Exhibit 10.5
AGREEMENT OF SALE AND PURCHASE
(THE GREENS AT COLLEGE CLUB)
THIS AGREEMENT OF SALE AND PURCHASE (this "AGREEMENT") is made and
entered into between ACC OP ACQUISITIONS LLC, a Delaware limited liability
company (hereinafter referred to as "PURCHASER"), and THE GREENS AT COLLEGE
CLUB, L.L.C., a Florida limited liability company (hereinafter referred to as
"SELLER").
ARTICLE I
SALE OF PROPERTY
1.1 Subject to the terms and conditions hereinafter set forth,
Seller shall sell to Purchaser and Purchaser shall purchase from Seller the
following described property and assets (hereinafter sometimes collectively
referred to as the "PROPERTY"):
1.1.1 That certain tract or parcel of land located in Leon
County, Florida and more particularly described on EXHIBIT "A" attached
hereto and fully incorporated herein by reference for all purposes,
together with any easements and other rights appurtenant thereto (the
"Land"), together with (without warranty) any right, title and interest
of Seller, if any, in and to any mineral rights or water rights or
similar rights relative to the Land and any land lying in the bed of any
highway, avenue, street, road, alley, easement or right of way, open or
proposed, in, on, across, abutting or adjacent to the Land.
1.1.2 All buildings, improvements, structures, parking areas
and fixtures placed, constructed or installed on the Land, whether or
not same may be subject to any tenant or ground lease (the
"IMPROVEMENTS");
1.1.3 All equipment, appliances, machinery, apparatus, tools,
furniture, furnishings and other tangible personal property (the
"PERSONAL PROPERTY") owned by Seller and located, placed or installed on
or about the Land or Improvements or used as part of or in connection
with the Land or Improvements or the operations thereon;
1.1.4 All of the rights and interests of the lessor or
landlord in and to all leases and other rental agreements (written or
oral) now or hereafter in effect, that grant a possessory interest in
and to any space situated in the Improvements or that otherwise confer
rights with regard to use of the Land or Improvements, together with all
guaranties thereof (hereinafter referred to as the "TENANT LEASES"), and
in all security or other deposits, if any, held by Seller in connection
with the Tenant Leases;
1.1.5 All rights, titles and interests of Seller in and to
service contracts, maintenance contracts, equipment leases and similar
contracts relating to the Land, the Improvements or the Personal
Property (collectively, "CONTRACTS");
1.1.6 All permits (including without limitation certificates
of occupancy), licenses and approvals relating to the Land, the
Improvements, or the Personal Property (collectively, "PERMITS");
1.1.7 All warranties, guaranties and bonds relating to the
Land, the Improvements or the Personal Property (collectively, "BONDS");
1.1.8 All rights and interests of Seller in and to all site
plans, surveys, soil and substrata studies, architectural drawings,
plans and specifications, engineering plans and studies, floor plans,
landscape plans, and other plans and studies of any kind that relate to
the Land, the Improvements, or the Personal Property;
1.1.9 All promotional material, leasing material and forms,
records relating to tenants, market studies, keys and other materials of
any kind in Seller's possession used in the continuing operation of the
Improvements;
1.1.10 All rights, titles or interests of Seller in and to the
name "The Greens at College Club" or similar name (the "NAME");
1.1.11 All right, title and interest in and to the Submission
Materials (hereinafter defined); and
1.1.12 Any and all other rights, privileges and appurtenances
owned by Seller and in any way related to, or used in connection with,
the development, construction, management, ownership or operation of the
Land, Improvements, or Personal Property.
ARTICLE II
PURCHASE PRICE AND EARNEST MONEY
2.1 The purchase price (the "PURCHASE PRICE") for the Property is
Five Million One Hundred Eighty-Three Thousand One Hundred and No/100 Dollars
($5,183,100.00). The Purchase Price shall be payable in the manner set forth in
Article III below.
2.2 Earnest Money (herein so called) in the amount of Four Thousand
Eight Hundred Fifty and No/100 Dollars ($4,850.00.) has heretofore been
deposited in escrow with Heritage Title Company, Austin, Texas (the "Escrow
Agent") by Purchaser, which Earnest Money shall be applied at Closing
(hereinafter defined) to the Purchase Price in the manner provided in Article
III below or otherwise disbursed to either Seller or Purchaser in accordance
with the terms of this Agreement. In the event Purchaser has not theretofore
terminated this Agreement, additional Earnest Money in the amount of Twenty-Four
Thousand Two Hundred Fifty and No/100 Dollars ($24,250.00) shall be deposited in
escrow with Escrow Agent within two (2) business days after the expiration of
the Inspection Period (hereinafter defined), at which time such additional
Earnest Money shall be, for all purposes, "Earnest Money" hereunder. All Earnest
Money deposited pursuant hereto shall be placed by the Escrow Agent in an
interest bearing account pursuant to the written direction of Purchaser,
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with all interest accruing thereon being for the sole account of, and payable
to, Purchaser in all events, free of and from any and all claims by Seller, the
Escrow Agent or any third party, and Purchaser may withdraw such interest at any
time, and from time to time, as it may elect. Simultaneously with the execution
of this Agreement by all parties hereto, Purchaser shall also deliver to Seller
the sum of One Hundred and No/100 Dollars ($100.00) in cash ("CONTRACT
CONSIDERATION"), which Seller acknowledges is adequate consideration for Seller
entering into this Agreement, and which Seller shall, in all events, retain.
Such Contract Consideration shall not be applied against the cash payment due at
the Closing.
2.3 Purchaser and Seller acknowledge that the Purchase Price is
based in part on the projected revenue of the Property based upon the current
rent roll for the Property. Purchaser and Seller agree to negotiate in good
faith to agree on a fair and equitable increase or decrease in the Purchase
Price in the event that the projected revenue of the Property increases or
decreases between the effective date of this Agreement and that date which is
seven (7) days prior to the Closing Date.
2.4 In the event of any termination of this Agreement prior to or on
December 15, 2004 which results in a portion of the Earnest Money being
delivered to Seller, Seller agrees that such portion of the Earnest Money owing
to Seller shall be applied by Seller to the purchase price(s) payable by
Purchaser under any of the Other Agreements which are closed and consummated.
ARTICLE III
PAYMENT OF PURCHASE PRICE
3.1 Subject to the terms and provisions hereof, the Purchase Price
shall be payable at Closing by Purchaser paying cash, by wire transfer,
cashier's or certified check or other evidence of funds acceptable to the Title
Company for disbursement to Seller at Closing, the amount of the Purchase Price,
subject to prorations and other credits provided for in this Agreement.
3.2 The Earnest Money and Contract Consideration, and all accrued
interest thereon, shall be applied at Closing to the cash payment due on such
date in accordance with Subsection 3.1 above or otherwise disbursed to Seller or
Purchaser in accordance with the terms of this Agreement.
ARTICLE IV
TITLE AND SURVEY
4.1 Seller, at the Seller's sole cost and expense, shall cause to be
delivered to Purchaser an ALTA Commitment for Title Insurance for the Property
(the "TITLE COMMITMENT") to be issued by First American Title Insurance Company
("Title Company") through its agent, Ausley & McMullen, P.A., whose address is
227 South Calhoun Street, Tallahassee, Florida 32301 (Attention: M. Julian
Proctor, Jr.), which Title Commitment contemplates the issuance of an ALTA
Owner's Policy of Title Insurance (the "OWNER'S POLICY"). Purchaser acknowledges
receipt of the Title Commitment.
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4.2 Seller, at Seller's sole cost and expense, shall cause to be
delivered to Purchaser search reports (the "SEARCH REPORTS") showing all Uniform
Commercial Code filings covering the Property in both the Office of the
Secretary of State of the State of Florida and in the official records of the
County in which the Land is located. The Search Reports shall be delivered no
later than October 12, 2004.
4.3 Seller, at Seller's sole cost and expense, has furnished to
Purchaser copies of the most recent survey of the Land and Improvements
(collectively, the "SURVEY") in Seller's possession or control. Purchaser
acknowledges receipt of the Survey.
