9. Seller is solvent, has not made a general assignment for the benefit of its creditors, and has not admitted in writing its inability to pay its debts as they become due, nor has Seller filed, nor does it contemplate the filing of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings or any other proceeding for the relief of debts in general, nor has any such proceeding been instituted by or against Seller. |
7.1.10. Seller is not a “foreign person” as defined in Section 1445 of the Internal Revenue Code of 1986, as amended, and the Income Tax Regulations thereunder. |
7.1.12. Seller is not any of the following: (i) a person or entity that is listed in the annex to, or is otherwise subject to the provisions of, Executive Order No. 13224 17 |
on Terrorist Financing (effective September 24, 2001) (herein called the “Executive Order”); (ii) a person or entity owned or controlled by, or acting for or on behalf of any person or entity that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order; (iii) a person or entity that is named as a “specifically designated national” or “blocked person” on the most current list published by the U.S. Treasury Department’s Office of Foreign Assets Control (herein called “OFAC”) at its official website, http://www.treas.gov/offices/enforcement/ofac; (iv) a person or entity that is otherwise the target of any economic sanctions program currently administered by OFAC; or (v) a person or entity that is affiliated with any person or entity identified in the foregoing clauses (i), (ii), (iii), or (iv). |
7.1.13. Neither Seller nor, to Seller’s knowledge, any previous owner of the Property has sold, transferred, conveyed, or entered into any agreement regarding water or water rights relating to the Property, except as otherwise expressly set forth in the Title Commitment. |
7.1.14. To Seller’s knowledge, the Seller Deliveries delivered to Buyer are complete copies of the documents in Seller’s or it property manager’s possession or reasonable control, and are the documents used and relied upon by Seller in its ownership and operation of the Property. |
All references in this Section 7.1 or elsewhere in this Agreement and/or in any other document or instrument executed by Seller in connection with or pursuant to this Agreement, to “Seller’s knowledge” or “to the knowledge of Seller” and words of similar import shall refer solely to facts within the actual knowledge (without independent investigation or inquiry) of Larry Atema, the Assistant Secretary of the General Partner of Seller and Kathy Coggin, the Executive Vice President of Seller’s property manager, and shall not be construed to refer to the knowledge of any other employee, officer, director, member, shareholder or agent of Seller, Seller’s property manager or any affiliate of Seller, and shall in no event be deemed to include imputed or constructive knowledge. Seller hereby affirms that Larry Atema and Kathy Coggin are reasonably familiar with and have substantial knowledge of the facts regarding the Property, its condition, and its historical performance during the period of the Seller’s ownership thereof. Nothing in this Section 7.1 or the remainder of this Agreement shall give rise to any personal liability to the foregoing named individuals.
7.2. Buyer’s Representations and Warranties. Buyer represents and warrants to Seller as follows (which representations, warranties and covenants shall survive the Closing for one (1) year): |
7.2.1. Buyer is a corporation, duly organized, validly existing, and in good standing under the laws of the State of California. |
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7.2.3. Buyer is not any of the following: (i) a person or entity that is listed in the annex to, or is otherwise subject to the provisions of the Executive Order; (ii) a person or entity owned or controlled by, or acting for or on behalf of any person or entity that is listed in the Annex to, or is otherwise subject to the provisions of, the Executive Order; (iii) a person or entity that is named as a “specifically designated national” or “blocked person” on the most current list published by OFAC at its official website, http://www.treas.gov/offices/enforcement/ofac; (iv) a person or entity that is otherwise the target of any economic sanctions program currently administered by OFAC; or (v) a person or entity that is affiliated with any person or entity identified in the foregoing clauses (i), (ii), (iii), or (iv). |
7.2.4. Except for Broker, Buyer has not dealt with any investment adviser, real estate broker or finder, or incurred any liability for any commission or fee to any investment adviser, real estate broker or finder, in connection with the purchase of the Property or this Agreement. |
7.3. RELEASE. BUYER REPRESENTS TO SELLER THAT, EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES AND COVENANTS CONTAINED HEREIN AND IN ANY DOCUMENTS DELIVERED BY SELLER TO BUYER AT CLOSING, BUYER WILL RELY SOLELY UPON ITS OWN INVESTIGATIONS OF THE PROPERTY (AS BUYER DEEMS NECESSARY) AND NOT UPON ANY INFORMATION PROVIDED BY OR ON BEHALF OF SELLER, SELLER’S AGENTS, EMPLOYEES OR THIRD PARTIES REPRESENTING OR PURPORTING TO REPRESENT SELLER, WITH RESPECT THERETO. UPON CLOSING, SUBJECT TO THE EXPRESS OBLIGATIONS OF SELLER UNDER THIS AGREEMENT (INCLUDING INDEMNIFICATION OBLIGATIONS EXPRESSLY PROVIDED HEREUNDER) AND THE DOCUMENTS SELLER DELIVERS TO BUYER AT CLOSING, BUYER SHALL BE DEEMED TO WAIVE, RELINQUISH, RELEASE AND FOREVER DISCHARGE SELLER AND SELLER’S AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, DAMAGES, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEYS’ FEES) OF ANY AND EVERY KIND OR CHARACTER, KNOWN OR UNKNOWN, BY REASON OF OR ARISING OUT OF THE PROPERTY, INCLUDING, WITHOUT LIMITATION, BY REASON OF OR ARISING OUT OF ANY LATENT OR PATENT CONSTRUCTION DEFECT OR OTHER PHYSICAL CONDITION (INCLUDING, WITHOUT LIMITATION, FUNGI, MOLD OR MILDEW) WHETHER PURSUANT TO STATUTES IN EFFECT IN THE STATE OF TENNESSEE OR ANY OTHER FEDERAL, STATE, OR LOCAL ENVIRONMENTAL OR HEALTH AND SAFETY LAW OR REGULATION, THE EXISTENCE OF ANY HAZARDOUS MATERIAL WHATSOEVER, ON, AT, TO, IN, ABOVE, ABOUT, UNDER, FROM OR IN THE VICINITY OF THE PROPERTY AND ANY AND ALL OTHER MATTERS REGARDING THE PROPERTY. THIS RELEASE INCLUDES CLAIMS OF WHICH BUYER IS PRESENTLY UNAWARE AND OF WHICH BUYER DOES NOT PRESENTLY SUSPECT TO EXIST WHICH, IF KNOWN BY BUYER, WOULD MATERIALLY AFFECT BUYER’S RELEASE OF SELLER. |
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IN THIS REGARD AND TO THE EXTENT PERMITTED BY LAW, BUYER HEREBY AGREES, REPRESENTS AND WARRANTS THAT BUYER REALIZES AND ACKNOWLEDGES THAT FACTUAL MATTERS NOW UNKNOWN TO BUYER MAY HAVE GIVEN OR MAY HEREAFTER GIVE RISE TO CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES WHICH ARE PRESENTLY UNKNOWN, UNANTICIPATED AND UNSUSPECTED, AND BUYER FURTHER AGREES, REPRESENTS AND WARRANTS THAT THE WAIVERS AND RELEASES CONTAINED HEREIN HAVE BEEN NEGOTIATED AND AGREED UPON BY BUYER IN LIGHT OF THAT REALIZATION AND THAT BUYER NEVERTHELESS HEREBY INTENDS TO RELEASE, DISCHARGE AND ACQUIT SELLER AND SELLER’S AFFILIATES FROM ANY SUCH UNKNOWN CAUSES OF ACTION, CLAIMS, DEMANDS, DEBTS, CONTROVERSIES, DAMAGES, COSTS, LOSSES AND EXPENSES SUBJECT TO THE LIMITATIONS AND CONDITIONS IN, AND IN ACCORDANCE WITH, THE TERMS OF THE PRIOR PARAGRAPH.
BUYER’S RELEASE OF SELLER AS SET FORTH IN THIS SECTION 7.3 SHALL NOT PERTAIN TO ANY CLAIM OR CAUSE OF ACTION BY BUYER AGAINST SELLER FOR (I) A BREACH BY SELLER OF A REPRESENTATION OR WARRANTY EXPRESSLY SET FORTH IN SECTION 7 OF THIS AGREEMENT OR IN ANY DOCUMENT DELIVERED BY SELLER TO BUYER AT CLOSING OR (II) ANY EXPRESS INDEMNIFICATION OBLIGATION OF SELLER HEREUNDER THAT EXPRESSLY SURVIVES CLOSING.
8.1.2. Between the date of this Agreement and the Closing Date, Seller shall (a) lease, manage, operate, maintain and repair the Real Property and the Personal Property in its ordinary course of business in accordance with Seller’s current leasing, management, operating, maintenance and repair practices in effect as of the date hereof (provided, that such obligation shall not include incurring any capital expenditures except to the extent that the Property is unable to operate without such expenditure; it being expressly understood and agreed however that making units “rent ready”, including without limitation, replacing carpet and/or appliances, shall not be deemed a capital expenditure hereunder and Seller shall continue to make units “rent ready” in its ordinary course of business), and (b) promptly give Buyer copies of all written notices received by Seller asserting any breach or default under, and perform when due all of Seller’s material obligations under, the Leases or the Contracts or any violation of the Approvals, Permitted Exceptions or any covenants, conditions, restrictions, laws, statutes, rules, 20 |
regulations or ordinances applicable to the Real Property or the Personal Property. Seller shall not (i) create or agree to any easements, liens, mortgages, encumbrances or other interests that would affect the Property or Seller’s ability to comply with this Agreement; (ii) initiate or consent to, approve or otherwise take any action with respect to zoning or any other governmental rules or regulations presently applicable to all or any part of the Real Property; or (iii) fail to pay when due and payable all taxes and other public charges assessed against the Real Property or Seller. Between the date of this Agreement and the Closing Date, Seller shall keep in force its current property insurance covering the Real Property. |
8.1.5. Between the date of this Agreement and the Closing Date, Seller shall promptly (i) notify Buyer in writing of any litigation, arbitration, condemnation or administrative hearing before any court or governmental agency concerning Seller or the Property that is instituted after the date hereof, other than eviction or unlawful detainer actions that will be completed prior to Closing, (ii) provide to Buyer copies of any Leases or Contracts entered into after the date hereof and any documents or materials received by Seller from and after the date hereof that would have been included in Seller Deliveries if received by Seller prior to such date, (iii) within two (2) Business Days after Seller’s receipt of request therefor, provide to Buyer an updated Rent Roll with all information concerning the Leases updated through the date that is one (1) Business Day before the date that the updated Rent Roll is delivered to Buyer, and (iv) deliver to Buyer copies of all pleadings, notices, filings and similar non-privileged materials given or received after the date hereof in connection with the Litigation and respond to such questions and requests as Buyer may reasonably make In connection therewith. |
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8.1.7. Intentionally omitted. |
8.1.8. Seller shall pay all commissions, fees and expenses due to Broker in respect of the sale of the Property to Buyer or this Agreement. Seller hereby agrees to indemnify and hold Buyer harmless from and against any and all claims for brokerage or finder’s fees or other similar commissions or compensation made by any and all other brokers or finders claiming to have dealt with Seller in connection with this Agreement or the consummation of the transaction contemplated hereby. The terms of this Section 8.1.8 shall survive Closing. |
Seller hereby acknowledges that Buyer shall have the right to pursue any claim against Seller with respect to, and Seller shall remain liable to Buyer for, any of the following that is first discovered by Buyer on or after Closing: (i) breach by Seller of any representation or warranty in in this Agreement any material respect or (ii) breach by Seller of any covenant or other obligation under this Agreement in any material respect. Any such claim made by Buyer must be made within nine (9) months after the Closing or termination or shall automatically be null, void and of no force or effect whatsoever. The provisions of this paragraph shall survive Closing.
8.2.1. Intentionally omitted. |
8.2.2. Intentionally omitted. |
8.2.3. Buyer hereby agrees to indemnify and hold Seller harmless from and against any and all claims for brokerage or finder’s fees or other similar commissions or compensation made by any and all other brokers or finders claiming to have dealt with Buyer in connection with this Agreement or the consummation of the transaction contemplated hereby, other than Broker. The terms of this Section 8.2.3 shall survive Closing. |
9.5. Rent Ready Adjustments. Not more than forty-eight (48) hours prior to Close of Escrow (“Walk Though Date”), a representative of Buyer and a representative of Seller shall conduct an onsite walk-through of the then unoccupied rental units on the Property to 23 |
determine whether such unoccupied rental units are in “rent ready” condition. With respect to any rental unit that is vacated either (a) on or before five (5) days prior to Close of Escrow that Seller has not placed in a “rent ready” condition before the Walk Through Date or (b) on or after the Walk Through Date, Buyer shall receive a credit against the Purchase Price at Closing in the amount of $750.00 per unit. As used herein, “‘rent ready’ condition” means Seller’s practice and procedures, as of the date of this Agreement, for placing units in “rent ready” condition. Nothing contained in this Section 9.5 shall be construed as limiting Buyer’s rights and Seller’s obligations under the other provisions of this Agreement. |
10.1. Seller’s Deliveries. Conditioned upon performance by Buyer hereunder, Seller shall execute and deliver to Escrow Holder prior to Closing the following: |
10.1.1. Deed. A special warranty deed with respect to the Real Property, in the form of attached Exhibit “D” (the “Deed”), subject only to the Permitted Exceptions; |
10.1.6. Affidavit(s). An affidavit(s) as to construction, debts, liens and parties in possession in the form customarily used by Escrow Holder, certified to Buyer and Escrow Holder, identifying no construction, debts, liens or parties in possession (other than residential tenants disclosed to Buyer) that may affect the Property after the Closing Date. |
10.1.7. Gap Indemnity. A gap indemnity in the form customarily used by and approved by Escrow Holder. |
10.1.8. Rent Roll. An updated Rent Roll, in the same form and with the same categories of information as on the initial Rent Roll, with all information concerning the Leases updated through the Proration Date. |
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10.4. Closing Documents. All documents to be delivered to Escrow Holder pursuant to this Section 10 shall hereinafter be referred to as “Closing Documents”. |
Seller shall pay the cost of preparation of Seller’s Closing Documents and the costs of any endorsements to the Title Policy (as hereinafter defined) to the extent that such endorsements are necessary to cure any Objections that Seller has elected or is required to cure. Buyer shall pay the cost of any endorsements to the Title Policy except as provided in the previous sentence (and loan policy, if applicable), the cost of preparation of Buyer’s Closing Documents, the cost of any updated survey, if desired, and any costs relating to any financing obtained by Buyer. Seller and Buyer shall each pay one-half (1/2) of (i) the cost of the Title Commitment and any updates thereto, (ii) all real estate transfer taxes and documentary stamps, (iii) the cost of a standard ALTA Owner’s Policy of Title Insurance (the “Title Policy”), (iv) Escrow Holder’s escrow fee (excluding charges assessed by Escrow Holder for special services, which shall be paid by the party requesting or using such special services), (v) recording fees for the Deed, and (vi) other closing costs. Each party shall pay its own attorney’s fees.
If, before the Closing Date, (i) the improvements on the Real Property are materially damaged by any casualty, as reasonably determined by Buyer, or (ii) proceedings are commenced for the taking by exercise of the power of eminent domain of all or a material part of
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the Property, Seller shall promptly notify Buyer. If the Property or any part thereof shall be (a) condemned such that either (1) damages are in excess of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (as determined by an independent MAI certified appraiser selected by Seller) or (2) such condemnation affects access to, or parking at, the Property, results in the Property being “non-conforming” for zoning purposes, or otherwise has a materially adverse effect on the use Property, or, (2) destroyed or damaged by fire or other casualty the repair of which would cost in excess of One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) (as determined by the independent insurance adjuster designated by Seller’s insurance company), Buyer shall have the right, by giving notice to Seller within fifteen (15) days after Seller gives written notice of the casualty or condemnation to Buyer, to terminate this Agreement, in which event this Agreement shall automatically terminate and the Deposit shall be returned to Buyer. If, before the Closing Date, (a) the improvements on the Real Property are damaged by any casualty, but damages are less than One Hundred Fifty Thousand and No/100 Dollars ($150,000.00), (b) proceedings are commenced for the taking by exercise of the power of eminent domain and such damages are less than One Hundred Fifty Thousand and No/100 Dollars ($150,000.00) and do not have the effects described in subsection (a)(ii) of the preceding sentence, or (c) Buyer has the right to terminate this Agreement pursuant to the preceding sentence but Buyer does not exercise such right, then this Agreement shall remain in full force and effect and, on the Closing Date, one of the following shall occur, as applicable: (1) in the event of a casualty, Buyer shall receive (w) a credit against the cash balance of the Purchase Price payable at Closing to the extent of payments received by or on behalf of Seller prior to the Closing Date under any applicable insurance policy or policies in effect with respect to the Property (to the extent that such payments have not been reasonably expended in connection with the repair of any such casualty and do not exceed $25,000 in the aggregate unless otherwise agreed by Buyer), (x) an assignment of Seller's rights to any payments which may be payable subsequent to the Closing Date under any applicable insurance policy or policies in effect with respect to the Property (or, if Seller’s insurer does not permit such policy and/or payments to be assigned to Buyer, a credit for such amounts), (y) an assignment of Seller's rights to payments with respect to rents due subsequent to the Closing Date under any rental insurance policy or policies with respect to the Property (or, if Seller’s insurer does not permit such policy and/or payments to be assigned to Buyer, a credit for such amounts), and (z) a credit against the cash balance of the Purchase Price payable at the Closing in an amount equal to the aggregate amount of the deductibles with respect to all such insurance policies, but there shall be no other credit against or reduction in the Purchase Price attributable to such casualty; or (2) the condemnation award (or, if not theretofore received, the right to receive such award) payable on account of the taking shall be transferred to Buyer. Seller shall give notice to Buyer immediately after the occurrence of any damage to the improvements on the Real Property by any casualty or the commencement of any eminent domain proceedings. Buyer shall have a period of fifteen (15) days after Seller has given the notice to Buyer required by this Section 12 to make the determination as to whether to terminate this Agreement. If necessary, the Closing Date shall be postponed until Seller has given the notice to Buyer required by this Section 12 and the period of fifteen (15) days described in this Section 12 has expired.