4.4 Purchaser shall have until the later to occur of: (i) ten (10)
business days following the last to occur of receipt by Purchaser of the Title
Commitment and true, correct and legible copies of all instruments and documents
referenced as exceptions therein, the Search Reports, and the Survey; or (ii)
the expiration of the Inspection Period (hereinafter defined), to review the
Title Commitment, Search Reports, and Survey ("REVIEW PERIOD"). In the event any
exceptions to title appear in the Title Commitment, or any Uniform Commercial
Code filings exist, or any matters appear in the Survey, that are unacceptable
to Purchaser, Purchaser shall, within said Review Period, notify Seller in
writing of such fact. Upon the expiration of the Review Period, Purchaser shall
be deemed to have accepted all exceptions to title referenced in the Title
Commitment, all Uniform Commercial Code filings referenced in the Search
Reports, and all matters shown on the Survey except for matters which are the
subject of a notification permitted under the following sentence, and such
accepted exceptions shall be included in the term "Permitted Exceptions" as used
herein. In the event that Purchaser does object to any title exceptions or
matters shown in the Title Commitment and/or the Search Reports and/or the
Survey within the Review Period, Seller shall have ten (10) days from receipt of
notice of such objections ("CURE PERIOD") within which to eliminate or modify
any such unacceptable exceptions or items to the reasonable satisfaction of
Purchaser. Seller shall use its reasonable efforts in an attempt to so eliminate
any such unacceptable exceptions or items in order to so eliminate or modify
such unacceptable items. In the event that Seller is unable to eliminate or
modify such unacceptable items to the satisfaction of Purchaser on or before the
expiration of said Cure Period, Seller shall notify Purchaser in writing of such
fact within said Cure Period. In such event, Purchaser shall, on or before the
Closing, either (a) waive such objections and accept title to the Property
subject to such unacceptable items (which items shall then be deemed to
constitute part of the "PERMITTED EXCEPTIONS"), or (b) terminate this Agreement
by written notice to Seller and receive an immediate refund of the Earnest
Money, plus all accrued interest thereon, whereupon this Agreement shall
automatically be rendered null and void and of no further force and effect.
Notwithstanding anything set forth herein to the contrary, any liens, mortgages,
deeds of trust or security interests affecting any portion of the Property shall
not be Permitted Exceptions hereunder, and same shall be paid, satisfied and
released by Seller at or prior to Closing.
4.5 Should any exceptions to title first arise or be first
discovered following the Review Period, but prior to Closing, Purchaser shall
have the same right of review as described in Section 4.4 hereinabove as to such
new, additional or different items or matters, except that such review period
shall be for a period expiring on the date that is ten (10) days following the
date Purchaser first becomes aware of such new additional or different items,
and if such date is on or after the
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Closing Date, the Closing Date shall automatically be extended so that the
Closing Date is the first business day after the tenth (10th) day of such ten
(10) day period.
ARTICLE V
CERTAIN ITEMS TO BE FURNISHED TO PURCHASER BY SELLER
5.1 On or before September 24, 2004, Seller shall deliver to
Purchaser for its review the following items with respect to the Property
(collectively, the "SUBMISSION MATERIALS"), to the extent not heretofore
delivered to Purchaser:
5.1.1 Copies of all Contracts, Permits and Bonds, together
with detailed schedules listing such Contracts, Permits and Bonds.
Purchaser shall not be obligated to assume any Contracts, Bonds or other
contracts of any nature unless approved and assumed in writing by
Purchaser;
5.1.2 Copies of all ad valorem and personal property tax
statements and utility bills covering the Property for the current year
and for the years 2002, 2003 and 2004 (to date);
5.1.3 Copies of all existing fire and extended coverage
insurance policies and any other insurance policies pertaining to the
Property;
5.1.4 A current schedule certified by Seller showing (as of
the last day of the month immediately preceding the month in which such
schedule is furnished to Purchaser) the tenant rent rolls for the
buildings located on the Land or any ground leases affecting the Land,
such schedule to contain the following information, if applicable: a
list by building showing the leased premises unit number and a statement
as to whether the unit is occupied or vacant; if the unit is occupied,
the commencement and termination date of the lease covering that unit;
the name(s) of the tenant(s); the amount of monthly rental and other
charges payable thereunder; the identities of all guarantors, if any;
the amount of any security or other deposit; the amount of any rent or
other charges, if any, in arrears or prepaid thereunder, and the period
for which any such rents and other charges are in arrears, or have been
prepaid; whether the unit is, if applicable, rented on a "furnished" or
"unfurnished" basis and the rental charge, if any, attributable to
furniture or furnishings leased to the tenant(s); the number and period
of any renewal options; and, if the unit is vacant, the normal rent for
such vacant unit;
5.1.5 True and correct copies of all existing Tenant Leases
and all associated guaranties and lease and correspondence files;
5.1.6 Copies of all certificates of occupancy and other
permits, licenses or approvals relating to any portion of the Property;
5.1.7 Copies of the "as-built" plans and specifications for
the Improvements;
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5.1.8 A complete, itemized and detailed inventory of the
Personal Property, fixtures and all property leased or rented by Seller
being used in connection with the operation of the Property as of the
date hereof;
5.1.9 Detailed and complete operating statements respecting
the Property for the current year and for the entire period of Seller's
ownership thereof;
5.1.10 Information and data relating to reimbursable expense
allocations and other rent adjustments under the Tenant Leases;
5.1.11 Maintenance and service reports covering all systems and
structures in the Property, including without limitation, elevators,
HVAC, plumbing, electricity, exterior roof and wall repair, foundation
repair and the like;
5.1.12 All environmental, soils, structural and/or mechanical
reports covering the Property in the Seller's possession;
5.1.13 All reports and materials in Seller's possession
relating to whether the Property is in compliance with (a) Title III and
Title V of the Americans with Disabilities Act of 1990, Public Law
101-336, as amplified by the final rule promulgated by the Department of
Justice in Section 28 of the Code of Federal Regulations, Part 36 and
(b) the Florida Americans With Disabilities Accessibility Implementation
Act, Section 553.501 et seq. of the Florida Statutes (2004)
(collectively, the "ADA");
5.1.14 Copies of all notices sent by any Governmental Authority
or agency or third party relating to the compliance or noncompliance of
the Property with any Applicable Laws;
5.1.15 Financial statements (to include balance sheets and
operating statements) for the Property for the three (3) calendar years
preceding the year in which Closing occurs and for the period from
January 1, 2004 to July 31, 2004; and
5.1.16 Any other documents, agreements, instruments, books and
records relating to the construction, ownership, operation, management
or maintenance of the Property.
5.2 Purchaser shall indicate in writing the unacceptability of any
item delivered by Seller in accordance with Section 5.1 on or before the
expiration of the Inspection Period (hereinafter defined). In the event that
Purchaser finds any such item unacceptable in Purchaser's sole discretion, or
for no reason at all, Purchaser shall have the right to terminate this Agreement
in accordance with Article VII hereinbelow, and upon such termination the
Earnest Money, plus accrued interest, shall be immediately returned to
Purchaser, whereupon this Agreement shall be rendered null and void and neither
party hereto shall have any rights or obligations hereunder.