In any action to enforce or interpret the provisions of this Agreement, the prevailing party shall be entitled to an award of its reasonable attorneys’ fees and costs.
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Buyer may not assign Buyer's rights and obligations under this Agreement (which shall include its rights in and to the Deposit) to a third party (“Assignee”) without Seller’s prior written consent. Notwithstanding the foregoing to the contrary, Buyer shall have the one-time right to transfer all of its rights under this Agreement to an Assignee without Seller’s prior consent (but with notice to Seller of such assignment) so long as Buyer or an affiliate of Buyer controls, or is under control with, such Assignee entity. Any permitted assignment shall be on the further condition that the Assignee expressly assumes the obligations of Buyer hereunder in a written agreement. Buyer shall promptly provide Seller with a copy of any such written assignment. Any attempt to assign the Agreement other than in accordance with this Section 14 shall be null and void and considered a default hereunder. Notwithstanding any such permitted assignment, Buyer shall remain liable for the performance of its obligations hereunder to the extent of any default of Assignee thereof. Subject to the foregoing provisions of this Section 14, this Agreement shall inure to the benefit of and be binding on the parties hereto and their respective heirs, legal representatives, successors, and assigns. This Agreement is for the sole benefit of Seller and Buyer (including a permitted Assignee), and no third party (including, without limitation, subsequent owners of the Property) is intended to be a beneficiary of or have the right to enforce this Agreement. Seller may not assign this Agreement.
No waiver of any breach of any agreement or provision contained herein shall be deemed a waiver of any preceding or succeeding breach of any other agreement or provision herein contained. No extension of time for the performance of any obligation or act shall be deemed an extension of time for the performance of any other obligation or act.
This Agreement shall be construed under the laws of the State in which the Real Property is located (without regard to the principles thereof governing conflicts of laws). All periods of time referred to in this Agreement shall include all business and non-business days unless such period of time specifies business days; provided, however, that if the date or last date to perform any act or give a notice with respect to the Agreement shall fall on a day that is not a business day, such act or notice may be timely performed or given on the next succeeding business day.
All notices required or permitted to be given hereunder shall be in writing and sent by overnight delivery service (such as Federal Express), in which case notice shall be deemed given on the day after the date sent, or by personal delivery, in which case notice shall be deemed given on the date received, or by certified mail, in which case notice shall be deemed given three (3) days after the date sent, or by electronic mail (with copy by overnight delivery service), in which case notice shall be deemed given on the date sent, to the appropriate address set forth below or at such other place or places as either Buyer or Seller may, from time to time, respectively, designate in a written notice given to the other in the manner described above.
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This instrument, executed in duplicate, sets forth the entire agreement between the parties and may not be canceled, modified, or amended except by a written instrument executed by both Seller and Buyer.
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This Agreement may be executed and delivered in any number of counterparts, each of which so executed and delivered shall be deemed to be an original and all of which shall constitute one and the same instrument. Electronic, photocopy and facsimile copies of signatures may be used in place and stead of original signatures with the same force and effect as originals.
The individual(s) executing this Agreement on behalf of each party hereto hereby represent and warrant that he/she has the capacity, with full power and authority, to bind such party to the terms and provisions of this Agreement.
21. RECORD ACCESS AND RETENTION. |
Seller shall promptly provide to Buyer (at Buyer’s expense) copies of, or shall provide Buyer reasonable access to, such factual information as may be reasonably requested by Buyer, and in the possession or control of Seller, or its property manager or accountants, to enable Buyer’s auditor to conduct an audit, in accordance with Rule 3-14 of Securities and Exchange Commission Regulation S-X, of the income statements of the Property for the year to date of the year in which Closing occurs plus the two (2) immediately preceding calendar years (provided, however, that other than fees paid or payable to Seller, a Seller affiliate or a third party for on-site property management, such audit shall not include an audit of asset management fees internally allocated by Seller (as opposed to paid to a third party) or interest expenses attributable to the Seller). Buyer shall be responsible for all out-of-pocket costs associated with this audit. Seller shall reasonably cooperate (at no cost to Seller) with Buyer’s auditor in the conduct of such audit. In addition, Seller agrees to provide to Buyer or any affiliate of Buyer, if requested by such auditor, historical financial statements for the Property, including (without limitation) income and balance sheet data for the Property, whether required before or after Closing. Without limiting the foregoing, (i) Buyer or its designated independent or other auditor may audit Seller’s operating statements of the Property, at Buyer’s expense, and Seller shall provide such documentation as Buyer or its auditor may reasonably request in order to complete such audit, and (ii) Seller shall furnish to Buyer such financial and other information as may be reasonably required by Buyer or any affiliate of Buyer to make any required filings with the Securities and Exchange Commission or other governmental authority. Seller’s obligation to maintain its records for use under this Section 21 shall be an on-going condition to Buyer’s obligation to Close Escrow, and Seller shall maintain its records for use under this Section 21 for a period of not less than two (2) years after the Closing Date. If Seller fails to make available to Buyer records or other information as required pursuant to this Section above within five (5) Business Days after Buyer’s request for the same, the Due Diligence Period shall be extended one (1) day for each day such records or other information is not made available to Buyer. If the Due Diligence Period is extended by virtue of the foregoing such that the Closing Date will occur less than ten (10) days after the expiration of the extended Due Diligence Period, the Closing Date shall be automatically extended to the date that is ten (10) days after the expiration of such extended Due Diligence Period; provided, however, that Buyer shall have the option, in its sole and absolute discretion, to require that the Close of Escrow occur earlier than such extended Closing Date by giving written notice thereof to Seller and Escrow Holder. The provisions of this Section shall survive Closing.
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The parties have bargained for and expressly agree that the rights and obligations of each party contained in this Agreement, including, without limitation, Buyer’s obligation to deliver the Independent Contract Consideration (as hereinafter defined) to Escrow Holder, constitute sufficient consideration for the other party’s execution, delivery and performance of this Agreement in accordance with its terms, including without limitation, Buyer’s exclusive right to inspect and purchase the Property pursuant to this Agreement and all contingencies and conditions of Closing for the benefit of Buyer set forth in this Agreement. Buyer shall deliver to Escrow Holder, in addition to and together with Buyer’s delivery to Escrow Holder of the Initial Deposit, the sum of ONE HUNDRED AND 00/100 DOLLARS ($100.00) (“Independent Contract Consideration”). Escrow Holder shall release and deliver the Independent Contract Consideration to Seller immediately following receipt from Buyer without the need for further instruction from any party. The Independent Contract Consideration is in addition to and independent of any other consideration or payment provided in this Agreement, is non‑refundable, is fully earned, and shall be retained by Seller notwithstanding any other provision of this Agreement.
23. JURY TRIAL WAIVER. |
EACH OF THE PARTIES HEREBY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO WHICH SELLER AND/OR BUYER MAY BE PARTIES ARISING OUT OF, IN CONNECTION WITH, OR IN ANY WAY PERTAINING TO, THIS AGREEMENT. THIS WAIVER IS KNOWINGLY, WILLINGLY AND VOLUNTARILY MADE BY THE PARTIES AND EACH HEREBY REPRESENTS AND WARRANTS TO THE OTHER THAT NO REPRESENTATIONS OF FACT OR OPINION HAVE BEEN MADE BY ANY INDIVIDUAL TO INDUCE THIS WAIVER OF TRIAL BY JURY OR TO IN ANY WAY MODIFY OR NULLIFY ITS EFFECT. EACH PARTY FURTHER REPRESENTS AND WARRANTS TO THE OTHER THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL, OF ITS OWN FREE WILL, AND HAS HAD THE OPPORTUNITY TO DISCUSS THIS WAIVER WITH COUNSEL. THE PROVISIONS OF THIS SECTION SHALL SURVIVE CLOSING OR THE TERMINATION OF THIS AGREEMENT.
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25. EQUAL PARTICIPATION. SELLER AND BUYER HAVE PARTICIPATED EQUALLY IN THE PREPARATION OF THIS AGREEMENT, AND, THEREFORE, THIS AGREEMENT AND EACH PROVISION HEREOF SHALL NOT BE CONSTRUED IN FAVOR OF OR AGAINST ANY PARTY TO THIS AGREEMENT BY REASON OF ONE PARTY’S BEING DEEMED TO PREPARED THIS AGREEMENT OR IMPOSED SUCH PROVISION. |
Prior to the Closing, the parties shall use commercially reasonable efforts to ensure that no disclosure of information not already in the public domain occurs regarding this transaction or the “Information” (as defined below); provided, however, such disclosures may be made (a) to the parties’ respective members, consultants, contractors, engineers, partners, investors, employees, agents, representatives, brokers, advisors and attorneys (individually, a “Representative” and, collectively, “Representatives”), provided each Representative shall be instructed to maintain the confidentiality of the Information, or (b) as required by applicable law. As used in this Agreement, the term “Information” shall mean any of the following: (i) all information and documents in any way relating to the Property, the operation thereof or the sale thereof, including, without limitation, the terms of sale, the contractual terms set forth in this Agreement, all Leases and Contracts furnished to, or otherwise made available for review by, Buyer or Buyer’s Representatives, or by Seller or Seller’s Representatives, and (ii) all analyses, compilations, data, studies, reports or other information or documents prepared or obtained by Buyer or Buyer's Representatives containing or based on, in whole or in part, the information or documents described in the preceding clause (i), or otherwise reflecting their review or investigation of the Property. Notwithstanding anything herein to the contrary, Seller hereby acknowledges and agrees that Buyer and its Representatives may communicate with any governmental authority or quasi-governmental authority for the sole purpose of gathering information in connection with the Property or Seller, or the transaction contemplated by this Agreement; provided however that neither Buyer nor Buyer’s Representatives shall request that any governmental authority (including any police or fire departments) inspect the Property.
[SIGNATURES APPEAR ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the day and year first above written.
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| SELLER: | ||
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| VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership | ||
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| By: | GO-Tenn, Inc., a Tennessee corporation, | |
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| its general partner | |
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| By: | /s/ Larry A. Atema |
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| Larry A. Atema, |
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| Assistant Secretary |
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| BUYER: | ||
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| STEADFAST ASSET HOLDINGS, INC., | ||
| a California corporation | ||
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| By: | /s/ Ana Marie del Rio | |
| Name: | Ana Marie del Rio | |
| Its: | Vice President | |
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11679284.1
THE UNDERSIGNED HEREBY ACCEPTS THE FOREGOING PURCHASE AND SALE AGREEMENT AS OF APRIL 9, 2014, AND AGREES TO ACT AS ESCROW HOLDER IN ACCORDANCE THEREWITH.
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| FIRST AMERICAN TITLE INSURANCE COMPANY | |
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| By: | /s/ Jodean King |
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| Escrow Officer |
EXHIBIT “A”
Page 2
EXHIBIT “A”
LOCATED IN THE THIRD (3RD) CIVIL DISTRICT OF MAURY COUNTY, TENNESSEE, BEING LOT NO. 57 OF SPRING HILL TOWN CENTER, AS SHOWN ON PLAT OF RECORD IN PLAT BOOK 7, PAGES 398-400, AS REVISED IN PLAT BOOK 8, PAGES 282-284, REGISTER'S OFFICE FOR MAURY COUNTY, TENNESSEE, AND BEING MORE PARTICULARLY DESCRIBED, AS FOLLOWS, TO-WIT:
BEGINNING AT A POINT ON THE SOUTHERN MARGIN OF BEECHCROFT ROAD, SAID POINT BEING N 89° 02' 36" E, 511.84 FEET FROM THE INTERSECTION OF TOWN CENTER PARKWAY AND BEECHCROFT ROAD;
THENCE, FROM POINT OF BEGINNING WITH THE SOUTHERN MARGIN OF BEECHCROFT ROAD, N 89° 02' 36" E, 100.00 FEET TO A POINT;
THENCE, LEAVING SAID ROAD WITH THE WESTERN BOUNDARY OF A PARCEL CONVEYED TO ALEXANDER KOGEN, OF RECORD IN BOOK 391, PAGE 85, S 00° 49' 13" E, 165.43 FEET TO A POINT;
THENCE, WITH THE SOUTHERN BOUNDARY OF SAID KOGEN PROPERTY AND THE SOUTHERN BOUNDARY OF A PARCEL CONVEYED TO RANDAL BIGGERS OF RECORD IN BOOK 747, PAGE 778, AND A PARCEL CONVEYED TO JAMES PIPKINS OF RECORD IN BOOK 377, PAGE 66, R.O.M.C., N 89° 16' 51" E, 230.32 FEET TO A POINT;
THENCE, WITH THE SOUTHERN BOUNDARY OF SAID PIPKINS PARCEL, S 88° 50' 56" E, 98.45 FEET TO A POINT;
THENCE, WITH SAID SOUTHERN BOUNDARY OF PIPKINS AND THE SOUTHERN BOUNDARY OF A PARCEL CONVEYED TO DON GRAY OF RECORD IN BOOK 825, PAGE 22, R.O.M.C., N 89° 15' 44" E, 109.06 FEET TO A POINT;
THENCE, N 83° 08' 39" E, 50.10 FEET TO A POINT;
THENCE, WITH THE WESTERN BOUNDARY OF A PARCEL CONVEYED TO THE CITY OF SPRING HILL OF RECORD IN BOOK 743, PAGE 623, R.O.M.C., S 16° 30' 46" E, 179.85 FEET TO A POINT;
THENCE, S 74° 08' 49", E, 162.42 FEET TO A POINT, SAID POINT BEING A POINT ON THE WESTERN BOUNDARY OF A PARCEL CONVEYED TO MAURY COUNTY BOARD OF EDUCATION OF RECORD IN BOOK 745, PAGE 268, R.O.M.C.;
THENCE, WITH SAID COUNTY PROPERTY, S 14° 25' 53" E, 299.41 FEET TO A POINT;
EXHIBIT “A”
Page 1
THENCE, S 63° 03' 41" E, 313.00 FEET TO A POINT;
THENCE, N 53° 16' 44" E, 258.00 FEET TO A POINT:
THENCE, S 15° 59' 04" E, 173.51 FEET TO A POINT;
THENCE, S 03° 14' 34" W, 342.90 FEET TO A POINT, SAID POINT BEING ON THE NORTHERN BOUNDARY OF LOT 61 OF SPRING HILL TOWN CENTER SUBDIVISION OF RECORD IN PLAT BOOK 8, PAGE 282, R.O.M.C.;
THENCE, WITH THE COMMON LINE BETWEEN SAID LOTS 61 AND 57, S 73° 44' 13" W, 110.34 FEET TO A POINT;
THENCE, N 69° 57' 21" W, 301.50 FEET TO A POINT, SAID POINT BEING A POINT ON A MANHOLE COVER;
THENCE, N 53° 30' 53" W, 90.00 FEET TO A POINT, SAID POINT BEING THE NORTHWESTERN CORNER OF LOT 60 OF SAID SPRING HILL TOWN CENTER;
THENCE, WITH THE WESTERN MARGIN OF SAID LOT 60 WITH A CURVE TO THE RIGHT 109.38 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 20° 39' 05", A RADIUS OF 303.46 FEET, A TANGENT OF 55.29 FEET, AND A CHORD OF S 38° 07' 52" W, 109.34 FEET;
THENCE, S 57° 08' 13" W, 22.64 FEET TO A POINT;
THENCE, WITH A CURVE TO THE LEFT 111.37 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 38° 00' 41", A RADIUS OF 167.87 FEET, A TANGENT OF 57.82 FEET, AND A CHORD OF S 38° 07' 52" W, 109.34 FEET;
THENCE, WITH A CURVE TO THE RIGHT 40.78 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 93° 27' 34", A RADIUS OF 25.00 FEET, A TANGENT OF 20.56 FEET, AND A CHORD OF S 27° 36' 15" E, 36.41 FEET, SAID POINT BEING ON THE NORTHERN MARGIN OF KEDRON ROAD;
THENCE, WITH THE NORTH MARGIN OF KEDRON ROAD, WITH A CURVE TO THE LEFT, 119.45 FEET, SAID CURVE HAVING A CENTRAL ANGLE OF 09° 55' 07", A RADIUS OF 690.00 FEET, A TANGENT OF 59.87 FEET, AND A CHORD OF N 79° 17' 35" W, 119.30 FEET;
THENCE, WITH SAID ROAD N 84° 15' 08" W, 7.19 FEET TO A POINT, SAID POINT BEING A COMMON FRONT CORNER BETWEEN LOTS 49 AND 57;
THENCE, WITH THE COMMON LINE BETWEEN SAID LOTS, WITH A CURVE TO THE LEFT, 35.25 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 80° 46' 32", A RADIUS OF 25.00 FEET, A TANGENT OF 21.27 FEET, AND A CHORD OF N 55°
EXHIBIT “A”
Page 2
21' 36" E, 32.40 FEET;
THENCE, CONTINUING WITH SAID COMMON LINE BETWEEN LOTS 57 AND 49 WITH A CURVE TO THE RIGHT 182.41 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 42° 09' 52", A RADIUS OF 247.87 FEET, A TANGENT OF 95.56 FEET, AND A CHORD OF N 36° 03' 16" E, 178.32 FEET;
THENCE, N 57° 08' 13" E, 22.64 FEET TO A POINT;
THENCE, WITH A CURVE TO THE RIGHT, 11.00 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 02° 49' 15", A RADIUS OF 223.45 FEET, A TANGENT OF 5.50 FEET, AND A CHORD OF N 55° 43' 35" E, 11.00 FEET;
THENCE, N 04° 23' 29" E, 32.55 FEET TO A POINT, SAID POINT BEING A COMMON CORNER BETWEEN LOTS 49 AND 57;
THENCE, WITH THE COMMON LINE BETWEEN SAID LOTS, N 53° 27' 33" W, 290.00 FEET TO A POINT;
THENCE, N 75° 04' 01" W, 170.00 FEET TO A POINT;
THENCE, S 83° 38' 45" W, 200.61 FEET TO A POINT;
THENCE, N 43° 31' 24" W, 270.00 FEET TO A POINT;
THENCE, S 89° 54' 52" W, 114.91 FEET TO A POINT, SAID POINT BEING A COMMON CORNER BETWEEN LOTS 49 AND 57 AND ALSO A POINT ON THE EASTERN MARGIN OF LOT 47;
THENCE, WITH SAID COMMON LINE N 00° 05' 08" W, 262.41 FEET TO A POINT, SAID POINT BEING ON THE SOUTHERN MARGIN OF LOT 46;
THENCE, WITH SAID LOT 46, N 89° 47' 38" E, 90.28 FEET TO A POINT, SAID POINT BEING THE SOUTHEAST CORNER OF LOT 46;
THENCE, WITH THE EASTERN MARGIN OF LOT 46, N 00° 57' 24" W, 348.99 FEET TO THE POINT OF BEGINNING.