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ARTICLE VI
INTENTIONALLY OMITTED
ARTICLE VII
INSPECTION
7.1 Seller agrees that Purchaser shall have until September 27, 2004
(the "INSPECTION PERIOD") in which to make all inspections or investigations
desired by Purchaser with respect to the Property or any portion thereof. In
that regard Purchaser, personally or through its authorized agents or
representatives, shall be entitled to enter upon the Land and the Improvements
at all reasonable times; provided, however, Purchaser shall give Seller not less
than twenty-four (24) hours notice prior to the inspection if it desires to see
the interior of any Improvements which are occupied by tenants in order to
permit Seller to make appropriate arrangements for such inspection. Seller
agrees to allow Purchaser personally, or through its duly authorized agents or
representatives, to inspect and make copies of all books, records, operating
statements, leases and such service contracts, franchise agreements and
franchise materials, if any, construction contracts, employment agreements,
assessments (special or otherwise), ad valorem and personal property tax bills
and statements, utility bills, insurance policies, building permits,
certificates of occupancy, notices or correspondence from governmental entities
or tenants, and related items as are in Seller's possession or readily
available, and Purchaser, or its authorized agents or representatives, shall
have the right to make such investigations of the Land, the Improvements and
aforesaid items as Purchaser deems necessary. Following the date of the
expiration of the Inspection Period, Purchaser shall continue to have the right
to enter upon the Property (after appropriate notice as set forth above) to
conduct additional inspections, and in accordance with such continuing right of
inspection, Purchaser shall have access to all books and records of the Property
notwithstanding the fact that the Inspection Period (and rights of termination
of this Agreement pursuant to such Inspection Period) may have expired. In the
event that this transaction is not consummated, Purchaser shall return all such
information and items to Seller including all of the submission materials
furnished by Seller to Purchaser pursuant to Article V of this Agreement,
together with copies, without representation or warranty of any kind, of all
third party reports obtained by Purchaser during the course of its inspection.
Purchaser will indemnify, defend and hold Seller harmless from any and all loss,
cost, expense, damage, liability, action or cause of action arising from (i) any
physical property damage caused by Purchaser in the course of any inspection,
study or investigation by Purchaser, (ii) any injury to persons caused by
Purchaser in the course of such inspection, study or investigation and (iii) any
mechanics or materialmen's liens placed upon or against the Property or any
portion thereof as a result of such inspection, study or investigation. The
foregoing indemnification and hold harmless provision shall survive the
termination of this Agreement.
7.2 If, within the Inspection Period, Purchaser shall, for any
reason in Purchaser's sole discretion, judgment and opinion, disapprove or be
dissatisfied with any aspect of the Land, the Improvements or any item examined
by Purchaser pursuant to Sections 5.1 or 7.1, or for no reason at all, then
Purchaser shall be entitled to terminate this Agreement by giving written notice
thereof to Seller on or before the expiration of the Inspection Period, and the
Earnest Money, and all accrued interest thereon, shall be immediately returned
to Purchaser, whereupon this Agreement shall automatically be rendered null and
void and thereafter neither Seller nor Purchaser shall have any
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further obligation or liabilities to the other hereunder. Notwithstanding
anything set forth herein to the contrary, in the event that Purchaser does not
affirmatively and unequivocally elect, by written notice to Seller thereof prior
to the expiration of the Inspection Period, to waive its right to terminate this
Agreement pursuant to this Section 7.2, Purchaser shall be deemed to have
terminated this Agreement pursuant to this Section 7.2 as of the expiration of
the Inspection Period and the Earnest Money previously deposited by Purchaser
with Escrow Agent shall be immediately returned by Escrow Agent to Purchaser,
whereupon this Agreement shall automatically be terminated and thereafter
neither Seller nor Purchaser shall have any further obligations or liabilities
to the other hereunder except as otherwise provided herein.
ARTICLE VIII
CLOSING; COSTS; PRORATIONS
8.1 The closing of the transaction contemplated herein (the
"CLOSING") shall be held on or before that date (the "CLOSING DATE") which is
the earlier to occur of (1) December 15, 2004 (the "OUTSIDE CLOSING Date") and
(2) the later to occur of (a) that date which is ten (10) days after the date on
which Purchaser notifies Seller in writing (a "CLOSING NOTICE") that (i) the
"Assumption Documents" under each of the Other Agreements (hereinafter defined)
are in final form and agreed to by Purchaser and the "Lender" under each of the
Other Agreements and (ii) all other conditions of the "Lender" under each of the
Other Agreements to the assumption by Purchaser of the "Existing Financing"
under each of the Other Agreements have been satisfied, and (b) October 20,
2004, or such other date as may be agreed to in writing by Seller and Purchaser;
provided, however, if such date is a Saturday, Sunday or banking holiday, the
Closing shall be the next regular business day. The Closing shall be held
through escrow at the office of the Title Company's agent, Ausley and McMullen,
P.A., or at such other location as may be acceptable to both Seller and
Purchaser.
Notwithstanding the foregoing, in the event that each of the conditions
set forth in Section 8.1(2)(a) hereinabove have not been satisfied on or before
December 15, 2004, then Purchaser may, at its option, extend the Outside Closing
Date to January 17, 2005 by written notice thereof to Seller; and if Purchaser
does not so extend the Closing Date, then this Agreement shall thereupon
automatically terminate, fifty percent (50%) of the Earnest Money shall be
returned to Purchaser and fifty percent (50%) of the Earnest Money shall be
delivered to Seller and, thereafter, neither Seller nor Purchaser shall have any
further duties or obligations hereunder. In addition, in the event that
Purchaser extends the Outside Closing Date to January 17, 2005 as provided in
the immediately preceding sentence, and each of the conditions set forth in
Section 8.1(2)(a) hereinabove have not been satisfied on or before January 17,
2005, then Purchaser may, at its option, extend the Outside Closing Date to
February 15, 2005 by written notice thereof to Seller; and if Purchaser does not
so extend the Closing Date, then this Agreement shall thereupon automatically
terminate, twenty-five percent (25%) of the Earnest Money shall be returned to
Purchaser and seventy-five percent (75%) of the Earnest Money shall be delivered
to Seller and, thereafter, neither Seller nor Purchaser shall have any further
duties or obligations hereunder.
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Notwithstanding anything set forth herein to the contrary, in the event
that each of the conditions set forth in Section 8.1(2)(a) hereinabove have not
been satisfied on or before February 15, 2005 , then this Agreement shall
thereupon automatically terminate, the Earnest Money shall be delivered to
Seller and, thereafter, neither Seller nor Purchaser shall have any further
duties or obligations hereunder.
Notwithstanding the foregoing, if the Closing Date, as hereinabove
determined, would occur after December 15, 2004 and on or before January 4,
2005, then the Closing Date shall automatically be extended so that the Closing
Date will be on January 5, 2005.