INCLUDED IN THE ABOVE DESCRIBED TRACT OF LAND BUT SPECIFICALLY EXCLUDED THEREFROM IS THAT CERTAIN TRACT OR PARCEL OF LAND CONVEYED TO THE TOWN OF SPRING HILL BY DEED OF RECORD IN BOOK 1463, PAGE 831, REGISTER'S OFFICE FOR MAURY COUNTY, TENNESSEE, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS, TO-WIT:
BEING LAND IN THE THIRD CIVIL DISTRICT, SPRING HILL, MAURY COUNTY, TENNESSEE, LOCATED GENERALLY SOUTH OF BEECHCROFT ROAD, NORTH OF
EXHIBIT “A”
Page 3
HIGHWAY 31 (MAIN STREET) BETWEEN MAURY HILL DRIVE AND KEDRON PARKWAY AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT AN IRON PIN FOUND AT THE NORTHEAST CORNER OF LOT 61, SPRING HILL, TOWN CENTER, AS OF RECORD IN PLAT BOOK 8, PAGE 283, R.O.M.C., SAID PIN BEING IN THE WESTERLY LINE OF THE MAURY COUNTY BOARD OF EDUCATION, AS OF RECORD IN DEED BOOK 665, PAGE 230, R.O.M.C.;
THENCE, LEAVING SAID WESTERLY LINE OF THE MAURY COUNTY BOARD OF EDUCATION WITH THE NORTHERLY PROPERTY LINE OF SAID LOT 61, S 73 DEG. 44 MIN. 13 SEC. W, 11.96 FEET TO THE TOP OF CREEK BANK;
THENCE, GENERALLY FOLLOWING THE TOP OF CREEK BANK THE FOLLOWING FOUR CALLS:
N 21 DEG. 25 MIN. 00 SEC. W, 8.12 FEET TO A POINT;
N 00 DEG. 25 MIN. 54 SEC. W, 170.08 FEET TO A POINT;
N 27 DEG. 25 MIN. 57 SEC. W, 93.36 FEET TO A POINT;
N 23 DEG. 43 MIN. 58 SEC. E, 72.21 FEET TO A POINT;
THENCE, LEAVING SAID TOP OF BANK, N 68 DEG. 44 MIN. 14 SEC. E, 52.65 FEET TO AN IRON PIN FOUND IN THE WESTERLY LINE OF THE MAURY COUNTY BOARD OF EDUCATION, AS OF RECORD IN DEED BOOK 665, PAGE 230, R.O.M.C.;
THENCE WITH THE WESTERLY LINE OF THE MAURY COUNTY BOARD OF EDUCATION, S 03 DEG. 14 MIN. 34 SEC. W, 342.90 FEET TO THE POINT OF BEGINNING.
BEING PART OF THE SAME PROPERTY CONVEYED TO VILLAGES AT SPRING HILL, L.P., BY SPECIAL WARRANTY DEED OF RECORD IN BOOK 1214, PAGE 975, IN THE REGISTER'S OFFICE, MAURY COUNTY, TENNESSEE.
11679284.1
EXHIBIT “B”
Page 1
EXHIBIT “C”
For any items that are not in the possession or control of, or are reasonably available, to Owner, please indicate with “Not available to Owner”, and for any that are not applicable to the Property, please indicate “Not applicable to Property”
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| CONSTRUCTION / REHABILITATION | Delivered (Date) | Not applicable to Property | Not available to Owner |
1 | Plans & Specifications: Site plan and most current civil, landscape, architectural, structural mechanical, electrical and fire protection plans, including elevations |
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2 | Construction contracts, if any, including for all work completed in past 3 years |
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3 | Current capital improvements with schedule (past 3 years) and Capital expenditure budget for next 3 years |
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4 | Detailed unit-by-unit list of upgraded vs. non-upgraded units (if applicable) |
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5 | Warranties in effect, if any (construction, roof, mechanical equipment, etc.) |
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6 | Copies of all licenses, permits, and governmental approvals, including business license (with expiration date & annual costs), fictitious business name statements and building permits (showing placed in service/completion dates) |
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7 | Certificate(s) of Occupancy for all buildings |
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8 | List and description of tenant or common area work in progress, if any |
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9 | Copies of all governmental correspondence or notices pertaining to the property, including but not limited to building code, health code, zoning and fire code, |
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10 | Maintenance records/work orders, including water intrusion log, for past 12 months |
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11679284.1
EXHIBIT “D”
11 | Operation & Maintenance (O&M) Manuals, if any, for maintenance of equipment or hazardous materials |
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1 | Monthly operating statements, YTD & 3-year historical (cash flow and income statements, balance sheets) |
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2 | Year-end financial statements: Trailing-12 and audited statements, past 3 years |
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3 | Operating budget, current year and/or next available |
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4 | Property tax bills and Assessment notices, current and past 3 years, with proof of payment (including special assessments or districts and all documentation concerning appeals) |
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5 | Utility bills for any master-metered utility expenses and any resident unit utilities paid by the Property, monthly YTD and past calendar year |
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6 | List of utilities paid by Owner/Residents and list of account numbers |
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7 | List of meters and required deposits (if any / typically for gas, electric, water, phone) |
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8 | Security deposit/resident ledgers, current |
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9 | Name and version of accounting software |
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10 | Tax returns, past 3 years - For company purchases only |
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11 | Loan documents (full closing binder) - For loan assumptions only |
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12 | REIT Property Services Questionnaire (form for completion to be provided) |
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13 | General Ledger, prior year, most recent quarter-end and YTD (in Excel format) |
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14 | Trial Balance, prior year, most recent quarter-end and YTD (in Excel format) |
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15 | Bank Statements and Reconciliations, prior year, most recent quarter-end and YTD (monthly) |
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EXHIBIT “D”
16 | Cash Disbursement Journal, prior year, most recent quarter-end and YTD |
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17 | Check Register, prior year, most recent quarter-end and YTD |
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18 | Accounts Payable Aging Detail, prior year, most recent quarter-end and YTD |
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19 | Aged Delinquency Report (showing total rent outstanding) with status of any files placed for eviction or collection |
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20 | Rent and expense selections, prior year, most recent quarter-end and YTD (25 respective selections to be made by Buyer’s independent REIT 3-14 auditors based upon items received for #13-17 above) |
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21 | Payroll selections, prior year, most recent quarter-end and YTD (2-months of selections with detailed support to be made by Buyer’s independent REIT 3-14 auditors; detailed support to be requested may include inputs, timecards, reimbursement calculations, agreements or contracts as necessary, to support and recalculate the payroll amounts shown in the financial statements) |
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| MANAGEMENT/LEASING/OPERATIONS |
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1 | Monthly rent rolls, prior year and YTD, in Excel (with all lease charges broken out, to include unit square footage, monthly rent, deposits, financial concessions, other concessions, lease term, extension options, defaults (financial or otherwise), and such other information as Buyer may require) |
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2 | Market rent survey (comparison of subject w/other properties) |
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3 | Occupancy history, monthly for past 3 years and current YTD |
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4 | Current leases for all tenants with all available tenant correspondence files (including amendments/letters/agreements/default notices given or received) and all historical litigation pleadings, if any |
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5 | Current or former lease selections, as the case may be, with copies of back-up for rents received (for both resident and any housing authority portion paid, as applicable), prior year and YTD (25 selections to be made by Buyer’s independent REIT 3-14 auditors) |
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6 | Current form of lease with all addenda |
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7 | List of leases under negotiation or currently out for signature |
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EXHIBIT “D”
8 | Current tenant contact sheet (name, address, phone number) |
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9 | Current staff list (names, titles, hire dates, salary, unit info, hours per week, list of benefits, commissions offered, if any) |
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10 | Job descriptions for staff positions |
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11 | Worker’s Comp insurance loss run history, including Experience Modification Rate (YTD & past 3 yrs) |
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12 | OSHA 300 Log (most recent 3 years) |
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13 | Inventory of personal property on site, including items such as furniture, supplies, appliances |
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14 | Property brochure |
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15 | List of all active vendors utilized at the property (name, function, contact information) |
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16 | Copies of all operating and management service contracts, including but not limited to: |
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| a. Advertising (including any apt. locator services & pay-per-lease agreements) |
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| b. Alarm monitoring (including any firm alarm & security cameras) |
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| c. Cable/TV (including any revenue sharing programs); if none, please indicate so in writing |
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| d. Elevator |
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| e. Equipment leases (such as copier, postage machines, key control systems) |
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| f. Fire extinguisher (including any fire sprinkler systems) |
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| g. Furniture rental |
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| h. HVAC |
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| i. Internet (including any leased equipment such as modems and firewalls |
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| j. Janitorial services (including any uniform cleaning services) |
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EXHIBIT “D”
| k. Landscaping (including any pond/lake maintenance and snow removal) |
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| l. Laundry |
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| m. Pest control (including any termite contracts) |
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| n. Phone (landlines, cell phones, pagers, answering service) |
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| o. Pool (maintenance, emergency phone, etc.) |
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| p. Property management agreement; indicate whether entity is related party for disclosure purposes |
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| q. Security (including any on-site courtesy officer arrangements) |
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| r. Trash (including recycling programs); Also a copy of the most recent invoice |
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| s. Revenue Sharing (such as vending machines, pay phones) |
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| t. Collection Recovery |
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| u. Credit/application verification |
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| v. Training programs (including any safety training materials and/or Safety Plan) |
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| w. Software (including any property management software such as OneSite, Yardi, etc.) |
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| x. Common Area Services (such as office cleaning, dog waste removal, etc.) |
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| y. Utility Billing by Third Party |
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| z. Gate/Access Systems (including software for programming access cards/remotes) |
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| aa. Towing/Parking Services |
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| bb. Website Domain (including any website hosting) |
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| cc. Boiler Maintenance and Water Treatment |
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| PHYSICAL ITEMS |
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EXHIBIT “D”
1 | Property information, including number of pools, spas, dumpsters (with size), buildings, storage units, laundry rooms |
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2 | Marketing photos, including aerial photos if available |
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3 | Parking: indicate carport, garages, or open spaces and how many of each |
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4 | Unit floor plans with sq. footage |
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5 | List of model units, if any (apt. #, bedrooms, rent loss) |
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6 | List of fire safety equipment, such as smoke sensors, suppression devices, etc. (including system type, rating, map of locations, etc.) |
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7 | Current insurance certificates: Evidence of Commercial Property Insurance and Certificate of Insurance |
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8 | Insurance loss run history, past 3 years and YTD (property & general liability) |
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9 | Copies of insurance policies, past 3 years |
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10 | All existing third party reports, including, but not limited to: |
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| a. Certified, as-built ALTA Survey |
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| b. Appraisal (if dated w/n 24 months) |
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| c. Asbestos |
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| d. Lead-Based Paint Report |
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| e. Engineering study or inspection (structural or otherwise) |
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| f. Mold |
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| g. Phase I Environmental |
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| h. Physical Needs Assessment |
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| i. Operations & Maintenance (O&M) Plans, if any |
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| j. Radon |
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| k. Soils/Geotechnical |
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| l. Termite |
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EXHIBIT “D”
| m. Fire/Life Safety Inspection Report (current) |
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| TITLE AND AGREEMENTS |
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1 | Title Insurance Commitment and all recorded documents referenced therein |
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2 | Zoning: any reports, compliance letters, maps, ordinances, amendments, CC&R’s, special use permits, etc. |
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3 | Pending litigation summary and copies of all pleadings, if applicable |
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4 | Governmental Agreements: Any city or county development agreements, bonds, tax increment financing agreements, municipal utility agreements, etc. |
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5 | Condo / Association documents, if applicable (articles of incorporation, bylaws, CC&R’s, Declaration of Horizontal Regime, budgets, material notices, rules and regulations, etc.) |
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6 | Development Agreements: Any development agreements or restrictions with any private party |
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7 | Access Agreements: Any agreements for shared roadways, driveways or other access |
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8 | Amenities Agreements: Any reciprocal easement agreements or shared used agreements for any amenities |
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9 | Other Agreements: Any agreements that will be binding on the property after closing or that provide any material benefit to or obligation on the property |
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EXHIBIT “D”
FROM:Villages at Spring Hill, L.P., a Tennessee limited partnership
TO:____________________________, a ___________________________________
______________________________________________________________________________
Address New Owner as follows:Send Tax Bills to:Map-Parcel Number:
______________________________
______________________________
______________________________
______________________________
______________________________
______________________________________________________________________________
THIS INSTRUMENT PREPARED BY: Waller Lansden Dortch & Davis, LLP, Nashville City Center, 511 Union Street, Suite 2700, Nashville, Tennessee 37219-8966
______________________________________________________________________________
STATE OF_____________)
COUNTY OF _____________)
The actual consideration or value, whichever is greater, for this transfer is Fourteen Million Two Hundred Thousand and No/100 Dollars ($14,200,000.00).
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| Affiant |
Subscribed and sworn to before me, this the _____ day of ______________, 2014.
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| Notary Public |
My Comm. Expires:______________
EXHIBIT “D”
______________________________________________________________________________
SPECIAL WARRANTY DEED
FOR AND IN CONSIDERATION OF the sum of Ten Dollars, cash in hand paid by the hereinafter named GRANTEE, and other good and valuable considerations, the receipt and sufficiency of which are hereby acknowledged VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership, hereinafter called "GRANTOR", has bargained and sold, and by these presents does transfer and convey unto _______________________________, a _______________________, hereinafter called "GRANTEE", its successors and assigns, a certain tract or parcel of land in Maury County, State of Tennessee, described as follows, to wit (the “Property”):
LOCATED IN THE THIRD (3RD) CIVIL DISTRICT OF MAURY COUNTY, TENNESSEE, BEING LOT NO. 57 OF SPRING HILL TOWN CENTER, AS SHOWN ON PLAT OF RECORD IN PLAT BOOK 7, PAGES 398-400, AS REVISED IN PLAT BOOK 8, PAGES 282-284, REGISTER'S OFFICE FOR MAURY COUNTY, TENNESSEE, AND BEING MORE PARTICULARLY DESCRIBED, AS FOLLOWS, TO-WIT:
BEGINNING AT A POINT ON THE SOUTHERN MARGIN OF BEECHCROFT ROAD, SAID POINT BEING N 89° 02' 36" E, 511.84 FEET FROM THE INTERSECTION OF TOWN CENTER PARKWAY AND BEECHCROFT ROAD;
THENCE, FROM POINT OF BEGINNING WITH THE SOUTHERN MARGIN OF BEECHCROFT ROAD, N 89° 02' 36" E, 100.00 FEET TO A POINT;
THENCE, LEAVING SAID ROAD WITH THE WESTERN BOUNDARY OF A PARCEL CONVEYED TO ALEXANDER KOGEN, OF RECORD IN BOOK 391, PAGE 85, S 00° 49' 13" E, 165.43 FEET TO A POINT;
THENCE, WITH THE SOUTHERN BOUNDARY OF SAID KOGEN PROPERTY AND THE SOUTHERN BOUNDARY OF A PARCEL CONVEYED TO RANDAL BIGGERS OF RECORD IN BOOK 747, PAGE 778, AND A PARCEL CONVEYED TO JAMES PIPKINS OF RECORD IN BOOK 377, PAGE 66, R.O.M.C., N 89° 16' 51" E, 230.32 FEET TO A POINT;
THENCE, WITH THE SOUTHERN BOUNDARY OF SAID PIPKINS PARCEL, S 88° 50' 56" E, 98.45 FEET TO A POINT;
THENCE, WITH SAID SOUTHERN BOUNDARY OF PIPKINS AND THE SOUTHERN BOUNDARY OF A PARCEL CONVEYED TO
EXHIBIT “D”
DON GRAY OF RECORD IN BOOK 825, PAGE 22, R.O.M.C., N 89° 15' 44" E, 109.06 FEET TO A POINT;
THENCE, N 83° 08' 39" E, 50.10 FEET TO A POINT;
THENCE, WITH THE WESTERN BOUNDARY OF A PARCEL CONVEYED TO THE CITY OF SPRING HILL OF RECORD IN BOOK 743, PAGE 623, R.O.M.C., S 16° 30' 46" E, 179.85 FEET TO A POINT;
THENCE, S 74° 08' 49", E, 162.42 FEET TO A POINT, SAID POINT BEING A POINT ON THE WESTERN BOUNDARY OF A PARCEL CONVEYED TO MAURY COUNTY BOARD OF EDUCATION OF RECORD IN BOOK 745, PAGE 268, R.O.M.C.;
THENCE, WITH SAID COUNTY PROPERTY, S 14° 25' 53" E, 299.41 FEET TO A POINT;
THENCE, S 63° 03' 41" E, 313.00 FEET TO A POINT;
THENCE, N 53° 16' 44" E, 258.00 FEET TO A POINT:
THENCE, S 15° 59' 04" E, 173.51 FEET TO A POINT;
THENCE, S 03° 14' 34" W, 342.90 FEET TO A POINT, SAID POINT BEING ON THE NORTHERN BOUNDARY OF LOT 61 OF SPRING HILL TOWN CENTER SUBDIVISION OF RECORD IN PLAT BOOK 8, PAGE 282, R.O.M.C.;
THENCE, WITH THE COMMON LINE BETWEEN SAID LOTS 61 AND 57, S 73° 44' 13" W, 110.34 FEET TO A POINT;
THENCE, N 69° 57' 21" W, 301.50 FEET TO A POINT, SAID POINT BEING A POINT ON A MANHOLE COVER;
THENCE, N 53° 30' 53" W, 90.00 FEET TO A POINT, SAID POINT BEING THE NORTHWESTERN CORNER OF LOT 60 OF SAID SPRING HILL TOWN CENTER;
THENCE, WITH THE WESTERN MARGIN OF SAID LOT 60 WITH A CURVE TO THE RIGHT 109.38 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 20° 39' 05", A RADIUS OF 303.46 FEET, A TANGENT OF 55.29 FEET, AND A CHORD OF S 38° 07' 52" W, 109.34 FEET;
THENCE, S 57° 08' 13" W, 22.64 FEET TO A POINT;
THENCE, WITH A CURVE TO THE LEFT 111.37 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 38° 00' 41", A RADIUS OF 167.87 FEET, A TANGENT OF 57.82 FEET, AND A CHORD OF S 38° 07' 52" W, 109.34 FEET;
EXHIBIT “D”
THENCE, WITH A CURVE TO THE RIGHT 40.78 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 93° 27' 34", A RADIUS OF 25.00 FEET, A TANGENT OF 20.56 FEET, AND A CHORD OF S 27° 36' 15" E, 36.41 FEET, SAID POINT BEING ON THE NORTHERN MARGIN OF KEDRON ROAD;
THENCE, WITH THE NORTH MARGIN OF KEDRON ROAD, WITH A CURVE TO THE LEFT, 119.45 FEET, SAID CURVE HAVING A CENTRAL ANGLE OF 09° 55' 07", A RADIUS OF 690.00 FEET, A TANGENT OF 59.87 FEET, AND A CHORD OF N 79° 17' 35" W, 119.30 FEET;
THENCE, WITH SAID ROAD N 84° 15' 08" W, 7.19 FEET TO A POINT, SAID POINT BEING A COMMON FRONT CORNER BETWEEN LOTS 49 AND 57;
THENCE, WITH THE COMMON LINE BETWEEN SAID LOTS, WITH A CURVE TO THE LEFT, 35.25 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 80° 46' 32", A RADIUS OF 25.00 FEET, A TANGENT OF 21.27 FEET, AND A CHORD OF N 55° 21' 36" E, 32.40 FEET;
THENCE, CONTINUING WITH SAID COMMON LINE BETWEEN LOTS 57 AND 49 WITH A CURVE TO THE RIGHT 182.41 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 42° 09' 52", A RADIUS OF 247.87 FEET, A TANGENT OF 95.56 FEET, AND A CHORD OF N 36° 03' 16" E, 178.32 FEET;
THENCE, N 57° 08' 13" E, 22.64 FEET TO A POINT;
THENCE, WITH A CURVE TO THE RIGHT, 11.00 FEET TO A POINT, SAID CURVE HAVING A CENTRAL ANGLE OF 02° 49' 15", A RADIUS OF 223.45 FEET, A TANGENT OF 5.50 FEET, AND A CHORD OF N 55° 43' 35" E, 11.00 FEET;
THENCE, N 04° 23' 29" E, 32.55 FEET TO A POINT, SAID POINT BEING A COMMON CORNER BETWEEN LOTS 49 AND 57;
THENCE, WITH THE COMMON LINE BETWEEN SAID LOTS, N 53° 27' 33" W, 290.00 FEET TO A POINT;
THENCE, N 75° 04' 01" W, 170.00 FEET TO A POINT;
THENCE, S 83° 38' 45" W, 200.61 FEET TO A POINT;
THENCE, N 43° 31' 24" W, 270.00 FEET TO A POINT;
THENCE, S 89° 54' 52" W, 114.91 FEET TO A POINT, SAID POINT BEING A COMMON CORNER BETWEEN LOTS 49 AND 57 AND ALSO A POINT ON THE EASTERN MARGIN OF LOT 47;
EXHIBIT “D”
THENCE, WITH SAID COMMON LINE N 00° 05' 08" W, 262.41 FEET TO A POINT, SAID POINT BEING ON THE SOUTHERN MARGIN OF LOT 46;
THENCE, WITH SAID LOT 46, N 89° 47' 38" E, 90.28 FEET TO A POINT, SAID POINT BEING THE SOUTHEAST CORNER OF LOT 46;
THENCE, WITH THE EASTERN MARGIN OF LOT 46, N 00° 57' 24" W, 348.99 FEET TO THE POINT OF BEGINNING.
INCLUDED IN THE ABOVE DESCRIBED TRACT OF LAND BUT SPECIFICALLY EXCLUDED THEREFROM IS THAT CERTAIN TRACT OR PARCEL OF LAND CONVEYED TO THE TOWN OF SPRING HILL BY DEED OF RECORD IN BOOK 1463, PAGE 831, REGISTER'S OFFICE FOR MAURY COUNTY, TENNESSEE, AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS, TO-WIT:
BEING LAND IN THE THIRD CIVIL DISTRICT, SPRING HILL, MAURY COUNTY, TENNESSEE, LOCATED GENERALLY SOUTH OF BEECHCROFT ROAD, NORTH OF HIGHWAY 31 (MAIN STREET) BETWEEN MAURY HILL DRIVE AND KEDRON PARKWAY AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT AN IRON PIN FOUND AT THE NORTHEAST CORNER OF LOT 61, SPRING HILL, TOWN CENTER, AS OF RECORD IN PLAT BOOK 8, PAGE 283, R.O.M.C., SAID PIN BEING IN THE WESTERLY LINE OF THE MAURY COUNTY BOARD OF EDUCATION, AS OF RECORD IN DEED BOOK 665, PAGE 230, R.O.M.C.;
THENCE, LEAVING SAID WESTERLY LINE OF THE MAURY COUNTY BOARD OF EDUCATION WITH THE NORTHERLY PROPERTY LINE OF SAID LOT 61, S 73 DEG. 44 MIN. 13 SEC. W, 11.96 FEET TO THE TOP OF CREEK BANK;
THENCE, GENERALLY FOLLOWING THE TOP OF CREEK BANK THE FOLLOWING FOUR CALLS:
N 21 DEG. 25 MIN. 00 SEC. W, 8.12 FEET TO A POINT;
N 00 DEG. 25 MIN. 54 SEC. W, 170.08 FEET TO A POINT;
N 27 DEG. 25 MIN. 57 SEC. W, 93.36 FEET TO A POINT;
N 23 DEG. 43 MIN. 58 SEC. E, 72.21 FEET TO A POINT;
THENCE, LEAVING SAID TOP OF BANK, N 68 DEG. 44 MIN. 14
EXHIBIT “D”
SEC. E, 52.65 FEET TO AN IRON PIN FOUND IN THE WESTERLY LINE OF THE MAURY COUNTY BOARD OF EDUCATION, AS OF RECORD IN DEED BOOK 665, PAGE 230, R.O.M.C.;
THENCE WITH THE WESTERLY LINE OF THE MAURY COUNTY BOARD OF EDUCATION, S 03 DEG. 14 MIN. 34 SEC. W, 342.90 FEET TO THE POINT OF BEGINNING.
BEING PART OF THE SAME PROPERTY CONVEYED TO VILLAGES AT SPRING HILL, L.P., BY SPECIAL WARRANTY DEED OF RECORD IN BOOK 1214, PAGE 975, IN THE REGISTER'S OFFICE, MAURY COUNTY, TENNESSEE.
Said property is transferred subject to the limitations, restrictions, and encumbrances set forth below.
[PERMITTED ENCUMBRANCES TO BE ATTACHED PURSUANT TO SECTION 6.3]
This is improved property commonly known as 200 Kedron Parkway, Spring Hill, Tennessee 37174.