The procedure to be followed by the parties in connection with the
Closing shall be as follows:
8.1.1 At the Closing, the Seller shall cause to be delivered
to the Title Company the items specified herein and the following
documents and instruments duly executed and acknowledged, in recordable
form, for the Property:
8.1.1.1 A Special Warranty Deed (the "DEED") dated as of
the Closing Date, in the form of EXHIBIT "C" attached hereto and
made a part hereof by reference for all purposes, conveying to
Purchaser or its assignee the Land and Improvements, free and
clear of any liens or encumbrances other than the Permitted
Exceptions;
8.1.1.2 An Assignment of Landlord's Interest in Leases,
Security and Other Deposits and Service Contracts and Assumption
Agreement (the "ASSIGNMENT OF LEASES") dated as of the Closing
Date, in the form of EXHIBIT "D" attached hereto and made a part
hereof by reference for all purposes, in favor of Purchaser or
its assignee, including all Tenant Leases and other leases, and
all security, damage or other deposits and prepaid rents,
covering all or any part of the Land, Improvements or Personal
Property, free and clear of any liens or encumbrances except
only the Permitted Exceptions, and assigning to Purchaser such
Contracts as may be designated by Purchaser;
8.1.1.3 A Blanket Conveyance, Bill of Sale and
Assignment (the "BILL OF SALE"), dated as of the Closing Date,
in the form of EXHIBIT "E" attached hereto and made a part
hereof by reference for all purposes, conveying and assigning
title to all Personal Property (which shall include, but not be
limited to, all Personal Property indicated in the inventory
delivered to Purchaser in accordance with Section 5.1.8) hereof,
Permits, Bonds, Submission Materials not conveyed by separate
document, Name and other intangible property, free and clear of
any liens or encumbrances except the Permitted Exceptions;
8.1.1.4 An affidavit (the "AFFIDAVIT") regarding debts
and liens executed by or on behalf of Seller and dated as of the
Closing Date, in the form of EXHIBIT "F" attached hereto and
made a part hereof by reference for all purposes;
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8.1.1.5 A rent roll (the "RENT ROLL") for the Property,
certified by Seller to be true and correct as of the Closing
Date and in the form of EXHIBIT "G" attached hereto and made a
part hereof by reference for all purposes;
8.1.1.6 Evidence reasonably acceptable to Purchaser and
Title Company, authorizing the consummation by Seller of the
purchase and sale transaction contemplated hereby and the
execution and delivery of the closing documents on behalf of
Seller;
8.1.1.7 All keys to all locks on the Property in the
possession of Seller and originals or copies of the books and
records and of all original documents in the possession of the
Seller which are reasonably necessary for the continued
operation of the Property, including, but not limited to all
applications, correspondence and credit reports relating to each
such tenant and original copies of all Tenant Leases;
8.1.1.8 Originals of all Tenant Leases, Contracts which
are assumed by Purchaser, Permits, Bonds and other Submitted
Materials;
8.1.1.9 All plans, specifications, mechanical,
electrical and plumbing layouts, operating manuals, leasing
information and similar items in the possession of Seller and
utilized in connection with the operation of the Property;
8.1.1.10 Current tax statements covering the Land and
Improvements, if available and if not previously furnished, and
tax certificates for previous years;
8.1.1.11 An assignment, dated as of the Closing Date,
assigning to Purchaser or its assignee all of Seller's interest
in and to all existing assignable guaranties, warranties and
bonds issued in connection with the construction, alteration,
maintenance and repair of any portion of the Property, in the
form of EXHIBIT "G" attached hereto and made a part hereof by
reference for all purposes, together with an original copy of
each such guaranty, warranty and bond;
8.1.1.12 A certificate dated not less than ten (10) days
prior to the Closing Date, evidencing no UCC-1 Financing
Statements or other filings pursuant to the applicable Uniform
Commercial Code with respect to the Property;
8.1.1.13 A letter addressed to each tenant, in the form
of EXHIBIT "H" attached hereto and made a part hereof by
reference for all purposes;
8.1.1.14 An Affidavit from Seller and any other parties
required pursuant to Section 1445 of the Internal Revenue Code
of 1986 (the "INTERNAL REVENUE CODE") and/or regulations
relating thereto stating, under penalties of perjury, (a) that
neither Seller nor any other party so swearing is a foreign
person within the meaning of
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Section 1445 of the Internal Revenue Code, (b) the U.S. taxpayer
identification number of Seller and such other parties, if any,
(c) the home address of Seller and such other parties (or the
business address if any such party is not an individual), and
(d) such other information as may be required by regulations
enacted by the Department of Treasury, in connection with
Section 1445 of the Internal Revenue Code. An executed
counterpart of this Affidavit will be furnished to the Internal
Revenue Service and Purchaser at Closing. In the event Seller
fails to deliver such Affidavit at Closing or Seller delivers
such Affidavit but Purchaser has actual knowledge that such
Affidavit is false or Purchaser receives notice that the
Affidavit is false from any agent of Purchaser or Seller,
Purchaser shall be entitled to withhold from the Purchase Price
a sum equal to ten percent (10%) of the total amount which
otherwise would have been realized by Seller from the sale
contemplated by this Agreement, or such other amount as is
required by applicable regulation, which sum will be paid by
Purchaser to the United States Treasury pursuant to the
requirements of Section 1445 of the Internal Revenue Code and
the regulations relating thereto;
8.1.1.15 Possession of the Property, subject only to the
Tenant Leases and the Permitted Exceptions; and
8.1.1.16 A letter agreeing to the proration of items
pursuant to Section 8.5 of this Agreement in the form of EXHIBIT
"I" attached hereto.
8.1.2 At the Closing, the Purchaser, or its assignee, shall
cause to be delivered to the Title Company the following documents and
instruments:
8.1.2.1 Funds payable to the Title Company representing
the cash payment due in accordance with Article III hereof, less
the Earnest Money (as such sum may be augmented pursuant to
Article VI hereinabove), and all accrued interest thereon, which
shall be applied to the total cash payment required;
8.1.2.2 A letter addressed to each tenant, duly executed
by Purchaser or its assignee, in the form of EXHIBIT "H"
attached hereto;
8.1.2.3 Evidence reasonably acceptable to Seller and
Title Company, authorizing the consummation by Purchaser or its
assignee of the purchase and sale transaction contemplated
hereby and the execution and delivery of the closing documents
on behalf of Purchaser or its assignee; and
8.1.2.4 A letter agreeing to the proration of items
pursuant to Section 8.5 of this Agreement in the form of EXHIBIT
"I" attached hereto.
8.1.3 At the Closing, the Seller and Purchaser shall cause to
be delivered to the Title Company such other instruments and documents as may be
reasonably necessary and appropriate in order to complete the Closing of the
transactions contemplated hereunder.
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8.2 Upon the completion of the deliveries specified in Section 8.1
above, the Title Company, as escrow agent, shall be authorized to cause the
appropriate closing documents to be immediately recorded in the appropriate
records of the County in which the Property is located and shall deliver the
balance of the proceeds from the sale, after deducting all expenses thereof
chargeable to Seller under this Agreement, as set forth in the closing statement
signed by Seller, to Seller.
8.3 At Closing, Seller shall cause the Title Company to deliver to
Purchaser a "mark-down" of the Commitment Policy in the full amount of the
Purchase Price, wherein the Title Company shall insure that good and marketable
title to the Land and Improvements is vested in Purchaser, containing no
exceptions to such title other than the Permitted Exceptions, and Seller shall
direct the Title Company to deliver the Owner's Policy to Purchaser no later
than fifteen (15) days after Closing, and the Title Company shall agree in
writing to so deliver the Owner's Policy.
8.4 Seller shall pay (i) any costs of curing title objections, (ii)
Seller's proportionate share of the prorations set forth in Section 8.5, (iii)
the cost of Purchaser's Owner's Policy, including any additional premium for
extended coverage or modification of the standard printed exceptions, (iv)
one-half of any escrow fee charged by the Title Company and (v) all documentary
stamps, conveyance taxes, deed stamps or similar taxes or exactions, and local
surtaxes, if applicable, due with respect to the conveyance of the Property.
Purchaser shall pay (i) any costs associated with updating the Survey (at
Purchaser's election), (ii) an recording costs associated with the Deed and the
loan assumption agreement, and (iii) one-half of any escrow fee charged by the
Title Company. Each party shall pay its own attorneys' fees.
8.5 Rental and other income due and payable for the calendar month
in which Closing occurs, real estate and personal property ad valorem taxes,
charges and assessments (special or otherwise), insurance premiums (if Purchaser
elects to accept an assignment from Seller of any assignable insurance policies
applicable to the Property), utility charges, and other operating expenses shall
be prorated at the Closing, effective as of midnight on the date immediately
prior to the Closing Date, based upon actual days involved. Any and all
security, damage or other deposits, any and all fees and/or charges applicable
to the current academic year or future academic years, and any and all prepaid
rents shall be credited against the Purchase Price or paid in cash by Seller to
Purchaser at the Closing. All maintenance and service contract expenses (whether
or not service is continued by Purchaser) and utility charges shall be
determined to the date of the Closing and paid by Seller to the greatest extent
practicable. If such charges and expenses are unavailable on the Closing Date,
such charges shall be prorated at Closing using the best information available,
and a readjustment shall be made within ten (10) days following the availability
of meter readings and accurate bills and figures. At Closing, the parties shall
enter into a letter agreement setting forth the procedure for adjustment of any
such proration items should the actual amounts of any proration items differ
from the amounts utilized at Closing, with such letter agreement to be in the
form of EXHIBIT "I" attached hereto and made a part hereof by reference for all
purposes. In connection with the proration of real and personal property taxes
and assessments (special or otherwise), in the event that actual figures for the
year of Closing are unavailable on the Closing Date, an estimated proration
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shall be made utilizing figures from the preceding year, with said proration to
be adjusted in cash between the parties, based on actual taxes and assessments
for the year of Closing, at the time such actual taxes and assessments are
determined and available, in accordance with the terms and provisions of the
letter agreement attached hereto as EXHIBIT "I". In the event the Purchaser
shall at its sole election challenge any taxes and assessments or other charges
described in this Section 8.5, Seller agrees any money due to Seller as a
post-closing adjustment under EXHIBIT "I" shall be offset by all costs and
expenses (including reasonable attorneys' fees) incurred by Purchaser in
pursuing any such challenges.
8.6 Conditions Precedent. The following shall be conditions
precedent to Purchaser's obligations hereunder:
8.6.1 All representations and warranties of Seller shall be
true and correct as of the Closing Date, without any limitation as to
best of knowledge or the receipt of written notice, and Seller shall not
be in default hereunder.
8.6.2 The condition of the Property shall not change after the
date hereof, unless caused by Purchaser.
8.6.3 Intentionally omitted.
8.6.4 Intentionally omitted.
8.6.5 The transactions contemplated by the following other
Agreements of Sale and Purchase (the "Other Agreements") shall be closed
and consummated contemporaneously with the Closing:
8.6.5.1 Agreement of Sale and Purchase of even date
herewith by and between Purchaser and University Club Apartments
of Gainesville, L.L.C. with respect to real and personal
property in Alachua County, Florida and known as "University
Club Apartments";
8.6.5.2 Agreement of Sale and Purchase of even date
herewith by and between Purchaser and University Club Apartments
of Tallahassee, L.L.C. with respect to real and personal
property in Leon County, Florida and known as "University Club
Apartments";
8.6.5.3 Agreement of Sale and Purchase of even date
herewith by and between Purchaser and College Club Apartments at
Tallahassee, L.L.C. with respect to real and personal property
in Leon County, Florida and known as "College Club Apartments";
and
8.6.5.4 Agreement of Sale and Purchase of even date
herewith by and between Purchaser and The Grove at University
Club, L.L.C with respect to real and
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personal property in Leon County, Florida and known as "The
Grove at University Club".
If and to the extent any of the Other Agreements shall be terminated by
Purchaser in accordance with the terms thereof, then such Other Agreement(s)
shall thereupon be excluded from the definition of "Other Agreements" hereunder.
If any of the conditions precedent set forth in this SECTION 8.6 or
elsewhere in this Agreement shall fail to be satisfied (or expressly waived by
Purchaser in writing) as of the Closing, Purchaser may, at its option, either
(i) terminate this Agreement by written notice thereof to Seller, whereupon the
Earnest Money shall be immediately returned to Purchaser and, thereafter,
neither Seller nor Purchaser shall have any further duties or obligations
hereunder or (ii) waive the same and proceed to Closing.
ARTICLE IX
COVENANTS, AGREEMENTS, REPRESENTATIONS AND WARRANTIES
9.1 Seller hereby covenants to and agrees with Purchaser as follows:
9.1.1 At all times from the date of this Agreement to the
Closing, Seller shall cause to be maintained in force (i) all Permits
and Bonds and (ii) casualty and liability insurance with respect to
damage or injury to person or property occurring on the Property in at
least such amounts as are maintained by Seller on the date of this
Agreement;
9.1.2 At all times from the date of this Agreement to the
Closing, Seller shall keep and perform all of the obligations to be
performed by the landlord under the Tenant Leases for the improvements
situated on the Land, including without limitation any maintenance of
the Property to be performed by the landlord under such Tenant Leases.
Seller agrees to use its best efforts from the date hereof to retain the
existing tenants and to secure new tenants for the Property, at rentals
and upon terms and conditions approved by Purchaser in Purchaser's
reasonable judgment, but Seller shall not enter into any new or renewal
leases for a term which would expire later than September 1, 2005, nor
shall Seller enter into any new or renewal service, maintenance or
management agreement with respect to all or any portion of the Property
without Purchaser's prior written approval;
9.1.3 Seller shall obtain all such written consents and
approvals as may be required in order to permit Seller to perform its
obligations under this Agreement;
9.1.4 Prior to the Closing, Seller shall manage and use the
Property in accordance with all Applicable Laws and in substantially the
same manner as it has been managed and used up to and including the date
hereof, subject, however, to all relevant provisions of this Agreement;
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9.1.5 Prior to the Closing, Seller shall maintain the
buildings and other Improvements on the Land in good condition and
repair, except for normal wear and tear and any casualty or
condemnation, and Seller shall not remove any fixtures, equipment,
furnishings and other personalty therefrom without replacing them with
substantially similar items of equal or greater value nor shall Seller
in any manner neglect the Property or cause or permit waste thereof;
9.1.6 Subject to the prorations set forth in Section 8.5,
Seller shall cause all trade accounts and costs and expenses of
operation and maintenance of the Property incurred prior to the Closing
to be promptly paid when due;
9.1.7 Seller shall (a) give notice to Purchaser immediately
upon (i) Seller's receipt of any notice from any Governmental Authority
(hereinafter defined) of a violation of any Applicable Laws (hereinafter
defined) or acquiring knowledge of the receipt of any such notice by any
tenant of any portion of the Property and (ii) acquiring knowledge of
the presence of any hazardous substances, solid wastes or Hazards
(hereinafter defined) on the Property in a condition that is resulting
or could reasonably be expected to result in any adverse environmental
impact, with a full description thereof; and (b) promptly comply with
all Applicable Environmental Laws (hereinafter defined) requiring the
notice, removal, treatment, or disposal of such hazardous substances,
solid wastes, or Hazards and provide Purchaser with satisfactory
evidence of such compliance;
9.1.8 At all times, Seller shall keep Purchaser fully and
timely informed as to the status of, and developments regarding the
leasing of the Property. Seller shall promptly forward to Purchaser
copies of any and all documents, correspondence and other materials sent
to or from Seller in connection with any of the foregoing; and
9.1.9 Until the Closing Date, Seller will not enter into,
solicit or consider any "back-up" contracts or other contracts or offers
for the sale or conveyance of the Property, or any portion thereof. Any
action taken by a third party real estate agent without the
authorization or direction of Seller shall not be deemed a violation of
this Section 9.1.10.