TO HAVE AND TO HOLD the said tract or parcel of land, with the appurtenances, estate, title and interest thereto belonging to the said GRANTEE, its successors and assigns, forever, and GRANTOR further covenants and binds itself, its successors and assigns to warrant specially and forever defend the title to said real estate to GRANTEE, its successors and assigns, against the lawful claims of all persons claiming through and under GRANTOR (other than claims arising out of the matters set forth above), but not further or otherwise. Wherever used, the singular number shall include the plural, the plural the singular, and the use of any gender shall be applicable to all genders.
EXHIBIT “D”
IN WITNESS WHEREOF, Grantor has caused this Special Warranty Deed to be executed this ____ day of __________, 2014.
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| GRANTOR: | ||
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| VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership | ||
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| By: | GO-Tenn, Inc., a Tennessee corporation, | |
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| its general partner | |
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| By: |
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| Larry A. Atema, |
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| Assistant Secretary |
STATE OF TENNESSEE)
COUNTY OF ____________)
Before me, the undersigned, a Notary Public in and for the County and State aforesaid, personally appeared ________, with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and who upon oath acknowledged himself to be the ________ of Villages at Spring Hill, L.P., a Tennessee limited partnership, the within named grantor, and being authorized so to do, executed the foregoing instrument for the purposes therein contained on behalf of the foregoing entity.
Witness my hand and seal, this the ________ day of _____________________, 2014.
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| NOTARY PUBLIC |
EXHIBIT “D”
EXHIBIT “E”
ASSIGNMENT AND ASSUMPTION
OF LEASES, CONTRACTS AND APPROVALS
THIS ASSIGNMENT AND ASSUMPTION OF LEASES, CONTRACTS AND APPROVALS (this “Assignment”) is made as of the _____ day of __________________, 2014, by and between VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership (“Assignor”), and _________________________, a Delaware limited liability company (“Assignee”).
For good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, Assignor and Assignee hereby agree as follows:
1.Assignor hereby sells, transfers, assigns and conveys to Assignee the following:
(a)All right, title and interest of Assignor in and to all leases and occupancy agreements relating to the Property, including, without limitation, those certain leases described on Exhibit A attached hereto and made a part hereof (collectively, the “Leases”), relating to the leasing of space in or on that certain land and improvements located in the County of Maury, State of Tennessee, more particularly described in Exhibit B attached hereto (the “Property”), and all of the rights, interests, benefits and privileges of the lessor thereunder, and all prepaid rents and security and other deposits held by Assignor under the Leases and not credited to Assignee under the Purchase Agreement (defined below) or credited or returned to tenants; but subject to all terms, conditions, reservations and limitations set forth in the Leases.
(b)To the extent assignable, all right, title and interest of Assignor in and to those certain contracts set forth on Exhibit C attached hereto and made a part hereof, and all warranties, guaranties, indemnities and claims (including, without limitation, for workmanship, materials and performance) and which exist or may hereafter exist against any contractor, subcontractor, manufacturer or supplier or laborer or other services relating thereto (collectively, the “Contracts”).
(c)To the extent assignable, all right, title and interest of Assignor in and to all building permits, certificates of occupancy, and other certificates, permits, licenses and governmental approvals relating to the design, construction, ownership, occupancy, use, management, operation, maintenance or repair of the Property, including, without limitation, those identified on Exhibit D attached hereto and made a part hereof (collectively, the “Approvals”) and any plans, specifications, studies, reports or surveys relating to the Property.
2.This Assignment is given pursuant to that certain Purchase and Sale Agreement and Joint Escrow Instructions (as amended, the “Purchase Agreement”) dated as of April 7, 2014, between Assignor and Assignee’s predecessor-in-interest, steadfast ASSET HOLDINGS,
EXHIBIT “E”
Page 1
inc., a California corporation, providing for, among other things, the conveyance of the Leases, the Contracts and the Approvals.
3.It is specifically agreed between Assignor and Assignee that Assignor shall remain liable for the performance of the obligations to be performed by Assignor under the Leases and Contracts which were required to be performed prior to (but not from and after) the date hereof.
4.Assignee hereby assumes the covenants, agreements and obligations of Assignor as landlord or lessor under the Leases which are required to be performed from and after 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, but only to the extent Assignee obtained a credit against the Purchase Price for such security deposit. Assignee hereby assumes the covenants, agreements and obligations of Assignor under the Contracts which are applicable to the period and required to be performed from and after the date of this Assignment, but not otherwise.
5.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.
6.This Assignment may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same Assignment. The terms, covenants and conditions hereof shall inure to the benefit of and be binding upon the respective parties hereto, their heirs, executors, administrators, successors and assigns. Any alteration, change or modification of or to this Assignment, in order to become effective, must be made in writing and in each instance signed on behalf of each party to be charged. No provision of this Assignment that is held to be inoperative, unenforceable or invalid shall affect the remaining provisions, and to this end all provisions of this Agreement shall be severable. This Assignment shall be governed by the laws of the State of Tennessee.
EXHIBIT “E”
Page 2
IN WITNESS WHEREOF, the parties have executed this Assignment as of the date first above written.
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| ASSIGNOR: | ||
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| VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership | ||
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| By: | GO-Tenn, Inc., a Tennessee corporation, | |
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| its general partner | |
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| By: |
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| Larry A. Atema, |
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| Assistant Secretary |
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| ASSIGNEE: | ||
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| a |
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| By: |
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| Name: |
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| Title: |
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EXHIBIT “E”
Page 3
EXHIBIT “F”
Know all men by these presents, that VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership (“Grantor”), for and in consideration of the sum of ten dollars and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, does bargain, sell, grant, transfer, assign, and convey to _________________________, a Delaware limited liability company (“Grantee”) all of its right, title, and interest, if any, in and to any and all (i) tangible personal property owned by Grantor and now at, in or upon or used in connection with the property commonly known as Villages at Spring Hill, located in the City of Spring Hill, County of Maury and State of Tennessee (“Property”), and more particularly described on Exhibit A attached hereto, including without limitation the tangible personal property listed on Schedule 1 attached hereto, and (ii) intangible personal property owned by Grantor in connection with or arising out of the ownership of the Property.
Grantor is selling and Grantee is purchasing the Property “AS IS WHERE IS” with all faults except as provided in that certain Purchase and Sale Agreement and Joint Escrow Instructions dated as of April 7, 2014 between Grantor and Grantee’s predecessor-in-interest, steadfast ASSET HOLDINGS, inc., a California corporation.
IN WITNESS WHEREOF, Grantor has executed this Bill of Sale as of the ____ day of ___________________, 2014.
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| VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership | ||
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| By: | GO-Tenn, Inc., a Tennessee corporation, | |
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| its general partner | |
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| By: |
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| Larry A. Atema, |
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| Assistant Secretary |
SCHEDULES:
1 – Tangible Personal Property
EXHIBIT “F”
Page 1
EXHIBIT “F”
Page 2
EXHIBIT “G”
Form of Non-Foreign Certificate
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform _________________________, a Delaware limited liability company (“Transferee”), that withholding of tax is not required upon the disposition of a U.S. real property interest by VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership (“Transferor”), the undersigned hereby certifies to Transferee the following on behalf of Transferor:
1.Transferor is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);
2.Transferor’s U.S. employer identification number is _____________; and
3.Transferor’s office address is _________________________________________.
Transferor understands that this certification may be disclosed to the Internal Revenue Service by Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, the undersigned declares that the undersigned has examined this certification and to the best of the undersigned’s knowledge and belief it is true, correct and complete, and the undersigned further declares that the undersigned has authority to sign this document on behalf of Transferor.
Dated as of ____________________, 2014.
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| VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership | ||
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| By: | GO-Tenn, Inc., a Tennessee corporation, its general partner | |
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| By: |
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| Larry A. Atema, |
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| Assistant Secretary |
EXHIBIT “G”
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STATE OF ___________________ )
ss.
COUNTY OF _______________ )
On _______________, before me, ______________________________, a Notary Public personally appeared ______________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of _________________ that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
___________________________
Notary Public(SEAL)
EXHIBIT “E”
EXHIBIT “H”
[**DATE**]
TO: | All Valued Residents of [**COMMUNITY NAME**] |
Re:Notice of Lease Assignment and Transfer of Security Deposit
This letter is to notify you that the property commonly known as [**COMMUNITY NAME**], [**ADDRESS**] (“Property”) has this date been sold and the ownership transferred.
In connection with this sale, all of the interest of the lessor under your lease of space in the Property, together with your security deposit, have been transferred to the new owner. You are hereby notified that, from and after the date hereof and until further notice, all future payments under your lease should be made payable to [**COMMUNITY NAME**] and mailed to [**COMMUNITY LEASING OFFICE ADDRESS**]. In addition, all questions or other matters regarding your lease should be directed to the property manager at [**COMMUNITY LEASING OFFICE PHONE NUMBER**].
Thank you for your cooperation.
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| Very truly yours, | |
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| VILLAGES AT SPRING HILL, L.P., a Tennessee limited partnership | |
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EXHIBIT “H”
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