9.2 In addition to the representations and warranties contained in
other articles and sections of this Agreement, Seller hereby represents and
warrants to Purchaser, which representations and warranties shall be true and
correct as of the date hereof and on the Closing Date, and the truth of which
shall be a condition precedent to Purchaser's obligations to close the
transaction contemplated herein, that:
9.2.1 There are no actions, suits, litigation or proceedings
pending or, to the best knowledge and belief of Seller, threatened or
asserted against Seller or the Property affecting Seller or any portion
of the Property, at law or in equity or before or by arbitrator or any
federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign;
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9.2.2 Seller has not received any notices of any condemnation
actions, special assessments or increases in the asserted valuation of
taxes or other impositions of any nature which are pending or being
contemplated with respect to the Property or any portion thereof;
9.2.3 Except as to the Permitted Exceptions, there are no
liens or security interests against the Land, the Improvements or
against any other portion of the Property, nor are there any actions
pending which would result in the creation of any lien for any
Improvements, and Seller shall not create or voluntarily permit to be
created any liens, easements or other conditions affecting any portion
of the Property without the prior written consent of Purchaser. At the
Closing, there will be no unpaid bills or claims in connection with any
construction or repair of the Improvements or other work performed or
material purchased in connection with the Improvements;
9.2.4 No portion of the Property shall be subject at the
Closing to the burdens or obligations of any management or leasing
agreement or understanding respecting the Property, so that Purchaser
shall receive the Property free and clear of any such burdens or
obligations and shall be free to enter into a management agreement or
arrangement with a manager of its own choice. As of the Closing, there
will not be any service, supply or maintenance agreements with respect
to the Property or any portion thereof unless the same can be canceled
upon thirty (30) days notice, without the necessity of any termination
penalty or premium. All persons who are currently employed by Seller in
connection with the management, operation or maintenance of the
Property, unless otherwise agreed by Purchaser in writing or employed
pursuant to a service, supply or maintenance agreement assumed by
Purchaser at Closing, shall be terminated by Seller at or prior to
Closing, and Seller shall indemnify and hold Purchaser harmless of and
from any and all claims, demands and actions by such employees;
9.2.5 Seller has all requisite corporate or company power and
authority to own its property, operate its business, enter into this
Agreement and consummate the transactions herein contemplated, and by
proper corporate action has duly authorized the execution and delivery
of this Agreement and the consummation of the transaction herein
contemplated and no permission, approval or consent by third parties or
Governmental Authorities is required in order for Seller to consummate
this Agreement;
9.2.6 To the best of Seller's knowledge, the Land is, and on
the Closing Date will be, zoned by Applicable Laws which shall permit
the existence of the current Improvements on the Land, the current
operation of the existing Improvements thereon and the use by the
tenants thereof, and except for such zoning, there are no governmental
or private regulations, orders, agreements or instruments restricting
the current use and operation of the Land as currently used except as
may be shown in the Title Commitment to be provided in accordance with
Section 4.1 hereof;
9.2.7 This Agreement is a valid obligation of Seller and is
binding upon and enforceable against Seller in accordance with its
terms;
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9.2.8 The consummation by Seller of the transactions
contemplated hereby do not, and at the Closing Date will not, constitute
a violation of any order, rule or regulation applicable to Seller or any
portion of the Property of any court or of any federal or state or
municipal regulatory body or administrative agency or other governmental
body having jurisdiction over Seller or any portion of the Property;
9.2.9 Seller is the owner of good and marketable fee simple
title to the Property, free and clear of any liens, deeds of trust,
pledges, security interests, leases, charges, encumbrances or
restrictions of any kind, except as will be shown in the Title
Commitment to be provided in accordance with Article IV hereof;
9.2.10 Seller is not in default under any indenture, mortgage,
deed of trust or loan agreement or under any other restrictions,
covenants or agreements to which it is a party or by which it is bound
and which in any way affects the Property. Seller is not a party to, nor
bound by, any agreement or any order or decree of any court or
governmental agency which might to a material degree adversely affect
any portion of the Property;
9.2.11 To the best of Seller's knowledge, at Closing, the
existing water, sewer, gas and electricity lines, storm sewer and other
utility systems on the Land as of the date hereof will not be impaired
or reduced. To the best of Seller's knowledge, all existing utilities
enter the Land through adjoining public streets or private land in
accordance with valid public or private easements that will inure to the
benefit of Purchaser and its successors and assigns. To the best of
Seller's knowledge, all of said utilities have been fully installed and
are operating, with all installation and connection charges paid in
full, and the right to the return of any deposit made in connection
therewith shall inure to the benefit of Seller;
9.2.12 Seller has paid all taxes, charges and assessments
(special or otherwise) required to be paid to any taxing authority which
could in any way now or hereafter constitute a lien against the Property
or any part thereof (except for taxes and assessments for the current
year). Seller has not received any notice from any taxing authority or
governmental agency asserting that Seller has failed to file or has
improperly filed any tax return or report required to be filed by it, or
that it has not paid all taxes, charges or assessments now owing by it
(except current taxes and assessments not yet delinquent) which could in
any way now or hereafter constitute a lien against the Property or any
part thereof; and no action or proceeding is now pending by a
governmental agency or authority for the assessment or collection of
such taxes, charges or assessments against Seller. To the best of
Seller's knowledge, the Property is not the subject of any taxes,
assessments, fees of any type or kind relating to the imposition of any
roadway, utility or other district created or assessed by the State of
Florida, or any governmental agency or subdivision thereof, including
the municipality in which the Property is located, and Seller has not
received any notice of any such taxes, assessments or fees;
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9.2.13 With regard to Seller's schedules (including cash flow
reports and financial data, operating expenses, property facts, mortgage
information and lease characteristics) and other financial reports,
financial statement and other information relating to the Property which
have been or are to be furnished to Purchaser, to the best of Seller's
knowledge, the same are true and correct and Seller has not
intentionally misrepresented the information shown thereby, and to the
best of Seller's knowledge there are no materially misleading or
inaccurate items or information shown thereby or contained therein;
9.2.14 Seller has not received any notices from any insurance
company of any defects or inadequacies in the Property or any part
thereof which would adversely affect the insurability of the Property or
the premiums for the insurance thereof;
9.2.15 The copies of the Tenant Leases to be delivered to
Purchaser in accordance with the terms of this Agreement (and to be
assigned at Closing) are and shall be true and correct and constitute
all of the leases affecting the Property, and no tenants are or shall be
entitled to any rebates, allowances, rent concessions or free rent for
any period subsequent to the Closing without the prior written consent
of Purchaser; all obligations and items of an inducement nature to be
performed by the landlord under the Tenant Leases have been fully
performed and no commitments have been made to any tenant for repairs or
improvements other than a general landlord requirement for normal
maintenance in the future; no rents due under any of said leases have
been assigned, hypothecated or encumbered; no Tenant Leases shall be
further modified or amended without the prior written consent of
Purchaser; no tenant has any purchase option, right of first refusal, or
other interest (other than its leasehold tenancy for a specified term as
stated in its lease); no tenant has given Seller notice of its intention
to vacate its leased premises prior to the end of the primary term (or
any current renewal or extended term); all of the Tenant Leases are in
full force and effect without current default by either Seller or the
respective tenants; there are no pending claims asserted by any tenants
for offsets against rent or any other claims (whether monetary or
otherwise) made against Seller as landlord under the Tenant Leases; and
there are no fees or commissions payable to any person or entity in
regard to the Tenant Leases or the Property except as specifically set
forth herein;
9.2.16 To the best of Seller's knowledge, all Permits necessary
for the operation and occupancy of the Property, including, but not
limited to, all building and use permits and a certificate of occupancy,
have been obtained on all operations to date and shall be maintained
through Closing;
9.2.17 Seller has not received any notice of any violation of
any, and to the best of Seller's knowledge it has complied with each,
ordinance, regulation, law or statute pertaining to the Property or any
portion thereof, and the location and construction, occupancy, operation
and use of the Improvements do not and will not violate any applicable
law, statute, ordinance, rule, regulation, policy, order or
determination of any federal, state, local or other governmental
authority ("GOVERNMENTAL AUTHORITY" or "GOVERNMENTAL AUTHORITIES") or
any board of fire underwriters (or other body exercising similar
functions), or any
- 18 -
restrictive covenant or deed restriction affecting any portion of the
Property, including without limitation, any applicable zoning ordinances
and building codes, ADA, flood disaster laws, and health and
environmental laws, rules and regulations (hereinafter collectively
called the "APPLICABLE LAWS");
9.2.18 To the best of Seller's knowledge, neither the Property
or Seller are the subject of any pending or threatened investigation or
inquiry by any Governmental Authority, or are subject to any remedial
obligations under any Applicable Laws pertaining to health or the
environment ("APPLICABLE ENVIRONMENTAL LAWS"), including, without
limitation, the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended ("CERCLA"), the Resource Conservation
and Recovery Act of 1987, as amended ("RCRA"), and this representation
and warranty would continue to be true and correct following disclosure
to any applicable Governmental Authority of all relevant facts,
conditions, and circumstances pertaining to the Property and/or Seller;
9.2.19 To the best of Seller's knowledge, the use which Seller
makes of the Property does not result in the disposal or release of any
hazardous substance, solid waste or other substance known or suspected
to pose a threat to health or the environment ("HAZARD") on, in or to
the Property. The terms "hazardous substance" and "release" shall each
have the meanings specified in CERCLA, and the terms "solid waste" and
"disposal" (or "disposed") shall each have the meanings specified in
RCRA;
9.2.20 Intentionally Omitted;
9.2.21 Neither Seller nor, to the best of Seller's knowledge
and belief, any tenant of any portion of the Property, has received any
notice from any Governmental Authority with respect to any violation of
any Applicable Laws;
9.2.22 To the best of Seller's knowledge, the Submission
Materials delivered to Purchaser hereunder are all of the agreements
affecting the Property and none of the Submission Materials or other
documents, reports or materials delivered by Seller to Purchaser
hereunder are false, misleading, inaccurate or incomplete in any
material manner; and
9.2.23 Seller is not in default under any other agreements to
which it is a party or by which it is bound and which in any way affects
the Property.
9.3 Seller acknowledges and agrees that Purchaser has and will rely
upon the covenants, agreements, representations, and warranties set forth in
this Agreement in purchasing the Property and that said covenants, agreements,
representations, and warranties are essential conditions but for which Purchaser
would not acquire the Property. The covenants, agreements, representations, and
warranties herein contained shall be binding upon Seller, its successors,
assigns, and legal representatives, shall inure to the benefit of Purchaser, its
successors, assigns and legal
- 19 -
representatives, and shall survive the Closing of the sale and purchase of the
Property for a period of one (1) year thereafter.
9.4 Purchaser hereby represents and warrants to Seller as follows:
9.4.1 Purchaser is a limited liability company duly authorized
and validly existing under the laws of the State of Delaware;
9.4.2 Purchaser has or will have the power and authority to
enter into this Agreement and deliver the Purchase Price and other items
called for upon Closing, and the party signing this Agreement on behalf
of Purchaser has the power and authority to sign this Agreement on
behalf of Purchaser; and
9.4.3 Neither the execution nor delivery of this Agreement by
Purchaser will result in a violation or breach of any term or provision
or constitute a default under any agreement to which Purchaser is a
party.
9.5 In the event that either party should discover prior to the
Closing Date that any representation or warranty made by it is untrue or
inaccurate, it shall promptly inform the other party in writing of its
discovery. Each party's obligation to consummate this transaction is expressly
conditioned (which condition may be waived by the party to whose benefit the
representation or warranty is made) upon the lack of any material variance with
respect to the truth and accuracy of all warranties and representations as of
the Closing Date which are made by the other party. If any of Seller's
representations and warranties are untrue or inaccurate, and Purchaser elects to
terminate this Agreement because of same, Purchaser shall be entitled to a
refund of the Earnest Money, plus all accrued interest thereon.
ARTICLE X
FURTHER INSTRUMENTS
Seller will whenever and as often as it shall be reasonably requested so
to do by Purchaser, and Purchaser will whenever and as often as it shall be
reasonably requested so to do by Seller, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, any and all conveyance,
assignments and all other instruments and documents as may be reasonably
necessary in order to complete the transaction herein provided and to carry out
the intent and purposes of this Agreement.
ARTICLE XI
COMMISSIONS
11.1 Seller and Purchaser hereby agree and acknowledge that Smith
Equities Corporation, representing Seller (the "AGENT") is the sole agent,
finder, broker or advisor in regard to the
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transaction contemplated by this Agreement and if, as and when the transaction
contemplated hereby is fully closed, consummated and recorded, Seller shall pay
a commission to Agent pursuant to a separate written agreement between Seller
and Agent. Each party hereto represents to the other that, except as set forth
above with respect to the Agent, it has not authorized any broker or finder to
act on its behalf in connection with the sale and purchase hereunder and that it
has not dealt with any broker or finder purporting to act for any other party.
11.2 Each party hereto agrees to indemnify and hold harmless the
other party from and against any and all liabilities, costs, damages and
expenses of any kind or character arising from any claims for brokerage or
finder's fees, commissions or other similar fees in connection with the
transactions covered by this Agreement insofar as such claims shall be based
upon alleged arrangements or agreements made by such party or on its behalf.
ARTICLE XII
TERMINATION, DEFAULT AND REMEDIES
12.1 If this Agreement is terminated because of a failure of one or
more of the covenants, conditions or agreements contained in this Agreement, or
because of any specific right of Purchaser to terminate this Agreement,
including without limitation those termination rights contained in Article IV,
Article V, Article VII, Article VIII, Article IX or Article XIII hereof
(hereinafter referred to as a "PERMITTED Termination"), the Earnest Money, and
all accrued interest thereon, shall be immediately returned to Purchaser,
whereupon neither party shall have any further rights or obligations hereunder.
12.2 In the event that any of the Seller's representations or
warranties contained herein are untrue or if Seller shall have failed to have
performed any of the covenants and/or agreements contained herein which are to
be performed by Seller, Purchaser may, at its option and as its sole remedy
either (a) terminate this Agreement by giving written notice of termination to
Seller and Escrow Agent and receive a full and immediate refund of any and all
Earnest Money and accrued interest thereon; or (b) seek to enforce specific
performance of this Agreement. Nothing herein shall be deemed to limit
Purchaser's remedies in the event of a breach of any representation or warranty
by Seller following the Closing.
12.3 If Purchaser fails to close the transaction contemplated hereby
for any reason other than a Permitted Termination, Seller shall be entitled to
receive the Earnest Money as liquidated damages as Seller's sole and exclusive
remedy for such failure, Seller hereby specifically waiving any and all rights
which it may have to damages or specific performance as a result of Purchaser's
default under this Agreement. SELLER AND PURCHASER AGREE THAT IT WOULD BE
IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SELLER WOULD
SUFFER IF THE PURCHASE AND SALE CONTEMPLATED BY THIS AGREEMENT IS NOT
CONSUMMATED BY REASON OF PURCHASER'S FAILURE TO PERFORM ITS OBLIGATIONS UNDER
THIS AGREEMENT. SELLER AND PURCHASER FURTHER AGREE THAT THE EARNEST MONEY
CONSTITUTES A FAIR AND
- 21 -
REASONABLE ESTIMATE OF THE TOTAL DETRIMENT WHICH SELLER WOULD SUFFER IN THE
EVENT OF SUCH A DEFAULT BY PURCHASER.
ARTICLE XIII
RISK OF LOSS
Risk of all loss, destruction, or damage to the Property, or any portion
thereof, from any and all causes whatsoever until consummation of the Closing
shall be borne by Seller. In the event that any portion of the Improvements,
Personal Property, or the Land are damaged by fire or other casualty, or all or
any portion of the Land or Improvements is condemned or taken by eminent domain
by any competent authority for any public or quasi-public use or purpose, or
preliminary steps in such condemnation for eminent domain proceedings shall have
been taken before the Closing Date, Seller shall give immediate notice thereof
to Purchaser. In the event that any such casualty or condemnation (or threat
thereof) does or could result in damages costing more than an amount equal to
five percent (5%) of the Purchase Price to repair or replace, or have an adverse
effect on the access to or use of the Property (a "Material Casualty or
Condemnation"), Purchaser, at its option, may terminate this Agreement by
written notice to Seller prior to or at the Closing, in which event the Earnest
Money shall be returned to Purchaser and, thereafter, neither Seller nor
Purchaser shall have any further duties or obligations hereunder. In the event
that (i) such casualty or condemnation (or threat thereof) is not a Material
Casualty or Condemnation, or (ii) such casualty or condemnation (or threat
thereof) is a Material Casualty or Condemnation, but Purchaser elects not to
terminate this Agreement as aforesaid, then the Closing shall take place as
provided herein without abatement of the Purchase Price, and Seller shall assign
to Purchaser at Closing all of the rights and interests of Seller in and to any
insurance proceeds or condemnation awards which may be paid or payable to Seller
on account of any such occurrence; provided, however, that Seller shall pay to
Purchaser in cash at Closing the amount of any deductible under any existing
insurance policies applicable to such occurrence.
ARTICLE XIV
NOTICES
14.1 Any notice, request, demand, instruction or other communication
to be given to either party hereunder, except those required to be delivered at
Closing, shall be in writing, and shall be deemed to be delivered, whether
actually received or not, upon (i) personal delivery, (ii) three (3) days after
deposit of both the original and the copy, as provided below, in a regularly
maintained official depository of the United States Mail located in the
continental United States, and sent by registered or certified mail, postage
prepaid, return receipt requested, or (iii) transmission via facsimile
transmission, addressed as follows:
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IF TO PURCHASER: With Copy To:
ACC OP Acquisitions LLC Glast, Phillips & Murray, P.C.
805 Las Cimas Parkway, Suite 400 2200 One Galleria Tower
Austin, Texas 78746 13355 Noel Road
Attention: Brian Winger and William Talbot Dallas, Texas 75240
Fax: 512-732-2450 Attention: R. Craig Warner
Phone: 512-732-1000 Fax: 972-419-8329
Phone: 972-419-8314
IF TO SELLER: With Copy To:
The Greens at College Club, L.L.C. M. Julian Proctor, Jr.
215 East Fifth Avenue Ausley & McMullen
Tallahassee, FL 32303 227 S. Calhoun Street
Attention: Thomas C. Proctor, Sr. Tallahassee, Florida 32301
Fax: 850-681-2665 Fax: 850-222-7139
Phone: 850-878-0852 Phone: 850-425-5300
Any notice hereunder sent by counsel to either Purchaser or Seller
hereunder shall be deemed transmitted by the Seller or Purchaser, respectively.
14.2 The addresses and addressees for the purpose of this article may
be changed by either party by giving notice of such change to the other party in
the manner provided herein for giving notice. For the purpose of changing such
addresses or addressees only, unless and until such written notice is actually
received, the last address and addressee stated herein shall be deemed to
continue in effect for all purposes.
ARTICLE XV
ENTIRE AGREEMENT
This Agreement and the exhibits attached hereto contain the entire
agreement between the parties, and no promise, representation, warranty, or
covenant not included in this Agreement or any such referenced agreements has
been or is relied upon by either party. Each party has relied upon its own
examination of the full Agreement and the provisions thereof, and the counsel of
its own advisors, and the warranties, representations, covenants, and agreements
expressly contained in this Agreement. No modification or amendment of this
Agreement shall be of any force or effect unless made in writing and executed by
both Purchaser and Seller. In the event that any litigation arises hereunder, it
is specifically stipulated that this Agreement shall be interpreted and
construed according to the laws of the State of Florida. Further, the prevailing
party in any litigation between the parties shall be entitled to recover, as a
part of its judgment, reasonable attorneys' fees and costs of suit. The parties
agree that the venue for any action or lawsuit arising under this Agreement
shall be the Circuit Court of the Second Judicial Circuit in and for Leon
County, Florida.
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ARTICLE XVI
MISCELLANEOUS
16.1 The article headings contained in this Agreement are for
purposes of identification only and shall not be considered in construing this
Agreement.
16.2 This Agreement, and the rights and obligations of Purchaser
hereunder, may be assigned by Purchaser to any related party or affiliate of
Purchaser at any time prior to Closing. In the event of any such assignment, the
original party designated as the Purchaser shall be released from all duties and
obligations hereunder and Seller agrees to close the transaction contemplated
hereunder with the assignee of Purchaser. This Agreement may not be assigned by
Seller.
16.3 All references in this Agreement to "the date hereof" or similar
references shall be deemed to refer to the last date, in point of time, on which
all parties hereto have executed and received a fully executed copy of this
Agreement. This Agreement constitutes an offer by Purchaser to purchase the
Property on the terms and conditions and for the Purchase Price specified
herein. Unless sooner terminated or withdrawn by notice in writing to Seller,
this offer shall automatically lapse and terminate at 5:00 p.m. Central Time on
September 23, 2004, unless, prior to such time, Seller has returned to Escrow
Agent two (2) fully executed copies of this Agreement.
16.4 Words of any gender used in this Agreement shall be held and
construed to include any other gender, and words of a singular number shall be
held to include the plural and vice versa, unless the context requires
otherwise.
16.5 This Agreement may be executed in any number of counterparts,
each of which shall be an original, but such counterparts together shall
constitute one and the same instrument.
16.6 All exhibits described in this Agreement are by this reference
fully incorporated herein and made a part hereof by reference for all purposes.
16.7 This Agreement and the terms and provisions hereof shall inure
to the benefit of and be binding upon the parties hereto and their respective
heirs, executors, personal representatives, successors and assigns whenever the
context so requires or admits.
16.8 Title Company hereby agrees to (a) timely file a return with the
Internal Revenue Service on Form 1099-B or such other form as instructed by the
Internal Revenue Service showing the gross proceeds of this transaction, the
recipient thereof and such other information as the Internal Revenue Service may
by form or regulation require from time to time, and (b) furnish both Seller and
Purchaser with a written statement showing the name and address of the Title
Company and the information shown on such return with respect to the
transaction. This return shall be filed to ensure that the parties to this
transaction will be in compliance with Section 6045(e) of the Internal Revenue
Code, as amended from time to time and as further set forth in any regulations
promulgated thereunder.
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16.9 Neither Seller nor Purchaser shall, without the written consent
of the other, publicize this Agreement or the sale contemplated by this
Agreement. All news and press releases, advertisements, and other public
dissemination concerning this Agreement or the sale contemplated by this
Agreement shall be jointly coordinated by Seller and Purchaser and shall be
subject to both Seller's and Purchaser's written approval. Seller shall not
disclose to any third party (other than Seller's lender, employees, agents,
attorneys, investors and brokers, all of which shall be advised of the
requirements of this Section 16.9) the terms of this Agreement, including
without limitation the Purchase Price, and such agreement on the part of Seller
shall survive the Closing Date and shall not merge into the closing of this
transaction. Notwithstanding the foregoing, this Article shall not be deemed to
prevent the disclosure following the Closing of information which is readily
available to the public at large.
16.10 Notwithstanding anything set forth or implied herein to the
contrary, Seller agrees to look solely to Purchaser for the duties, obligations,
responsibilities and liabilities of Purchaser hereunder and under all of the
documents executed pursuant hereto and neither the constituent partners of
Purchaser nor any partners, members, managers, shareholders, officers,
directors, beneficiaries, trustees or employees of Purchaser or the constituent
partners of Purchaser shall be liable or responsible for any duty, obligation,
responsibility or liability of Purchaser hereunder.
16.11 Notwithstanding anything set forth or implied herein to the
contrary, Purchaser agrees to look solely to the Seller for the duties,
obligations, responsibilities and liabilities of Seller hereunder and under all
the documents executed pursuant hereto and neither the constituent partners of
Seller nor any partners, members, managers, shareholders, officers, directors,
beneficiaries, trustees or employees of Seller or the constituent partners of
Seller shall be liable or responsible for any duty, obligation, responsibility
or liability of Seller hereunder.
EXECUTED by Purchaser the 21st day of September, 2004.
PURCHASER:
ACC OP ACQUISITIONS LLC
By: /s/ William Bayless
-----------------------------
Name: William Bayless
-----------------------------
Title: President
-----------------------------
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EXECUTED by Seller the 22nd day of September, 2004.
SELLER:
THE GREENS AT COLLEGE CLUB, L.L.C., a
Florida limited liability company
By: /s/ Thomas C. Proctor, Sr.
-------------------------------
Thomas C. Proctor, Sr.
Managing Member
Received and acknowledged by the Escrow Agent as of the 27th day of May,
2004, the sum of $4,850.00. The Escrow Agent agrees to hold and disburse the
Earnest Money pursuant to the terms of the foregoing Agreement of Sale and
Purchase. The Escrow Agent and the Title Company hereby agrees to submit itself
to the jurisdiction of the Circuit Court of the Second Judicial Circuit, in and
for Leon County, Florida, which is the jurisdiction where the Land and the
Property is located.
HERITAGE TITLE COMPANY OF AUSTIN,
INC.
By: /s/ Terri Talley Nassour
-----------------------------
Name: Terri Talley Nassour
-----------------------------
Title: Commercial Escrow Officer
-----------------------------
FIRST AMERICAN TITLE INSURANCE
COMPANY
By: /s/ Greg Blomelby
-----------------------------
Name: Greg Blomelby
-----------------------------
Title: VP
-----------------------------
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